Talking about a policy

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

Academic freedom

• Some faculty object that a draft OA policy infringes 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 the green policy for a gold policy. They are mistaking a policy about depositing in an OA repository for a policy about submitting to OA journals. To avoid this mistake and the groundless objections it triggers, make sure that faculty understand the difference between requiring deposit in a certain kind of repository and requiring submission to a certain kind of journal, and make sure they understand that this policy does the former and not the latter. Be explicit in reassuring faculty that they remain free to submit their work to the journals of their choice.
  • If they object that some journals will not allow OA on the university's terms, and that faculty will be effectively 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, allowing this is the primary rationale for including the waiver option in the policy. Be explicit in reassuring faculty that they remain free to submit work to the journals of their choice 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 terms of standard publishing contracts, or both. 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 them that they have 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 this kind of policy is called 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, since 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 terms 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 submit their work to the journals of their choice, and that is why so many OA policies have been approved by unanimous faculty votes.
  • At schools where faculty worry that administrators may 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, and this would not be possible if the rights did not belong to faculty. The policy could be construed as a way to deny work-for-hire and then to grant the institution non-exclusive rights for faculty benefit on faculty terms.

"Compliance"

• Harvard-style policies have three components: permission, waivers, and deposits. On the first component (permissions), compliance reaches 100% as soon as the policy is adopted. On the second component (waivers), campus leaders should acknowledge 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. The third component (deposits) often 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.

"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 these false belief that the 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's content through cross-repository searches than through local searches or browsing.

"Mandate"

• If the word "mandate" suggests commands or coercion incompatible with academic freedom, then avoid it. The 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.

"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 default shift means that most faculty most of the time will choose for OA.

• 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 opposite of an "opt-out" policy is not an "opt-in" policy, but 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 policy 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 such as the publisher. In fact, the 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 above.)
  • Some faculty who are strong proponents of OA will raise the opposite objection, and argue that the waiver option should be deleted. They worry that it will gut the policy. They believe the waiver rate will be high --say, 40% 60% or 80%-- when the experience at every school with a waiver option is that the waiver rate is low. At Harvard it is below 5% and at MIT it's below 2%. 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. Those pushing too hard too fast for an unwaivable OA policy may get no policy at all and make the perfect an enemy of the good. Lesson: don't underestimate the ways in which shifting the default can change behavior on a large scale.