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[BOAI] Re: Elsevier Still Onside of Angels on Immediate, Unembargoed Green OA Self-Archiving By Its Authors

From: Stevan Harnad <harnad AT ecs.soton.ac.uk>
Date: Fri, 3 May 2013 07:25:35 -0400


Threading: [BOAI] Elsevier Still Onside of Angels on Immediate, Unembargoed Green OA Self-Archiving By Its Authors from amsciforum AT gmail.com
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On 2013-05-03, at 2:57 AM, David Prosser <david.prosser AT rluk.ac.uk> 
wrote:

> I agree with Andras and I cannot see how any publisher who has a policy 
along the lines of:
> 
> You may make your author version freely available without embargo unless 
you are mandated (by funder or institution) to do so, in which case you may not 
make your author version freely available without embargo
> 
> can be described as being on the side of the Angels.  We may dismiss such 
a policy as FUD or even claim that it is illogical and unenforceable - as 
Stevan does - but we cannot possibly describe it as angelic.

Since -- exactly like Springer's (hedge-free) rights-retention policy (and 
countless others) -- Elsevier's policy does indeed formally recognize right of 
the authors of the articles published in 2000 Elsevier journals to make them 
immediately OA (unembargoed), I would say that the "angelic" tag was 
fully earned.

The tag is not earned for the FUD. The right right response to the FUD is to 
ignore it.

Let's not waste time and divert attention to the question of whether they are 
Cherubim or Seraphim: The fact that Elsevier give their Green Light to 
immediate, unembargoed OA-provision by their authors is what matters (to those 
who care more about OA than about journal pricing or publisher boycotting).

Harrumph!

Stevan

> On 2 May 2013, at 08:17, Andras Holl wrote:
> 
>> 
>> Dear Stevan, 
>> 
>> Regardless however right you are, Elsevier's play with words 
succesfully confuses 
>> a large number of authors, who do not deposit because of this. 
>> 
>> Andras 
>> 
>> On Wed, 1 May 2013 20:24:46 -0400, Stevan Harnad wrote 
>> > On Wed, May 1, 2013 at 5:10 PM, BISSET J. <james.bisset AT 
durham.ac.uk> wrote: 
>> > 
>> >  
>> 
>> > 
>> > From our understanding of Elsevier policy this is not the case in 
two instances: 
>> > 
>> > 1) if the institution requires deposit in their institutional 
repository 
>> > 2) if the funder requires open access.
>> 
>> > 
>> > Dear James, 
>> > 
>> > Elsevier rights agreements state that authors retains the right 
to make their final drafts OA immediately upon publication: no embargo. 
>> > 
>> > I will answer your more detailed questions below, but let me 
already give you a simple general answer from which all the specific ones can 
be deduced. 
>> > 
>> > If a contract says you have the right to do X, then it cannot go 
on to stipulate that you only have the "right to exercise" your right 
to do X if you are not required to exercise it. That is empty double-talk, and 
can and should be completely ignored as empty. A right is a right; you either 
have it or you don't. 
>> > 
>> > Moreover, Elsevier authors do not need Elsevier's permission to 
deposit in their IRs any more than they need Elsevier's permission to go to the 
WC!  
>> > 
>> > The only thing at issue is the right to make the deposit 
immediately OA (i.e., free online). And Elsevier (like Springer, and about 60% 
of all publishers) state that the author retains the right to make the final 
draft OA immediately upon publication: no OA embargo. 
>> > 
>> > So all authors with any sense should go ahead and exercise that 
formally endorsed right that they retain! 
>> > 
>> >
>> 
>> > 
>> > I have an email from Elsevier today confirming that in either of 
the two cases above, immediate deposit is permitted but open access is not 
permitted until [after] an embargo period... 
>> >
>> 
>> > 
>> > Elsevier is just playing on words here. As I said, the right to 
deposit is not at issue. Elsevier does not have any say over where I put my 
final draft.  
>> > 
>> > The only right at issue is the right to make the deposit 
immediately OA (i.e., free online). 
>> > 
>> >
>> 
>> > 
>> > Additionally, Durham has reissued its mandate for self-archiving, 
including a requirement that only those deposited (not necessarily open access) 
can be used for consideration in promotion or probation (the 'how' this will 
work us still being looked at - So this has not yet been registered anywhere). 
>> >
>> 
>> > 
>> > Bravo on adopting the optimal institutional OA mandate. Soon we 
can hope that the Durham mandate will be reinforced by the very same mandate 
from HEFCE/REF: only articles whose final drafts were deposited in the author's 
institutional repository immediately upon acceptance for publication will be 
eligible for submission to the next REF (2020). 
>> > 
>> > Institutional and HEFCE immediate-deposit mandates can then 
mutually reinforce one another, and institutions will be able to devise a 
simple mechanism for monitoring and verifying compliance. 
>> >  
>> 
>> > 
>> > Because we now mandate deposit, Elsevier have indicated we cannot 
make any publications open access until we sign an agreement with them - which 
includes restricting access from immediate upon publication (as it was without 
a  mandate) to the embargo periods mentioned above. 
>> >
>> 
>> > 
>> > This is very interesting: Have you asked yourself why Elsevier is 
asking for a second agreement? Isn't the author's signed agreement enough, if 
it is really sufficient to accord him a right yet prevent him from exercising 
that right? 
>> > 
>> > Well obviously not, because of the double-talk I just mentioned. 
In an agreement with the clause 
>> > 
>> >
>> 
>> > 
>> > Clause C1: "You retain the right to do X" 
>> 
>> > 
>> > followed by the clause  
>> > 
>> >
>> 
>> > 
>> > Clause C2: "but you may not "exercise your right" 
to do X if you are required to do X"
>> 
>> > 
>> > you are sanctioning a contradiction. Logically speaking (and 
contracts must obey logic as surely as they must obey the law), this is pretty 
much the same as simply saying: 
>> > 
>> >
>> 
>> > 
>> > Clause C1: "You may do X" 
>> 
>> > 
>> > and 
>> > 
>> >
>> 
>> > 
>> > Clause C2: "You may not do X."
>> 
>> > 
>> > With a logical contradiction, you can pretty much take your 
choice and do whatever you like, because anything (and the opposite of 
anything) follows from a contradiction. 
>> > 
>> > A good choice would be to read sequentially, follow Clause 1, and 
simply ignore Clause 2, which just says the opposite. If challenged, cite 
clause 1. 
>> > 
>> > And this is the real reason that Elsevier is not comfortable with 
relying on its signed author rights agreement with its authors as grounds for 
restraining them form doing what the retain the right to do if they are 
required to do it. So they instead try to get a signature to yet another 
agreement, from yet another party -- the university -- a further agreement tjat 
would have the (failed) intended effect of the author rights agreement: The 
institution must sign that it may not require the author to exercise his right 
to provide immediate OA. 
>> > 
>> > Solution? Simple: The university should not sign!  
>> > 
>> > If Elsevier really thinks its author agreement has already seen 
to it that mandated authors may not provide immediate OA if required by his 
university, then there is no call for the university to sign a thing. 
>> > 
>> > Of course, this is not quite the way Elsevier goes about trying 
to get the university to sign: It proposes a contingency, in confidential 
pricing negotiations, between the subscription deal it offers the university, 
and whether or not they require immediate OA. 
>> > 
>> > This would be unethical if it weren't so ludicrous. 
>> > 
>> > Of course the university should not sign away its right to 
mandate immediate-deposit because of a subscription-deal contingency. 
>> > 
>> > But the solution is even simpler than that. Not only should the 
university not sign any agreement with Elsevier over what it may or may not 
require its researchers do, but the university should not worry too much about 
embargoes; it should simply implement the "Almost OA" 
email-eprint-request Button. 
>> > 
>> > That way not only will the university's immediate-deposit mandate 
(with the help of the HEFCE/REF immediate-deposit mandate) ensure that all 
final drafts are immediately deposited and that at least 60% of those 
immediate-deposits (including all Elsevier deposits!) will be made immediately 
OA. But, in addition, even the those immediate-deposits that are from from the 
40% of journals -- which (unlike Springer and Elsevier and APS and IOP and all 
the other publishers who are on the Side if the angels) try to embargo OA -- 
will be made "Almost OA", via the Button. 
>> > 
>> > And with the help of the eprint Button, the ID/OA mandate will go 
on to make OA embargoes as ineffectual as Clause 2, once the immediate-deposit 
mandate becomes universal. 
>> > 
>> > And a word about "systematicity": Systematically 
duplicating the contents of a journal would mean duplicating all of its 
contents. But a single institution just provides a tiny (and unsystematic) 
fraction of any journal's contents. 
>> > 
>> > Globally mandated OA will be another story: But Elsevier cannot 
hope to persuade all universities worldwide to desist from mandating OA! (And 
it is noteworthy that Elsevier is not even trying to get research funders to 
sign "agreements" not mandate OA, or to extend OA embargoes; 
Elsevier's strategy there is lobbying, since they don't have the subscription 
discount carrot with which it lures naive universities into signing over their 
mandating rights in exchange for a better subscription Big-Deal. 
>> > 
>> >
>> 
>> > 
>> > However, if Alicia is indicating this new stance is a move away 
from that which I was told by Elsevier earlier today, and is still less than 
clearly indicated on their web pages (which indicate an author can comply by 
self-archiving, but then go on to list embargo periods which do not meet RCUK 
policy) then that is great news. 
>> >
>> 
>> > 
>> > Alicia is just re-stating the Clause 1. Take her at her word. 
>> > 
>> > Best wishes, 
>> > 
>> > Stevan   
>> > 
>> >  
>> 
>> > 
>> > On 1 May 2013, at 14:49, "Stevan Harnad" <amsciforum 
AT gmail.com> wrote: 
>> > 
>> >
>>> 
>>> 
>>> > 
>>> > Alicia Wise  AT wisealic20h 
>>> >  AT AmSciForum Stevan - Elsevier's #oa agreement with RCUK, 
including gold & green options, is described here: 
http://www.elsevier.com/about/publishing-guidelines/policies/funding-body-agreements/research-councils-uk  
>>> > 
>>> > Stevan Harnad  AT AmSciForum8h 
>>> >  AT wisealic Simple Question: Is/isn't Elsevier-like 
Springer-still Green on immediate, unembargoed #oa self-archiving?  
http://j.mp/11B5gcg  
>>> > 
>>> > Alicia Wise  AT wisealic19m 
>>> >  AT AmSciForum yes, Elsevier endorses immediate 
self-archiving of accepted final drafts free for all on the web immediately 
upon acceptance. 
>>> > 
>>> > Stevan Harnad  AT AmSciForum3m 
>>> >  AT wisealic Thanks Alicia. Then Elsevier remains on Side of 
the Angels & I will continue to attest to that!
>> 
>> 
>> 
>> 
-------------------------------------------------------------------------------- 
>> Andras Holl / Holl Andras                 e-mail: holl AT konkoly.hu 
>> Konkoly Observatory / MTA CsFK CsI       Tel.: +36 1 3919368 Fax: +36 
1 2754668 
>> IT manager / Szamitastechn. rendszervez. Mail: H1525 POBox 67, 
Budapest, Hungary 
>> 
-------------------------------------------------------------------------------- 
>> 
>> <ATT00001..txt>
> 
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