Re: Rights Reductio Ad Absurdum
 I negotiated with Elsevier when my article was accepted by one of their journals.  My refusal to assign copyright was at the time a matter of principle rather than any anticipation of the OA movement.  So issues of having to later negotiate permission to self-archive never arose. In the case of Kluwer, my approach has been to print out its copyright assignment form, sign it and post it back to them, but only AFTER I had deleted the words I assign copyright and replaced it with I grant you a licence to print or similar.  They never complained, and always published the work; in contract law (UK law at least and I suspect the rest of the world), my revised contract was the one that applied.  I suspect they never noticed the change in wording, but that's their problem, not mine. I commend that approach. Charles Professor Charles Oppenheim --- On Sun, 9/1/11, Hélène.Bosc hbosc-tcher...@orange.fr wrote: From: Hélène.Bosc hbosc-tcher...@orange.fr Subject: Re: Rights Reductio Ad Absurdum To: american-scientist-open-access-fo...@listserver.sigmaxi.org Date: Sunday, 9 January, 2011, 22:47 Charles Oppenheim wrote: I have never had a problem over the past three decades with publishers when refusing to assign copyright to them  dating from when I was a mere junior lecturer. How lucky you are, Charles, to be heeded by publishers and to have answers from them ! Andrew Adams has already noted his repeated difficulties. I can tell you about mine : I started to do proxy self-archiving on behalf the researchers of my lab in 2002-2003.  At that time, Elsevier's policy on self-archiving was not yet the Green one that we know and that appeared (thanks in part to Stevan Harnad's efforts) in May 2004. Please see SPARC Open Access Newsletter #74  http://www.earlham.edu/~peters/fos/newsletter/06-02-04.htm Back then was possible to self-archive post-prints only after asking permission for each article, in each periodical, case by case! I prepared the requests for several articles and these requests were signed by the concerned researchers but we never received any answer (hence no permission) despite my insistence, by renewing my requests! And you no doubt know that there are not many of us to do that! Hélène Bosc - Original Message - From: CHARLES OPPENHEIM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Sent: Friday, January 07, 2011 4:16 PM Subject: Re: Rights Reductio Ad Absurdum I apologise to Professor Adams if he felt insulted by my comments.   I have never had a problem over the past three decades with publishers when refusing to assign copyright to them  - dating from when I was a mere junior lecturer. I do agree though that it is often difficult for junior members of staff in an academic institution to push publishers hard.  That is why should be a condition of employment that employees do NOT assign copyright to publishers for journal articles.  The employee can then say to the publisher I'm really sorry, but my contract of employment does not allow me to assign copyright to you. All publishers I know of accept such statements. Also, if these contracts really are unfair, then why isn't Professor Adams recommending action in a Court to have them deemed invalid in law?  There is enough legislation, certainly in the EU, on unfair contractual terms to allow for such a case to be made.  That's a far more sensible approach than recommending people to sign a contract and then to breach it. Charles Professor Charles Oppenheim --- On Fri, 7/1/11, CHARLES OPPENHEIM c.oppenh...@btinternet.com wrote: From: CHARLES OPPENHEIM c.oppenh...@btinternet.com Subject: Re: Rights Reductio Ad Absurdum To: american-scientist-open-access-fo...@listserver.sigmaxi.org Date: Friday, 7 January, 2011, 9:14 What  interesting advice from a Professor of Business Administration!  Voluntarily enter into a contract with a third party and then ignore its terms and conditions because the third party is unlikely to do anything to enforce it.  Well, if that's the nature of what is taught there, Meiji University is one place I will not be recommending anyone to study at. The solution is clear.  DON'T ENTER INTO THAT CONTRACT IN THE FIRST PLACE!  That approach is both legal and ethical, unlike Professor Adams'. Charles Professor Charles Oppenheim --- On Fri, 7/1/11, Andrew A. Adams a...@meiji.ac.jp wrote: From: Andrew A. Adams a...@meiji.ac.jp Subject: Re: Rights Reductio Ad Absurdum To: american-scientist-open-access-fo...@listserver.sigmaxi.org Date: Friday, 7 January, 2011, 2:26 As I say regularly in my talks on OA, don't worry about copyright. The contract between academic authors and publishers of journals is rather suspect anyway, to my mind. he consideration offered of distribution is not
Re: Rights Reductio Ad Absurdum
Can I support Charles on this. Amend the contract. They never notice (two dozen changed so far!) Derek Law Professor Derek Law Turnbull Building University of Strathclyde 155 George Street Glasgow G1 1RD United Kingdom Tel: +44 141 548 4997 The University of Strathclyde is a charitable body, registered in Scotland, number SC015263. From: American Scientist Open Access Forum [american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of CHARLES OPPENHEIM [c.oppenh...@btinternet.com] Sent: 10 January 2011 07:53 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Rights Reductio Ad Absurdum I negotiated with Elsevier when my article was accepted by one of their journals. My refusal to assign copyright was at the time a matter of principle rather than any anticipation of the OA movement. So issues of having to later negotiate permission to self-archive never arose. In the case of Kluwer, my approach has been to print out its copyright assignment form, sign it and post it back to them, but only AFTER I had deleted the words I assign copyright and replaced it with I grant you a licence to print or similar. They never complained, and always published the work; in contract law (UK law at least and I suspect the rest of the world), my revised contract was the one that applied. I suspect they never noticed the change in wording, but that's their problem, not mine. I commend that approach. Charles Professor Charles Oppenheim --- On Sun, 9/1/11, Hélène.Bosc hbosc-tcher...@orange.fr wrote: From: Hélène.Bosc hbosc-tcher...@orange.fr Subject: Re: Rights Reductio Ad Absurdum To: american-scientist-open-access-fo...@listserver.sigmaxi.org List-Post: goal@eprints.org List-Post: goal@eprints.org Date: Sunday, 9 January, 2011, 22:47 Charles Oppenheim wrote: I have never had a problem over the past three decades with publishers when refusing to assign copyright to them dating from when I was a mere junior lecturer. How lucky you are, Charles, to be heeded by publishers and to have answers from them ! Andrew Adams has already noted his repeated difficulties. I can tell you about mine : I started to do proxy self-archiving on behalf the researchers of my lab in 2002-2003. At that time, Elsevier's policy on self-archiving was not yet the Green one that we know and that appeared (thanks in part to Stevan Harnad's efforts) in May 2004. Please see SPARC Open Access Newsletter #74 http://www.earlham.edu/~peters/fos/newsletter/06-02-04.htm Back then was possible to self-archive post-prints only after asking permission for each article, in each periodical, case by case! I prepared the requests for several articles and these requests were signed by the concerned researchers but we never received any answer (hence no permission) despite my insistence, by renewing my requests! And you no doubt know that there are not many of us to do that! Hélène Bosc - Original Message - From: CHARLES OPPENHEIM/mc/compose?to=c.oppenh...@btinternet.com To: american-scientist-open-access-fo...@listserver.sigmaxi.org/mc/compose?to=american-scientist-open-access-fo...@listserver.sigmaxi.org Sent: Friday, January 07, 2011 4:16 PM Subject: Re: Rights Reductio Ad Absurdum I apologise to Professor Adams if he felt insulted by my comments. I have never had a problem over the past three decades with publishers when refusing to assign copyright to them - dating from when I was a mere junior lecturer. I do agree though that it is often difficult for junior members of staff in an academic institution to push publishers hard. That is why should be a condition of employment that employees do NOT assign copyright to publishers for journal articles. The employee can then say to the publisher I'm really sorry, but my contract of employment does not allow me to assign copyright to you. All publishers I know of accept such statements. Also, if these contracts really are unfair, then why isn't Professor Adams recommending action in a Court to have them deemed invalid in law? There is enough legislation, certainly in the EU, on unfair contractual terms to allow for such a case to be made. That's a far more sensible approach than recommending people to sign a contract and then to breach it. Charles Professor Charles Oppenheim --- On Fri, 7/1/11, CHARLES OPPENHEIM c.oppenh...@btinternet.com wrote: From: CHARLES OPPENHEIM c.oppenh...@btinternet.com Subject: Re: Rights Reductio Ad Absurdum To: american-scientist-open-access-fo...@listserver.sigmaxi.org List-Post: goal@eprints.org List-Post: goal@eprints.org Date: Friday, 7 January, 2011, 9:14 What interesting advice from a Professor of Business Administration! Voluntarily enter into a contract with a third party and then ignore its terms and conditions because the third party is
Re: Rights Reductio Ad Absurdum
If the contract is returned signed and amended and then the other party - in this case, the publisher fulfils its part of the bargain by publishing, acquiesence to the revised contract by the publisher is implied in law.  That's what I was taught by my law lecturer (he called it the last shot doctrine of contract law)  and this doctrine (though not with that name) is to be found in standard textbooks on UK contract law.  But I stress this is UK law, and other countries' approaches may be different. As for Andrew's problems with a book with Wiley, that is a familiar situation for me as well! Charles Professor Charles Oppenheim --- On Mon, 10/1/11, Andrew A. Adams a...@meiji.ac.jp wrote: From: Andrew A. Adams a...@meiji.ac.jp Subject: Re: Rights Reductio Ad Absurdum To: American Scientist Open Access Forum american-scientist-open-access-fo...@listserver.sigmaxi.org, CHARLES OPPENHEIM c.oppenh...@btinternet.com Date: Monday, 10 January, 2011, 11:40  I negotiated with Elsevier when my article was accepted by one of their jo= urnals. My refusal to assign copyright was at the time a matter of princip= le rather than any anticipation of the OA movement. So issues of having to=  later negotiate permission to self-archive never arose. In the case of Kluwer, my approach has been to print out its copyright assi= gnment form, sign it and post it back to them, but only AFTER I had deleted=  the words I assign copyright and replaced it with I grant you a licence=  to print or similar. They never complained, and always published the wor= k; in contract law (UK law at least and I suspect the rest of the world), m= y revised contract was the one that applied. I suspect they never noticed = the change in wording, but that's their problem, not mine. I commend that a= pproach. According to my legal training it's not a valid contract. The publisher could quite easily repudiate it. Whether they'd be liable to some of it provisions is a question that could only be settled by a court case, but the usual definition of a contract requires both parties to be aware of (and in the case of employees to be authorised to commit to) the final version. The fact that the author never actually receives anything signed by the publisher in the case of academic journal publications is just one of the reasons I'm actually of the opinion that all of these so-called contracts are very dodgy. When I published a book with Wiley, for example, we went round a couple of times on the proposed contract and the one that7s valid has been signed by both parties and both parties have signed copies which match. I've never received anything signed by a publisher, and hence the contract in which I assign copyright to them is suspicious to me as valid in court. Of course there are in certain legal jurisdictions customary contracts and verbal contracts, but again these all assume that everyone involved have a common understanding of what they're agreeing to. Not trying to continue with any personal disharmony between myself and Charles but I find his approach to be equally fraught with potential legal and ethical issues as my own. The fig-leaf of returning an amended form which the recipient could well claim it expects only to receive as signed if unamended strikes me as equally problematic as ignoring unreasonable provisions in the first place, when one's expectation is that the other party is blissfully unaware of the changes made. -- Professor Andrew A Adams           a...@meiji.ac.jp Professor at Graduate School of Business Administration, and Deputy Director of the Centre for Business Information Ethics Meiji University, Tokyo, Japan     http://www.a-cubed.info/
Re: Rights Reductio Ad Absurdum
Derek Law writes Amend the contract. They never notice (two dozen changed so far!) Springer did notice for my ECDL 2000 paper. http://openlib.org/home/krichel/papers/phoenix.a4.pdf They did not publish it. The conference managers begged me not to mention that the non-appearance of the paper was a permissions issue. Their official version was a technical error. ECDL still publish with Springer, without open access. Yet the same people who go to ECDL hang around the open access meetings. I guess it is a case of do what I say, don't do what I do. Cheers, Thomas Krichelhttp://openlib.org/home/krichel http://authorclaim.org/profile/pkr1 skype: thomaskrichel
Re: Rights Reductio Ad Absurdum
I negotiated with Elsevier when my article was accepted by one of their jo= urnals. My refusal to assign copyright was at the time a matter of princip= le rather than any anticipation of the OA movement. So issues of having to= later negotiate permission to self-archive never arose. In the case of Kluwer, my approach has been to print out its copyright assi= gnment form, sign it and post it back to them, but only AFTER I had deleted= the words I assign copyright and replaced it with I grant you a licence= to print or similar. They never complained, and always published the wor= k; in contract law (UK law at least and I suspect the rest of the world), m= y revised contract was the one that applied. I suspect they never noticed = the change in wording, but that's their problem, not mine. I commend that a= pproach. According to my legal training it's not a valid contract. The publisher could quite easily repudiate it. Whether they'd be liable to some of it provisions is a question that could only be settled by a court case, but the usual definition of a contract requires both parties to be aware of (and in the case of employees to be authorised to commit to) the final version. The fact that the author never actually receives anything signed by the publisher in the case of academic journal publications is just one of the reasons I'm actually of the opinion that all of these so-called contracts are very dodgy. When I published a book with Wiley, for example, we went round a couple of times on the proposed contract and the one that7s valid has been signed by both parties and both parties have signed copies which match. I've never received anything signed by a publisher, and hence the contract in which I assign copyright to them is suspicious to me as valid in court. Of course there are in certain legal jurisdictions customary contracts and verbal contracts, but again these all assume that everyone involved have a common understanding of what they're agreeing to. Not trying to continue with any personal disharmony between myself and Charles but I find his approach to be equally fraught with potential legal and ethical issues as my own. The fig-leaf of returning an amended form which the recipient could well claim it expects only to receive as signed if unamended strikes me as equally problematic as ignoring unreasonable provisions in the first place, when one's expectation is that the other party is blissfully unaware of the changes made. -- Professor Andrew A Adams a...@meiji.ac.jp Professor at Graduate School of Business Administration, and Deputy Director of the Centre for Business Information Ethics Meiji University, Tokyo, Japan http://www.a-cubed.info/
Re: Rights Reductio Ad Absurdum
Charles Oppenheim, supported by Law (Derek), wrote: I suspect they [editors] never noticed the change in wording, but that's their problem, not mine. I commend that approach. It seems to me that what Charles Oppenheim suggests (relying upon publishers' oversight) is not really, at least on moral grounds, different from what he condemned (ignoring somewhat confusing, and arguably abusive conditions). My guess is that if that approach became prevalent, publishers would indeed start scrutinizing copyright agreements received from authors, in the same way Elsevier changed its copyright policy in the wake of the recent increase in the number of mandates. Personally, I am particularly outraged by Elsevierâs last move. I consider that it breaks a fragile common understanding which had made acceptable to authors the total transfer of copyright required by editors. Editorsâ tolerance (or oversight), then explicit recognition of the need (or wish) of these give-away authors to make their works more available, were seen as a form of compensation, analogous to financial retribution (royalties) in non-academic publishing. But what remains of this common understanding when an editor uses the rights it has acquired for free, from an author who is paid by an university, to oppose a decision made by the same university, especially if this decision is not made in the universityâs own immediate interests, but rather for the common good? This I call abusive, on moral as well as legal grounds. And I think it should be the burden of the editor which writes the entirety (and modifies unilaterally) its copyright contract to have a court establish its validity. For my part, I would simply ignore these questionable clauses, and consider hiring a lawyer only if I decide to keep an article in my universityâs repository after the editor writes me that, according to him, keeping it there violates that contract. Marc Couture
Rights Reductio Ad Absurdum
** Cross-posted ** The following query came up on the UKCORR mailing list: I was surprised to read the paragraph below under author's rights (http://www.elsevier.com/wps/find/authorsview.authors/copyright##rights) the right to post a revised personal version of the text of the final journal article (to reflect changes made in the peer review process) on your personal or institutional web site or server for scholarly purposes, incorporating the complete citation and with a link to the Digital Object Identifier (DOI) of the article (but not in subject-oriented or centralized repositories or institutional repositories with mandates for systematic postings unless there is a specific agreement with the publisher- see http://www.elsevier.com/fundingbody agreements for further information]); You can't blame Elsevier's Perplexed Permissions Personnel for trying: After all, if researchers -- clueless and cowed about copyright -- have already lost nearly two decades of research access and impact for no reason at all, making it clear that only if/(when they are required (mandated) by their institutions and funders will they dare to do what is manifestly in their own best interests and already fully within their reach, then it's only natural that those who perceive their own interests to be in conflict with those of research and researchers will attempt to see whether they cannot capitalize on researchers' guileless gullibility, yet again. In three words, the above restrictions on the green light to make author's final drafts OA are (1) arbitrary, (2) incoherent, and (3) unenforceable. They are the rough equivalent of saying: You have the right to post a revised personal version of the text of the final journal article (to reflect changes made in the peer review process) on your personal or institutional web site or server for scholarly purposes -- but not if you are required to do so by your institution or funder. They might as well have added or if you have a blue-eyed uncle who prefers tea to toast on alternate Tuesdays. My own inclination is to say that if researchers prove to be stupid enough to fall for that, then they deserve everything that is coming to them (or rather, withheld from them). But even I, seasoned cynic that the last 20 years have made me, don't believe that researchers are quite that stupid -- though I wouldn't put it past SHERPA/Romeo to go ahead and solemnly enshrine this latest bit of double-talk in one of its slavish lists of General Conditions on a publisher's otherwise green self-archiving policy, thereby helpfully furnishing an effective pseudo-official megaphone for every such piece of optimistic gibberish, no matter how absurd. My advice to authors (if, unlike what the sensible computer scientists and physicists have been doing all along -- namely, self-archiving without first seeking anyone's blessing for two decades -- they only durst self-archive if their publishers have first given them their green light to do so) is that they take their publishers at their word when they do give them their green light to do so, and ignore any SHERPA/Romeo tommy-rot they may try to append to that green light to make it seem as if there is any rational line that can be drawn between yes, you may make your refereed final draft OA and no, you may not make your refereed final draft OA. For those who are interested in knowing what is actually happening, worldwide, insofar as OA self-archiving is concerned, I recommend reading Peter Suber's stirring 2010 Summary of real progress rather than the sort of pseudo-legalistic smoke-screening periodically emitted by Permissions Department Pundits (whether or not not they are canonized by SHERPA-Romeo): http://www.earlham.edu/%7Epeters/fos/newsletter/01-02-11.htm#2010 Dixit, Your Weary and Wizened Archivangelist
Re: Rights Reductio Ad Absurdum
I'm afraid I don't see what is incoherent about Elsevier's policy. It certainly does NOT have the meaning attributed to it by Dixit, who seems to be the one confused here. Sandy Thatcher At 8:44 PM -0500 1/10/11, Stevan Harnad wrote: ** Cross-posted ** The following query came up on the UKCORR mailing list: I was surprised to read the paragraph below under author's rights (http://www.elsevier.com/wps/find/authorsview.authors/copyright##rights) the right to post a revised personal version of the text of the final journal article (to reflect changes made in the peer review process) on your personal or institutional web site or server for scholarly purposes, incorporating the complete citation and with a link to the Digital Object Identifier (DOI) of the article (but not in subject-oriented or centralized repositories or institutional repositories with mandates for systematic postings unless there is a specific agreement with the publisher- see http://www.elsevier.com/fundingbody agreements for further information]); You can't blame Elsevier's Perplexed Permissions Personnel for trying: After all, if researchers -- clueless and cowed about copyright -- have already lost nearly two decades of research access and impact for no reason at all, making it clear that only if/(when they are required (mandated) by their institutions and funders will they dare to do what is manifestly in their own best interests and already fully within their reach, then it's only natural that those who perceive their own interests to be in conflict with those of research and researchers will attempt to see whether they cannot capitalize on researchers' guileless gullibility, yet again. In three words, the above restrictions on the green light to make author's final drafts OA are (1) arbitrary, (2) incoherent, and (3) unenforceable. They are the rough equivalent of saying: You have the right to post a revised personal version of the text of the final journal article (to reflect changes made in the peer review process) on your personal or institutional web site or server for scholarly purposes -- but not if you are required to do so by your institution or funder. They might as well have added or if you have a blue-eyed uncle who prefers tea to toast on alternate Tuesdays. My own inclination is to say that if researchers prove to be stupid enough to fall for that, then they deserve everything that is coming to them (or rather, withheld from them). But even I, seasoned cynic that the last 20 years have made me, don't believe that researchers are quite that stupid -- though I wouldn't put it past SHERPA/Romeo to go ahead and solemnly enshrine this latest bit of double-talk in one of its slavish lists of General Conditions on a publisher's otherwise green self-archiving policy, thereby helpfully furnishing an effective pseudo-official megaphone for every such piece of optimistic gibberish, no matter how absurd. My advice to authors (if, unlike what the sensible computer scientists and physicists have been doing all along -- namely, self-archiving without first seeking anyone's blessing for two decades -- they only durst self-archive if their publishers have first given them their green light to do so) is that they take their publishers at their word when they do give them their green light to do so, and ignore any SHERPA/Romeo tommy-rot they may try to append to that green light to make it seem as if there is any rational line that can be drawn between yes, you may make your refereed final draft OA and no, you may not make your refereed final draft OA. For those who are interested in knowing what is actually happening, worldwide, insofar as OA self-archiving is concerned, I recommend reading Peter Suber's stirring 2010 Summary of real progress rather than the sort of pseudo-legalistic smoke-screening periodically emitted by Permissions Department Pundits (whether or not not they are canonized by SHERPA-Romeo): http://www.earlham.edu/%7Epeters/fos/newsletter/01-02-11.htm#2010 Dixit, Your Weary and Wizened Archivangelist -- Sanford G. Thatcher 8201 Edgewater Drive Frisco, TX 75034-5514 e-mail: sandy.thatc...@alumni.princeton.edu Phone: (214) 705-1939 Facebook: http://www.facebook.com/sanford.thatcher If a book is worth reading, it is worth buying.-John Ruskin (1865) The reason why so few good books are written is that so few people who can write know anything.-Walter Bagehot (1853)
