Re: The German problem with OA
Unfortunately it isn't enough to read the German constitution. You have also to read the influential legal interpretations and court decisions. I have made a suggestion for a university mandate in 2007 at http://archiv.twoday.net/stories/4369539/ But I have to take into account that not only jurists against OA see the constitutional barriers. OA friends like Eric Steinhauer or Gerd Hansen (advocating a copyright law change that publicly funded scholars would have the right to deposit in repositories after a 6 months embargo) are also against mandates. You can read Hansen's influential refutation (2005) of the Pflüger/Ertmann mandate suggestion in German at: http://www.gerd-hansen.net/Hansen_GRUR_Int_2005_378ff.pdf If you all would applaud Sale's interpretation of the German constitution - that wouldn't change nothing. German jurists only read German legal journals or books. And I cannot see any discussion on the "OA via mandates" problem in the German OA community (discussions are very rare there). Klaus Graf
The German problem with OA
Klaus Graf
Thank you for your clear expression of what the German problem is.
I can fully understand the difficulty of changing a Constitution -
Australia's Constitution allows the Queen of England to disallow any
law of Australia, but Australian jurists on the High Court are
unanimous that this provision is defunct and unenforceable. However,
no one is willing to suggest deleting it from the Constitution as
this would cost millions of dollars for a referendum and might fail
even then from the opposition of diehard monarchists. Better to leave
these defunct determinations dead. BTW, the English Queen cannot
disallow English law either but they do not have a written
Constitution.
It seems to me that the key provisions of the German Constitution for
open access are contained in Section 5 of the Basic Law, as you
state. Please forgive me for using the official translation in
English for the benefit of readers of this list and because I am not
fully fluent in German. I also show the original and definitive
German because I can translate it in some parts better than the
`official' version.
Article 5 [Freedom of expression]
(1) Every person shall have the right freely to express and
disseminate his opinions in speech, writing, and pictures and to
inform himself without hindrance from generally accessible sources.
Freedom of the press and freedom of reporting by means of broadcasts
and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general
laws, in provisions for the protection of young persons, and in the
right to personal honor.
(3) Art and scholarship, research, and teaching shall be free. The
freedom of teaching shall not release any person from allegiance to
the constitution.
Art 5
(1) Jeder hat das Recht, seine Meinung in Wort, Schrift und
Bild frei zu äußern und zuverbreiten und sich aus allgemein
zugänglichen Quellen ungehindert zu unterrichten. DiePressefreiheit
und die Freiheit der Berichterstattung durch Rundfunk und Film
werdengewährleistet. Eine Zensur findet nicht statt.
(2) Diese Rechte finden ihre Schranken in den Vorschriften der
allgemeinen Gesetze, den gesetzlichen Bestimmungen zum Schutze der
Jugend und in dem Recht der persönlichenEhre.
(3) Kunst und Wissenschaft, Forschung und Lehre sind frei. Die
Freiheit der Lehre entbindet nicht von der Treue zur Verfassung.
ILLEGAL?
The key provision for the claim of German prohibition of OA mandates
is clearly Section 5(3). There is no other mention of research
(forschung) in the German Constitution. As usual what it means to
say "research ... shall be free" is ambiguous, and I can readily see
how some lawyers could advise a client that there was a possible case
that could be pursued in the Constitutional Court regarding deposit
mandates in an IR infringing on the unconstrained pursuit of
research. However unless German courts are very different from mine
in Australia (and I don't think they are since the Basic Law shares a
common heritage), the case would be very unlikely to succeed. I
therefore agree with your opinion below that there is no real barrier
to the adoption of OA mandates in Germany, other than an aversion for
and fear of expensive litigation by University Rectors or Governing
Boards.
I think that the German word frei means something rather close to the
English word free. Please tell me if I am wrong. I am basing this on
my knowledge of Nederlands (Dutch). If I am correct, the pivotal
meaning is that of being unconstrained. However an Open Access
deposit does not constrain the topic or conduct of research, it only
requires record-keeping after the research is completed. Exactly the
same is true of teaching (lehre) in the Basic Law. Freedom in
lecturing does not mean that the teacher cannot be required to keep
records, or to supply them to his or her employing authority. Not to
do so would infringe on other basic rights, such as 5(1).
OPEN ACCESS = FREE FROM COST?
The Basic Law however also allows another interpretation. Clause 5(1)
practically makes Green OA in Institutional or national Repositories
a constitutional requirement at this point in time. "Every person
shall have the right to ... inform himself without hindrance from
generally accessible sources". Restricting the "generally accessible
resources" would not get much credence from jurists. The same clause
goes on to say "Freedom of the press ... shall be guaranteed" and one
could argue what is the "press" in media-rich 2009? Can we present
repositories on Facebook? Further "There shall be no censorship" and
arguably exorbitant subscriptions are economic censorship.
Although clause 5(2) can be construed to support this case too ("the
right to personal honor"), clause 5(3) is even clearer "research
shall be ... free". Open Access is as close to free (in the financial
and unconstrained access sense) as we can get at present, much lower
tha
Re: Fair-Use/Schmair-Use...
On Sat, Feb 14, 2009 at 3:48 AM, Charles Oppenheim wrote (in JISC-REPOSITORIES): Arthur [Sale] is wrong on his final point. When an author assigns copyright to a publisher, the author gives away all rights. It is equivalent to selling your house, your car or anything else. Once you've sold it, you've no right to enjoy it's use any more, even though you were the previous owner. So when an author assigns copyright to a publisher, he or she has no rights to keep a back up copy, store it in a repository, etc., UNLESS the publisher graciously gives permission for the author to do so. But what the publisher cannot do is demand deletion, etc., of earlier drafts of the manuscript, because the author has only assigned the final accepted version to the publisher. With all due respect, if this were true, then the author could not keep and store a paper copy of the final draft of his book in his attic either (or, for that matter, his author's copy of the published book). And, as we all know, "earlier drafts" are a slippery slope. The "penult," which is the refereed draft minus the copy-editing is an earlier draft. So is an author's draft incorporating corrections. No, the new medium has features that cannot be coherently, let alone confidently described, let alone prescribed and proscribed, in this papyrocentric way. The self-archiving computer scientist (since the 80's) and physicist (since the '90s) authors had it right: "Don't ask, Don't Tell, Don't Fret, Just Do." Otherwise you will elicit a welter of inconsistent, and in many cases incoherent opinion and counter-opinion whilst you languish in a chronic state of Zeno's Paralysis (as 85% of us foolishly persist in doing, for nigh on two decades now). And while I'm in the pulpit, let me also point out that the main reason for deposit mandates is not to force research authors to do something they don't really want to do (a few extra bureaucratic keystrokes, as some of the stalwart defenders of "academic freedom" seem to imagine), for they all want to maximise the usage and impact of their research (as a half-century of keystrokes fulfilling reprint-requests proves): It is to free these special authors from the irrational inhibitions that keep them in their state of Zeno's Paralysis. Apologies for this interruption. Please return to your solemn discussion of angels, heads and pins... Stevan Harnad Charles On Sat, 14 Feb 2009 15:01:59 +1100 Arthur Sale wrote: Talat Let me assure you that you should credit that a court would accept a case that repositories fulfil other functions. Indeed in Australia we could argue that they are required by the Federal Government for the purpose of institutional publication reporting and research evaluation. Tasmanian law requires the university to keep records for long-term preservation under the Archives Act and so do most States. The other point you miss is that publishers have no rights to prohibit a restricted copy being mounted in a repository. If an author chooses to keep a copy of his or her article in one computer system or another (or is required to place a copy in a particular one) is of no concern whatsoever to a publisher. They might as well demand that the author delete the manuscript from their personal PC once it has been published! Indeed my departmental backup system makes regular copies from my PC somewhere and I don't bother enquiring where, nor does any publisher of my work. Neither do they demand that a particular filing cabinet be used for any paper drafts. None of this is of any concern to a publisher. You and I have had this argument before and you persist in this view, but it cannot go unchallenged if you keep making it. It does not stand up to examination. Arthur Sale University of Tasmania
