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I am a Professor of Law and the Director of the Program on Information Justice and Intellectual Property at the American University, Washington College of Law and am a founding member of the Creative Commons board.

Wednesday, February 20, 2008

Harvard policy - Response to Stevan Harnad

Stevan Harnad is a forceful advocate for open access, and I agree with most of what he advocates. I do have a different view than he does about the connection between open access and copyright and his analysis of the Harvard policy calls this to the fore.

My response is essentially the same as Peter Suber's. I'll add that Stevan characterizes the policy as reservation of rights. I think that's mistaken. Under the policy, the author continues to own all of the exclusive rights under copyright and remains free to transfer all of them to a journal publisher.

What the Harvard policy calls for is a non-exclusive license, which is the same thing as permission. All that the FAS have done is agreed that they have granted Harvard permission to post their work in the repository and that Harvard may grant others similar permission so long as copies are not being sold for a profit.

1 Comments:

Blogger Stevan Harnad said...

I think I understand fully what Michael Carroll, Peter Suber and the current draft of the Harvard Policy are saying. My shorthand descriptor -- "copyright retention" -- captures precisely the feature of the Harvard policy that I urge be modified (ever so slightly).

Many journals currently require authors to transfer exclusive rights to the publisher in exchange for publication.

Let me hasten to add: I think this is deplorable. I don't think authors should have to do it. And I am certain publishers will cease to make this a condition of publication once OA prevails: some have already ceased demanding it.

But some have not. And among the some who have not are some of the journals that authors (including Harvard authors) most want to publish in.

And that's the point: In order to be able to grant Harvard the license that the current Harvard OA Mandate requires, Harvard authors would have to successfully renegotiate the retention of their rights (i.e,, they most negotiate a non-exclusive license) with such journals.

And if the journal is their journal of choice, and the negotiation is unsuccessful, then the Harvard author must either opt out of the Harvard mandate or not publish in their journal of choice.

And that's exactly the needless trade-off that my recommended amendment is intended to avert: by requiring deposit independently of requiring copyright retention (or reservation, or renegotiation). Then the opt-out can be only from the copyright renegotiation requirement and not from the deposit requirement too.

This preserves all the virtues and intended benefits of the current Harvard mandate, and adds the further benefit of 100% deposit, with no opt-out.

(Two thirds of those deposits can then immediately be set as Open Access, because their journals already officially endorse it; and access to the remaining third of the deposits can be set as Closed Access for the time being, with the Institutional Repository's semi-automatic "email eprint request" ["Fair Use"] button providing almost-immediate almost-OA during any access embargo period -- until the growing OA hastens the natural, inevitable and well-deserved death of access embargoes as well as exclusive copyright transfer.)

But insist instead on co-bundling the Harvard mandate with the copyright retention requirement, and its opt-out clause, and it is hardly even a mandate at all, its probability of success, its deposit rate and its adoptability by other universities are all diminished -- and all needlessly, with no corresponding gain, just an easily avoided loss.

2:30 PM  

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