On 17-Feb-09, at 9:21 AM, C.Oppenheim_at_lboro.ac.uk wrote:
> Let me make my position clear. Comments that I make have no legal
> authority. I take no responsibility for any actions a reader might take
> (or not take) as a result of reading my opinion, and that in any cases of
> doubt, readers should take formal legal advice. Anyone who advises third
> parties to do something that is potentially infringing without such a
> health warning could find themselves accused by rights owners of
> authorising infringement, which means they would be just as liable to pay
> damages as the person who took the advice.
>
> I agree with Talat that 100% OA is not necessarily inevitable, despite my
> hope that it does come to pass. Just because something is technically
> possible and makes economic sense does not mean it is bound to occur.
Let me make my position clear.
Comments that I make have no legal authority.
Nor am I addressing 3rd parties.
(I am addressing only the authors of refereed journal articles.)
And all I am advising is that they not take leave of their common sense in
favor of far-fetched flights of formal fancy -- especially incoherent ones.
Amen.
Johannes
>
>
> Charles
>
>
> Professor Charles Oppenheim
> Head
> Department of Information Science
> Loughborough University
> Loughborough
> Leics LE11 3TU
>
> Tel 01509-223065
> Fax 01509 223053
> e mail c.oppenheim_at_lboro.ac.uk
> -----Original Message-----
> From: Repositories discussion list
> [mailto:JISC-REPOSITORIES_at_JISCMAIL.AC.UK] On Behalf Of Talat Chaudhri
> Sent: 17 February 2009 12:51
> To: JISC-REPOSITORIES_at_JISCMAIL.AC.UK
> Subject: Re: John Wiley on RoMEO and John the Baptist on Supererogation
>
> This may be your view, Stevan, but it is frankly inappropriate to tell
> others to break the law at their own risk, whatever your views in terms of
> OA. That is their risk assessment, the business of their institutions and
> nobody else's. Clearly the copyright system is incoherent and difficult,
> but nonetheless these publishers have indisputable copyright and may
> licence it as they please, even incoherently. The upshot is unknown, of
> course, as nothing has ever been tested, and this may continue for better
> or for worse, probably a mix of both.
>
> I hope others on this list will agree with me that we should not tell
> other institutions how to manage their legal liabilities, much as we would
> not do so for individuals of our personal acquaintance, especially in
> ignorance of both their specific circumstances and the precise legal
> situation. No doubt you will continue to do so despite my protestation,
> but I feel duty bound to voice this complaint on behalf of repository
> managers and their institutions, amongst whose number I was counted until
> very recently.
>
> There is no evidence that OA is such a foregone conclusion as you say,
> much as I would like it to be true as much as you do. We deal here with
> practical issues, not with your imagined "Zeno's paradox", which nobody
> but you discusses on this list.
>
>
> Talat Chaudhri
>
> Stevan Harnad wrote:
> > On 17-Feb-09, at 4:32 AM, Ian Stuart wrote:
> >
> > > Leslie Carr wrote:
> > > >
> > > > HOWEVER one step away (literally) from the W-B "Best Practice
> > > > document" is the W-B "Copyright FAQ" in which they elaborate that
> > > > although the ELF is used for societies, the wholly owned journals
> > > > still retain the practice of Copyright Assignment. The sample
> > > > Copyright Assignment document (for the aptly chosen International
> > > > Headache Society) contains the following text:
> > > > ---- quote ----
> > > > Such preprints may be posted as electronic files on the author's own
> > > > website for personal or professional use, or on the author's
> > > > internal university, college or corporate networks/intranet, or
> > > > secure external website at the author's institution, but not for
> > > > commercial sale or for any systematic external distribution by a
> > > > third party (e.g. a listserve or database connected to a public
> > > > access server).
> > > > ----- end -----
> > > > I *think* that an institutional repository is OK by that definition.
> > > > After all, it is a secre external website at the author's
> > > > institution which is not offering the item for sale nor run by a
> > > > third party.
> > >
> > > Where does this leave the Subject Repository (ex aXive)?
> > > It's not the authors own website, or an intranet at the authors local
> > > institution, or an external server at the authors institution... yet
> > > it also doesn't offer commercial sales or *systematic*[my emphasis]
> > > distribution to a third party
> > >
> > > Where does this leave the Depot?
> > > It's /effectively/ an Institutional Repository, but like aXive it's
> > > not at the authors institution.
> > >
> > > .... or is this one of those questions one shouldn't really ask?
> >
> > Here's my tuppence worth on this one -- and it's never failed me (or
> > anyone who has applied it, since the late 1980's. when the
> > possibilities first presented themselves) as a practical guide for
> > action: (A shorter version of this heuristic would be "/If the
> > physicists had been foolish enough to worry about it in 1991, or the
> > computer scientists still earlier, would we have the half-million
> > papers in Arxiv or three-quarter million in Citeseerx that we have,
> > unchallenged, in 2009?/"):
> >
> > *When a publisher starts to make distinctions that are more minute
> > than can even be made sense of technologically, and are unenforceable,
> > ignore them:*
> >
> > The distinction between making or not-making something freely
> > available on the Web is coherent (if often wrong-headed).
> >
> > The distinction between making something freely available on the web
> > /here/ but not /there/ is beginning to sound silly (since if it's free
> > on the web, it's effectively free /everywhere/), but we swallow it, if
> > the "there" is a 3rd-party rival free-riding publisher, whereas the
> > "here" is the website of the author's own institution. /Avec les dieux
> > il y a des accommodements/: Just deposit in your IR and port metadata
> > to CRs.
> >
> > But when it comes to DEPOT -- which is an interim "holding space"
> > provided (for free) to each author's institution, to hold deposits
> > remotely until the institution creates its own IR, at which time they
> > are ported home and removed from DEPOT -- it is now bordering on
> > abject absurdity to try to construe DEPOT as a "3rd-party rival
> > free-riding publisher".
> >
> > We are, dear colleagues, in the grip of an orgy of pseudo-juridical
> > and decidedly supererogatory hair-splitting/ on which nothing
> > whatsoever hinges but the time, effort and brainware we perversely
> > persist in dissipating on it/.
> >
> > This sort of futile obsessiveness is -- in my amateur's guess only --
> > perhaps the consequence of two contributing factors:
> >
> > (1) The agonizingly (and equally absurdly) long time during which
> > the research community persists in its inertial state of Zeno's
> > Paralysis about self-archiving (a paralysis of which this very
> > obsession with trivial and ineffectual formal contingencies is
> > itself one of the symptoms and causes). It has driven many of us
> > bonkers, in many ways, and this formalistic obsessive-compulsive
> > tendency is simply one of the ways. (In me, it has simply fostered
> > an increasingly curmudgeonly impatience.) The cure, of course, is
> > deposit mandates.
> >
> >
> > and
> >
> > (2) The substantial change in mind-set that is apparently required
> > in order to realize that/ OA is not the sort of thing governed by
> > the usual concerns of either library cataloguing/indexing or
> > library rights-management/: It's something profoundly different
> > because of the very nature of OA.
> >
> >
> > Rest your souls. Universal OA is a foregone conclusion. It is optimal,
> > and it is inevitable. The fact that it is also proving to be so
> > excruciatingly -- and needlessly -- slow in coming is something we
> > should work to remedy, rather than simply becoming complicit in and
> > compounding it, by giving ourselves still more formalistic trivia with
> > which to while away the time we are losing until the obvious happens
> > at long last.
> >
> > Bref: Yes, this is "one of those questions one shouldn't really ask"!
> >
> > Yours curmudgeonly,
> >
> > Your importunate archivangelist
> >
>
> --
> Dr Talat Chaudhri
> ------------------------------------------------------------
> Research Officer
> UKOLN, University of Bath, Bath BA2 7AY, Great Britain
> Telephone: +44 (0)1225 385105 Fax: +44 (0)1225 386838
> E-mail: t.chaudhri_at_ukoln.ac.uk Skype: talat.chaudhri
> Web: http://www.ukoln.ac.uk/ukoln/staff/t.chaudhri/
> ------------------------------------------------------------
Received on Tue Feb 17 2009 - 15:29:23 GMT