SH: “[T]here is nothing either defensible or enforceable that a publisher can do or say to prevent a researcher from personally distributing individual copies of his own (published) research findings to individual researchers, for research purposes, in any form he wishes, analog or digital, at any time. That is what researchers have been doing for many decades, whether or not their right to do so was formally enshrined in a publisher’s ‘author-re-use’ document.”
RQJ: “This discussion strikes at the heart of green OA implementation. Among other things, it’s why we have mandates.”
Actually that’s not correct. What I was referring to above — authors mailing an individual analog reprint or emailing an individual digital eprint to an individual requester for research purposes — predates both OA (Green and Gold) and (Green) OA mandates.
The only connection with Green OA mandates is that email eprint requests for Closed Access deposits whose metadata are openly accessible allow users to request — and authors to provide — individual one-on-one “Almost OA” during any OA embargo period: That way Green OA mandates can require deposit of the final refereed draft immediately upon acceptance, with no exceptions or opt-outs, no matter how foolish a copyright transfer agreement the author may have signed.
If a Green OA mandate does not require immediate deposit, then it is completely at the mercy of publisher OA embargoes: The author deposits only if and when the publisher stipulates that he may deposit, because all deposits are OA. If, instead, immediate deposits are required in every case, without exception, but where OA is publisher-embargoed the deposit may instead be made Closed Access during the embargo, rather than OA, then the email eprint request button allows the author to provide “Almost OA” on an individual case by case basis for the Closed Access articles during the embargo.
But if the mandate instead requires deposit only after the publisher embargo has elapsed, that means the only access during the embargo period is subscriber-access. That means a great loss of potential research usage and impact.
RQJ: “I believe Harnad is likely incorrect as a matter of law (at least in the US), but ultimately this may end up as a court case that gives us more explicit guidance.
If researchers sending individual reprints and eprints to individual requesters for research purposes has not gone to court for over a half century, it is difficult to imagine why someone would think it will go to court now: Publishers suddenly begin suing their authors for fulfilling reprint requests?
RQJ: “Note that “research findings” (which are the stuff of patent or academic integrity if protected at all) are very different from their expression in text, which is what is transferred through the copyright agreement.”
We are not talking about research findings, we are talking about copies of verbatim (published) reports of research findings: sending them to individual requesters, as scholars and scientists have been doing for over half a century (since at least the launch of Eugene Garfield’s “Current Contents” and “Request-a-print” cards):
Swales, J. (1988), Language and scientific communication. The case of the reprint request. Scientometrics 13: 93?101. “This paper reports on a study of Reprint Requests (RRs). It is estimated that tens of millions of RRs are mailed each year, most being triggered by Current Contents…“
RQJ: “Note also that “what researchers have been doing for many decades” is disputable — arguably what researchers did anteXerox was distribute the 100 or so offprints of their article that they got as part of their Faustian bargains.”
They could also mail out copies of their revised, accepted final drafts.
And whether or not any of that was “disputable” before xerox, it certainly wasn’t ever contested — neither with the onset of the xerox era, nor with the onset of the email era.
RQJ: “Note also that courts would be under strong conflicting pressures if a case like this ever actually got heard. On the one hand, Harnad’s point is good that courts would want to identify ways to find for those sympathetic scholarly authors. On another, anyone who has been following the RIAA (or remembers Eldred) knows that some of the courts also have tried to find in favor of the owners of the copyrighted works and in favor of sanctity of contract.”
Notice that in all other cases but this very special one (refereed research journal articles) both author and publisher were allied on the same side of the copyright/access divide: both wanted to protect access to their (joint) product (and revenues) from piracy by third parties.
In stark contrast, in this one anomalous case — author give-away research, written purely for maximal uptake, usage and impact, not at all for royalty revenue — the publisher and the author are on opposite sides of the copyright/access divide, and publishers would not be suing pirates, but the authors of their own works (and not “works for hire!”).
I would say that the differences from all prior cases are radical enough here to safely conclude that all prior bets are off, insofar as citing precedents and analogies are concerned.
And I would say that the de facto uncontested practices of millions of scholars and scientists annually for decades since well into both the photocopy and the email eras bear this out.
And although individual reprint/eprint request-fulfillment by authors is definitely not OA (though it is a harbinger of it), the growing clamor for OA today is surely making it all the harder for publishers now suddenly to do an abrupt about-face, endeavoring to contest individual reprint/eprint request-fulfillment by authors after all this time — and now, of all times!
RQJ: “On a third hand, the institutional employers of the researchers might well try to assert WmfH or other compulsory license theories that trumped the publisher’s copyright.”
You are thinking here about what institutions (and funders) could do to force the issue insofar as OA is concerned (and I agree, they do have an exceedingly strong hand, and could and should use it if it proves necessary).
But that is not even what we are talking about here: We are just talking about the longstanding pre-OA practice of individual reprint/eprint request-fulfillment by authors, for research purposes…
RQJ: “On a fourth, there’s the public interest in “the Progress of Science” and a dearth of good empirical data as to which copyright regimes actually do promote that progress.”
All worthy and worthwhile, but probably not necessary, as neither individual reprint/eprint request-fulfillment by authors nor Immediate-Deposit/Optional-Access (ID/OA) mandates are copyright matters:
RQJ: “…Will it ever go to court? Maybe not. The publishers might win their particular case but lose the war by triggering a revolution.”
What is the “it” that you are wondering about? Over 90% of journals are already Green on immediate, unembargoed OA self-archiving in some form (63% for the refereed postprint, a further 32% for the unrefereed preprint).
So are you wondering whether the non-Green journals will try to sue their authors? No, they won’t. At most, some may try to send them take-down notices, which their authors will either choose to honor or ignore.
But that isn’t even what we are talking about here: We are talking about individual reprint/eprint request-fulfillment by authors, for research purposes: Wouldn’t the time for authors to worry about that have been 50 years ago, before they began doing it, rather than now, when they and their children and grand-children have already been doing it with impunity for generations?