Brilliant Legal Rebuttal of Congressional Challenge to NIH Green Open Access Mandate

See this letter from 46 law professors and specialists in copyright law for a brilliant defense of the NIH Green OA Self-Archiving Mandate against the absurd charges of the publisher’s lobby and its attorneys in the Conyers Bill.

I generally avoid the legal aspects of OA because I can see so clearly that 100% Green OA can be quickly and easily achieved without having to waste a single minute on legal obstacles (via the IDOA Mandate). But this is such an articulate and rigorous set of legal arguments that I could not resist posting them further just for the delight of the ineluctable logic alone.

Read, enjoy, admire, and rest assured that whether via the legalisticroute or just good, practical sense, OA will prevail. It is optimal, inevitable, and irresistible. The anti-OA lobby is wasting its money in trying to invoke law or laws to stop it; at best, they can just buy a bit more time. (But if universities and funders opt directly for IDOA mandates, that will deny the anti-OA lobby even that.)

Stevan Harnad
American Scientist Open Access Forum

PS Unless I am mistaken, one detects the unseen legal hand and mind of Peter Suber, plus a goodly dose of the seen hand and mind of Michael Carroll in the drafting of this legal and logical masterpiece.

Transition to DRIVER II

The folks at DRIVER updated the project home page to reflect the new goals of DRIVER II.  Excerpt:

The objectives of DRIVER-II are manifold:

From the new page on OA (last link above):

DRIVER caters for researchers and the general public by offering a common platform for Open Access output, which implies no access barriers to the full-text, image or other data of the publication. The whole DRIVER community actively participates in the Open Access movement and advocates that digital repositories as the principal location for research materials to be deposited in.

Open Access repositories have revolutionised access to research materials. Open Access offers significant advantages for individual authors, for researchers, for institutions and for the process of research generally by freeing up the process of dissemination. By making research material Open Access it means that number of readers increases and thereby citations to the article increase – in some fields increasing citations by 300%. Open Access repositories can hold digital duplicates of published articles and make them freely available. The development of digital repositories across Europe has gathered momentum in recent years and continues.

For more information about Open Access and digital repositories visit [this page] and on developments in Europe visit [this page] on the DRIVER Support pages.

Another call for OA to Australian research

Colin Steele, Open Access to Australia’s research, Canberra Times, September 29, 2008.  Excerpt:

Last week I spoke at the major Open Access conference in Brisbane at the Stamford Plaza Hotel, which attracted over 200 attendees from Australia and overseas….

While the previous Howard government [in Australia] had an Information Accessibility statement relatively little effort was made to implement it, compared to technological infrastuctures, yet the costs of the former in cultural change practice were/are relatively low.

The establishment of an "Australian Information Commons" through Open Access to research will provide immeasurable benefit not only for Australian society but also for the dissemination of Australian research globally. It is also clear from the Cutler Innovation and other reports,such as the Productivity Commission report in 2007, that freeing Australian knowledge is a greater aid to productivity returns than locking it away knowledge in patents and IP protection.  Carr’s statement, plus the whole of government approach on public funding, public good, public access should provide the final impetus for change.

The conference concluded that a major step forward would be for all of Australia’s universities to make their annual research publications available in open access in full text, wherever possible.

A really good overview of the current NIH mandate situation

I was just reading this really nicely balanced and argued piece entitled Kicking the Door Stop on Open Access and thought that I would share it with you. I was wondering just why it was so well written and reasonable in tone so I stopped to read the bio of the author, Rick Weiss, only to find that he is used to be the science and medicine lead reporter for the Washington Post for fifteen years, which explains a lot! I particularly liked his closing comment:

“The open access system is in place, on a limited scale. I say, “Let the experiment go on.” It’s a great opportunity to see if it works. And it’s a great inspiration for ink-and-paper publishers to start thinking about more modern ways to continue to profit in the inevitably lucrative business of onpassing new scientific findings”.

Proliferation of OA events

I spent some time this morning adding new events to the OAD list of Conferences and workshops related to OA.  Two quick thoughts:

  1. If you measure the success of the OA movement by the number of people and institutions pouring energy into it, then you’ll find strong evidence of our success on the OAD Events pages.  For example, look at 2008, or even at October 2008.  The proliferation of events worldwide is inspiring.
  2. Remember that OAD is a wiki and welcomes your contributions.  One of its premises is that a list, like the big list of worldwide OA events, can be more comprehensive, accurate, and up to date when maintained by the whole OA community than when maintained by an individual.  When you hear about a new OA event, please add it to the OAD and make sure that everyone knows about it.

Systematically gathering and disseminating repository usage data

Christine Merk and Nils K. Windisch, Usage Statistics Review: Final report, JISC, September 24, 2008.  (Thanks to the JISC Information Environment Team.)  Excerpt:

The JISC Usage Statistics Review Project is aimed at formulating a fundamental scheme for repository log files and at proposing a standard for their aggregation to provide meaningful and comparable item-level usage statistics for electronic documents like e.g. research papers and scientific resources….

[U]sage events should be exchanged in the form of OpenURL Context Objects using OAI….

With the JISC-funded Publisher and Institutional Repository Usage Statistics (PIRUS) project and the DFG-funded Open-Access-Statistics there are two projects which will formulate standards for usage statistics and work on their implementation in the future. To reach broad comparability, national efforts should be bundled together. A central authority – which could for example be the Digital Repository Infrastructure Vision for European Research (DRIVER) – should aggregate the usage data….

Policies on statistics should be formulated for the repository community as well as the publishing community. Information about statistics policies should be available on services like OpenDOAR and RoMEO….

It was discussed whether usage statistics should be open access and if yes to what extent. There was a common understanding that the raw data should not be publicly available as privacy might easily be breached. Only strictly regulated access for research should be possible.

Less consent was reached about the status of the usage statistics. Many repositories are on the one hand part of the Open Access movement and therefore do not want to contradict its ideals. On the other hand, the infrastructure for the services has to be financed. Usage statistics would be a valuable service. They can be used for research evaluation and they are the precondition for the introduction of recommender systems. A third option besides a freely available or a fee-based service is a partially publicly available service. Basic measures can be made open access while the access to more sophisticated measures and recommender systems can be restricted….

OA is desirable apart from the savings, but there are savings too

Timothy Burke, Planning for Contraction, Inside Higher Ed, September 29, 2008.  Excerpt:

…So, the party’s over. However, I’m not hearing a lot of preparation for what higher education will look like if growth is over….

Here are some of the shifts in thinking needed….

3) Where higher education is exposed to cost increases which are potentially within its control, universities and colleges need to band together comprehensively as buyers and dictate terms to their own advantage. There’s not much that can be done about energy costs or insurance: any big employer is exposed to those at an equal base, and then to whatever extent they consume those above and beyond that base. On the other hand, libraries and information services are areas of unique exposure. There are reasons for academia to completely rethink its production and consumption of publication and knowledge that have nothing to do with cost. Open access publication is a good idea that enhances the mission of academia, regardless of its financial implications. However, it’s also insane to be exposed to escalating costs when we potentially have such massive collective leverage over the sellers. We are not only the main buyers of many forms of publication and information, we are also the main producers, and we typically give away what we produce for free and then buy it back from the people we gave it to….

Stand up for an OA mandate at your university

John Willinsky, How To Institute an Open Access Policy? Stand Up,, September 28, 2008.  Excerpt:

On June 10th, my colleagues in the Stanford University School of Education listened patiently as I stood before them explaining how the Harvard Law School had passed an “open access” motion which was going to lead to free online access to all of the scholarly articles that they published. We were on a faculty retreat, at a hotel by the ocean near Monterey, California, with the waves rolling in not far from where we were sitting. An opening had appeared in the program, and I jumped in, asking for the time to explain what such a policy could mean for the work of a school or department….

[The faculty] wondered about the copyright. I explained how the term “nonexclusive” was key….The author as the original copyright holder grants a non-exclusive right to post this particular copy prior to transferring the remaining rights to the publisher.

They wondered, as well, why in the world publishers would accept this. And I explained that the publishers already had, at least in principle. The majority of publishers grant authors, in exchange for the author turning over copyright to their work, the right to post their work in just such an archive, sometimes some months after publication….

We talked briefly about what this access might mean for who reads law school scholarship and all the more so, in the case of an education school, which…saw itself having a responsibility for the professionalism of teachers and for addressing public interests in education.

However, before we had been at it for half-an-hour, people were saying let’s just do it. Let’s pass an open access motion for the School of Education, and let’s do it right here and right now. I was taken aback by the ease with which this idea garnered nods and shrugs of assent.

Before the hour was up, we had passed an open access motion that committed the School to sharing what it knew or at least what it had discovered and submitted for publication….

The times may be a changing. It had been very hard, only a few years ago, to get researchers to look up from their work long enough to explain access issues. Putting an article in a journal, as they saw it, made things public enough. No more. No longer. Greater openness, greater accessibility of knowledge has become part of culture. Now is the time to make it standard practice and a common policy within universities.

To help other departments, schools and faculties take this step of making open access a policy, I put together a webpage on the Open Access Policy….

Take advantage of the times, my fellow scholars and researchers. It could prove dead easy for you, too, to stand up and reposition your institution within this larger world of public knowledge.

PS:  For background, also see our past blog posts on the Stanford OA mandate, and the recent post about it by Bret Waters, a member of the Advisory Council for the Stanford School of Education.