Drafting a policy

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

What a policy ideally achieves

In this document, we present our understanding of best practices for university open-access policies. Such policies build into standard university practice support for open access as a societal good.

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 comitment 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

• The policy might 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 entries below on licensing and transferring rights back to the author. Avoid language in the preamble that could inadvertently restrict the institution, authors, or users in making use works in the institutional repository. For example, avoid language that might be construed to bar text mining or derivative works, or to fall short of permitting them.

Types of policy

• There are at least six ways for university OA policies to avoid copyright infringement:
  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 dark deposit in the repository until the institution can obtain permission to make the work OA, for example, from a publisher policy to allow green OA after an embargo.
  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 best 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 publishers to opt out at will. Some institutions incorrectly believe that it's the only way to avoid copyright infringement. But all the policy types listed above avoid 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.

Grant of rights to the institution

• The policy should be worded so that the the act of adopting it 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. For example, it should say "Each faculty member grants...", not "Each faculty member will grant...."

• By granting the rights at the time the policy is adopted, in advance of future publications, the policy makes it unnecessary for faculty 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 may succeed in obtaining from a given publisher.

Deposit in the repository

• The policy should require deposit in the institutional repository.

• 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, not the published edition. The final version of the author's peer-reviewed manuscript 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.

• Deposit of the published version is encouraged when the author has permission. All OA journals should give permission for this, although some will not. Few TA journals will give permission for this. A listing is provided by Sherpa ROMeO.

• Journals, at their choice, should be allowed to replace the final version of the author's peer-reviewed manuscript with the published version. Some journals will make this substitution to prevent multiple versions from circulating.

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 the policy respects an embargo decision (from the author or publisher), the deposit should still be made between the time of acceptance and the time of publication. But in that case, 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 be dark 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.

Scope of coverage, by content category

• The policy should specify what categories of content are covered by the license and deposit aspects. In particular, scholarly articles (the kinds of writings typically published in peer-reviewed journals and conference proceedings) should be covered, but non-scholarly writings (op-ed pieces, popular articles) and scholarly writings that receive monetary compensation (textbooks, monographs) should not be covered.

• Just because such works are not covered by the policy doesn't mean that they cannot be placed in a repository and openly distributed, however. In fact, the policy can encourage deposit of other kinds of materials that are 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. But again the policy might encourage deposit of works published 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: "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...provided that the articles are not sold for a profit, and to authorize others to do the same."

• 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) rights to their work, including rights that they transferred away in their publishing contracts.

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

• [SMS - tbd: also talk about university being able to transfer more limited rights through ToU.]

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.

• Harvard does not put open licenses on individual deposits. But its terms of use function as an open license for all deposits. [move to implementation and rework]

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.

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.

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