On 17-Feb-09, at 9:21 AM, c.oppenh...@lboro.ac.uk wrote: > Let me make my position clear. Comments that I make have no legal > authority. I take no responsibility for any actions a reader might take > (or not take) as a result of reading my opinion, and that in any cases of > doubt, readers should take formal legal advice. Anyone who advises third > parties to do something that is potentially infringing without such a > health warning could find themselves accused by rights owners of > authorising infringement, which means they would be just as liable to pay > damages as the person who took the advice. > > I agree with Talat that 100% OA is not necessarily inevitable, despite my > hope that it does come to pass. Just because something is technically > possible and makes economic sense does not mean it is bound to occur.
Let me make my position clear. Comments that I make have no legal authority. Nor am I addressing 3rd parties. (I am addressing only the authors of refereed journal articles.) And all I am advising is that they not take leave of their common sense in favor of far-fetched flights of formal fancy -- especially incoherent ones. Amen. Johannes > > > Charles > > > Professor Charles Oppenheim > Head > Department of Information Science > Loughborough University > Loughborough > Leics LE11 3TU > > Tel 01509-223065 > Fax 01509 223053 > e mail c.oppenh...@lboro.ac.uk > -----Original Message----- > From: Repositories discussion list > [mailto:jisc-repositor...@jiscmail.ac.uk] On Behalf Of Talat Chaudhri > Sent: 17 February 2009 12:51 > To: jisc-repositor...@jiscmail.ac.uk > Subject: Re: John Wiley on RoMEO and John the Baptist on Supererogation > > This may be your view, Stevan, but it is frankly inappropriate to tell > others to break the law at their own risk, whatever your views in terms of > OA. That is their risk assessment, the business of their institutions and > nobody else's. Clearly the copyright system is incoherent and difficult, > but nonetheless these publishers have indisputable copyright and may > licence it as they please, even incoherently. The upshot is unknown, of > course, as nothing has ever been tested, and this may continue for better > or for worse, probably a mix of both. > > I hope others on this list will agree with me that we should not tell > other institutions how to manage their legal liabilities, much as we would > not do so for individuals of our personal acquaintance, especially in > ignorance of both their specific circumstances and the precise legal > situation. No doubt you will continue to do so despite my protestation, > but I feel duty bound to voice this complaint on behalf of repository > managers and their institutions, amongst whose number I was counted until > very recently. > > There is no evidence that OA is such a foregone conclusion as you say, > much as I would like it to be true as much as you do. We deal here with > practical issues, not with your imagined "Zeno's paradox", which nobody > but you discusses on this list. > > > Talat Chaudhri > > Stevan Harnad wrote: > > On 17-Feb-09, at 4:32 AM, Ian Stuart wrote: > > > > > Leslie Carr wrote: > > > > > > > > HOWEVER one step away (literally) from the W-B "Best Practice > > > > document" is the W-B "Copyright FAQ" in which they elaborate that > > > > although the ELF is used for societies, the wholly owned journals > > > > still retain the practice of Copyright Assignment. The sample > > > > Copyright Assignment document (for the aptly chosen International > > > > Headache Society) contains the following text: > > > > ---- quote ---- > > > > Such preprints may be posted as electronic files on the author's own > > > > website for personal or professional use, or on the author's > > > > internal university, college or corporate networks/intranet, or > > > > secure external website at the author's institution, but not for > > > > commercial sale or for any systematic external distribution by a > > > > third party (e.g. a listserve or database connected to a public > > > > access server). > > > > ----- end ----- > > > > I *think* that an institutional repository is OK by that definition. > > > > After all, it is a secre external website at the author's > > > > institution which is not offering the item for sale nor run by a > > > > third party. > > > > > > Where does this leave the Subject Repository (ex aXive)? > > > It's not the authors own website, or an intranet at the authors local > > > institution, or an external server at the authors institution... yet > > > it also doesn't offer commercial sales or *systematic*[my emphasis] > > > distribution to a third party > > > > > > Where does this leave the Depot? > > > It's /effectively/ an Institutional Repository, but like aXive it's > > > not at the authors institution. > > > > > > .... or is this one of those questions one shouldn't really ask? > > > > Here's my tuppence worth on this one -- and it's never failed me (or > > anyone who has applied it, since the late 1980's. when the > > possibilities first presented themselves) as a practical guide for > > action: (A shorter version of this heuristic would be "/If the > > physicists had been foolish enough to worry about it in 1991, or the > > computer scientists still earlier, would we have the half-million > > papers in Arxiv or three-quarter million in Citeseerx that we have, > > unchallenged, in 2009?/"): > > > > *When a publisher starts to make distinctions that are more minute > > than can even be made sense of technologically, and are unenforceable, > > ignore them:* > > > > The distinction between making or not-making something freely > > available on the Web is coherent (if often wrong-headed). > > > > The distinction between making something freely available on the web > > /here/ but not /there/ is beginning to sound silly (since if it's free > > on the web, it's effectively free /everywhere/), but we swallow it, if > > the "there" is a 3rd-party rival free-riding publisher, whereas the > > "here" is the website of the author's own institution. /Avec les dieux > > il y a des accommodements/: Just deposit in your IR and port metadata > > to CRs. > > > > But when it comes to DEPOT -- which is an interim "holding space" > > provided (for free) to each author's institution, to hold deposits > > remotely until the institution creates its own IR, at which time they > > are ported home and removed from DEPOT -- it is now bordering on > > abject absurdity to try to construe DEPOT as a "3rd-party rival > > free-riding publisher". > > > > We are, dear colleagues, in the grip of an orgy of pseudo-juridical > > and decidedly supererogatory hair-splitting/ on which nothing > > whatsoever hinges but the time, effort and brainware we perversely > > persist in dissipating on it/. > > > > This sort of futile obsessiveness is -- in my amateur's guess only -- > > perhaps the consequence of two contributing factors: > > > > (1) The agonizingly (and equally absurdly) long time during which > > the research community persists in its inertial state of Zeno's > > Paralysis about self-archiving (a paralysis of which this very > > obsession with trivial and ineffectual formal contingencies is > > itself one of the symptoms and causes). It has driven many of us > > bonkers, in many ways, and this formalistic obsessive-compulsive > > tendency is simply one of the ways. (In me, it has simply fostered > > an increasingly curmudgeonly impatience.) The cure, of course, is > > deposit mandates. > > > > > > and > > > > (2) The substantial change in mind-set that is apparently required > > in order to realize that/ OA is not the sort of thing governed by > > the usual concerns of either library cataloguing/indexing or > > library rights-management/: It's something profoundly different > > because of the very nature of OA. > > > > > > Rest your souls. Universal OA is a foregone conclusion. It is optimal, > > and it is inevitable. The fact that it is also proving to be so > > excruciatingly -- and needlessly -- slow in coming is something we > > should work to remedy, rather than simply becoming complicit in and > > compounding it, by giving ourselves still more formalistic trivia with > > which to while away the time we are losing until the obvious happens > > at long last. > > > > Bref: Yes, this is "one of those questions one shouldn't really ask"! > > > > Yours curmudgeonly, > > > > Your importunate archivangelist > > > > -- > Dr Talat Chaudhri > ------------------------------------------------------------ > Research Officer > UKOLN, University of Bath, Bath BA2 7AY, Great Britain > Telephone: +44 (0)1225 385105 Fax: +44 (0)1225 386838 > E-mail: t.chaud...@ukoln.ac.uk Skype: talat.chaudhri > Web: http://www.ukoln.ac.uk/ukoln/staff/t.chaudhri/ > ------------------------------------------------------------