I’m on the record as having suggested that institutional, funder-imposed, and governmental open access (OA) mandates have troubling implications for academic freedom, given that academic freedom includes — according to the statement promulgated by the American Association of University Professors — “full freedom… in publication.”* You can’t simultaneously enjoy “full freedom in publication” and operate under a regime that requires you to publish in very specific ways — especially when those modes of publication require you to give up important rights granted to you by law.

When I’ve raised these concerns in the past, I’ve often been asked (usually by people who are strongly in favor of institutional, funder-based, and/or governmental OA mandates) whether I have the same concerns about a journal’s or publisher’s requirement that authors relinquish copyright in return for the their publishing services. After all, in both cases the author is being asked to relinquish control over her work in return for something else she wants. Aren’t journal publishers being just as coercive when they require copyright transfer as funders are when they require OA publication with a CC BY license? This question has usually come in relatively constraining forums like Twitter and online commenting threads, where it can be tough to respond effectively to a question this complex. Hence this posting, in which I’ll try to explain my thinking on this issue, which I think is a very important one.

The first crucial thing to bear in mind is that when dealing with questions of freedom and coercion generally, we are not dealing with a binary issue. There’s no scenario available to faculty authors that offers either perfect freedom or absolute constraint. Even at their most free, academic authors are still generally expected by their peers to publish in quality scholarly journals, and their careers are hobbled when they fail to do so; even under the most constraining scenarios, authors usually still have some degree of choice between publishing venues (although some emerging models, like Plan S, would have particularly severe effects on authors’ freedom to choose). So this isn’t about choosing between absolute freedom and total coercion; the issue is how best to balance the tradition of academic freedom with the rights of various kinds of institutions to impose requirements on authors in return for such considerations as employment, funding, or publishing services. As it does in so many situations where different parties’ rights come into conflict, the challenge boils down to trying to find the right balance between the legitimate rights of individuals and an obligation to the collective good — or at least, the “collective good” as understood by people who have power over authors.

The second important thing to bear in mind is that when it comes to academic freedom, we are not talking about authors’ legal rights, but about a cultural tradition. In the United States, there is no legal right to academic freedom; instead, there is a deep and longstanding cultural understanding that academics must have the freedom to say and teach what they wish, and to publish their academic opinions and scholarly findings without institutional restriction. When it comes to institutional constraints on authors’ freedom, the question is not “Are these constraints legal?” — invariably, they are. Rather, the question is: how acceptable do we, as a scholarly and scientific community, find these constraints? One important criterion of their acceptability will be the degree of coercion that the policies represent; another will be the amount of public benefit that they offer in return for that coercion.

And this brings us to a third important factor: coercion of authors does not take place in isolation. Policies that restrict authors’ freedom to choose do so with an eye to creating benefits for others. In the case of journals’ and publishers’ requirements that authors relinquish copyright, the idea is that doing so will benefit the journal’s publisher — which, in some cases, will be a profit-seeking entity that seeks to realize commercial benefit from copyright ownership, and in other cases will be a nonprofit entity such as a learned or professional society that seeks to realize institutional benefits for its members. In the case of funder and governmental mandates, the purpose of restricting authors’ freedom is to provide a net benefit to the general public. And universities will typically impose their will on authors with an eye towards realizing institutional benefits (such as those that come with control over patentable inventions, for example) and often public benefits as well.

So, given that freedom and coercion both exist on a continuum, where might we place different mandatory policy scenarios along that spectrum?

Let’s look at what I think are the five most common entities that try to constrain authors, which I’ll list here in ascending order of their power to do so (as illustrated by Fig. 1 below):

1. Journal. (“If you want to publish in this journal, you must relinquish your copyright in the article.”) The individual journal has relatively little power to coerce authors, because if an author doesn’t like the terms offered by one journal, she can submit to a different one. Of course, the more journals there are in her field that impose similar requirements, the more this competitive dynamic weakens. Which brings us to a scenario one step up on the ladder of coerciveness:
2. Publisher. (“If you want to publish in any of our journals, you must relinquish copyright in the article.”) The more journals a particular publisher controls — and the more desirable they are as publishing venues — the more power the publisher has to impose its will on authors.
3. Funder. (“If you accept money from us to use for your research, you must publish in [X] manner.”) Funders, of course, control something even more fundamentally important to researchers than publishing venue: the money needed in order to do one’s work in the first place. And since funders both control an essential resource, and are radically less numerous than journals (or even publishers), each one is in a position to wield much more coercive power over authors than any individual journal or individual publisher can. And they are becoming bolder in exercising that power: for example, both the Gates and Ford Foundations now require their funded authors to assign all of their exclusive copyright prerogatives to the general public, and Plan S will forbid funded authors from publishing in roughly 85% of existing journals.
4. Employer. (“As long as you are on our faculty, you must publish your work in [X] manner.”) The institutions that employ researchers have even more power than funders do, because they directly control the author’s livelihood. Making a particular mode of publication a requirement of employment is an especially powerful tool of constraint — mainly because, in a tight academic employment environment, authors have little freedom to pick and choose between employers. This scenario is complicated, though, by the fact that college and university faculty typically govern themselves with regard to promotion and tenure, and both establish and enforce the publishing standards by which they’re judged. In other words, when it comes to publishing behavior, it’s the faculty themselves who decide what “you must publish in [X] manner” means, which complicates the issue of coercion pretty significantly. (Can you coerce yourself? Discuss.)
5. Government. (“If you produce scholarship as a citizen or resident of our country, you must publish your work in [X] manner.”) Governments have the most power over authors of all of these entities, because not only do they provide many of the employment venues and much of the research funding; they also wield what is the ultimate coercive power in any society: that of the state. To my knowledge, this coercive power is not yet being exercised in the context of scholarly publishing, except by governmental funding agencies: in other words, it’s not actually illegal to publish one’s research behind a paywall, even when that research is publicly funded. (Although governments do have a long history of trying to censor scholars and scientists generally, and we’ve seen particularly egregious examples of this recently in both China and the United States. See, for example, here, here, here, here, and here.) But as governments become increasingly involved in the regulation of authors’ publishing behavior, that possibility becomes less remote and abstract. In this context, it’s worth noting that just a few weeks ago, the architect of Europe’s Plan S was in the United States, working to convince the U.S. government to adopt a similar program.

So, to sum up: freedom and coercion are spectrum phenomena. Different institutional entities have different capacities to force authors do what they want them to do. To say that one is deeply concerned about the coercive behavior of entities that have great power over authors (funders, employers, governments) is not to say that one has zero concern over such behavior on the part of those that have less power over them (journals, publishers). In fact, I do have concerns about publishers requiring copyright assignment; I don’t agree that such requirements are necessary, and I think it would be much better if journals published articles under licenses instead of requiring copyright assignment. But the distinctions between those scenarios are nevertheless important. And the reality of those distinctions raises a critical question: in which of the institutions discussed above do we see a growing inclination to coerce authors and restrict their “full freedom in publication”?

* It is not so defined in other countries; the varying definitions and cultural understandings of “academic freedom” is a topic for a separate discussion. For the purposes of this posting, we will consider these issues in the context of the AAUP definition.