The article When Is Open Access Not Open Access? (CJ MacCallum) PLoS Biology examines the slippery activities of publishers that try and fly the flag of Open Access (with varying degrees of capitalization) but who only offer the free-as-in-beer definition of freedom, as opposed to the Open Access definition, which includes --- as well as free-gratis freedom -- extensive intellectual property rights permitting unrestricted derivative use. This issue and these distinctions were discussed earlier this year in "Free but not open?" at the PLoS blog. I have noticed that many journals use the weasel words like "We conform to open access as defined by SHERPA". The SHERPA definition does not include the extensive IP rights described by Open Access:
By "open access" to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.This watering-down of freedom from "free-gratis and free-to-use-and-modify-and-distribute" to simply "free-gratis" (and maybe some IP freedom for the authors) and the general obfuscation/duplicity/ignorance by publishers parallels similar activities in the software world, where the freedom issue has also been confused and watered-down in various "open source" (note case) licenses. See Open Source vs. Free Software.
-Budapest Open Access Initiative