Prompted by differences of opinion about the Harvard FAS policy, I want to clarify where Stevan Harnad and I agree and disagree about the relationship between copyright and open access.
I understand Stevan's position to be:
1. Open Access policies should conceptually separate a requirement to deposit an electronic copy of a post-peer-review manuscript in a repository from a requirement that the repository make that copy publicly accessible on the Web.
2. Deposit at the time the manuscript is accepted for publication should be unconditionally required.
3. Public access should be allowed any time the publisher's agreement says it may be.
4. If the publication agreement does not permit posting of the manuscript, a repository may still distribute copies by email whenever requested to do so by a user.
5. The combination of 3 and 4 effectively provide open access.
6. Those who argue that open access should also include an explicit public copyright license giving the public more than the right to read (e.g., the rights to republish or to translate or otherwise adapt the work) are mistaken. Either (a) these rights have already been implicitly granted by the public posting of the work; (b) they are not necessary to effective scholarly communication; or (c) even if they would marginally improve scholalry communication, the costs of negotiating copyright with publishers is not worth this benefit.
Points 1 and 2 are exactly right. Under U.S. copyright law, it is a fair use for an author to send, and for a repository to make, an archival copy of the post-peer-review manuscript. I think it's also a fair use to make an archival copy of the published version of the article. Copyright law in many other parts of the world also would deem this to be legal.
Deposit mandates are highly desirable. Please note that under the Harvard policy, even if a faculty author feels it necessary to seek a waiver of the copyright license to Harvard, there is no reason that author couldn't and shouldn't deposit a copy of the manuscript in the repository.
With respect to public access, I disagree that faculty authors should simply adapt themselves to the arrangements that publishers offer/demand. Moreover, I have have a different view about what those arrangements permit.
So, on point 3, I agree insofar as authors should use all legal rights they have to make their work freely accessible on the Internet. If a publication agreement gives the author the right to post the work in a repository, the author should do so and the repository should make the work freely accessible.
However, I don't think that the starting point for the analysis should be what the publisher's form says. I think authors have an obligation to consider whether signing the publisher's form is ethical behavior.
Copyright is an author's right granted to the author by the public to achieve a public purpose - the promotion of science and useful arts. (I realize that many have a natural rights view of copyright's purpose. I don't share that view.) With rights come responsibilities. Authors of scholarly journal articles do not need the promise of a royalty to have an incentive to perform research or report the results and their analysis of that research. So although the premise of one-size-fits-all copyrights is that authors need exclusive rights to be stimulated to create, that premise is largely false with respect to much scholarly research.
Journal article authors know that they will not receive a royalty nor will those who provide referee services. Instead, the progress of science and useful arts is driven by these authors' desire to achieve broad dissemination of their research. The Internet opens up a (not so) new avenue of scholarly communication. Thus, journal article authors have a duty to consider whether they are making proper use of the copyrights that the public has given them when they agree to the terms of a publisher's agreement that limit how, when or where the author may provide free access to their work on the Internet.
I have a different understanding about the legal consequences of number 4, and therefore I also do not agree with number 5.
As for number 6, clarifying re-use rights through public licensing is desirable. If his view is (a) or (b) I disagree. If his view is (c), however, I agree that the effort necessary to achieve this goal should be subject to cost-benefit analysis. Under current circumstances, where subscription-funded publishers have shown some willingness to permit free access to post-peer-review manuscripts but have not been willing to agree to public licensing, I think an author could responsibly decide to be satisfied with a copyright agreement that permits free access but does not provide for re-use licensing.