Hi Stevan,
I'm curious as to why you think a "right is a right." I agree that the
wording and apparent meaning are strange, but I also feel that at the same
time, strange though it may be, the meaning is clear. There is nothing
saying that a contract cannot have conditional logic in it. So, in this
case:
1) If your institution does not mandate institutional deposit, you may
deposit.
2) Otherwise, you may not.
Legally, I see no FUD there. And, the intent is clear: "We will make it hard
on you if your institution implements policies that go against our interests
(that is, if your institute mandates deposit, since that is the road to Open
Access)."
Unless I missed something and they are on record as saying that is not their
intent or their legal interpretation?
Sincerely,
James Ryley, PhD, RPA
SumoBrainSolutions Intellectual Property Solutions, Consulting & Data
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> -----Original Message-----
> From: Stevan Harnad [mailto:amscifo...@gmail.com]
> Sent: Tuesday, May 15, 2012 2:21 AM
> To: Global Open Access List (Successor of AmSci)
> Cc: LibLicense-L Discussion Forum
> Subject: [sparc-policy] Re: [GOAL] Re: Elsevier's query re: "positive
things
> from publishers that should be encouraged, celebrated, recognized"
>
> ** Cross-Posted **
>
> On Mon, May 14, 2012 at 6:59 PM, Wise, Alicia (ELS-OXF)
> <a.w...@elsevier.com> wrote:
>
> > ...you would like all publishers to allow immediate green oa posting.
> > What do you think some of the potential concerns about this might be,
> > and how might those concerns be alleviated?
> >
> > ...With our posting policy our intent is certainly not to confuse or
> > intimidate authors, but to ensure the sustainability of the journals
> > in which they choose to publish. Perhaps the Finch group will shed
> > light on how to solve this challenge!
>
> The concern is not about Elsevier's business goals but about the *meaning*
> of a self-contradictory publisher agreement (sic) on the rights (sic)
retained
> (sic) by Elsevier authors that states:
>
> "[As Elsevier author you retain] the right to post a revised personal
version of
> the text of the final journal article (to reflect changes made in the peer
> review process) on your personal or institutional website or server for
> scholarly purposes"
>
> and then follow it by a clause that contains the following piece of
> unmitigated FUD that (if authors and institutions don't ignore it
completely,
> as they should) contradicts everything that came before it:
>
> "(but not in... institutional repositories with mandates for systematic
postings
> unless there is a specific agreement with the publisher)."
>
> An author right is either retained or it is not. And if it is a right, and
it is
> retained, and a publisher agreement formally states that it is retained,
then
> the author can exercise that retained right irrespective of whether the
> author's institution mandates that the author should exercise that
retained
> right.
>
> It is as simple as that. And any attempt by Elsevier to defend retaining
the
> clause is just more FUD:
> A right is a right (and a formal publisher agreement attesting that it is
a right is
> only an agreement) only if the agreed author right can be exercised
without
> requiring further publisher agreement.
>
> Stevan Harnad
>
> --
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