Authors, Business Models, Controversial Topics, Copyright, Open Access, Social Role, Technology

Open Access Mandates and Open Access “Mandates”

open-access-may-collegeOpen Access (OA) mandates generally come from one of two directions: some are imposed by funders and others are imposed by authors’ institutions. But put all mandates together, and it seems to me that they can be subdivided into three categories: those that are not real (meaning that they do not actually require anything of the author and therefore can’t reasonably be called “mandates”), those that are real (meaning that their prescriptions are at least theoretically mandatory) and those that are to some degree powerful (meaning not only that their prescriptions are mandatory in theory, but that they also provide mechanisms designed to compel compliance).

Funder mandates tend to be powerful by their nature: when a grant provider says “you have to publish your results in an OA venue or you won’t get further funding from us,” authors have a real incentive to comply. The power of these mandates is, however, demonstrably less than absolute: even with such incentives, compliance is never perfect and is often far from perfect. Nevertheless, funder mandates are usually relatively powerful.

Institutional mandates are a much more mixed bag. Some are powerful, many are not, and a great many of them are not even real. But it’s interesting to note that patterns of “mandatoriness” can be discerned across countries. A spot-check of the ROARMAP database is instructive: Australian and British institutional mandates tend to be real, such as the ones at Victoria University and the University of Southampton. These generally require OA deposit without exception, though often allowing for temporary embargoes where required by publishers. Institutional mandates in the United States, however, are very rarely real, and while they may be called “mandates” colloquially, they often turn out to be little more than statements of institutional preference.

In the U.S., the pattern these non-mandatory mandates take is pretty consistent. The policy document describing them usually consists of the following elements (or some variation on them):

  1. A statement of commitment to the broader dissemination of research;
  2. A statement that all authors who publish the results of research performed as faculty members grant the institution a license to exercise essentially all copyright prerogatives in regard to the work;
  3. A requirement that all such publications be placed in the institutional repository;
  4. A clause allowing faculty members to opt out of participation upon request and usually without condition.

To be clear: the opt-out language is very often absolute — faculty are sometimes required to give a reason for opting out, but I have never seen a policy that defines acceptable and unacceptable reasons.

Given that compliance with these (non-)mandates is so often purely voluntary, what real-world effect do they really have? I would suggest that they have at least two significant–though perhaps not equally important–effects.

First of all, they offer a relatively low-cost and very low-risk way for an institution publicly to affirm its support for the idea and the ideals of OA. There is increasing pressure on academic institutions to do so; the rhetoric around scholarly communication problems is sharp, even fierce, and an OA policy that is locally generated and publicly expressed will tend to relieve that pressure — even if the real-world impact of the policy is relatively small. (This dynamic helps explain why, in many cases, the language used in the main body of the policy is quite strong; when the safety valve of an opt-out clause is provided at the end, the language in the main body of the declaration can be very strong without increasing the risk of faculty revolt.)

Second, an OA policy can switch the traditional default setting of scholarly publishing. The traditional default setting is for copyright to remain uniquely with the author despite the fact that the work was created as part of the author’s employment. (This alone is an interesting quirk of academia—that what would be considered “works for hire” in virtually any other employment context are not so considered there.) In those unusual cases where a university asserts copyright in the works of scholarship that are created on campus, this constitutes a legally significant shift in the status quo. When (much more commonly) a university leaves copyright in the hands of the author but claims a “nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright,” the OA policy’s effect may be less legally meaningful, but still represents an important philosophical shift: the institution is claiming for itself a whole new set of rights over the author’s work. (Whether this represents a salutary shift or a negative one is open to debate; what is not ambiguous, I think, is its significance.)

At the beginning of this posting I made passing mention of ROARMAP, the Registry of Open Access Repositories Mandatory Archiving Policies. I consulted that registry multiple times while doing background research for this posting, and as I did so I began to notice an interesting pattern of errors and misinformation — a pattern that is highly relevant to the question of what does and doesn’t constitute an OA “mandate.” That will be the topic of tomorrow’s posting.

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About Rick Anderson

I'm Associate Dean for Scholarly Resources & Collections in the J. Willard Marriott Library at the University of Utah.

Discussion

52 thoughts on “Open Access Mandates and Open Access “Mandates”

  1. “An OA policy can switch the traditional default setting of scholarly publishing [...] the OA policy’s effect may be less legally meaningful, but still represents an important philosophical shift.”

    I think that is exactly right. It’ll come as no surprise that I like to see stronger policies in preference to weaker ones; but even the weakest are very significant for this very reason. In the end, the shift in culture may prove more important, and even more effective, than actual mandates.

    Posted by Mike Taylor | Feb 12, 2014, 6:05 am
    • If only the culture could figure out how to pay for what it wants.

      Posted by David Wojick | Feb 12, 2014, 8:56 pm
  2. Gargouri et al show a pretty strong relationship between compliance and the strength of the mandate, not terribly surprising.

    http://arxiv.org/vc/arxiv/papers/1210/1210.8174v1.pdf

    Posted by David Solomon | Feb 12, 2014, 6:22 am
  3. The US Government also claims a “nonexclusive, irrevocable, worldwide license…..” of some sort, even when they do not pay for the writing. Is this attack on author copyright by universities and governments, in the name of a social cause, merely philosophical or are we headed for litigation to sort out the mess? That would be far from philosophical. Are there any author rights advocacy groups at this point?

    Posted by David Wojick | Feb 12, 2014, 7:13 am
    • David, can you provide an example of the government asserting rights over writing that it hasn’t paid for? I can’t think of any, but I don’t spend as much time in that sphere as you do.

      Posted by Rick Anderson | Feb 12, 2014, 8:50 am
      • Rick, I think most articles based on federal funding are written well after the grant ends. Unless there is a carryover practice that I am unaware of none of the writing of these articles is federally funded. In fact I have never heard of including funding the writing of articles in a grant proposal but it may be done in some areas. A federal program officer once told me “we do not pay people to write articles; we pay for research.” My conjecture is that the vast majority of the articles that the government is laying claim to had no government funding in their writing. But my data is strictly anecdotal. It seems like an important empirical question.

        Posted by David Wojick | Feb 12, 2014, 9:06 am
    • Considering that, in most cases, the authors themselves consent to and support the terms of the license (often unanimously in the case of universities http://oad.simmons.edu/oadwiki/Unanimous_faculty_votes and by virtue of accepting the terms of the grant in the case of funders), and there are, as is pointed out in the article, opt-out clauses enabling the author to retain all rights, characterizing it as an “attack” is a tad hyperbolic, wouldn’t you say?

      Posted by Clarke | Feb 12, 2014, 11:59 am
      • If I wanted to be hyperbolic I would call it a feeding frenzy, in this case feeding on the author’s rights. The OA movement wants to restructure the industry but that means restructuring it’s legal system as well. That fight belongs to the courts.

        Posted by David Wojick | Feb 12, 2014, 8:53 pm
        • Again, how is it a “fight” if authors, as copyright owners, willingly consent, either through voting for and supporting an open access policy or, in the case of Harvard and others, signing written contracts granting to their institution a nonexclusive license to archive and distribute their scholarly articles?

          We aren’t children; we don’t need the courts to give us permission to do with our intellectual works what we will. Anyway, how do you suppose the “fight” will even go to the courts, if there is no challenge to the law in practice? That’s the way it works.

          In any case, copyright law with respect to scholarship needs to be restructured, hence the challenge to it. Copyright holds that content creators need economic incentives to produce works. That’s clearly inaccurate in the case of scholarly articles, which operates with an entirely different incentive scheme.

          We may see a case in which a publisher sues a university or an author who has transferred copyright to the publisher after having already signed a nonexclusive license to the university. See Copyright and the Harvard Open Access Mandate (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1890467) for a detailed analysis of this contingency. Don’t worry, the article is on SSRN, it’s open access.

          Posted by Clarke | Feb 13, 2014, 10:28 am
          • “Copyright law with respect to scholarship needs to be restructured, hence the challenge to it. Copyright holds that content creators need economic incentives to produce works. That’s clearly inaccurate in the case of scholarly articles, which operates with an entirely different incentive scheme.”

            I think that is exactly right, and an admirably clear framing of the issue. This is why The Budapest OA Initiative’s FAQ says “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.” (And at least some of the framers of that document didn’t want the “control over integrity” clause included.)

            Posted by Mike Taylor | Feb 13, 2014, 10:34 am
            • Clarke and Mike, I understand quite well that restructuring the existing law is the goal of your movement. Moreover publishers, universities and funders all hold power over the authors. Still I do not see the authors meekly allowing themselves to be rolled. That all favor it I seriously doubt. (Harvard is not the world, quite the contrary.)

              You do not restructure an historic body of law merely by wishing for it. How it actually works, when it works, is well known and the courts play a major role. Time will tell.

              Posted by David Wojick | Feb 13, 2014, 10:54 am
              • Actually, it wouldn’t require a change in law to dramatically restructure the way copyright is dealt with in academia. Current law would allow universities to treat scholarly output produced on their campuses as works for hire, thus enabling them to take full control of that output and distribute it as freely (or as restrictedly) as they wish. What this would require is not a legal change, but a cultural one. And I agree with you that it’s a change faculty members would likely resist very strongly.

                Posted by Rick Anderson | Feb 13, 2014, 10:59 am
              • “Mike, I understand quite well that restructuring the existing law is the goal of your movement.”

                Evidently you do not understand. Restructuring copyright law would be one possible means to the end, but is neither necessary nor sufficient for that end. The goal is universal instant access to all published researched. You can do that without making any changes at all to copyright law.

                Posted by Mike Taylor | Feb 13, 2014, 11:00 am
              • “Current law would allow universities to treat scholarly output produced on their campuses as works for hire, thus enabling them to take full control of that output and distribute it as freely (or as restrictedly) as they wish.”

                Yes, there is another potential nightmare scenario. I don’t know how bad it is the US now, but over here in the UK our government is super-keen on our universities to be run by businesses, so it seems all but inevitable that left to their own devices they would enclose research just as obstructively as legacy publishers currently do. The OA course must be charted between Scylla and Charibdis.

                Posted by Mike Taylor | Feb 13, 2014, 11:06 am
              • Mike, you call this a “nightmare scenario,” but you can’t have it both ways. Either authors retain copyright (which includes the right to say how and where the work is disseminated) or someone else gets copyright. I don’t see a third alternative within existing law. Theoretically, of course, our countries could pass a new law saying that all works of scholarship are, by definition, in the public domain. Does that seem like a good path? If not, do you see another alternative?

                Posted by Rick Anderson | Feb 13, 2014, 11:12 am
              • I don’t want to have it both ways — in fact, what I want is to not have it either way! In my utopian world, the bottom line is that no-one should be in a position to deny anyone else access to research: not the publisher, the employer, or indeed the author. Once something is published, I want that to mean it’s public.

                So, yes, public domain would be a good solution. Or CC By is fine, too.

                Posted by Mike Taylor | Feb 13, 2014, 11:25 am
              • In my utopian world, the bottom line is that no-one should be in a position to deny anyone else access to research: not the publisher, the employer, or indeed the author.

                Leaving aside for the moment the fact that the phrase “access to research” is nonsensical, let’s be very clear about what your utopian ideal would mean. It would mean that no scholar — whether her research was privately or publicly funded — would have any say over how, where, and whether her original work is disseminated. That may sound like utopia to you, but surely you can see how an awful lot of authors might see it as dystopian, not to say Orwellian?

                Posted by Rick Anderson | Feb 13, 2014, 11:35 am
              • It’s not nonsensical.

                I’m happy to compromise. People (such as myself) who do their research unfunded can be free to disseminate or not as they wish. But I don’t think it’s at all reasonable that people who are paid to research should have that research benefit the world.

                And besides — what researcher doesn’t want her work disseminated?

                Posted by Mike Taylor | Feb 13, 2014, 11:38 am
              • It’s not nonsensical.

                I explained why it’s nonsensical in the post to which I provided a link. Feel free to engage with the argument if you’d like, but saying “is not!” doesn’t count.

                And besides — what researcher doesn’t want her work disseminated?

                This is, forgive me, the classic Orwellian response. “You should submit to our control because we want for you only what you would want for yourself if you just understood the issues better.” Do researchers want dissemination? Of course they do. Do they want to have some measure of control over how, and where, and when their work is disseminated? Yes. Is the latter desire unreasonable? That’s where the conflict between authors and OA utopianists arises. (And believe me, that conflict is real. It’s why virtually every American institutional OA policy includes an ironclad opt-out clause.)

                Posted by Rick Anderson | Feb 13, 2014, 11:47 am
              • Like you, I’ve seen plenty of surveys on why authors opt for non-OA journals. The same things crop up all the time: “It has a high IF”, “It’s prestigious in my field”, “my article is a good fit for the journal”, “my supervisor likes to publish there”, “I know the editor”. You know what never crops up? “OA journals disseminate my work to widely”.

                Posted by Mike Taylor | Feb 13, 2014, 11:53 am
              • Mike, you might want to talk to some of the authors who have expressed outrage over seeing their OA papers republished by predatory publishers in books and in journals, lending their names to the support of for-profit activities by questionable companies. They might have something to say about their works being disseminated too widely.

                Posted by David Crotty | Feb 13, 2014, 12:01 pm
              • On the other hand, if all authors cared about were dissemination, then journals would have gone the way of the dinosaur as soon as the free blog platform emerged. No one — not evil publishers, not institutions, not funding agencies — is stopping (or indeed could possibly stop) authors from disseminating their work as freely and widely as they wish.

                Posted by Rick Anderson | Feb 13, 2014, 12:05 pm
              • It’s observably true that authors care about other things as well (and often more than) dissemination. That is a tragedy, of course, and shows how badly aligned our current academic system is with its stated goals. But leaving aside the wider issue, it’s clear that controlling for other issues, researchers prefer to be read (and cited) more rather than less. Since that’s also what the world wants, it’s incumbent on the world to realign the incentives it gives academics — which of course is what OA mandates are all about.

                Posted by Mike Taylor | Feb 13, 2014, 12:11 pm
              • Authors may want to be read and cited, but readers want to read less, so I’m not sure that sweeping generalizations like this can be made (especially since there are more readers than authors). And to complicate things further, authors spend most of their time as readers.

                Posted by David Crotty | Feb 13, 2014, 12:43 pm
              • Since that’s also what the world wants, it’s incumbent on the world to realign the incentives it gives academics — which of course is what OA mandates are all about.

                Well, no. Mandates are not about offering incentives — to the degree that they are actually mandates, they’re about applying coercion where incentives have proved insufficient to change behavior. That’s what makes all this talk about “what authors want” kind of silly. Mandates aren’t about giving authors what they want; they’re about forcing something on them.

                Posted by Rick Anderson | Feb 13, 2014, 1:00 pm
              • “Authors may want to be read and cited, but readers want to read less.”

                That’s only true if you assume that readers are human. One of the big wins of OA is how it enables text and data mining.

                Mind you, I’m not sure it’s true anyway. As a reader of research articles, I prefer there to be more available to me: I might not read them all, but I’ll have a better choice of what what I read, instead of having to make do with the selection that happens to have been made available to me.

                Posted by Mike Taylor | Feb 13, 2014, 1:09 pm
              • There is the additional problem that articles written by scholars often are the building blocks for books written by them later that are published by trade publishers. If there is no copyright protection for those articles, then it would be difficult to argue that protection could be granted just to the trade books that issue from them, unless the articles are entirely rewritten for use in the book or the copyright in a “compilation” would suffice to motivate commercial publishers to invest in their publication. I would also ask Mike and Clarke how they propose to deal with scholarly monographs compared with articles, and what happens when, in the digital age, there are now works that exist in the middle area between these two, which are artifacts of the print era. If they think scholarly monographs should all be in the public domain also, for the same reason they believe articles should be, then how do they propose that the publishing of monographs be funded?

                Posted by Sandy Thatcher | Feb 13, 2014, 1:24 pm
              • Mike: Whenever I hear someone proclaim that “it’s incumbent on the world to….” I take a step backward, preferably toward a door. Or as the Beatles’s said, “we’d all like to see the plan”.

                Posted by David Wojick | Feb 13, 2014, 1:28 pm
              • “Mandates aren’t about giving authors what they want; it’s about forcing something on them.”

                Putting aside your presumption to speak for a vast body of individuals with multifarious interests, and your wide brush painting the intention of all those individuals building and supporting OA policies as hatching a nefarious scheme to violate the free will of others, how do you reconcile this charge with the rebuttal that a) most OA policies at universities are either voted in by faculty senates, or b) the nonexclusive license to articles is often granted by authors to universities by written contract?

                The mandates are, in my view, not intended to “force” or “attack” or “feed off of” or any other antagonistic, aggressive image some may want to use. Rather, these policies are to formalize and quicken a model that can be achieved, and that many of the parties involved in the research (i.e., the faculty and university) support–the wider dissemination of scholarship. Changing vast institutional inertia sometimes requires top-down policy in addition to bottom-up activism (see the Civil Rights Act).

                Those who do not support it, do not get it, or for some reason have a burning urge to transfer their copyright in its entirety to an entity which will not compensate them for the grant–unlike the university, which sponsors their scholarship and arguably has *some* voice in its dissemination (notwithstanding academic freedom and avoiding the legal jungle of work-for-hire)–can opt-out. This has been analogized to organ donation, where “opt out” systems result in a drastically higher rate of donations, without objections from the people subject to the system (living or dead).

                Posted by Clarke | Feb 13, 2014, 1:36 pm
              • Clarke, for purposes of formatting wieldiness I’m going to move this conversation to a new string — you’ll see my response at the bottom of the page.

                Posted by Rick Anderson | Feb 13, 2014, 1:54 pm
            • This approach makes clear the divergence in thinking between STM and Humanities/Social Sciences. I’ve discussed it in detail elsewhere (http://scholarlykitchen.sspnet.org/2013/08/06/is-access-to-the-research-paper-the-same-thing-as-access-to-the-research-results/) but in short, the intellectual property generated by the researcher differs in different fields. A medical researcher seeking a cure for a disease generates that cure, which is separate from the paper written about the cure and protected by patent law rather than copyright. The historian, or comparative literature researcher generates the paper as the key piece of intellectual property, the argument is the output, not a description of the output (http://scholarlykitchen.sspnet.org/2013/07/22/the-relationship-between-research-and-publication-or-why-libraries-should-buy-more-first-books-than-any-others/).

              For these types of researchers, copyright is essential. We want to reward achievement and allow researchers to exploit the fruits of their labors. Think of all the superb books we have that were written by academic researchers and that stem from their research. If we forbid copyright except in cases of integrity and acknowledgement, then these books will cease to be created and academic authors will no longer be able to receive the financial rewards and prestige that comes from such authorship.

              There’s something of a myopia from scientists when it comes to setting policy, an assumption that because things work that way in my field, it must be universal. A policy along these lines would set up an unfair caste system, where some types of researchers are allowed to protect and exploit their IP and others are forced to give away such opportunities.

              Posted by David Crotty | Feb 13, 2014, 11:19 am
              • I am a mathematician, so for me clearly “the argument is the output, not a description of the output” (and I have no hope to patent any of my discoveries whatsoever). But I fail to see in which way copyright should be essential for me. Acknowledgement is, for sure, but copyright? In fact, most researchers (including in the human sciences) do not care that much about copyright, since they accept to give it away to publishers.

                Also, concerning the books, I am not sure that the royalties are so central among the incentives. In some fields as sociology, at least in France where I work, when one publishes a book out from one’s PhD thesis, the publisher usually asks for processing charges and one needs to get public funding for that; this is so because of specialized nature of the work, most of the time relatively few books are sold.

                Posted by Benoît Régent-Kloeckner | Feb 17, 2014, 5:42 am
              • It’s really going to vary from field to field, and that’s why broad, sweeping statements and policies that try to lump all researchers in the same bucket are problematic.

                Posted by David Crotty | Feb 17, 2014, 9:53 am
              • Mathematicians may not care much about copyright because their articles use a language that is universal, viz., mathematics. But humanists and social scientists convey their ideas in a language that is subject to distortion when translated into foreign languages, and scholars have an interest in controlling the quality of those translations, which is one use for copyright.

                Posted by Sandy Thatcher | Feb 17, 2014, 6:46 pm
  4. Rick, as you probably know the University of North Carolina has a fairly consistent system wide approach to authorial copyright of traditional scholarly works. And as Peggy Hoon explains on her copyright pages at UNCC, ” University holds a perpetual, non-exclusive, non-transferable, royalty-free license to use the work for the University’s own non-commercial research or [tip: educational=use in UNCC course for credit, including derivative work right] use. The original or a derivative work will credit the creator as author unless the creator requests not, via timely written notice to the Chancellor.” http://copyright.uncc.edu/copyright/personalwork/facultyownership It was enacted on each campus with some variations in wording beginning in about 2001. It does not claim universal rights to use.
    It is in part a reaction by faculty and administration to the draconian nature of copyright transfers demanded by publishers that effectively deprive creators of basic rights to use of their own works. On the UNCC campus I was on the committee that adapted the policy for local use. The overriding concern of faculty that proved the tipping point in the discussion was that they could not even use their own works for their own courses technically without publisher approval.
    As seen in various licenses with publishers recently, Sage, Elsevier, Springer and many other publishers routinely claim and demand libraries acknowledge the publisher owns the copyright for all works accessed by the institution even though the publishers know they do not hold complete copyrights for all content they publish. The publishers have been adamant about protecting claims of copyright in the works they publish through these licenses. They know they don’t own all rights for OA works or for copyright transfers that are negotiated (as SPARC recommends) and as scholarly communications librarians have been advocating for at least a decade. They also have inadvertent “slips” where copyright is not technically signed over before publication.
    One possible understanding of your post might be that publishing contracts are relatively benign compared to university copyright retention policies, and I may be reading your post inaccurately but in reality that is not the case in my experience

    Thanks
    Chuck

    Posted by chuck hamaker | Feb 12, 2014, 8:38 am
    • That is indeed an inaccurate reading of my post, which says (and intends to imply) nothing whatsoever about the relative benignity of publishing contracts and university copyright retention policies.

      Posted by Rick Anderson | Feb 12, 2014, 9:05 am
  5. i agree with your point: “the OA policy’s effect may be less legally meaningful, but still represents an important philosophical shift: the institution is claiming for itself a whole new set of rights over the author’s work. (Whether this represents a salutary shift or a negative one is open to debate; what is not ambiguous, I think, is its significance.”

    I believe that for many of the reasons behind this shift, publishers look no further than the mirror.
    Thanks
    Chuck

    Posted by chuck hamaker | Feb 12, 2014, 9:19 am
  6. I am always amazed that every day authors at major universities are still signing copyright agreements with major publishers that transfer the copyright rights to the publisher even though the academic institution has an open access mandate. For some reason faculty are still simply ignoring the mandate. Maybe some publisher will actually do an analysis of how many articles they receive from each academic institution and how many authors have signed the copyright agreement. Every publisher I have worked for has run reports of where their articles are coming from. I think we have a situation where the universities have their mandates and faculty have their tenure and still act on their own behalf.

    Posted by Dan Tonkery | Feb 12, 2014, 11:30 am
  7. The summary of institutional mandate policies is misleading in what it says under #2. I do not know of any university policy that claims as part of its “nonexclusive” rights the right to make commercial uses of the work. Chuck Hamaker’s citation of UNCC’s policy notes that the rights pertain only to noncommercial educational uses. That puts them far short of including “essentially all copyright prerogatives.”

    Posted by Sandy Thatcher | Feb 12, 2014, 12:15 pm
    • I guess we’re quibbling over what constitutes “essentially all copyright prerogatives” (which is the language I used in bullet #2). To me, “everything except commercial rights” constitutes a very large subset of the prerogatives held by the copyright owner.

      That said, your larger point is valid and when I quoted the phrase “nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright” (which is the phrase used by most U.S. institutions in their OA policies), I should have included what usually comes after that — an explicit disclaimer of commercial rights.

      Posted by Rick Anderson | Feb 12, 2014, 12:31 pm
  8. The “opt out” or “exemption” clauses make these university policies weak and seems to add a significant amount of work for the faculty member. Maybe that is the point. I just assumed that by making it hard for the faculty to comply, the policies are meant to encourage OA publication.

    The truth of the matter is that some journal editorial offices lack the resources to negotiate copyright and licensing agreements with authors. Further, it is not easy to define, create, and tag content with different licensing option on the online platforms. It’s possible, but not easy. I don’t even know what happens when a publisher has an agreement with Rightslink to administer permission requests for individual papers when the publisher has not assumed copyright. Again, doing the research on these would require resources that do not currently exist. I suspect this is one very large reason why some publishers limit the licenses available.

    Posted by Angela Cochran | Feb 13, 2014, 7:37 am
    • Very true, Angela, nor do authors have the resources (such as time and knowledge) to deal with these complex schemes. I used to teach regulation writing and one thing I stressed was that complexity is a form of burden and burden leads to avoidance. You have already pointed out that many authors do not even read the contracts much less negotiating them. In fact the whole OA realm is turning into a landscape of complexity as it unfolds. Restructuring this industry cannot be simple, if it is even feasible, which I doubt.

      I pointed out just the spear tip of this problem of confusion due to complexity here: http://scholarlykitchen.sspnet.org/2013/11/11/open-access-on-the-sea-of-confusion/. Note that in my list of confusing OA models I did not include hybrid OA and the freemium model, which should both be added to the list. And as David Crotty points out in an important comment this confusion does not even include the complexity of the copyright issue, which turns the situation into a multi-dimensional space of possibilities..

      Posted by David Wojick | Feb 13, 2014, 1:09 pm
  9. Putting aside your presumption to speak for a vast body of individuals with multifarious interests, and your wide brush painting the intention of all those individuals building and supporting OA policies as hatching a nefarious scheme to violate the free will of others, how do you reconcile this charge with the rebuttal that a) most OA policies at universities are either voted in by faculty senates, or b) the nonexclusive license to articles is often granted by authors to universities by written contract?

    I’m not speaking for anyone or portraying anyone’s intentions. I’m discussing what is in the fundamental nature of a mandate. Look at the word: a mandate is not a mechanism by which we entice people to make a particular choice. It is a mechanism by which we force people to do something. That’s why it’s called a mandate and not an incentive program.

    As for the fact that OA policies are voted in by faculty: if you believe that the mechanism by which the mandate is adopted makes it uncoercive, then you shouldn’t call it a mandate. If it’s mandatory, it’s coercive. There’s really no two ways around that.

    As for the licenses that are granted to institutions under these mandates: they have no bearing on the question at hand. Under a true mandate they are not granted to the institution by the author’s choice; they are taken by the institution.

    As for whether people can opt out: if they can opt out, then they’re not operating under a mandate. (You might want to read my posting from yesterday [correction; I should have said "this posting"] for more discussion of that point.)

    Posted by Rick Anderson | Feb 13, 2014, 2:04 pm
    • Indeed, I read and replied to it, stating that “mandate” is the wrong word. It is not a mandate. And many parties supporting it (I gave two examples, but there are many more) do *not* refer to it as a mandate. Alternatives include “an OA policy” or “setting an OA default.” This latter term refers to the “default option” I referenced above with respect to organ donation, including also 401K options, and more.

      Because it is not a mandate, the licenses are granted voluntarily. The license not only “has bearing” on the question at hand, the nature of the license and how it relates to the author’s copyright is precisely the question at hand. And again, because they are not “true” mandates, the licenses are granted by author choice. If authors chose not to follow the terms of the policy, they are free to opt out, disallow universities the rights of the license, and transfer those rights instead to publishers, or do whatever they want with them.

      Posted by Clarke | Feb 13, 2014, 2:14 pm
      • What you replied to was a series of comments from David Wojick (in which he used words like “attack” and “fight,” to which you took exception). What you’re saying now is exactly what I said in my posting: that a mandate should only be called a mandate if it’s mandatory, and that it makes no sense to call a policy with a broad opt-out clause a “mandate” (as ROARMAP pervasively does).

        So what exactly are we arguing about here?

        Posted by Rick Anderson | Feb 13, 2014, 2:20 pm
  10. Above, I am referring to my comment this morning on this thread http://scholarlykitchen.sspnet.org/2014/02/13/errors-and-misinformation-in-the-roarmap-open-access-registry/. I quoted Suber & some others on the nature of the word mandate.

    I am arguing that your comment “Mandates aren’t about giving authors what they want; it’s about forcing something on them” while logically true, is a straw man with no applicability here because all OA policies give opt-out clauses, otherwise faculty would not vote for them.

    Posted by ciakov | Feb 13, 2014, 2:26 pm
    • While what you say is generally true of OA policies in the U.S. (most of which, I’m arguing here, should not be called mandates at all), it is emphatically not true of OA policies in the UK and Australia, which tend not to provide opt-out clauses. Check some of them on ROARMAP — the policies from those countries tend to be true mandates.

      Posted by Rick Anderson | Feb 13, 2014, 2:30 pm
  11. Faculty blithely ignore contracts that they sign with publishers, so I’m not sure why anyone is under the delusion that they care about their employers’ mandates. And if any university is serious about enforcing an open access mandate, one would think them morally obliged (1) to pay any and reasonable open access journal fees for the author, and (2) to ensure that work published in open access venues is given full credit for tenure and promotion. I won’t hold my breath.

    Posted by fjenkins1 | Feb 13, 2014, 9:15 pm
  12. >> “If there is no copyright protection for those articles, then it would be difficult to argue that protection could be granted just to the trade books that issue from them, unless the articles are entirely rewritten for use in the book or the copyright in a “compilation” would suffice to motivate commercial publishers to invest in their publicatiion”

    That’s a good point, but the issue isn’t copyright protection. In most OA policies in American universities, the copyright remains with the author. The authors can choose to sign a license to the university to distribute the article, but regardless, he or she still holds copyright, and can then transfer the copyright (less the nonexclusive license) to the publisher. Whether the publisher opts to publish a book based on articles which are available OA is another (market-based) decision. But your point holds true: there should be some embargo flexibility built in so that faculty can opt to make their articles dark until their book is published and earns the publisher some royalties, or in perpetuity. And in most OA policies in the United States, there is that flexibility, as faculty can opt-out of the license.

    >> “I would also ask Mike and Clarke how they propose to deal with scholarly monographs compared with articles, and what happens when, in the digital age, there are now works that exist in the middle area between these two, which are artifacts of the print era. If they think scholarly monographs should all be in the public domain also, for the same reason they believe articles should be, then how do they propose that the publishing of monographs be funded?”

    This is also a valid point (except for the conflation of public domain with open access–they are distinct and very different: OA works still have copyright protection/use limitations, whereas PD works have none). OA policies focus on articles, not books. Because publishers do provide monograph authors (very slight) royalties, and because creating & publishing a book is much more complex, logistically speaking (especially in SS & Humanities, largely due to the point David Crotty made above: that the books are equivalent to research, and also due to library decimation of monograph budgets to pay for serials subscriptions), OA is difficult, but not wholly insurmountable. A number of experiments have been made to attempt making books OA (many of these are explored in Vincent, “The Monograph Challenge”, p.106 http://issuu.com/thebritishacademy/docs/debating_open_access-ed_vincent_and) :

    * Embargoing access with later opening: Can be achieved by the green model described above or by publishers voluntarily opening access after achieving a certain amount of royalties (but this has a negative externality: second hand bookstores may lose royalties)

    * Knowledge Unlatched (http://www.knowledgeunlatched.org/): library consortia pay startup costs (i.e., title fee–the cost to publish a book) to publishers; once publishers are assured they will cover costs/make a profit, they make the book OA to everyone and still earn royalties on print copies (with discounts to member libraries)

    * Permit reading online with no downloading/printing allowed, with print on demand capability (http://www.openbookpublishers.com/, some individual authors like Suber, who notes in 5.3 of his book Open Access https://mitpress.mit.edu/sites/default/files/titles/content/openaccess/Suber_12_chap5.html#chap5 that this latter model boosts readership, if not sales: thekey question is whether more people will buy the print edition than would have bought it if OA hadn’t been there to help them evaluate )

    * Charge authors small processing charges and generate revenue from sponsorships/donations

    * Charge authors high processing charges to be covered by grants (much more difficult in Humanities & SS)

    * Authors collaborate with their institutions to produce and disseminate their monographs (must develop a method for assessment & metrics for this to avoid bias and succeed)

    * Moving towards a paradigm change, where research that is based in writing monographs & other digital humanities projects is seen as analogous to scientific laboratories, which are not necessarily self-sustaining, but are necessary for scholarly output and are therefore subsidized by the university (this is explored in Fitzpatrick’s Planned Obsolescence http://mcpress.media-commons.org/plannedobsolescence/)

    * And an even more radical reconceptualization of the purpose of a university, where scholarly communication is seen as the center of its mission and universities develop a coordinated strategy for developing, certifying, and disseminating all research openly (i.e. cutting the publishing business out of it entirely).

    So there are some options; OA for monographs is very much in early stages, so we will see how feasible these are as they are tested.

    Posted by Clarke | Feb 14, 2014, 1:48 pm
    • Thanks for your lengthy reply. Just so you know, I have been a advocate of OA for monographs since before the term was invented: https://scholarsphere.psu.edu/files/9880vr155. (This essay inspired Frances Pinter, who got Bloomsbury Academic into OA publishing and then started Knowledge Unlatched.) As director of Penn State Press, I helped launch the Office of Digital Scholarly Publishing, which included an OA monograph series in Romance studies started in 2005. I also drafted the AAUP’s Statement on Open Access and have written about the subject extensively, as here: https://scholarsphere.psu.edu/files/9880vr732. So I do know something about the challenges facing OA monograph publishers. I offer some ideas for new ways of approaching these challenges here: https://scholarsphere.psu.edu/files/9880vr79q.

      Posted by Sandy Thatcher | Feb 14, 2014, 6:25 pm

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