Paul Royster, of the University of Nebraska-Lincoln, has released an interesting PDF of a PowerPoint presentation about scholarly communication issues and the DigitalCommons@University of Nebraska-Lincoln.
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The Berkeley Electronic Press (bepress) has acquired the Digital Commons institutional repository software from ProQuest. bepress was the original creator of the software.
Here's an excerpt from the press release:
ProQuest and The Berkeley Electronic Press ("bepress") today announced that they have reached an agreement for bepress to purchase ownership of Digital Commons, the world's leading hosted institutional repository solution. Bepress will be adding sales and marketing staff and augmenting its existing customer support and services in addition to the hosting and technology services that it has always provided Digital Commons customers.
Bepress Chairman, Aaron Edlin, said "Institutional Repositories are core to the bepress mission of furthering scholarly communication and thus bepress is excited at the opportunity to build a close relationship with Digital Commons customers. Developing successful and vibrant Institutional Repositories will be bepress's central focus."
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According to today's SHERPA/RoMEO statistics, 36% of the 308 included publishers are green ("can archive pre-print and post-print"), 24% are blue ("can archive post-print (i.e. final draft post-refereeing)"), 11% are yellow ("can archive pre-print (i.e. pre-refereeing)"), and 28% are white ("archiving not formally supported"). Looked at another way, 72% of the publishers permit some form of self-archiving.
These are certainly encouraging statistics, and publishers who permit any form of self-archiving should be applauded; however, leaving aside Creative Commons licenses and author agreements that have been crafted by SPARC and others to promote rights retention, publishers recently liberalized author agreements still raise issues that librarians and scholars should be aware of.
Looking deeper, there are publisher variations in terms of where e-prints can be self-archived. Typically, this might be some combination of the author's Website, institutional repository or Website, funding agency's server, or disciplinary archive. Some agreements allow deposit on any noncommercial or open access server. Restricting deposit to open access or noncommercial servers is perfectly legitimate in my view; more specific restrictions are, well, too restrictive. The problem arises when the agreement limits the author's deposit options to ones he or she doesn't have, such as only allowing deposit in an institutional repository when the author's institution doesn't have one or only allowing posting on an author's Website when the author doesn't have one.
Another issue is publisher requirements for authors to remove e-prints on publication, to modify e-prints after publication to reflect citation and publisher contact information, to replace e-prints with published versions, or to create their own versions of postprints. Low deposit rates in institutional repositories without institutional mandates suggest that anything that involves extra effort by authors is a deterrent to deposit. The above kinds of publisher requirements are likely to have equally low rates on compliance, resulting in deposited e-prints that do not conform to author agreements. To be effective, such requirements would have to be policed by publishers or digital repositories. Otherwise, they are meaningless and are best deleted from author agreements.
A final issue is retrospective deposit. We can think of the journal literature as an inverted pyramid, with the broad top being currently published articles and the bottom being the first published journal articles. The papers published since the emergence of author agreements that permit self-archiving are a significant resource; however, much of the literature precedes such agreements. The vast majority of these articles are under standard copyright transfer agreements, with publishers holding all rights. Consequently, it is very important that publishers clarify whether their relatively new self-archiving policies can be applied retroactively. Elsevier has done so:
When Elsevier changes its policies to enable greater academic use of journal materials (such as the changes several years ago in our web-posting policies) or to clarify the rights retained by journal authors, Elsevier is prepared to extend those rights retroactively with respect to articles published in journal issues produced prior to the policy change.
Elsevier is pleased to confirm that, unless explicitly noted to the contrary, all policies apply retrospectively to previously published journal content. If, after reviewing the material noted above, you have any questions about such rights, please contact Global Rights.
Unfortunately, many publishers have not clarified this issue. Under these conditions, whether authors can deposit preprints or author-created postprints hinges on whether these works are viewed as being different works from the publisher version, and, hence, owned by the authors. Although some open access advocates believe this to be the case, to my knowledge this has never been decided in a court of law. Michael Carroll, who is a professor at the Villanova University School of Law and a member of the Board of the Creative Commons, has said in an analysis of whether authors can put preprints of articles published using standard author agreements under Creative Commons licenses:
Although technically distinct, the copyrights in the pre-print and the post-print overlap. The important point to understand is that copyright grants the owner the right to control exact duplicates and versions that are "substantially similar" to the copyrighted work. (This is under U.S. law, but most other jurisdictions similarly define the scope of copyright).
A pre-print will normally be substantially similar to the post-print. Therefore, when an author transfers the exclusive rights in the work to a publisher, the author precludes herself from making copies or distributing copies of any substantially similar versions of the work as well.
Much progress has been made in the area of author agreements, but authors must still pay careful attention to the details of agreements, which vary considerably by publisher. The SHERPA/RoMEO—Publisher Copyright Policies & Self-Archiving database is a very useful and important tool and users should actively participate in refining this database; however, authors are well advised not to stop at the summary information presented here and to go to the agreement itself (if available). It would be very helpful if a set of standard author agreements that covered the major variations could be developed and put into use by the publishing industry.
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Last July, I reported on use of the Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals, which is both a printed book and a freely available e-book. Both versions are under a Creative Commons Attribution-NonCommercial 2.0 License. You can get a detailed history at the prior posting; the major changes since then have been the conversion of the HTML version to XHTML and the addition of a Google Custom Search Engine.
So, what does cumulative use of the e-book OAB version look like slightly over one year down the road from the last posting? Here's a summary:
Combined, OAB Web files have been accessed 223,315 times since March 2005.
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By a 276 to 140 vote, the House approved H. R. 3043 (Making Appropriations for the Departments of Labor, Health and Human Services, and Education, and Related Agencies for the Fiscal Year Ending September 30, 2008, and for Other Purposes), which includes the following wording:
SEC. 217. The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.
Due to concerns over increased spending, President Bush may veto the bill (see Peter Suber's "House Approves OA Mandate for NIH, but Bush May Veto" for details).
Here's the party breakdown on the vote:
You can see a breakdown of votes by party, state, and other criteria at the Washington Post Votes Database page for the bill.
From the Washington Post, here are the House members who voted against the bill.
Robert Aderholt, Todd Akin, Rodney Alexander, Michele Bachmann, Spencer Bachus, Richard Baker, J. Gresham Barrett, Roscoe Bartlett, Joe Barton, Melissa Bean, Brian Bilbray, Rob Bishop, Marsha Blackburn, Roy Blunt, John Boehner, Jo Bonner, John Boozman, Charles Boustany, Kevin Brady, Henry Brown, Ginny Brown-Waite, Michael Burgess, Dan Burton, Steve Buyer, Dave Camp, John Campbell, Chris Cannon, Eric Cantor, John Carter, Steve Chabot, Howard Coble, Tom Cole, Michael Conaway, Ander Crenshaw, John Culberson, Geoff Davis, David Davis, Tom Davis, Nathan Deal, Mario Diaz-Balart, Lincoln Diaz-Balart, John Doolittle, Thelma Drake, David Dreier, John 'Jimmy' Duncan, Mary Fallin, Tom Feeney, Jeff Flake, Randy Forbes, Vito Fossella, Virginia Foxx, Trent Franks, Rodney Frelinghuysen, Elton Gallegly, Scott Garrett, Paul Gillmor, Phil Gingrey, Louie Gohmert, Virgil Goode, Bob Goodlatte, Kay Granger, Ralph Hall, J. Dennis Hastert, Doc Hastings, Dean Heller, Jeb Hensarling, Wally Herger, Peter Hoekstra, Duncan Hunter, Bob Inglis, Darrell Issa, Sam Johnson, Walter Jones, Jim Jordan, Steve King, Peter King, Jack Kingston, John Kline, Joe Knollenberg, Randy Kuhl, Doug Lamborn, Ron Lewis, Jerry Lewis, John Linder, Frank Lucas, Daniel Lungren, Connie Mack, Donald Manzullo, Kenny Marchant, Kevin McCarthy, Michael McCaul, Thad McCotter, Jim McCrery, Patrick McHenry, John Mica, Jeff Miller, Jerry Moran, Marilyn Musgrave, Sue Myrick, Randy Neugebauer, Devin Nunes, Stevan Pearce, Mike Pence, Thomas Petri, Joe Pitts, Ted Poe, Tom Price, Adam Putnam, George Radanovich, Thomas Reynolds, Cathy McMorris Rodgers, Hal Rogers, Dana Rohrabacher, Ileana Ros-Lehtinen, Peter Roskam, Edward Royce, Paul Ryan, Bill Sali, Jean Schmidt, Jim Sensenbrenner, Pete Sessions, John Shadegg, John Shimkus, Bill Shuster, Lamar Smith, Adrian Smith, Mark Souder, Cliff Stearns, John Sullivan, Lee Terry, Mac Thornberry, Todd Tiahrt, Pat Tiberi, Timothy Walberg, Greg Walden, Zachary Wamp, Lynn Westmoreland, Ed Whitfield, Roger Wicker, Joe Wilson
Should the need arise due to a veto, you can easily contact House and Senate members by e-mail using ALA's Action Alert form.
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According to a Library Journal Academic Newswire article, publishers may challenge the provisions of the NIH Public Access Policy mandate if it is made law. The issue arises from the wording of the House bill:
Sec. 217: The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.
Regarding this wording, the Library Journal Academic Newswire article says:
While seemingly innocuous, that language almost certainly will form the basis for a challenge to the policy's implementation. In a letter to lawmakers, the Association of American Publishers (AAP) argued that "a mandate may not be consistent with copyright law," a position emphasized by Brian Crawford, chair of the AAP's Professional and Scholarly Publishing Division Executive Committee. "The copyright proviso in the Labor/HHS Appropriations language does not in itself provide sufficient assurance of copyright protection," Crawford told the LJ Academic Newswire. "The mandatory deposit of copyrighted articles in an online government site for worldwide distribution is in fundamental, inherent, and unavoidable conflict with the rights of copyright holders in those works."
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Peter Suber has pointed out that ALA has an Action Alert that allows you to just fill in a form to send a message to your Congressional representatives about the NIH Public Access Policy.
Under "Compose Message" in the form, I suggest that you shorten the Subject to "Support the NIH Public Access Policy." As an "Issue Area" you might use "Budget" or "Health." Be sure to fill in your salutation and phone number; they are required to send an e-mail even though the form does not show them as required fields.
I’ve made slight modifications to the talking points and created a Web page so that the talking points can simply be cut and pasted into the "Editable text to" section of the form as the message.