** Cross-Posted **

On Fri, Jan 14, 2011 at 5:24 PM, Stancliffe, Andrew <astancl --
library.ucla.edu> wrote on liblicense:

> The UCLA Library is working with a faculty member here who has
> submitted an article to the journal Sleep.  We advised the author
> to modify the author's agreement, using the SPARC author's
> addendum, to retain copyright. The author received a reply from
> Sleep, which rejected the change, stating "I have never heard of
> any journal doing this.  Sleep would not publish any paper it
> does not hold copyright to."
>
> We're curious to know if anyone on the list has negotiated with
> Sleep in the past and what their experiences have been.  Thanks
> for any input you can give us.

This is the royal road to decades and decades more of lost research
access, progress and impact.
It is the equivalent of trying to combat smoking by trying to persuade
smokers to write individually to tobacco companies to ask them to
manufacture fewer cigarettes.

(1) The goal is to provide Open Access, not to modify author copyright
agreements.

(2) The SPARC author addendum is much too strong in any case:
gratuitously and self-defeatingly strong:

(3) No publisher permission is required by authors to deposit the
full-text of their refereed, revised, accepted final drafts in their
own institutional repositories, immediately upon acceptance for
publication.

(4) The bibliographic metadata (author, date, title, journal, etc.)
are in any case immediately accessible to all would-be users.

(5) The majority of journals (including just about all the top
journals) have already formally endorsed setting access to the full
text of the deposit as Open Access immediately upon deposit.

(6) If, for the remaining minority of journals, the author wishes to
observe a publisher embargo on Open Access, access to the deposit
full-text can be set to "Closed Access" rather than "Open Access"
during the embargo, and the author can email eprints to would-be users
on request.

(7) This provides immediate Open Access to the majority of deposits
plus "Almost Open Access" to the remaining minority, thereby providing
for all immediate research usage needs and ensuring -- once it is
being done universally -- that embargoes will die their natural,
well-deserved deaths soon thereafter, under the growing pressure from
the universal deposits, the palpable benefits of the majority Open
Access and the contrasting anomaly of the minority of embargoed access
and the needless inconvenience and delay of individual email eprint
requests.

(8) But the best author strategy of all is to make all deposits
immediately Open Access today, and to decide whether or not to Close
Access to any one of them only if and when they ever receive a
take-down notice from the publisher.

Authors will not receive publisher take-down notices because
publishers (unlike authors, and librarians) already know very well
today that trying to do that would soon lose them their authorships,
who would migrate to the majority of journals that endorse immediate
Open Access deposit. This has already proved true for the two
decades'-worth of successful and unchallenged "don't-ask" deposits
that we already have behind us -- at least two million of them, by
computer scientists on their institutional websites and by physicists
in Arxiv. With universal deposit (and especially with universal
institutional and funder mandates to deposit) the incentive for
publishers to request take-down is even lower.

So, to repeat: giving authors the exceedingly bad advice that what
they should do, if they wish to provide Open Access to their articles,
is to attempt to modify their copyright agreements (along the lines of
the SPARC author addendum) one-by-one is not only advice that is
doomed to fail in many instances (and not even to be tried in most),
but it is diverting attention and efforts from the real solution.
Making the attempt to modify author's copyright agreement can be
quasi-mandated (as it is by Harvard, MIT and a few other institutions
following their example), by reserving copyright in a blanket default
institutional contract predating and hence mooting all subsequent
contracts with publishers, but only at the cost of allowing the author
the option to opt out of the prior blanket institutional copyright
reservation contract in the face of -- or in anticipation of --
non-acceptance by the publisher.

It is for this reason that Harvard has (sensibly) adopted a
simultaneous immediate-deposit mandate -- with no opt-out option --
alongside its copyright reservation policy. But a little reflection on
this will make it apparent that the real work is being done by the
immediate-deposit mandate, and the attempt to modify the copyright
agreement with the author continues to be just a hit-or-miss affair,
even if beefed up by the option of institutional contractual backing.

UC has only the blanket institutional copyright reservation policy,
with the opt-out option, and no accompanying deposit mandate without
opt-out; nor does UCLA have a deposit mandate of its own.
Hence there one-by-one attempts, like UCLA's, to modify copyright are
not only a hit-or-miss affair, but a colossal and quixotic strategic
error, and a doomed and disheartening waste of precious time (and
research uptake and impact).

What OA advocates worldwide should be using all their energy to bring
about is the adoption of an immediate-deposit mandate. That done, it
no longer matters that one-by-one copyright modification efforts are a
drop in the bucket, because the deposit mandate will be doing the real
work, providing Open Access (to the majority of an institution's
annual articles, and Almost-Open-Access to the rest) and setting the
right example for other institutions. Once immediate deposit mandates
scale up globally, publisher copyright contracts will adapt to the new
reality as a matter of natural course.

But if we instead keep pinning our hopes and efforts on one-by-one,
hit-and-miss attempts by authors to modify copyright contracts, the
ride is destined to be a long and possibly endless one.

It is almost as amazing as it is appalling how long the academic
community keeps heading off in all directions except the right one
when it comes to Open Access: publishing reform ("gold OA"), copyright
reform, peer review reform -- every road but the very one that the
online era has opened up for us, the road that made Open Access itself
conceivable, possible, and immediately reachable: universal author
self-archiving and self-archiving mandates by their institutions and
funders.

No; encouraging 1000 flowers to bloom has not helped: Instead, it has
distracted and diverted us from the swift and certain solution; let's
hope it does not keep it up for another 1000 days, months, or years...

For tried-and-tested policy guidance, please turn to
EnablingOpenScholarship. The wait has been long enough already:
http://www.openscholarship.org/

Stevan Harnad