Open Access: Ein Lackmustest (Open Access: A Litmus Test)

German Abstract: « Open Access ist ein interessanter Policy Bereich, nicht nur weil er die Produktionsbedingungen der öffentlichen Forschung selbst betrifft, sondern auch weil er möglicherweise einer verbreiteten Beobachtung in der Urheberrechtsforschung widerspricht. Bestimmend für die allgemeine Erzählung des Urheberrechts ist die Expansionsannahme. Demnach ist die Entwicklung der Ausschlussrechte durch eine kontinuierliche und lineare Expansion gekennzeichnet. Open Access Initiativen mobilisieren dagegen für eine Umkehrung dieses Trends. Sie zielen auf akademische Standards, die einen erlaubnisfreien Zugang zu und eine Nachnutzung von öffentlich finanzierten Forschungsergebnissen verbindlich festlegen.
Dieser Artikel gibt einen breiten Überblick über die verschiedenen Ursprünge, die Operationalisierungs- und Institutionalisierungsformen von Open Access. Er beginnt mit einem kurzen Abriss über die Entstehung und Formierung des Marktes für akademische Zeitschriften, dem bis heute mächtigsten Gegner der Open Access Bewegung; und er schließt mit einer exemplarischen Darstellung der neueren Policies in Großbritannien, im Hinblick auf Open Access derzeit eines der interessantesten Länder. Die Britische Politikentwicklung zeigt zunächst, dass der Teufel tatsächlich in den Implementationsdetails steckt. Dies betrifft nicht nur die Durchsetzung von Open Access Standards, sondern auch die Allokation von Rechten. Darüber hinaus lässt sich von diesem Beispiel lernen, wie wichtig die politische Akteurskonstellation für die Ausgestaltung von Open Access Regeln ist, und damit zugleich für die künftige Bedeutung von Ausschlussrechten in der Zirkulation von öffentlicher Forschung. »

English Abstract: « Open Access is an interesting policy domain, not only because it concerns the modes of production of academic knowledge, but also because it may contradict a common observation of copyright research. While the great copyright narrative assumes that intellectual property rights expand in a continuous and linear fashion, Open Access policies strive to achieve the opposite; to wit, academic standards, which allow a permission-free access and a re-use of publicly funded research results.
This article aims to provide a broad overview of the diverse origins, the operationalization and institutionalization of Open Access policies. It starts with the emergence and formation of the market for academic journals, the most powerful counterpart of the Open Access movement, and it concludes with recent Open Access policies in the UK, one of the most interesting countries in this context because it illustrates that the devil is in the implementation details. The example of the UK not only offers lessons on how Open Access standards can be enforced but, more importantly so, on the political constellations that determine the future fate of Open Access, including that of the role of property rights for the circulation of academic knowledge. »

URL : http://ssrn.com/abstract=2515844

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Libre accès à la recherche scientifique et droit d’auteur : le cas des archives ouvertes

« Le droit d’auteur est incontournable lorsque l’on évoque l’open access, que ce soit pour organiser l’accès aux publications scientifiques ou permettre leur exploitation. Pourtant, les dispositifs mis en place pour promouvoir l’open access ne donnent pas toujours la même place au droit d’auteur. Si la recherche d’efficacité peut justifier l’adoption de solutions plus ou moins contraignantes pour les scientifiques, il est également envisageable de responsabiliser les chercheurs en leur donnant les moyens de partager leurs œuvres et d’en permettre l’utilisation. »

URL : http://icoa2014.sciencesconf.org/35113

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The Evolution of Publishing Agreements at the University of Michigan Library

« Taking as an example an open-access journal with a single editor, this article discusses the various configurations of rights agreements used by the University of Michigan Library throughout the evolution of its publishing operation, the advantages of the various models, and the reasons for moving from one to another. »

URL : The Evolution of Publishing Agreements at the University of Michigan Library

DOI : http://dx.doi.org/10.7710/2162-3309.1175

 

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Enclosing the public domain: The restriction of public domain books in a digital environment

« This paper explores restrictions that are being applied to New Zealand public domain books once they have been digitized and hosted online. The study assesses access and usage restrictions within six online repositories, using a sample of 100 pre–1890 New Zealand heritage books. The findings indicate that new restrictions are being applied to works no longer protected by copyright. Out of the 50 titles that had been digitized, only three were hosted by repositories that do not restrict any type of subsequent use. Furthermore, 48 percent (24) were subject to access restrictions. Copyright law’s delicate balance between public and private interests is being eroded by the prevalence of online terms and conditions, which invoke the doctrine of contract law in an attempt to restrict the public domain and opt–out of limitations upon copyright. Furthermore, ambiguity surrounding the copyright status of some books is encouraging digitizers to adopt restrictive access policies, even when a work is highly likely to be in the public domain. Unless clear rules of online curatorship are articulated within legislation, previously liberated public domain works are at risk of being restricted by online intermediaries. »

URL : http://firstmonday.org/ojs/index.php/fm/article/view/4975

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Open exchange of scientific knowledge and European copyright: The case of biodiversity information

« Background. The 7th Framework Programme for Research and Technological Development is helping the European to prepare for an integrative system for intelligent management of biodiversity knowledge. The infrastructure that is envisaged and that will be further developed within the Programme “Horizon 2020” aims to provide open and free access to taxonomic information to anyone with a requirement for biodiversity data, without the need for individual consent of other persons or institutions. Open and free access to information will foster the re-use and improve the quality of data, will accelerate research, and will promote new types of research. Progress towards the goal of free and open access to content is hampered by numerous technical, economic, sociological, legal, and other factors. The present article addresses barriers to the open exchange of biodiversity knowledge that arise from European laws, in particular European legislation on copyright and database protection rights.

We present a legal point of view as to what will be needed to bring distributed information together and facilitate its re-use by data mining, integration into semantic knowledge systems, and similar techniques. We address exceptions and limitations of copyright or database protection within Europe, and we point to the importance of data use agreements. We illustrate how exceptions and limitations have been transformed into national legislations within some European states to create inconsistencies that impede access to biodiversity information.

Conclusions. The legal situation within the EU is unsatisfactory because there are inconsistencies among states that hamper the deployment of an open biodiversity knowledge management system. Scientists within the EU who work with copyright protected works or with protected databases have to be aware of regulations that vary from country to country. This is a major stumbling block to international collaboration and is an impediment to the open exchange of biodiversity knowledge. Such differences should be removed by unifying exceptions and limitations for research purposes in a binding, Europe-wide regulation. »

URL : Open exchange of scientific knowledge and European copyright

Alternative URL : http://www.pensoft.net/journals/zookeys/article/7717/abstract/open-exchange-of-scientific-knowledge-and-european-copyright-the-case-of-biodiversity-information

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Diamond open access and open peer review: An analysis of the role of copyright and librarians in the support of a shift towards open access in the legal domain

« The aim of this paper is to support initiatives that stimulate volunteer involvement in creating qualitatively good conversations about the law on the internet. The article’s core argument is that policies on open access, copyright and library services all concentrate nowon the results of scholarly conversations, while a shift in focus towards the process of scholarly communication is needed to develop new incentives for a culture of sharing. Ways to foster openness in scholarly communication need to be discipline specific. This will be elaborated by discussing the plan for an open environment for collaboration on an English translation of a Dutch introduction to private law. »

URL : http://webjcli.org/article/view/302/421

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Free riding cooperation and ‘peaceful revolutions’ in copyright…

Free-riding, cooperation, and ‘peaceful revolutions’ in copyright :

« Modern copyright law is based on the inescapable assumption that users, given the choice, will free-ride rather than pay for access. In fact, many consumers of cultural works – music, books, films, games, and other works – fundamentally want to support their production. It turns out that humans are motivated to support cultural production not only by extrinsic incentives, but also by social norms of fairness and reciprocity. This article explains how producers across the creative industries have used this insight to develop increasingly sophisticated business models that rely on voluntary payments (including pay-what-you-want schemes) to fund their costs of production.
The recognition that users are not always free-riders suggests that current policy approaches to copyright are fundamentally flawed. Because social norms are so important in consumer motivations, the perceived unfairness of the current copyright system undermines the willingness of people to pay for access to cultural goods. While recent copyright reform debate has focused on creating stronger deterrence through enforcement, increasing the perceived fairness and legitimacy of copyright law is likely to be much more effective.
The fact that users will sometimes willingly support cultural production also challenges the economic raison d’être of copyright law. This article demonstrates how ‘peaceful revolutions’ are flipping conventional copyright models and encouraging free-riding through combining incentives and prosocial norms. Because they provide a means to support production without limiting the dissemination of knowledge and culture, there is good reason to believe that these commons-based systems of cultural production can be more efficient, more fair, and more conducive to human flourishing than conventional copyright systems. This article explains what we know about free-riding so far and what work remains to be done to understand the viability and importance of cooperative systems in funding cultural production. »

URL : Free-riding, cooperation, and ‘peaceful revolutions’ in copyright
Alternative URL : http://eprints.qut.edu.au/70343/

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MedOANet The Copyright and OA Landscape in Mediterranean…

MedOANet: The Copyright and OA Landscape in Mediterranean Europe :

« The aim of this paper is to analyse the current copyright framework conditioning the progress of OA in Mediterranean countries and to examine whether this copyright framework needs to be improved and by which measures. In order to do so, this paper firstly introduces MedOANet, which is an EU-funded project the aim of which is to enhance existing national policies, strategies and structures for OA and to contribute towards the implementation of new ones in Mediterranean countries, namely France, Greece, Italy, Portugal, Spain and Turkey. Secondly, this paper gives an overview of the results of a survey which has been conducted in 2012 amongst research publishers by MedOANet. Thirdly, an interpretation of the most striking results of the survey is given: research publishers based in Mediterranean countries have, on average, very OA-friendly copyright and self-archiving policies in place. Some improvements could be achieved by developing an OA-conductive campaign of awareness rising; however, OA as the default way of scholarly communication would best be supported by an OA-friendly legal environment. In the end the author of the paper therefore asks the national and European legislators to introduce an exception or limitation for a green road OA publication of any publicly funded research paper into European and national copyright law. »

URL : http://liber.library.uu.nl/index.php/lq/article/view/9126

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Study on the protection of research data and…

Study on the protection of research data and recommendations for access and usage :

« This study is basically divided into four parts. Its objective is to examine the legal requirements for different kinds of usage of research data in an open access infrastructure, such as OpenAIREplus, which links them to publications.
Within the first part, the requirements for legal protection of research data are analysed. In the process, the existing legal framework regarding potentially relevant intellectual property (IP) rights is analysed from different perspectives: first from the general European perspective and subsequently from that of selected EU Member States (France, Germany, Italy, the Netherlands, Poland and the UK).
It should be noted that the European legal framework is partly harmonised in the field of copyright and largely harmonised in the field of the sui generis database protection right by EU directives. Thus, the national regulations are quite similar in many respects. National differences are described following the section on national implementation in Chapter 2.5.
Despite European harmonisation, the perhaps surprising outcome of the analysis is that there are some areas of dis-harmonisation between the different Member States. One very significant example of dis-harmonisation is the “exception for scientific research” to the sui generis database right. It is not mandatory for this exception to be introduced into national legislation and it seems that every Member State has its own interpretation of the underlying directive. As it is drafted at the moment, the exception is to all intents and purposes useless.
Another area that causes difficulties is the question of who becomes the rightholder of the sui generis right in a database that is created by a public body or in the course of publicly funded research. Indeed it is far from clear. Some might say the research institution or the funding agency or both become the rightholder. But of the legal regimes under consideration in this study, the only jurisdiction with clear regulation on this matter is the Netherlands and it generally denies a public authority the right to exercise the exclusive database right.
Additionally, it is still unclear whether linking, or at least deep linking, should be seen as a relevant act of communication to the public. There are contradictory judgments at the level of the Member States. However, at least this question will soon be clarified in the scope of an actual reference to the European Court of Justice(ECJ).

The second part of the study is dedicated to the scope of protection of the potentially relevant IP rights. First there is an analysis of whether different types of usage, such as linking, access or mining, infringe the different kinds of IP rights. Secondly, a “legal prototype of an e-infrastructure”, based on selected usage scenarios that may occur during the use of e-infrastructures such as OpenAIREplus, is evaluated in more detail. The main outcome of this second part is that by far the most important IP right in the context of e-infrastructures such as OpenAIREplus is the sui generis database right, and that it is very likely not possible to use all the described einfrastructure features without the consent of the respective rightholder(s).

The third part is an examination of some relevant licensing issues. Within this part of the study, different licence models are analysed in order to identify the licence that is best suited to the aim of Open Access, especially in the context of the infrastructure of OpenAIREplus. The result is that the upcoming CC License version 4.0 will probably be the one best suited to this kind of infrastructure. Within the last part, some recommendations are given on improving the rights situation in relation to research data. To respond to the fact that the scientific research exception as presently formulated is rather useless, it is suggested that a new and broader mandatory research exception be introduced on a European level. To achieve legal interoperability of different databases and e-infrastructures, it is recommended that all of them should license their data under the upcoming CC License version 4.0. »

URL : Study on the protection of research data and recommendations for access and usage

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Open access clauses in publishers’ licenses current state…

Open access clauses in publishers’ licenses: current state and lessons learned :

« In 2012, the Open Access Agreements and Licenses Task Force was launched by COAR to monitor, evaluate and promote the implementation of effective open access agreements and licenses. The task force has members from the repository, licensing and OA communities who share an interest in promoting sustainable and effective practices for open access. In 2012/2013 the task force undertook an environmental scan of the licensing language for article deposit into repositories. This report presents the result of the review and some lessons learned from organizations that have been successful in implementing OA clauses in publisher licenses. »

URL : http://www.coar-repositories.org/files/OA-Clauses-in-Publishers-Licenses.pdf

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