🚀 go-pugleaf

On Fri, 21 Oct 2005, Michael Carroll wrote:

> Stevan Harnad wrote:
> > SH: <Self-archive and leave well enough alone. CC licenses are for other
> > purposes, not those of OA self-archiving of either preprints or
> > postprints. (E.g., they are fine for OA publishing.)>>
> 
> I disagree.  Creative Commons licenses clarify and/or enlarge the
> user's rights with respect to an article, whether that article is
> published or archived online.  [Disclosure, I'm on the Creative Commons
> Board.]  

I agree with Michael that it is always much better if freely accessible
online work has a CC license. But I am sure Michael will not disagree
that, even more important is that the work should be freely accessible
online. And most of the OA movement's target content -- 85% of the annual
2.5 million articles published in the world's 24,000 peer-reviewed journals
-- is not yet freely accessible online, because its authors have not
self-archived them. And their reason is either (1) that they are worried
about conflict with their publisher's copyright agreement or (2) that they
find just self-archiving it already too much to do (or both reasons).

Hence what is needed is not more things for these authors to worry about and/or
do, to deter them still further.

> I agree with Stevan that self-archiving under terms that are
> currently feasible (such as under a green publisher's copyright
> agreement) is a desirable first step and should be done immediately.
> But I do not agree that the long-term needs of open access have been
> fully met by a self-archived article made available under such terms.

I am concerned about getting the 85% to take that first step. Then we can
work on optimizing it. (Moreover, long-term issues are more pressing for
the publisher's official version: the self-archived draft is mainly an
immediate-access supplement for those who cannot afford the publisher's version.
It is redundant; insofar as long-term preservation is concerned.)
>
> When a green publisher permits an author to post some version of the
> article online, the publisher is silent about what rights the users have
> with respect to the article.  Copyright lawyers interpret the green
> publisher's permission to the author as also the grant of an implied
> license to the public.  This implied license is important because nearly
> every activity is what I call a "copyright event" because it implicates
> the rights of the copyright owner.  [For more on this concept, see
> http://law.bepress.com/villanovalwps/papers/art34/]

If the publisher says "go ahead and make it freely accessible on the web"
then being able to access it on the web comes with the territory. Anything
else sounds like a Shylockian koan; such as "I sell you this cigarette to
smoke, but not inhale..."

> But the scope of the implied license that a green publisher grants to
> the public remains fuzzy.  Does the reader have a right to make a RAM
> copy of the article in order to read it?  Probably.  

Doesn't matter: it's accessible online 24/7: Certainly nothing to detain
the 85% one microsecond longer for.

> Does the reader
> have a right to print the article or save a copy to her hard drive for
> personal use?  Probably. 

Same as above.

> May the reader print out 50 copies and
> circulate them at a conference on the theory that each attendee could
> have printed out an individual copy?  Hard to say.  

Important: This right is not even at issue. OA is about free online access
for all. It is not about paper access.

> May an institutional
> repository repost a copy found on an author's personal web site?
> Unclear.

Let them just link to the URL. (Again, comes with the online territory.
These are relics of papyrocentric thinking.)

> A Creative Commons license answers all of the above questions expressly
> and in the affirmative.  The cause of open access is well-served when an
> author retains sufficient rights to grant a Creative Commons license and
> does so.  But for the time being, it is better than an author with the
> limited rights that a green publisher has granted exercise those rights
> by self-archiving today.  We can leave for another round what steps
> authors, their employing institutions or their funders might take to
> ensure that authors have  the right to grant a Creative Commons license
> to the public.

As I see it; the problem now is the missing 85%, not the missing right
to print 50 copies or to re-post those non-existent documents. Nor should
the already vastly overdue 85% and their lost cumulative impact be delayed
for one microsecond longer to hold out for these extras, which are not only
unneeded but risk deterring authors (and publishers).

> 2. Pre-prints/Post-prints.
> 
> This thread got started by the suggestion that a Creative Commons
> license could be attached to a pre-print even though the author has
> transferred all copyright interest in the article to a publisher.  The
> posts from Charles Oppenheim and Steve Hitchcock below correctly state
> the issues.  Although technically distinct, the copyrights in the
> pre-print and the post-print overlap.
> 
> The important point to understand is that copyright grants the owner
> the right to control exact duplicates and versions that are
> "substantially similar" to the copyrighted work.  (This is under U.S.
> law, but most other jurisdictions similarly define the scope of
> copyright).  A pre-print will normally be substantially similar to the
> post-print.  Therefore, when an author transfers the *exclusive* rights
> in the work to a publisher, the author precludes herself from making
> copies or distributing copies of any substantially similar versions of
> the work as well.
> 
> [For example, the singer John Fogerty of Credence Clearwater Revival
> fame was sued by a record company, which had acquired the copyright in
> his song "Run Through the Jungle".  The company claimed that Fogerty's
> later song "The Old Man Down the Road" was substantially similar to the
> former song and that Fogerty had therefore infringed the copyright that
> Fogerty had signed away.]
> 
> Consequently, whether an author may grant the public a Creative Commons
> license depends upon the rights the author has at the time of the grant.
> As Charles Oppenheim notes, if the author grants a Creative Commons
> license in the article prior to transferring copyright to the publisher,
> the publisher takes the copyright subject to that license.  But before
> doing this, authors should read the terms of the publication agreement
> they are signing.  Some of these agreements call upon the author to
> declare that no prior licenses have been granted.

Exactly. And that is an excellent reason not to *have* any prior agreements:
just self-archive the preprint, before submission to the journal, nakedly,
if you wish. But the preprint is not the target of OA: The postprint is.
Nothing should put the publisher's acceptance at needless risk. Advice
to do that simply deters authors fro, self-archiving at all; preprint or
postprint.

> Even when the agreement has such a provision, however, publishers will
> sometimes agree to take the copyright subject to a previously-granted
> license.  For example, every researcher who accepts money from NIH or
> any other U.S. government agency grants to the U.S. government a
> non-exclusive license to publish and reproduce the work. This license is
> granted prior to any agreement that the author enters into with a
> publisher and therefore published papers funded by NIH research are
> subject to the USG's license.  Publishers are fully aware of the
> government's license and therefore the terms of any copyright agreement
> signed by a USG-funded researcher that purports to give all rights to
> the publisher has to be interpreted accordingly.

"Sometimes" is not a sufficient reassurance for the non-self-archiving 85%...

> With that background, let's return to the original question.  Once an
> author signs a publication agreement, can that author grant a Creative
> Commons license in the pre-print?  It depends upon the terms of the
> agreement, as modified by any addendums.  Currently, under most
> publication agreements, the author does not retain sufficient rights to
> grant a Creative Commons license in either the post-print or the
> pre-print after transferring copyright to the publisher.

QED. And now we've covered both the preprint and the postprint.

> Of course, the author retains the right that all members of the public
> have to make a fair use of the article or exercise a fair dealing
> privilege, but it is unclear whether this privilege would permit posting
> of the pre-print without authorization from a publisher that owns the
> copyright in the post-print.

For the 93% of journals that are either preprint or postprint this is all
moot or irrelevant. For the 7% that are not green, please see the 
self-archiving FAQ. But 85% of 93% would still be a nice first step (if
no one complicates it by advising doing more than necessary, or even putting
the 93% green lights at risk!)

Stevan Harnad

> 
> 
> On Mon, 17 Oct 2005, Charles Oppenheim wrote:
> 
> > If I offer something under a CC licence and then subsequently agree
> to a
> > more restrictive publisher's licence, I have set up an
> incompatibility...
> > The earlier licence over-rides the second. In other words, any
> subsequent
> > more restrictive licence with a publisher would have no validity and
> > would be unenforceable by the publisher. Mind you, the publisher
> would
> > be perfectly entitled to be annoyed with the author, and may refuse
> to
> > publish the article and/or refuse to ever have dealings with that
> author
> > again in the future.
> 
> On Mon, 17 Oct 2005, Steve Hitchcock wrote:
> 
> > Roger Clarke proposes that a Creative Commons (CC) licence or similar
> for
> > self-archived preprints and postprints; Stevan Harnad suggests that
> such a
> > licence would be a good idea for self-archived preprints only.
> Neither
> > makes clear exactly why this would be a good thing. Stevan says it is
> "to
> > *protect* it (the preprint) until the final postprint is ready". But
> 
> > protection isn't the purpose of CC licenses. Protection is vested
> with the
> > author of a new work in implicit copyright, and self-archiving does
> not
> > remove that protection. The issue is that authors of self-archived
> papers
> > typically want to allow users more rights, and to state something to
> this
> > effect.
> >
> > This recent article by an admitted non-expert on CC may be helpful to
> those
> > in seeking similar enlightenment:
> > "Creative Commons is actually more about protecting the audience
> you're
> > hoping will use your work than it is about protecting you. You still
> hold
> > on to whatever rights you reserve, but you're abandoning some of
> those
> > rights on purpose."
> > Does Creative Commons free your content?
> > http://reviews.cnet.com/4520-3000_7-6357305-1.html?tag=nl.e501
> >
> > To be fair, Roger Clarke makes this point too, but while his main
> focus
> > seems to be on the position regarding rights transfer to a publisher,
> I'm
> > not sure whether in this situation a CC licence is necessary or
> desirable,
> > since it may be a complicating factor.
> >
> > In Roger's First Monday article the 'process envisaged' in the role
> of the
> > copyright licence through pre-publication, review and formal
> publication
> > reaches this point re. the publisher:
> >
> > "Irrespective of which approach the publisher adopts, the copyright
> > arrangements in respect of the final version of the article do not
> affect
> > the (possibly many) existing licences relating to the (Pr)ePrint. Nor
> do
> > they affect the ongoing availability of the (Pr)ePrint and of
> licences in
> > relation to it. They may, however, preclude the provision of later
> versions
> > of the work, and in particular of the version that is to appear in
> the
> > refereed venue."
> >
> > Someone with more legal expertise than me could comment on whether it
> is
> > correct to say that the copyright arrangement with a publisher *does
> not*
> > affect the existing (e.g. CC) licences relating to the (Pr)ePrint.
> Since it
> > is likely to be more restrictive then it seems to undermine the point
> of
> > any prior licence.
> >
> > There are good arguments both for CC licences and, to avoid
> disrupting the
> > path to publication, for sticking with typical publisher licences
> (amended
> > to allow self-archiving) for postprints. Stevan's position, partly
> amended
> > here, has always been that CC licences are optional but unnecessary
> for
> > self-archived works that are intended for publication. That would
> appear to
> > remain a reasonable recommendation until there is greater clarity
> about
> > what authors of self-archived papers want to achieve with their
> inherent
> > rights in this new age of wide online dissemination, and
> clarification of
> > the legal position of rights statements regarding successive versions
> and
> > derivative works.
> >
> > Steve Hitchcock
> > IAM Group, School of Electronics and Computer Science
> > University of Southampton, SO17 1BJ, UK
> > Email: sh94r@ecs.soton.ac.uk
> > Tel: +44 (0)23 8059 3256    Fax: +44 (0)23 8059 2865
> >
> >
> > At 20:23 16/10/2005, Stevan Harnad wrote:
> > >As Roger Clarke's email form letter to Repository Managers is being
> > >circulated quite widely, I would accordingly like to make these
> comments
> > >and suggestions publicly:
> > >
> > >(1) For the unrefereed, unpublished preprint, it is a good idea to
> do
> > >as Roger recommends: to adopt some form of provisional Creative
> Commons
> > >License rather than just putting it "nakedly" on the Web when
> self-archiving
> > >it.
> > >
> > >     http://creativecommons.org/licenses/
> > >
> > >(2) This does not apply, however,, to the final, refereed,
> accepted,
> > >published draft (the postprint), which is published in a journal,
> which
> > >will have its own copyright transfer agreement, signed with the
> publisher,
> > >and which is the primary target of the Open Access movement.
> > >
> > >     "Apercus of WOS Meeting: Making Ends Meet in the Creative
> Commons"
> > >     http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/3798.html
> > >
> > >Now some comments:
> > >
> > >On Sun, 16 Oct 2005, Antonella De Robbio wrote:
> > >
> > > > Dear Stevan
> > > >
> > > > I received this mail below from Roger Clarke, a Visiting
> Professor in Info
> > > > Science & Eng  Australian National University, Visiting Professor
> in the
> > > > eCommerce Program, University of Hong Kong and also Visiting
> Professor in
> > > > the Cyberspace Law & Policy Centre Uni of NSW.
> > > > I haven't yet reply to him because I have been away and precisely
> I have
> > > > been as Italian delegate at UNESCO 33.rd general conference where
> we have
> > > > presented an Open Access resolution as Italian UNESCO
> Commission.
> > > > Well, I am leaving for Geneva at OAI4 next days where I will
> organise the
> > > > first E-LIS conference too, at the end of OAI4 event.
> > > > I think we must reply to this professor, and so I thought you are
> the best
> > > > OAIperson who can do it.
> > > > I will answer to him too, later, when I will come back to my
> conferences
> > > > in Geneva.
> > > > Please look at this letter, he refers to some his articles on
> FirstMOnday
> > > > and others..
> > > >
> > > > If you reply please put me in cc, so we could be coordinate in
> our
> > > > actions.
> > >
> > >My replies appear below:
> > >
> > > > Thank you!
> > > > Antonella De Robbio
> > > > E-LIS manager
> > > >
> > > > ---------- Forwarded message ----------
> > > > From: Roger Clarke <Roger.Clarke AT xamax.com.au>
> > > > To: eprints@dois.it
> > > > Subject: PrePrints and PostPrints Need a Copyright
> > > >     Licence
> > > >
> > > > Dear ePrint Repository Manager
> > > >
> > > > The OA/ePrints/Repository movement is very important, and
> developing
> > > very well.
> > > >
> > > > But there's a gap in the strategy.
> > > >
> > > > When an ePrint is downloaded, it's likely that an implicit
> copyright
> > > > licence comes into existence.  There's a lack of clarity about
> the
> > > > terms that courts might infer to be in such a licence.  And
> that's
> > > > dangerous.
> > >
> > >It's not *terribly* dangerous, and courts have not much to do with
> it:
> > >Physicists
> > >and computer scientists have been posting "naked" papers online for
> over a
> > >decade
> > >and a half (hundreds of thousands of papers) with no problems.
> > >
> > >But for the unpublished, unrefereed, not-yet-copyright-protected
> > >preprints, it is
> > >a good idea to adopt one of the Copyright Commons Licenses to
> protect it until
> > >the final postprint is ready, accepted by the journal, and
> thenceforward
> > >covered by the journal's copyright agreement.
> > >
> > >     http://creativecommons.org/licenses/
> > >
> > >It is somewhat misleading, though, to say that "eprints,"
> generically, need a
> > >separate license: The preprints do, the postprints do not.
> > >
> > > > In a paper published in First Monday in August 2005, I analysed
> the
> > > > requirements for a copyright licence for Pre-Prints.  I took care
> to
> > > > balance the interests of authors, journal-publishers, and the
> reading
> > > > public.  Details of the paper are below.
> > >
> > >I have read the paper, and most of it is not pertinent to published
> 
> > >postprints.
> > >
> > > > In a further short paper, I've now extended that analysis to
> address
> > > > Post-Prints as well.  Details of that paper are also below.
> > > >
> > > > I'd like to submit a recommendation to the 'peak body' of ePrint
> > > > Repository Managers;  but I haven't been able to find such an
> > > > association.
> > > >
> > > > So I'm approaching each ePrint Repository Manager directly, with
> the
> > > > following suggestions:
> > > > -   recommend to authors that they make this licence-type
> available
> > > >      for all PrePrints and PostPrints;
> > >
> > >Recommendations for naked preprints are welcome, but the postprints
> are
> > >already
> > >covered by publisher copyright.
> > >
> > > > -   provide guidance and support to authors to enable them to do
> so
> > > >      with a minimum of effort; and
> > >
> > >The guidance should clearly state that this is only pertinent to the
> 
> > >unpublished
> > >preprint.
> > >
> > > > -   consider making the availability of this licence-type a
> default
> > > >      for all papers placed in repositories.
> > >
> > >As the primary target to Open Access Institutional Repositories is
> > >not unrefereed preprints but published postprints, the license
> should
> > >certainly not be incorporated as a default option. It will only
> create
> > >confusion in the case of the postprint, with the agreement already
> signed
> > >with the publisher.
> > >
> > > > THE ANALYSIS RE PRE-PRINTS:
> > > > Clarke R. (2005)  'A Proposal for an Open Content Licence for
> > > > Research Paper (Pr)ePrints'  First Monday 10, 8 (August 2005),
> at
> > > > http://firstmonday.org/issues/issue10_8/clarke/index.html
> > > >
> > > > The Post-Print of the paper is at:
> > > > http://www.anu.edu.au/people/Roger.Clarke/EC/PrePrLic.html
> > > > The Pre-Print of the paper (of 1 May 2005) is at:
> > > > http://www.anu.edu.au/people/Roger.Clarke/EC/PrePrLic050501.html
> 
> > > >
> > > > THE ANALYSIS RE POST-PRINTS:
> > > > Clarke R. (2005)  'A Standard Copyright Licence for PostPrints'
> > > > Xamax Consultancy Pty Ltd, 26 August 2005, at
> > > > http://www.anu.edu.au/people/Roger.Clarke/EC/PostPrLic.html
> > > >
> > > > THE RECOMMENDED LICENCE-TYPE IS:
> > > > Creative Commons - Attribution-NonCommercial-NoDerivs 2.0
> > > > US - http://creativecommons.org/licenses/by-nc-nd/2.5/
> > > > and its equivalents, e.g.
> > > > UK - http://creativecommons.org/licenses/by-nc-nd/2.0/uk/
> > > > FR - http://creativecommons.org/licenses/by-nc-nd/2.0/fr/
> > > > AU - http://creativecommons.org/licenses/by-nc-nd/2.1/au/
> > >
> > >These CC licenses are not applicable to articles that are already
> under
> > >a publisher's copyright agreement. Nor should anyone imply -- at a
> time
> > >when self-archiving of postprints is still only at 15%, even though
> 70%
> > >of journals already endorse postprint self-archiving, and 23% more
> endorse
> > >preprint self-archiving -- that the postprint author need do
> anything
> > >more than self-archive his postprint. Authors don't need more
> burdens,
> > >nor more worries (they are already needlessly worried about whether
> > >they may self-archive at all). Nor should they be advised
> (incorrectly)
> > >that in order to self-archive their postprints, they need to
> negotiate a
> > >different copyright agreement with their publishers. Nor should
> copyright
> > >licenses be applied to their preprints that might contradict the
> copyright
> > >agreement that they will be signing for their postprints.
> > >
> > >In general, copyright is a red herring for Open Access. Yes, make
> sure
> > >your text
> > >is copyright-protected while it's a preprint, but the postprint has
> no more
> > >copyright problem if it is self-archived than it used to have when
> it was not.
> > >That is what the copyright agreement with the publisher is for.
> > >
> > >See the eprint self-archiving FAQ items on copyright:
> > >
> > >     http://www.eprints.org/openaccess/self-faq/
> > >
> > >Stevan Harnad
> > >
> > > > Other national licences are at:
> > > > http://creativecommons.org/worldwide/
> > > >
> > > > --
> > > > Roger Clarke
> http://www.anu.edu.au/people/Roger.Clarke/
> > > >
> > > > Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611
> AUSTRALIA
> > > >                     Tel: +61 2 6288 1472, and 6288 6916
> > > > mailto:Roger.Clarke@xamax.com.au
> http://www.xamax.com.au/
> > > >
> > > > Visiting Professor in Info Science & Eng  Australian National
> University
> > > > Visiting Professor in the eCommerce Program      University of
> Hong Kong
> > > > Visiting Professor in the Cyberspace Law & Policy Centre      Uni
> of NSW
> > > >
> >
> 
> Michael W. Carroll
> Associate Professor of Law
> Villanova University School of Law
> 299 N. Spring Mill Road
> Villanova, PA 19085
> 610-519-7088 (voice)
> 610-519-5672 (fax)
> Research papers at
> http://ssrn.com/author=330326
> http://law.bepress.com/villanovalwps/
> 
> See also www.creativecommons.org
>