So what about self-archiving? | Scholarly Communications @ Duke
The specific issue was whether or not it is feasible to maintain that a copyright is transferred only in a final version of a scholarly article, leaving copyright in earlier versions in the hands of the author. I argued that this was not the case, that the distinction between versions is a construct used by publishers that has little legal meaning, and that author rights that do persist in earlier versions, as they often do, are created by the specific terms of a copyright transfer agreement (i.e., they are creatures of a license). These points, which I believe are correct, prompted a number of people to get in touch with me, concerned about how these specific “trees” might impact the overall forest of self-archiving policies and practices. So now I want to make several points that all address one conclusion; this argument about the nature of a copyright transfer does not necessarily have any significant impact on what we do to enhance and encourage self-archiving on our campuses. Most of the practices I am aware of already take account of the argument I have been making, even if they are not explicit about it. On the LibLicense list today, Professor Steven Harnad, who is a pioneer in the movement to self-archive scholarly papers, posted a 10-point strategy for accomplishing Green open access. Essentially, he points out that a significant number of publishers (his number is 60%) allow authors to self-archive their final submitted versions of their articles, and that those who have retained this right should exercise it. Elsevier is one such publisher, about which more later. Harnad argues that there are other strategies available for authors whose copyright transfer agreements do not allow self-archiving of even the final manuscript. One option is to deposit the manuscript in a repository but embargo access to it. At least that accomplishes preservation and access to the article metadata, and it facilitates fulfillment of individual requests for a copy. Another option is to deposit a pre-print (the version of the article before peer-review) in a pre-print repository, which is a solution that has long worked well in specific disciplines like physics and computer science. All of these strategies are completely consistent with the point I have been making about copyright transfer agreements. Harnad’s model recognizes that copyright is transferred (perhaps improvidently) to publishers, and is based on authors taking full advantage of the rights that are licensed back to them in that transaction. This makes perfect sense to me and nothing I have written in my previous two posts diminishes from this strategy. One of the questions I have received a couple of times involves campus open access policies and how they affect, or are affected by, copyright transfers. These policies often assert a license in scholarly articles, so the question is essentially whether that license survives a transfer of copyright. It is a basic principle of law, and common sense, that one cannot sell, or give away, more than one owns. So if an author has granted a license to her institution before she transfers her rights to a publisher, it seems clear that the license should survive, or, to put it another way, that the rights that are transferred to the publisher are still subject to this prior license. There was an excellent article written in 2012 by law professor Eric Priest about this situation, and his conclusion is 'that permission mandates can create legally enforceable, durable nonexclusive licenses.' The article provides an extensive analysis of the legal effect of this 'Harvard-style' license, and is well worth being read in its entirety by all who are interested in the legal status of Green open access ... As many know, Elsevier also has an foolish and offensive provision in its current copyright transfer agreement that says that authors are allowed to self-archive a final manuscript version of their article UNLESS there is an institutional mandate to do so. As I have said before, this 'you may if you don’t have to but not if you must' approach is an unjustifiable interference with academic freedom, since it is an attempt to tie faculty rights to specific policies that the faculty themselves adopt to further their own institutional and academic missions. Elsevier should be ashamed to take this stance, and our institutions that value academic freedom should protest. But based on what has been said above, we can also see how futile this approach really is. If the institution has a policy-created license, that license probably survives the copyright transfer, as Eric Priest argues ..."