Talking about a policy

• This is a section within Good practices for university open-access policies.

Academic freedom

• Some faculty object that a draft OA policy would infringe their academic freedom.
  • If they object that it will limit their freedom to submit new work to the journals of their choice, then they are mistaking a green policy (as recommended here) for a gold policy. They are mistaking deposit in OA repositories for submission to OA journals. Help faculty understand the difference between requiring deposit in a certain kind of repository and requiring submission to a certain kind of journal, and help them understand that the policy is limited to the former and does not extend to the latter.
  • If they object that some journals will not allow OA on the university's terms, and that faculty will effectively be barred from publishing in those journals, then they are forgetting about the waiver option. Faculty may submit their work to such a journal; if it is accepted, faculty may publish in that journal simply by obtaining a waiver, which the university will always grant, no questions asked. In fact, preserving faculty freedom to submit new work to the journals of their choice is the primary rationale for including the waiver option. Be explicit in reassuring faculty that they remain free to publish anywhere and remain free to decide for or against OA for each of their publications.
  • If they object that it will diminish their rights or control over their work, then they don't understand the rights-retention aspect of the policy, the feature of the policy allowing the university to transfer rights back to the author, the terms of standard publishing contracts, or all three. Authors sign away most of their rights under standard publishing contracts. In fact, increasing author rights and control is the primary rationale of a rights-retention OA policy. Be explicit in reassuring faculty that they will have far more rights and control over their work under this policy than under a standard publishing agreement.
  • If they object that it will give the university ownership of their work, then they don't understand non-exclusive rights, the terms of standard publishing contracts, or both. The policy grants no exclusive rights to the institution, only non-exclusive rights. By contrast, faculty routinely grant exclusive rights to publishers through standard publishing agreements.
  • If they object that they will be subject to a new form of coercion, then they are overlooking the waiver option, misinterpreting the word "mandate", or both. If some people call the policy a "mandate", it's only because the policy is stronger than a request or encouragement. But it's not a mandate in any other sense, and doesn't call itself a mandate. The waiver option means that faculty retain the freedom to decide for or against OA for every one of their publications. Where the word "mandate" may be a problem, don't use the word, and where the word is already causing problems, help faculty focus on the actual substance of the policy rather than the implications of a very imperfect label for the policy. (More under "Mandate" below.)
  • These objections are especially common on campuses where faculty distrust of administrators runs high. Sometimes faculty do understand the green/gold distinction, the waiver option, rights-retention, and non-exclusive rights. But when they distrust administrators, they often see a draft OA policy as an attempted power grab by the administration. When this is a risk, be especially clear on the points above (the green/gold distinction, the waiver option, rights-retention, and non-exclusive rights), but also be clear on the fact that the policy is a faculty initiative. It is drafted by faculty and will be voted upon by faculty. Be clear that it enhances author prerogatives (control over their work and distribution channels for their work), while preserving their freedom to decide for or against OA and preserving their freedom to submit their work to the journals of their choice. These are the reasons why so many OA policies have been approved by unanimous faculty votes.
  • At schools where faculty worry that administrators might claim control over faculty publications under the work-for-hire doctrine, it helps to point out that the kind of policy recommended here reaffirms that these rights belong to faculty. Through the policy, faculty grant (non-exclusive) rights to the institution. This grant would not be possible if the rights did not belong to faculty. The policy could be construed as a way to continue to assert faculty rights and reject the work-for-hire doctrine. Then the faculty can grant the institution non-exclusive rights for faculty benefit on faculty terms.

"Compliance"

• Policies of the type recommended here have two main components: permissions and deposits.
  • On the first component (permissions, licenses, rights-retention), compliance reaches 100% as soon as the policy is adopted.
  • On the second component (deposits in the repository), compliance always requires time, and typically requires education, assistance, and incentives. But even though the deposit rate generally starts low and grows slowly, and occupies most of the attention of those charged with implementing a policy, it doesn't follow that the deposit rate is the only component of the compliance rate.
  • You could say that waivers are a third component of the policy. But it's probably better to bring in waivers as potential modifiers of the first two components. The permissions component is waivable and the deposit component is not waivable. In any case, campus leaders should make clear that faculty who obtain waivers are still complying with the policy. They are not violating the letter or spirit of the policy. The policy deliberately accommodates those who need or want waivers.

"Institutional repository"

• University OA policies generally require deposit in the institutional repository, and we recommend that practice. In this sense, an institutional repository tries to gather the research output of an institution, as opposed to a central, subject, or disciplinary repository, which tries to gather the research output of a field. When we're discussing different kinds of repository, "institutional repository" is unambiguous and unfrightening.

• However, many faculty do not realize that institutional repositories are indexed by major (academic and non-academic) search engines, and are interoperable with other repositories. Many faculty think that an institutional repository is a walled garden or a silo of content only visible to people who know the repository exists and take the trouble to make a special visit and run a special search. In addition, most faculty identify more with their field than their institution. Hence, when we're discussing the terms of a university OA policy, the term "institutional repository" may reinforce false assumptions that deposited works are institution-bound, invisible, and provincially identified with an institution more than with the author or topic. In discussing university OA policies, then, it may be better to emphasize the sense which institutional repositories are OA, open for indexing by any search engine, and interoperable with other repositories. They do not wall off content into institutional silos but openly distribute content using institutional resources. They are designed to expose content to searchers, and most readers will find the repository articles through global, cross-repository searches than through local searches or local browsing. For all these reasons, many faculty will find "open-access repository" and "repository" more illuminating and less confusing terms than "institutional repository".

"Mandate"

• If the word "mandate" suggests commands or coercion incompatible with academic freedom, then avoid it. The kind of policy recommended here is not implemented through commands or coercion. First, it is self-imposed by faculty vote. Second, it contains a waiver option and merely shifts the default. It would be a mistake to let the understandable desire to avoid the ugly implications of the word "mandate" lead faculty to defeat a policy that was not a mandate in the ugly sense. The kind of policy recommended here preserves faculty freedom to choose for or against OA for every publication.
  • On the other hand, the policy recommended here is considerably stronger than a mere request or encouragement. The chief rationale for the word "mandate" is that English doesn't seem to give us better options for a policy that goes well beyond requests and encouragement and yet stops short of commands and coercion. (If you have a better alternative, please come forward!)
  • For more detail, see Peter Suber, Open Access, MIT Press, 2012, Section 4.2, "Digression on the word 'Mandate'", pp. 86-90.

• In any case, the deposit expectation or commitment is only one part of the policy. Don't talk about the policy as if it were the only part or the main part. It's one of two equally important parts. The key second part is rights retention by the institution and author. As we noted in the entry on transferring rights back to the author, the kind of policy recommended here increases faculty freedom to reuse their own work by giving them more rights than they have under standard publishing contracts.

"Opt-out" and "opt-in"

• A waiver option creates an "opt-out" policy. In that sense it "shifts the default" from lack of permission for OA to permission for OA. After a rights-retention policy is adopted, faculty who don't lift a finger are granting the institution permission to make their future work OA. If they want a different outcome, they must lift a finger and obtain a waiver. The fact that the policy merely shifts the default, and still allows an opt-out or waiver, means that it is not a "mandate" in at least one common sense of the term. The word "mandate" may suggest a kind of requirement deliberately omitted from the policy. (On the other side, the policy is considerably stronger than a mere request or encouragement, and English has few words other than "mandate" to describe such a policy.) The waiver option or opt-out means that faculty remain free to choose for or against OA for each of their publications. The shift in the default means that most faculty will choose OA most of the time.

• Some institutions adopt what they call "opt-in" policies. But in effect the institution already had an opt-in policy and didn't need to adopt a policy to give the faculty the right to opt in to OA. In that sense, the proper opposite of an "opt-out" policy is not an "opt-in" policy, but either a no-waiver policy (which is stronger) or a non-policy (which is weaker).

"Waivers"

• The university should make works in the repository OA whenever it has permission to do so. The kind of rights-retention policy we recommend here is one source of permission. When a faculty member obtains a waiver for a given article, then the university does not have OA permission from the policy for that article. But if the university has permission from another source, such as the publisher, then it doesn't need permission from the policy. A waiver of the license or permission under the university policy doesn't waive the license or permission that the university may have from the publisher. Hence, no one should talk about waivers as if they flatly block OA permission for a given work. They only block OA permission from the policy, not from other sources. In fact, policy proponents should be explicit that the institution will make deposited work OA whenever it has permission to do so.
  • Some faculty will overlook or misinterpret the waiver option and object that the policy limits their options and infringes their academic freedom. (We respond to this objection in the entry on academic freedom above.)
  • Some faculty who are strong proponents of OA will raise the opposite objection, and argue that the waiver option guts the policy and should be deleted. They believe the waiver rate will be high —for example, 40%, 60%, or 80%— when the experience at every school with a waiver option is that the waiver rate is low. At both Harvard and MIT it's below 5%. Moreover, removing the waiver option will make it impossible to answer certain objections based on academic freedom. Not only could an unwaivable policy infringe academic freedom, it could fail to muster the votes needed to pass. Don't make the perfect an enemy of the good, and don't underestimate the ways in which shifting the default can change behavior on a large scale.

Also see

Also see the recommendations on separating the issues and educating faculty before the vote.

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