Thanks for the clarification. I completely agree -- it just seemed like
there was a question as to whether the "double talk" was actually
self-contradictory in a legal/contractual sense. If the issue is just
"giving with one hand while taking away with the other," I can't see how one
could argue that.
Sincerely,
James Ryley, PhD, RPA
SumoBrainSolutions Intellectual Property Solutions, Consulting & Data
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This communication is to be treated as confidential and the information in
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sent. Nothing contained herein nor on a related web site should be construed
as legal or patenting advice.
> -----Original Message-----
> From: Stevan Harnad [mailto:amscifo...@gmail.com]
> Sent: Tuesday, May 15, 2012 9:34 AM
> To: Global Open Access List (Successor of AmSci)
> Cc: LibLicense-L Discussion Forum
> Subject: Re: [sparc-policy] Re: [GOAL] Re: Elsevier's query re: "positive
things
> from publishers that should be encouraged, celebrated, recognized"
>
> On Tue, May 15, 2012 at 8:35 AM, James Ryley <ja...@ryley.com> wrote:
> > Hi Stevan,
> >
> > I'm curious as to why you think a "right is a right." ... There is
> > nothing saying that a contract cannot have conditional logic in it.
> >
> > 1) If your institution does not mandate institutional deposit, you may
> > deposit.
> > 2) Otherwise, you may not.
>
> Hi James,
>
> Yes, there is always a (trivial) way to reduce this all to formalistic
double-talk,
> both in publisher agreements and in institutional
> mandates:
>
> PUBLISHER AGREEMENT: Our authors retain the right to depositt voluntarily
> to their institutional repository, but not if their institutional policy
requires
> deposit.
>
> INSTITUTIONAL POLICY: Our researchers are required to deposit to our
> institutional repository, but not if their publisher agreement does not
allow
> required deposit: In that case our researchers are not bound by this
policy
> and are invited to use their right to deposit
> voluntarily.*
>
> But playing this game is not really the point here. Here's what it's
really
> about:
>
> (1) The pressure for OA from the worldwide research community is clearly
> growing with time.
>
> (2) Elsevier has long had a public image problem because of its high
prices,
> and that problem too is growing.
>
> (3) Agreeing to immediate, un-embargoed green gratis self-archiving of the
> author's final draft is a small concession to the worldwide pressure for
OA,
> and making it improves Elsevier's image as not being anti-OA after all.
>
> (4) But (3) also entails some risk to the sustainability of the
subscription
> model.
>
> (5) So Elsevier is here trying to keep the benefits to its declining image
from
> adopting (3) while at the same time hedging against the risk it entails.
>
> (6) The result is a self-contradictory policy that gives with one hand and
takes
> it away with the other.
>
> This has to be exposed, publicly, and unequivocally, leaving Elsevier with
the
> clear choice of either (i) being exposed as having reneged on its formerly
> positive policy on Green Gratis OA, or (ii) dropping the hedging clause
and
> being lauded for taking a genuinely positive step on Green Gratis OA.
>
> That's all there is to it. It's not about either the logic or the
legalistics or the
> semiotics of "rights." It's about whether or not Elsevier is or is not
genuinely
> Green on (Gratis) OA self-archiving/
>
> *By the way, what is really at issue here is not the right to
> *deposit* is but the right to deposit *and make the deposit immediately
> OA* (unembargoed). The ID/OA (Immediate Deposit, Optional
> Access) mandate was already immune to Elsevier's recent self-contradictory
> policy hedge, because it only requires immediate internal deposit in the
> institutional repository (an institution-internal matter over which
publishers
> have no say whatsoever), not immediate OA -- leaving it up to the author
> whether and when to set access to that deposit as OA. (That's why Elsevier
> uses the language of "posting" [to the open web] rather than "depositing"
in
> an institutional repository which, as long as the text is
institution-internal
> [Closed Access or "dark"] rather than freely accessible webwide, is
outside
> the publisher's remit.)
> http://openaccess.eprints.org/index.php?/archives/71-guid.html
>
> Stevan Harnad
>
> On Tue, May 15, 2012 at 8:35 AM, James Ryley <ja...@ryley.com> wrote:
> > 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
> >
> > Providers of:
> >
> > CobaltIP Patent Analytics Platform for Search & Business
> > Intelligence
> > FreePatentsOnline.com Comprehensive Patent Searching Database
> > SumoBrain.com The Convergence of IP and Business
> > Information
> > BioMedSearch.com Worlds Largest Free Biomedical Search Engine
> > OpenThesis.org Upload & Search Global Theses and
> > Dissertations
> >
> > This communication is to be treated as confidential and the
> > information in it may not be used or disclosed except for the purpose
> > for which it has been sent. Nothing contained herein nor on a related
> > web site should be construed as legal or patenting advice.
> >
> >
> >> -----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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> >>
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>
> --
> ------------------------------------
> This private discussion list helps support respondents to the 2011 White
> House request for information on public access. Join the list to discuss
the RFI
> process, explore answers, and share examples and data points that might be
> included in submissions. More information about the RFI is on the ATA web
> site at http://www.taxpayeraccess.org.
>
> The list archive will be a great resource:
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