To the American Association of University Professors:

In 1940, your organization produced an important document: the Statement of Principles on Academic Freedom and Tenure. In the 78 years that have passed since then, some things about academic life and work have remained more or less the same, while others have changed dramatically. Among the principles that, I think we’d all agree, are just as applicable and commonly-understood today as they were in 1940, are:

  • The need for tenure, and the right of tenured professors not to be fired except for adequate cause
  • The professor’s full freedom to discuss relevant subject matter in the classroom, unconstrained by administration’s preferences or views
  • The proposition that faculty members’ public communications should be unfettered by the institution but should also be accurate and respectful of others

open envelope

However, in one significant area of academic life and work — scholarly publishing — things have changed quite dramatically since the AAUP statement was written. This goes directly to the first article in your statement:

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties.

You may be unaware of this, but the phrase “full freedom… in the publication of the results” has recently become controversial within the scholarly communication ecosystem. It may seem strange that this should be so — who could argue with the idea that scholars should be free to research what they wish and to publish it as they wish? — but it makes more sense in the light of developments in the scholarly communication ecosystem over the past fifteen years or so.

Since the mid-1990s, scholarly publishing has moved dramatically online. Not universally, of course; scholarly books are still largely published in print (though a growing number are published simultaneously as ebooks), but scholarly journal publishing is now primarily an online enterprise.

Online publishing has made something possible for the first time in human history: the instantaneous and near-universal distribution of journal articles. During the print era, there was no practical way to make articles freely available to all, because those articles were trapped on physical pieces of paper. But online, they can be quickly and easily disseminated to billions of people at the click of a mouse. This new reality has led many in the scholarly community to ask an important question: “Now that we can make scholarship freely available to everyone with an Internet connection, why aren’t we doing it?”

Our new online publishing environment has led many in the scholarly community to ask an important question: “Now that we can make scholarship freely available to everyone with an Internet connection, why aren’t we doing it?”

And the answer, of course, is that although the content is available online, access to it is restricted by publishers who charge for access to it. These access charges serve, to some degree, as a cost-recovery measure; publishers typically invest a fair amount of money in preparing articles for publication. But it’s also true that some scholarly publishers charge for access in the interest of generating profit for their shareholders, while many more do so in the interest of securing revenue streams to benefit their society members. Some publishers charge very high prices, some charge very low prices, and most are somewhere in between. But in each of these cases, the publisher can be said to be putting a “paywall” or an “access toll” between the content and its reader. Readers who are affiliated with colleges and universities are helped over those walls by their institutional libraries, which negotiate and pay for campuswide access on their behalf. Other readers pay the access tolls themselves, either by subscribing to journals individually or by buying articles piecemeal. Some make use of pirate operations like Sci-Hub. Many simply go without access.

Again, this is a reality that existed for centuries — and in fact was much more severe, with most people having much less access, during the print era. During that very long era no one particularly questioned this general lack of access to scholarship because it never really seemed like a problem; it was just the way things were given the logistical limitations of print. Obviously most people didn’t have access to specialized scholarship; how could they? But now that those limitations are evaporating, there has been a growing movement to advance open access (OA). While the movement is somewhat diverse in its goals and not everyone agrees on a single definition of the term, a work is perhaps most commonly understood to be OA if it a) is freely available to download and read, and b) may be reused without any of the restrictions imposed by copyright law. (The latter freedom is conferred on the public when an author applies to her work a Creative Commons license that allows unrestricted reuse, including republication, distribution, and the creation of derivative versions, for either noncommercial or commercial purposes. This license is designated “CC BY.”)

This isn’t the place to belabor the pros and cons of OA/CC-BY publishing; authors are capable of considering those and deciding for themselves whether such an approach is right for them.

So what does this mean in the context of the AAUP statement on academic freedom? Well, the issue that has arisen is that many in the OA movement are not content with making OA publishing options available to scholarly authors; they want OA to be mandatory. In recent years, such mandates have come into play in Europe and the UK—which is to say, in relatively small countries that have national systems of higher education and are therefore in a position to establish OA requirements centrally. In the US, there are many institutional policies that encourage OA, but these invariably include opt-out language that grants the author a waiver from the policy upon request. However, powerful private funding agencies (most notably the Gates and Ford Foundations) are increasingly adopting true OA mandates, failure to comply with which will result in ineligibility for future grants. Funding agencies in the US government are also beginning to require something like OA, although in this case the requirement is only that publications based on funded research be made available for all to read, not necessarily to reuse without restriction.

The time has come for the AAUP to take, and voice publicly, a position on the question of what exactly “full freedom in publication” means in the 21st century.

And this brings us back to the AAUP statement on academic freedom, and more specifically to the question of what exactly is meant by “full freedom in research and in… publication.” These words were written at a time when their meaning would have been quite clear: faculty authors should be able to decide for themselves whether, where, and how to publish their work. But they were written at a time when authors did not have mechanisms available for making their work freely available for reading and reuse, and therefore obviously could not be required to do so by their institutions, their governments, or their funders. Now that such mandates are an option — and are increasingly being pursued by institutions, governments, and funders — it may be time to revisit the relevant language in the AAUP statement, to clarify it, and to adapt it to the current information landscape. In doing so, questions you ask yourselves might include:

  • To what degree do scholarly authors have a moral obligation to make their work as widely available as possible? To the degree that this obligation exists, is it different in the case of publicly-funded research than in the case of privately-funded or unfunded research?
  • Does requiring authors to make their work freely available for all to read constitute a restriction on academic freedom? If so, why?
  • Does requiring authors to make their work freely available for unrestricted reuse (including republication, the creation of derivative works, and commercial use) constitute a restriction on academic freedom? If so, why?
  • Assuming that mandatory OA makes sense in principle, does it make more sense in one discipline than in another? (For example, should the results of medical or social research be treated differently from the results of literary research?)
  • How does this issue apply to graduate students and their dissertations? Should they be subject to rules in this regard that do not apply to faculty? If so, why?

If you accept the invitation to revisit and clarify the language of the statement, I feel it’s only fair to warn you: not everyone will welcome an open discussion of this issue. Some (though not many) feel that OA itself is actually a bad thing that does more harm than good. On the other side, some feel that OA is not merely a good thing, but actually a moral imperative — that it shouldn’t be up to faculty to decide whether, where, and how they will publish, but that OA/CC-BY publishing should be required of them. Neither of these camps tend to be enthusiastic about any discussion that acknowledges and tries to analyze both the benefits and the costs of mandatory OA policies. And yet it seems clear that exactly that kind of discussion is urgently needed. As an organization dedicated to “advanc(ing) the rights of academics, particularly as those rights pertain to academic freedom and shared governance,” the AAUP has an important role to play in helping to resolve these difficult questions, which go to the very heart of the academic endeavor.

The time has come for the AAUP to take, and voice publicly, a clear position on the question of what exactly “full freedom in publication” means in the 21st century. The conversation will be difficult, but it is one we need to have, and the AAUP is uniquely well positioned to lead it.

Rick Anderson

Rick Anderson

Rick Anderson is Associate Dean for Collections and Scholarly Communication in the J. Willard Marriott Library at the University of Utah. He speaks and writes regularly on issues related to libraries, scholarly communication, and higher education, and has served as president of NASIG and of the Society for Scholarly Publishing.

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Discussion

48 Thoughts on "An Open Letter to the AAUP: Faculty Authors and “Full Freedom in Publication”"

As an aging and specialist researcher. I have a few comments.
On the first point, I am neutral. In an ideal world, I would like all who might be interested to have access to my work. But if I have to pay out of my own pocket to make that come true, then no deal: the number of those disadvantaged will be small, and I always respond to personal requests for a pdf.
On the second point, it will restrict my freedom if the only way I can publish is to pay. Even if I had institutional funds, their policies might prevent me from seeking the most appropriate outlet for my work.
On the third point, the thought that my work might be altered or taken out of context by others would certainly inhibit the way I write. It will tend to promote defensive writing. Defensive medicine is not an encouraging analogy.
On the fourth point, within my specialist branch of zoology, universal open access might spell the death of the specialist societies that promote such studies. Apart from enabling publication, such societies promote training, support for new entrants, small grants in aid of research and the organisation of conferences. Papers scattered among APC driven megajournals would destroy these communities and exclude those with no access to funds.

Rick, it is truly rare when I find myself disagreeing with you, but I had to pause to see you cite Beall’s article in Triple C as the case for why OA is a bad thing. Beall’s is a reckless article with a large dose of paranoia. The case against OA can be made much more strongly than that and has advocates whose outlook is balanced and pragmatic.

Hi, Joe —

I wasn’t citing Jeffrey’s piece to make the case that OA is a bad thing, but as an example of someone claiming (incorrectly, in my view) that OA is a bad thing. For the record, I agree with your assessment of his piece.

The organization is called the AUP.

There seems to be a conflation in this post between an academic’s personal freedom to publish and the publisher’s responsibility to make publications free to the public.

A salient point to this conversation is that the AUP is almost entirely comprised of non-profit university publishers. Many of which, despite debilitating budget cuts, have been and are grappling with the OA question. Many are on the forefront of OA initiatives (lots of overlap, for example, between the AUP members list and the publishers list of Knowledge Unlatched: http://knowledgeunlatched.org/wp-content/uploads/2018/02/Participating-Publishers.pdf).

This is an important conversation to continue having, but I don’t understand why the post takes the position of the AUP being outside of the scholarly communications bubble (e.g. “You may be unaware of this…”) vs. very much an integral part of it.

Ha–I definitely was. Apologies! So much for careful reading.

See David Crotty’s response. Of course, I know that it is possible to achieve OA without APCs applying. The journal of which I am an associate editor has the capacity to select a few articles for OA, and does so. But it can do this because it has revenue from subscriptions. There is more at stake here than the ability to publish stuff OA somewhere. It is the structure of the societies and the communities that they serve that is at issue. One other journal for which I edit is now entirely OA, but it achieves this by government subsidy, which remains precarious, and certainly would not be possible across the whole range of specialist journals.

As Joe has at times pointed out I’m just an old fuddy duddy! However, I really dislike the idea of any granting agency telling someone who has accepted funds and penned an article what venue s/he must use in order to bring the article to light. I hate to use the slippery slope argument but at what point will a granting agency say here is a list of approved journals!

I’m not aware of any funding agency that tells its authors what venue they must publish in. What foundations like Gates and Ford do require is that their authors make their work available on an OA/CC-BY basis. This can be done in a wide variety of publishing outlets (or without formal publication at all, of course).

I believe telling an author they have to publish OA/CC-BY is a venue. Many publishers provide the aforementioned but some do not. Those that don’t are in a sense being censored by the granting agency. If I am wrong please clarify.

Harvey, I think you have this inside out. Funding agencies don’t tell authors where to publish; they tell them where they cannot publish. The exception to the first part of this (telling authors where to publish) is mandated deposit into institutional repositories, PubMed Central, etc.

I believe that India’s University Grants Commission has a list of approved publishers (this is to exclude works from predatory publishers from counting toward career advancement).

Let’s not confuse “prohibition to publish” somewhere and “won’t be used in your evaluation favorably.” I, for example, am not prohibited from publishing anywhere – it is/was however very clear that some publications “count” and others don’t or less so when I applied for promotion.

It seems to me that funding agencies can make any demand they want of grantees. It’s their money. I don’t have to take it.

DRL —

Of course you’re right; funders are completely within their legal rights to require OA publication as a condition of funding. It’s also true that private academic institutions would be completely within their legal rights to require that all of their faculty members write for journals published by, say, right-wing publishers. In other words, infringing on academic freedom is not necessarily in any way illegal. The question is whether it’s an infringement on academic freedom.

Two sets of right can conflict. When funders’ rights (to say what should/shouldn’t be done with the results of their funding in order to reduce boundaries and make research shared quickly and for free), conflict with academic freedom, the question must be which is more important. Opinions can well differ depending on where one sits, and the importance of the subject of the research. For example, should medical cures weigh more towards open access than literary writing?

Probably worth pointing out the distinction between a medical cure, which would be covered by patent law, and literary writing, which would be covered by copyright.

What we are talking about is not a case for Solomon.
In my experience, the medical research is well distributed well before publication as is the literary research. The question presented is spurious at best.

Many employers require their employees to agree to a “work for hire” arrangement (https://en.wikipedia.org/wiki/Work_for_hire) where basically the employer owns every creation of the employee. This is, as you note, completely legal.

However, I know that many universities are very generous in the way they approach intellectual property, as they see this as a competitive advantage to land the best professors and researchers. If one was offered a position where all one’s writing and any patents belonged to the university, versus one where you retained ownership, it’s a fairly easy choice to make.

I appreciate Rick that you are calling for the AAUP to clarify its position/interpretation, recognizing that it isn’t as obvious what this phrase isn’t as obvious as it might initially appear. I hope the AAUP would take up as well other possible restrictions on freedom in publication – APCs, required copyright transfers, inflexible promotion policies, government contracts with secrecy/security related restrictions, pharmaceutical and other medical prohibitions, etc. And, does this full freedom apply to not only publication of the final product? But, also, the process, e.g., registration of protocols, etc. on an open science platform like COS OSF? Lots and lots of questions here. It would be a shame to be narrowly focused on open access publication requirements alone.

Hi, Lisa —

Agreed that there are other issues one could raise with regard to “full freedom in publication.” However, I don’t think all of them are equally concerning. A publisher requiring copyright transfer, for example, is a much less coercive practice than, say a funder or employer requiring OA/CC-BY publication (because no individual publisher has as much power over an author as a funder or employer does). I think the reason for focusing particularly on OA mandates right now is that there is a movement afoot urging the adoption of such mandates, and having success among both academic institutions (outside the US) and funders (within and outside the US). This lends a particular urgency, I believe, to that particular question for an organization like the AAUP.

See, I just don’t agree. I think many of these other issues are more coercive because they are about limiting authors’ abilities to share their work rather than requiring expansion of it. Of course, you already know this because we discussed it on Twitter months (or years?) ago when you raised this in the IHE piece. What we do agree on is that it isn’t clear from the AAUP statement means. If the discussion is opened by the AAUP, I think we should expect that the scope will be wide.

But as you point out above, no publisher has any real power to limit an author’s ability to share her work. If you want to make your work freely available to all, you can put it up on your blog and make it OA or place it in the public domain. The only way a publisher gets any control over your work is if you actively hand that control over — usually in return for services you want the publisher to provide. I don’t see the coercion in that scenario. You have much more freedom to choose between publishers than you do to choose an employer or a funder.

Rick, I agree the funder has great control over output. Witness the Welcome Trust mandate regarding scholarly articles published in which it has supported with granted funds.

Again, I disagree (and again you will expect this from our past conversations). I don’t see the evidence that “you have much more freedom to choose between publishers than you do to choose an employer or a funder.”

Lisa: I understand what you are saying, but then again I look at the indie book movement and wonder how long until it catches on in STEM publishing.

That really surprises me. You really believe that I can select an employer just as easily as I can select a journal in which to place my article?

I wonder if we are talking about different things? Which freedom are you speaking to? I’m talking about the freedom to choose to apply to be published, funded or employed. As far as I can see, none of us can choose (or select) to be published, funded, or employed – we can only choose to apply. It’s not like I can choose that Science or Nature will publish my work any more than I could choose that a university will hire me or choose that a funder fund me. I can apply. Any one of the choices to apply does not seem inherently rankable as more/less constrained than the others. Individual people likely experience their choices as more/less constrained – but again not inherent to the choice but to the individual … some people may have more choice in where to apply for funding and others in where to apply to publish and perhaps others in where to apply for employment.

These are good questions, Lisa, thanks, and they go to the heart of what I’m encouraging the AAUP to consider.

What I think needs to be clarified, given the ways in which our publishing environment has changed since 1940, is exactly what the AAUP means by “full freedom in publication.” While it’s obvious that no author has the ability to force a publisher to accept her work, it’s also true that (currently) no publisher has the right to publish an author’s work without her permission. This means that while I can’t choose to make The Lancet accept my paper, I certainly can stop The Lancet from publishing my paper. This is true for as long as I retain the exclusive rights afforded to me under copyright law. If, however, I’m compelled by my employer or my funder to make my work available on a CC BY basis, I no longer have any control over who publishes my work. This means that any publisher at all can pick up my paper and republish it if they so choose. To me, this seems to represent a meaningful loss in academic freedom: it means that I can no longer decide whom to associate with as an author–and it seems to me that such a decision is an important part of what constitutes “full freedom in publication” as laid out in the AAUP statement.

I know that I’m not the only one who feels that way. At the same time, I realize that there are intelligent and reasonable people who disagree. That’s why I think it would be very helpful for the AAUP to clarify its intent, since its definition of “academic freedom” is an important one, particularly in the US.

We definitely agree that there is room for clarity. Of course that an author who transfers their copyright also “can no longer decide whom to associate with as an author” … as more than one author has found out when they discovered their work re-published in a place they did not expect. Perhaps an author will have greater trust in a commercial publisher than in the community at large but in both cases the control is gone. You seem to want to claim that an author isn’t under constraints re choosing a journal that requires copyright transfer. Empirically, that isn’t my experience. Just last week for example I spent an hour with a scholar who must publish in certain journals to retain her position (yes, specific titles) and the journals require copyright transfer for publication. It would be great for the AAUP to be clear if that meets its definition of full freedom in publication. If having to publish under CC-BY because of a funder requirement does not, I don’t see how having to transfer copyright to publish in the specific titles required to keep your job could.

it seems to me that by agreeing to a CC-BY or other CC clauses one gives up any semblance of copyright ownership. In short, anyone can do whatever they want with the work so long as the work is cited. The aforementioned leaves the author of the work open to all sorts of pitfalls considering there are many deceitful persons on the web who can selectively parse to make black white.

If one does not give copyright to anyone but holds their own then they have to defend the copyright or lose it. Thus, the holder has to monitor “media” to make sure no one is violating their copyright, and if one finds someone who is violating the copyright has to take them to ask to cease and desist and if they don’t take them to court.

If one gives copyright to a publisher then it is the role of the publisher to defend the copyright and if the publisher willfully does not carry out that task then there is legal recourse.

I haven’t seen any mention in this conversation of the restriction of publishers requiring the authors to give them their copyright. That seems very restrictive to me.

I have negotiated many a contract that says the author owns the copyright but the publisher owns exclusive rights to distribution. Thus, the author has to defend the copyright (make sure you read the grants and indemnity clauses) should someone copy it or should the author give it to someone else to do with it as s/he pleases. On the other hand, if the author gives up all rights then anyone can use the work as they please and worse still put words in the author’s mouth via selective quoting.

Hi, Rob —

That’s exactly what Lisa and I have been discussing in the thread above.

You seem to want to claim that an author isn’t under constraints re choosing a journal that requires copyright transfer.

No, I’m not saying there are no constraints. If the author really, really wants to publish in Journal A and that journal requires copyright transfer, then there is constraint to the degree that the author really, really wants to publish in that journal. And if that journal (or a small group of journals) is truly the only option for that author — if it’s the one journal that she absolutely must publish in if she’s going to get (or keep) tenure — then the constraint in that case becomes actually coercive. But as long as there are at least two journals in the author’s array of options, she still has some choice as to where her work will go — and that choice is entirely lost if she’s required to adopt CC-BY.

Perhaps an author will have greater trust in a commercial publisher than in the community at large but in both cases the control is gone.

I don’t think it’s that simple. In functional, real-world terms, there is a very big difference between giving copyright in your article to a single publisher (whether commercial or not), and telling everyone in the world that they can do anything they want with your article as long as you’re given credit as author of the original version. In the former case, there certainly is a possibility that the publisher to which you gave copyright will turn around and give it to someone else; but in the latter case, absolutely anything can happen and you have no recourse. It’s true that in both cases you’ve given up control, but there’s a big practical difference between relinquishing control to a single entity and giving it to the whole world.

Glad you concede that if the scholar is required to publish in particular journals and all of those journals require copyright transfer, the situation is coercive.

So, re funding … CC-BY is a constraint because the scholar REALLY REALLY wants the money from that funder? I mean – they could just go somewhere else, right? Or, as long as there is at least ONE other option to apply to for funding, it’s not coercive?

So, re funding … CC-BY is a constraint because the scholar REALLY REALLY wants the money from that funder? I mean – they could just go somewhere else, right? Or, as long as there is at least ONE other option to apply to for funding, it’s not coercive?

As I said before, I think the great majority of authors have a much greater range of choice when it comes to publishing venues than they do when it comes to funding options (or employers). And the more funders impose CC-BY requirements, the less often funded authors will get to decide for themselves whether they will adopt CC-BY. This is why I think the time is now for the AAUP to consider this situation and decide what (if any) implications it has for issues of academic freedom, which are central to the AAUP’s mission.

This is the last I’m going to say on this — feel free to have the last word if you’d like.

Thanks, I will take the last word as offered. Thanks for the conversation today. I agree that we should be concerned about all constraints on academic freedom. I don’t see a need to focus on any particular one. So, to return to where I started, I hope the AAUP will engage this topic of constraints on full freedom in publication. But, on all such constraints. Not just the singular topic of CC-BY mandates by funders.

Can you envision the AAUP specifying CC-BY over other Creative Commons licensing? Does full freedom mandate exposure to commercial exploitation and derivative use? These seem incompatible to me.

Hi, Frank —

Sorry, I’m not sure I understand the question. Are you contemplating a situation where the AAUP expresses a preference for a particular flavor of OA?

The insistence on CC BY certainly is a serious restriction, and I have long argued that it is extremely serious for authors in the HSS fields, even more than in STEM fields, for the very simple reason that meaning is conveyed in the HSS fields in ways (nonmathematical) that are sensitive to language in such a way as to make translation into other languages a problem if it is not done properly. That is a very justifiable academic concern for scholars whose work gets mistranslated, or taken out of context, or re-edited so as to convey meanings not intended by the author. Mathematics is a universal language, in principle understood by all; ordinary prose is not and is subject to distortion, manipulation, etc., thus perverting what the author meant to communicate. It boggles my mind that funders do not acknowledge and appreciate this concern. I would be astonished if the AAUP, which represents faculty in the HSS fields as well as STEM, would ever agree to define OA as purely CC BY. That would, in my mind, clearly be a violation of academic freedom.

CC-BY is a terrible idea for multiple reasons. To state it generally (this encompasses Sandy’s excellent point), it wipes out subsidiary rights income. In clinical medicine, for example, some publishers have significant revenue from reprints. With CC-BY that money goes away. The obvious publishers’ response: raise prices on library subscriptions to offset the lost reprint sales.

Tough topic. In my specialty (a surgical subspecialty within medicine), the vast majority of research is not extramurally funded. Last I checked, there were about 2 dozen NIH-funded PI’s in the specialty; with 75 indexed JOURNALS or so, that means a lot of pages get filled by folks who can’t put a budget line in for article-processing fees (APCs). I saw an earlier comment that says that Open Access (OA) ≠ author pays. I’m not sure those data generalize well; certainly in my specialty, the author generally does pay the OA APC’s himself/herself unless one has a funding line for them, which, again, is fairly uncommon.

By shifting from subscription-model to OA, one shifts the costs from libraries (whose budgets are determined centrally, and can be driven needs/usage across the university campus) to individual departments (in the best case) or individual researchers (in the worst case). It is unlikely in the extreme that a typical med-school dean will provide the needed funding to individual departments. For example, our department has 50-ish faculty (plus or minus). If each publishes a few papers a year, you have a new high-6 to low 7-figure cost line for OA APCs…in just one department among many on the campus.

I certainly see the benefits of OA, but I do not see the kind of mandate suggested here as practical, at least not for most biomedical (and certainly not for most surgical) research.

My conflicts of interest: I am the editor-in-chief of a journal that is a hybrid model; that is, the author can decide whether (s)he wishes to pay an APC and publish OA, or whether (s)he wishes to publish in the subscription-model portion of the journal. In round numbers, it’s 5% OA, 95% subscription. I have never published my own work OA (but would not object to doing so, if I could afford it; I cannot).

Thanks for stimulating a good conversation. I enjoy the SK blog very much. Keep up the great work!

Seth S. Leopold, MD
Editor-in-Chief
Clinical Orthopaedics and Related Research

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