Drafting a policy

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

What an OA policy can achieve

• In this guide, we present our understanding of good practices for university open-access policies. An effective OA policy can build support for OA, as an academic and social good, into standard university practice.

• As we discuss below, we prefer a policy of the sort now in place at many universities that provides for automatic default rights retention in scholarly articles and a commitment to provide copies of articles for open distribution. Policies of this sort have many benefits: they allow authors to retain extremely broad use and reuse rights with a minimum of effort; they allow universities to help authors in openly distributing articles for maximum impact; they allow other researchers and the general public to obtain broader access to articles; all while preserving academic freedom, author choice, and consistency with copyright and other law.

• Although we find this kind of policy preferable, alternative sorts of policies can also be effective, and we discuss them as well. Other kinds of policies we find counterproductive, and recommend avoiding them.

Statement of goals of the policy

• Many policies open with some statement of the policy goals.

• There is no "best practice" statement of the benefits of OA or the goals of promoting OA. But there are some mistakes to avoid.
  • Don't say that the purpose of the policy is "only", "solely", or "exclusively" to achieve one benefit of OA, or some particular list of benefits. Leave the door open to achieve all the benefits of OA, even if you are not ready to enumerate them all.
  • See the entry below on transferring rights back to the author. Avoid language in the preamble that could inadvertently restrict the institution, authors, or users in making use of works in the repository. For example, avoid language that might be construed to bar text mining or derivative works.

Types of policy

• There are at least six types of university OA policy. Here we organize them by their methods for avoiding copyright troubles.
  1. The policy grants the institution certain non-exclusive rights to future research articles published by faculty. This sort of policy typically offers a waiver option or opt-out for authors. It also requires deposit in the repository.
  2. The policy requires faculty to retain certain non-exclusive rights when they publish future research articles. It also requires deposit in the repository.
  3. The policy seeks no rights at all. It requires deposit in the repository. If the institution already has permission to make the work OA, then it makes it OA. Otherwise the deposit is dark (non-OA) until the institution can obtain permission to make it OA.
  4. The policy seeks no rights at all and does not require dark deposits. It requires repository deposit and OA, but only when the author's publisher permits them.
  5. The policy does not require OA in any sense, but merely requests or encourages it.
  6. The policy does not require OA in any sense, but asks faculty to "opt in" to a policy under which they are expected to deposit their work in the repository and authorize it to be OA.

• We recommend type #1 in this guide. Most of the good practices collected here are about that sort of policy.
  • When type #1 policies are politically unattainable on a certain campus, then we recommend #3. We put #1 ahead of #3 because it actually provides permission to make articles OA through the repository.
  • When #1 and #3 are both politically unattainable on a certain campus, we recommend either a type #5 policy or waiting until the community is ready for a type #1 or #3 policy.
  • We do not recommend #2 because it requires faculty to negotiate with publishers. That is difficult to do. Many faculty are intimidated by the prospect and will not to do it. Even if all tried it, some will succeed and some will fail. Some will get one set of rights and some will get another. That will make access uneven and multiply implementation headaches.
  • We do not recommend #4 because it allows recalcitrant publishers to opt out at will. Some institutions believe that a loophole for recalcitrant publishers is the only way to avoid copyright infringement. But that is mistaken. All six approaches, properly implemented, avoid copyright infringement.
  • We do not recommend #6 because it is equivalent to no policy at all. Faculty may already opt in to the practice of self-archiving and OA. This sort of policy differs little from #5 except by leaving the impression that asking faculty to opt in to an OA policy is somehow different from requesting or encouraging OA itself.

• For independent analyses concluding that type #1 policies are lawful, and provide legally sufficient permission for OA through the institutional repository, see:
  • Simon Frankel and Shannon Nestor, Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions, a white paper from SPARC and Science Commons, August 2010. The paper shows how OA policies can avoid legal pitfalls, and uses the Harvard and MIT policies as a model.
  • Eric Priest, Copyright and the Harvard Open Access Mandate, Northwestern Journal of Technology and Intellectual Property, preprint August 1, 2012, published version forthcoming. Also see Stuart Shieber's blog post on Priest's article, Is the Harvard open-access policy legally sound? The Occasional Pamphlet, September 17, 2012.

Grant of rights to the institution

• The policy should be worded so that the the act of adopting the policy is the same as the act of granting the university certain non-exclusive rights. It should not merely ask, encourage, or require faculty to retain certain rights in the future, when they sign publishing agreements, and then grant them to the institution. It should say "Each faculty member grants...", or "hereby grants...", not "will grant..." or "must grant...."

• By granting the rights at the time the policy is adopted, in advance of future publications, the policy frees faculty from the need to negotiate with publishers. It secures the rights even when faculty fail to request them. It secures the same rights for every faculty member, not just the rights that a given faculty member might succeed in obtaining from a given negotiation with a given publisher.

• Note that in what follows we'll often refer to the grant of rights as the "license" or "permission" for OA.

Deposit in the repository

• The policy should either require deposit of relevant work in the institutional repository, or require making relevant work available to the institution for deposit.

• The waiver option should apply only to the grant of rights, not to deposit in the repository. (More under waivers below.)

• The policy needn't require faculty to make deposits themselves. The deposits may be made by others (such as student workers) on behalf of faculty, provided that faculty make the appropriate versions of their articles available for deposit.
  • For simplicity in what follows, we will refer to depositors as faculty, but will mean to include others acting on behalf of faculty.

Deposited version

• The policy should specify that the deposited version should be the final version of the author's peer-reviewed manuscript. This version contains the text approved by peer review. It should also include all the charts, graphics, and illustrations which the author has permission to deposit. It may include post-review copy-editing done collaboratively between author and journal. It need not include any post-review copy editing done unilaterally by the journal, the journal's pagination, or the journal's look and feel.

• If the publisher consents, then the institution should deposit the published version of an article to complement the final version of the author's peer-reviewed manuscript already on deposit.
  • This could be mentioned in the policy itself or simply made an implementation practice.
  • The published version should only replace the author's manuscript when the published version allows at least as many reuse rights as the author's manuscript. Some publishers will be happy to make this substitution in order to prevent the circulation of multiple versions. However, when the published version carries a more restrictive license than the author's manuscript, then the author's manuscript should not be removed from the repository.
  • Sherpa RoMEO keeps a list of publishers willing to allow deposit of the published version.

Deposit timing

• The policy should require faculty to deposit their peer-reviewed manuscripts at the time of acceptance for publication, or no later than the date of publication.

• If an author specifies an embargo on a given article, the deposit should still be made between the time of acceptance and the time of publication. But it will be a dark deposit until the embargo period expires.

Waiver option

• The policy should make clear that the institution will always grant waivers, no questions asked. Faculty needn't meet a burden of proof or offer a justification which might be accepted or rejected. To prevent needless fear or confusion on this point, the policy should refer to "obtaining" a waiver, or "directing" that a waiver be granted, rather than "requesting" a waiver.

• The waiver option should apply only to the grant of rights to the institution (also called the license or the permission), not to the deposit in the repository. Faculty should deposit their articles even if they obtain waivers; these would at least initially be dark or non-OA deposits.

• Faculty who want waivers for separate publications should obtain separate waivers. Institutions should not offer "standing waivers" that apply to all future publications from a given faculty member. Standing waivers would defeat the purpose of shifting the default to permission for OA.

• A waiver for a particular article means that the institution does not receive the policy's usual bundle of non-exclusive rights for that article. Hence, for that article the university will not have permission from the policy to make a copy OA. But the university may have permission from another source, such as the author (who may have retained rights from the publisher), to make a copy OA. For example, if the publisher allows green OA six months after publication, then the university will eventually have OA permission even if it doesn't have OA permission under the policy. If the university has a copy of the article on dark deposit in the repository, then it may make the repository copy OA as soon as the publisher allows. Hence, the waiver provision of the policy should not promise that the university will never make a copy OA. On the contrary, the policy might say that the university will make faculty work OA whenever it has permission to do so.

• Also see the entry on waivers in the section on Talking about a policy.

Embargo option

• The policy may also give authors the right to specify an embargo period (a delay in the open distribution of an article).

• The Duke policy is a model here: "The Provost or Provost's designate will waive application of the license for a particular article or delay access for a specified period of time upon written request by a Faculty member."
  • Harvard's Model Open Access Policy incorporates the Duke language with this annotation: "Duke University pioneered the incorporation of an author-directed embargo period for particular articles as a way of adhering to publisher wishes without requiring a full waiver. This allows the full range of rights to be taken advantage of after the embargo period ends, rather than having to fall back on what the publisher may happen to allow. Since this is still an opt-out option, it does not materially weaken the policy. An explicit mention of embargoes in this way may appeal to faculty members as an acknowledgement of the prevalence of embargoes in journals they are familiar with."

• When faculty specify an embargo period, they should still deposit their articles in the repository on the usual timetable. The embargo option allows a delay in making a deposited article OA, not a delay in depositing an article.

• We recommend against any policy language, or implementation practice, requiring the university to respect a given embargo period for all articles from a given journal or publisher. For more details, see the entry on treaties with publishers.

Scope of coverage, by content category

• The policy should specify what categories of content are covered by the license and the expectation of deposit. In particular, the policy should cover scholarly articles, or the kinds of writings typically published in peer-reviewed journals and conference proceedings.

• The policy should not cover writings not considered scholarly in the field (in most fields, op-ed pieces, popular articles) or scholarly writings that generate royalties (textbooks, monographs).

• The Harvard model policy covers "scholarly articles" alone, and explains in this annotation:

What constitutes a scholarly article is purposefully left vague. Clearly falling within the scope of the term are (using terms from the Budapest Open Access Initiative) articles that describe the fruits of scholars' research and that they give to the world for the sake of inquiry and knowledge without expectation of payment. Such articles are typically presented in peer-reviewed scholarly journals and conference proceedings. Clearly falling outside of the scope are a wide variety of other scholarly writings such as books and commissioned articles, as well as popular writings, fiction and poetry, and pedagogical materials (lecture notes, lecture videos, case studies).

Often, faculty express concern that the term is not (and cannot be) precisely defined. The concern is typically about whether one or another particular case falls within the scope of the term or not. However, the exact delineation of every case is neither possible nor necessary. In particular, if the concern is that a particular article inappropriately falls within the purview of the policy, a waiver can always be obtained.

One tempting clarification is to refer to scholarly articles more specifically as "articles published in peer-reviewed journals or conference proceedings" or some such specification. Doing so may have an especially pernicious unintended consequence: With such a definition, a "scholarly article" doesn't become covered by the policy until it is published, by which time a publication agreement covering its disposition is likely to already have been signed. Thus the entire benefit of the policy's nonexclusive license preceding a later transfer of rights may be vitiated. If clarifying language along these lines is required, simultaneously weaker and more accurate language can be used, for instance, this language from Harvard's explanatory material (also used above): "Using terms from the Budapest Open Access Initiative, faculty's scholarly articles are articles that describe the fruits of their research and that they give to the world for the sake of inquiry and knowledge without expectation of payment. Such articles are typically presented in peer-reviewed scholarly journals and conference proceedings."

• Works not covered by the policy can still be placed in a repository, and with permission they can be made OA. The policy or separate implementation documents can encourage deposit of other kinds of work that fall outside the scope of the license and deposit requirement.

Scope of coverage, by time

• Neither the grant of rights nor the deposit requirement should be retroactive. Under the kind of policy we recommend here, faculty can only make the desired grant rights to the institution for future, still-unpublished works, not for previously published works.

• However, the policy or separate implementation documents might encourage deposit of works completed prior to the adoption of the policy.

Transferring rights back to the author

• The kind of policy we recommend here not only provides rights to the institution, but allows the institution to transfer those rights to others. Here's the key language (from the Harvard model policy): "More specifically, each Faculty member grants to [university name] a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles...and to authorize others to do the same" (emphasis added).

• The primary purpose of this language is to allow the institution to transfer rights back to the author. The effect is that authors retain (or regain) certain rights to their work, including rights that they might have transferred away in their publishing contracts.

• For this reason, the set of rights transferred to the institution should be as broad as possible, so that the author thereby retains or regains the broadest possible set of rights.

• Although the kind of policy we recommend here can correctly be called a rights-retention policy, it doesn't provide direct or simple rights retention by authors. Instead, authors transfer certain non-exclusive rights to the institution. After the author signs a publishing agreement, and depending on its precise terms, the author only regains or retains certain rights if the institution transfers them back to the author.

Transferring rights to others

• The kind of policy we recommend here also allows institutions to put open licenses on works deposited under the policy. But institutions need not take advantage of those rights, or need not do so right away.

• For example, Harvard does not put open licenses on individual deposits. But its terms of use function as an open license for all deposits.

Implementation process

• The policy should include a provision giving a certain committee or unit responsibility for implementing the policy.

• A policy is more likely to pass if it only says what it has to say. Other details can be left to the committee charged with implementing the policy.

• When building support for a policy makes it desirable to share both the draft policy language and the implementation plan, make sure to keep the two distinct. That way the policy itself is not enlarged to include the implementation plan, and it can say only what it has to say.

Separating the issues

• A university with a green OA policy may (and we think, should) also launch a fund to help faculty pay publication fees at fee-based OA journals. But the green OA policy should make clear that it is separate from the journal fund. Otherwise faculty may think that the policy itself requires faculty to submit new work to OA journals (a common and harmful misunderstanding).

• A university requiring green OA may also encourage gold OA. But it should be careful about doing both the same document. Where it has been tried, faculty too easily come to believe that the policy requires gold OA and thereby limits their freedom to submit new work to the journals of their choice.

• Some other recommendations on separating the issues are included in the section on Adopting a policy.

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