Implementing a policy

• This is a section within the Guide to best practices for university open-access policies.

Launching a repository

• The institution must have an institutional repository, or participate in a consortial repository. Most schools launch a repository before adopting a policy to fill it, but some do it the other way around.

Individualized writing

• Institutions implementing the kind of policy recommended here will want the policy to prevail over a later publishing contract inconsistent with the policy. Merely passing the policy may attain that goal. However, to be more certain, practically and legally, that the policy license survives any later transfer, US institutions should get authors to sign a "written instrument" affirming the policy.
  • Here's why: Under US copyright law (17 USC 205.e) a "nonexclusive license...prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed or such owner's duly authorized agent."
  • This provision doesn't say that in the absence of a written instrument, the nonexclusive license will not prevail over a later contract inconsistent with the policy. A university might take the position that the nonexclusive license in the policy will prevail in any case, and will probably never have to test its position in court. But to be safe, it's best to get a written affirmation of the grant of rights (or license) as specified by 17 USC 205.e.
  • We don't know how to accomplish this goal outside the US, and welcome advice from people who do know.

• Harvard uses several methods to get the written affirmation of the policy. When faculty deposit their own articles, a dialog box in the deposit process asks them to affirm the grant of rights (the license) in the policy. When someone else (an administrative assistant or the OSC) deposits articles on their behalf, the faculty member must first have signed a one-time assistance authorization form containing an affirmation of the grant of rights. Thus, whatever route an article takes into the repository, the institution obtains a written affirmation of the license.
  • Here's Harvard's language for affirming the license is: "[I]f I am a member of a Harvard Faculty or School that has adopted an open access policy found at http://osc.hul.harvard.edu/, this confirms my grant to Harvard of a non-exclusive license with respect to my scholarly articles as set forth in that policy."

Facilitating waivers

• The institution should create a web form through which faculty can obtain waivers. This not only streamlines bookkeeping, but proves to faculty that the process is easy and automatic. Harvard can share code for such a web form.

• Some publishers may require faculty to obtain a waiver as a condition of publication. Institutions need not try to prevent this. Accommodating these publisher policies proves that publishers have the means to protect themselves, if they choose to use them, and that fact makes it unnecessary for faculty to protect or "paternalize" their favorite publishers (e.g. society publishers) by refusing to vote for a policy. On the other hand, the institution may want to talk with publishers who take this position, to see whether they can work out an accommodation.

Author addenda

• Because the policy already grants the institution the rights needed for OA, faculty need not obtain those rights from publishers.

• An author addendum is one way for authors to request rights that a standard publishing contract does not otherwise allow. Hence, for policies of the kind we recommend, author addenda are unnecessary for the same reason that individual author-publisher negotiations are unnecessary.

• However, author addenda may be desirable anyway. An addendum can alert the publisher that the author's institution already possesses certain non-exclusive rights. This can prevent misunderstandings on each side. It can also prevent authors from signing publisher contracts which (without the addendum) are inconsistent with the university's OA policy.

• See the section on individualized writing above for the reasons why a well-implemented institutional OA policy would take priority over a later publishing contract inconsistent with the policy. Because the policy takes priority, authors who sign publishing contracts inconsistent with the policy may be unable to live up to those contracts and may expose themselves to liability for breach of contract. This risk is entirely eliminated by an addendum modifying the contract to conform to the terms of the institutional policy.

• On the other hand, there are legal theories under which even in the absence of an addendum an author would not be subject to a claim of breach of contract merely by virtue of the existence of a widely known prior license.

Multiple deposits

• If a faculty member deposits a paper in a non-institutional repository (e.g. arXiv, PubMed Central, SSRN), the repository should harvest a copy. To avoid diluting the traffic numbers at the several repositories, all should comply with the (evolving) PIRUS standards for sharing traffic data.

• If a faculty member is subject to two OA policies (e.g. one from the institution and one from the funder), the institution should offer to make the deposit required by the funder. For example, most faculty at Harvard Medical School are subject to the NIH policy; if they deposit in the HMS repository, then HMS will insure that a copy is deposited in PubMed Central. If faculty think that an institutional policy will double their administrative burden, they will vote against it; the institution should make clear that a local policy will actually reduce their burden.

Dark deposits

• If a deposit is dark (not yet OA), at least the metadata should be OA.

• If the repository software will support it, dark deposits should be set to open up automatically at the future date determined by the author decision or embargo period.

• If an author deposited a manuscript and obtained a waiver, then the institution does not have permission to make it OA under the policy. But the repository should make the manuscript OA if it can obtain permission from another source, such as a standing policy of the publisher's to allow OA after a certain embargo period. See the entry on waiver options.

Deposited versions

• Some authors will deposit the published version. (Sometimes they will mistakenly believe it is the version they ought to deposit; sometimes they will simply prefer it and demand to make it the OA version.) In this case, ask the author for the final version of the author's peer-reviewed manuscript. If the author can't find the right version or insists on depositing the published edition, make it a dark deposit and open it up in the future when you have permission from another source, such as the publisher.

Repository indexing

• The repository should be configured to support crawling by search engines.

• Repository managers should check to see whether the contents are discoverable through major search engines, and follow-up any indexing failures.

Repository withdrawals

• If a publisher sends a reasonable take-down request to the repository, the repository should always comply.

• If the author wishes to withdraw an article already on deposit (e.g. because it is mistaken, embarrassing, superseded by a newer version, etc.), then the repository should withdraw the article. The author can always obtain a waiver, and then the university would no longer have the rights to distribute it. That's a reason why repositories should always follow author wishes on distribution. In any case, experience shows that authors seldom ask to withdraw their own articles.

Content beyond the policy

• The institution should welcome the deposit of types of scholarly content, above and beyond the type covered by the policy. For example, if the policy focuses on peer-reviewed manuscripts of journal articles, the repository should welcome deposit of other categories of scholarship as well, such as electronic theses and dissertations, books or book chapters, datasets, and digitized work from other media for which it has permission to provide OA. If the policy covers peer-reviewed manuscripts published after a certain date, it should welcome the deposit of peer-reviewed manuscripts completed or published before that date.

• If the policy only gives the institution permission to make certain kinds of content OA, the repository should welcome dark deposits where it doesn't have permission for OA, and in those cases it should provide OA to the metadata.

Treaties with publishers

• Some publishers may request certain dispensations, for example, that manuscripts published in their journals include a complete citation and link to the published edition. If the institution is comfortable acceding to the request, then it may ask something in return, for example, that authors will not need to obtain waivers or attach addenda. These agreements may contain any provisions consistent with the policy and agreeable to both sides. (At Harvard they are called "treaties".)

• We recommend against treaties requiring universities to respect a given embargo period for all articles from a given journal or publisher. Such a treaty would essentially give the journal or publisher a blanket opt-out of a significant provision of the university OA policy, and violate the express interest of the faculty in adopting a policy to shift the default to immediate OA.
  • However, when authors rather than publishers seek an embargo, and seek it case by case rather than for all articles from a certain journal or publisher, the policy can accommodate them. See the entry on embargo options.

• Here's an example of treaty language used at Harvard.

Learning the denominator

• An institution can easily tell how many articles are on deposit in its repository. But it cannot easily tell how many articles ought to be on deposit. If it wants to calculate the deposit rate (number deposited divided by number that ought to be deposited), then it must find a way to ascertain the denominator. This is a critical piece of information in measuring the effectiveness of the policy and its implementation.

• Some institutions ask faculty to submit an annual list of their publications. If so, the information should be shared with the repository managers. The raw list of publications is less helpful than one broken down by categories, such as books, journal articles, and so on. If the policy only covers journal articles (for example), then the relevant denominator is the number of journal articles.

Working with publishers

• See the entry on author addenda. A well-written author addendum can explain to publishers what rights the author has already assigned to the institution. Hence it can prevent authors from signing publishing contracts they cannot fulfill, prevent misunderstandings on all sides, and prevent needless antagonism. However there are some other ways to achieve some of the same goals.
  • Publishers who normally require transfer of exclusive rights, but who do not demand waivers from authors at your institution, can modify their publishing contracts to facilitate cooperation with the institution. For example, it would help both sides if publishers included a clause to this effect, for instance, this sentence from the Science Commons addenda: "Where applicable, Publisher acknowledges that Author's assignment of copyright or Author's grant of exclusive rights in the Publication Agreement is subject to Author's prior grant of a non-exclusive copyright license to Author's employing institution and/or to a funding entity that financially supported the research reflected in the Article as part of an agreement between Author or Author's employing institution and such funding entity, such as an agency of the United States government." Such a clause would make addenda unnecessary for authors and publishers, and would cost the publisher nothing.