On Sun, Feb 8, 2009 at 2:27 PM, Klaus Graf wrote: Bernard Rentier: Universities may legitimately own a repository of all the publications by their employees, no matter what their statutes can be, they may also impose a mandate and simply enforce it by making it conditional for further in-house funding, advancement, promotions, etc.
Klaus Graf: This isn't true for Germany, see http://archiv.twoday.net/search?q=mandat Legal mainstream in Germany says that the freedom of research forbids mandating on university level. Bernard Rentier: It is most unfortunate for German researchers and for German Institutions (Universities & Research Centres). As opposed to researchers in other countries, they are missing a superb opportunity for efficient worldwide dissemination of the knowledge they generate... I have a hard time understanding what this "legal mainstream" means and what is the rationale for it... It sounds more like a moral mainstream to me. Indeed, is it unclear whether it is a law, a decree, a widely followed institutional rule, or a dominant frame of mind ? Klaus Graf: I do not share the opinions of the German legal experts but it is a fact that the legal mainstream in Germany regards a mandate not compatible with the freedom of research (art. 5 Grundgesetz) i.e. against a fundamental right of the German constitution. It wouldn't be enough to change a law according these opinions - the constitution has to be changed (with other words: forget it). I do not think that there is a chance to convince the German jurists. My guess is that what "jurists" and others have been expressing so far is their free-associations on the ambiguous word "mandate," when invited to pronounce their opinion on the subject. Let us substitute "requirement": Is there a German law that German academics cannot be required to do anything? teach? mark? publish? provide CVs? Of course, as anywhere in the academic world, academics can be required to submit their sabbatical requests in triplicate on A4 paper if they wish to be considered for a sabbatical, if that is the institutional procedure. And if they do not, the institution can gently remind them that without the A4 in triplicate, it is unfortunately not possible to process their sabbatical request, as that is the procedure. And if then they do not provide the requisite triplicate A4, I presume that in Germany, as anywhere else, they will not be granted a sabbatical, because they will not have requested it, because they did not follow the requisite procedure. And I assume that no one would consult a constitutional lawyer on this question. By the same token, I think that German Universities can safely require a CV for a performance review; and they can require an electronic deposit in the IR too. Nothing about Open Access. Just a procedure. And no sanctions or punishment for noncompliance -- except that their publications will not be visible for performance review, because they will not have been submitted in the requisite format, as indicated in the instructions for applying. This too is not a constitutional matter. The same is true, by the way, for German funding councils, which can likewise require deposit of article output as part of the fulfillment conditions for their grants. The fundee need not comply, of course, but then he need not be given his next funding installment either, for failure to have fulfilled the requisite conditions for the prior one. Likewise not a constitutional matter in Germany, just as it is not anywhere else either. This is how the Fraunhofer-Gesellschaft worded their requirement. (It looks much like the other such deposit mandates that have been adopted by the rest of the mandating institutions so far.) If papers are published in media that... require a subscription or other form of payment, copies shall [sic] be made available through the organization's own public repository, Fraunhofer ePrints ... [If] required by the publishing house, an embargo of up to one year may be respected. Stevan Harnad