I don't like getting into blog back and forths, but this post from the Information Research folks really deserves a reply of its own. I believe this is an honest piece of confusion, and it's likely the result of FUD from the traditional publishing community. I invite the Information Research folks to contact me if they have questions about how Open Access works from a legal perspective so that we can counter any unwarranted fears about how to make the sharing involved easy and legal - we're here to help.
From the post:
If the author retains copyright, as Information Research authors do, it is up to the author to determine what should be done with his or her work. A journal publisher cannot assign copyright to the author and then encourage infringement of this copyright by suggesting that users of the material may do whatever they wish with it.
It's not "encouraging infringement" if everyone involved assigns the rights required to achieve open access. Public Library of Science doesn't encourage infringement. Nor does BioMed Central (I'm pretty sure Springer wouldn't have bought them if they did). Or Hindawi. Or Nature's Molecular Systems Biology and foundational genome papers. All of these journals allow users to make and distribute copies of articles, as required by the OA definitions. None of them encourage infringement.
Let's be clear: authors start the process owning the copyrights. In traditional publishing, they either transfer the copyright or provide the publisher an exclusive license to publish. These approaches both provide the journal the power to lock up the article and prevent its re-use and dissemination.
In an Open Access publishing world, the author-journal copyright relationship is indeed frequently changed. Authors provide to the journal a non exclusive right to publish, and the journal then uses a non exclusive permissive copyright license to provide the article to the public. This is how the entire cycle therefore complies with the definitions that require the removal of price barriers and permission barriers. I quoted Budapest in my last post, so I'll quote Bethesda-Berlin here: it is only Open Access if you empower the user to "copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship...."
I can't say it enough. Open Access publishing is about the rights that the entire process provides to the user. If you're just removing price barriers, you're not completing the requirements to be an Open Access publisher, because the user doesn't have the right to make and distribute copies. The definitions are absolutely clear on the point. To claim the title of an Open Access publisher, the publisher has to have an agreement with the author that allows enough rights to pass through to the user. Creative Commons licenses are an easy way to do that, which is why they are popular. But in the end it doesn't matter how it gets done - CC licenses, the SURF license to publish, GFDL - but it does indeed matter that the permissive licensing take place.
If a publisher doesn't want to be Open Access, that's their choice - though the market is rapidly coming around to realization that it's better for science, and closed publishers have to find ways to adapt. But do not claim the mantle of the movement if you aren't willing to meet the definitions that the movement has agreed upon. Pyrite OA is as bad in some ways as closed access, because it gives the impression of open while all the rights needed to lock it up simply sit in wait. As Ackbar might say, it's a trap.
(we'll note but not explore in detail that the self-archiving Green Road frequently avoids the rights issue entirely, with some potentially negative side effects over time, and you should therefore use the Science Commons Addendum Engine, but since we're talking about OA publishers here, it's good to stay on topic)
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