Best practices for university OA policies
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- This is a guide to best practices for university OA policies.
- The doc is under way but far from complete. All the entries to date are tentative. Undecided questions are marked with three slashes (///).
- Currently the guide is private in the sense that no web pages deliberately link to it. I believe that some pages automatically created by the wiki software will link to it. Is that private enough for our purposes?
- Incorporate ideas and language from these docs:
- Harvard's annotated Model OA Policy
- PS article on OA policy options for funding agencies and universities
- Alma Swan's Policy Guidelines for the Development and Promotion of Open Access, UNESCO, March 2012.
- the recommendations in the BOAI-10 doc
- Emily Kilcer is researching recommendations for encouraging or incentivizing repository deposits.
- To do list
- Find and remove all cases of the three slashes (///).
- Elaborate each entry with some rationale, including (as far as possible) links to literature and evidence.
- Decide whether to make all or some of it public.
- Decide whether the public version will stay here (the HOAP wiki) or move to another location and perhaps another format.
- Decide how to indicate the growth and evolution of our recommendations. (I suggest version numbers and release dates.)
- Decide who is authorized to revise this doc. (At the moment, it's just the HOAP principals.)
- Before release, get other key partners to make their own suggestions and sign on to the result, e.g. SPARC, EOS, EIFL, MIT.
- Make offer to COAPI, for courtesy; but don't expect sign-on since it (deliberately) wants to be hospitable to institutions with any kind of policy, strong or weak
- Consider writing an executive summary of the guide, for rapid orientation or busy committees. Or consider making two editions, a short one for busy committees and a full-length version for everyone else.
- Consider including a (dynamic) section on frequently asked questions and frequently heard objections and misunderstandings
- Investigate tools for making nice printouts of wiki pages, or tools for translating wikis into other formats (e.g. PDF) for printing; if possible, built those tools into the best-practices guide so that users can have a handsome, one-click printout of the latest version
- Eventually make a second guide for funder policies. It could be a separate doc, or it could be a new section of this doc ("Follow all the recommendations above but with these subtractions and additions based on the different circumstances of universities and funders").
Drafting a policy
Grant of rights to the institution
- The policy should be worded so that the the act of adopting it thereby grants the university certain non-exclusive rights. It should not merely ask, encourage, or require faculty to retain certain rights when they sign future publishing contracts. By granting the rights in advance, the policy makes it unnecessary for faculty to negotiate with publishers, secures the rights even when faculty fail to request them, and 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.
- There are several other kinds of university OA policy which we regard as inferior.
- The policy requires faculty to certain retain rights when they publish. This requires faculty to negotiate with publishers. That is difficult to do. Many faculty are intimidated by the prospect and will not to do it. And some will succeed while some will fail.
- The policy does not seek to obtain 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 of a certain length. If the institution never obtains permission for OA, then the dark deposit never becomes OA. However, the repository can provide OA to the metadata from the moment of deposit.
- The policy does not seek to obtain rights at all and does not require dark deposits. It requires deposit and OA but only when the author's publisher allows them. This kind of "loophole mandate" lets publishers opt out at will. Some institutions think it's the only way to avoid copyright infringement, but it isn't. All the policy types listed above avoid infringement.
- The policy does not require OA in any sense, but merely requests or encourages it.
Deposit in the repository
- The policy should require faculty to deposit a certain version of their future scholarly articles in the institutional repository.
- The policy should apply to the final version of the author's peer-reviewed manuscript, not to 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 does not include any post-review copy editing done by the journal, the journal's pagination, or the journal's look and feel.
- The policy should encourage deposit of the published version 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.
- The policy should allow journals, at their choice, 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.
- Faculty should deposit their peer-reviewed manuscripts at the time of acceptance for publication.
- If the policy respects an embargo decision (from the author or publisher), the deposit should still be made at the time of acceptance. But it will be a dark deposit until the embargo period runs.
- The policy should make clear that the institution will 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 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.
- A given waiver should apply to a given publication. The policy should not allow standing waivers; that would defeat the purpose of shifting the default to permission for OA. Faculty who want waivers for separate publications should obtain separate waivers.
- 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 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 from the publisher 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 may say that the university will make faculty work OA whenever it has permission to do so.
Scope of coverage, by content category
- The policy can require deposit for some kinds of content (e.g. manuscripts published in peer-reviewed journals) and encourage deposit of other kinds (e.g. conference presentations, books or book chapters, datasets, theses and dissertations).
Scope of coverage, by time
- Neither the grant of rights nor the deposit requirement should be retroactive. But the policy might encourage deposit of works published prior to the adoption of the policy.
- Institutions with Harvard-style policies have the rights needed to put open licenses (such as CC-BY) on faculty works deposited under the policy. But they need not take advantage of those rights, or need not do so right away.
- The Harvard policy not only transfers rights to the institution, but allows the institution to transfer 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.
- ///Have I understood this correctly? Is it fair to say that authors retain/regain all rights to their work, or all rights except the right to allow commercial use?
- The policy should include a provision giving a certain committee or unit responsibility for implementing the policy.
- All in all, the policy should be minimal and say only what it absolutely must say. The rest can be left to the committee or unit 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 below under Adopting a policy ("Educating faculty about the policy before the vote"). But certain explanations belong in the policy itself, to help deter misunderstandings.
Adopting a policy
- The policy should be adopted by the faculty, not the administration.
- Campus entrepreneurs leading the campaign for a policy should be faculty. If the idea and initial momentum came from librarians or administrators, they should find faculty members willing to lead the effort.
Educating faculty about the policy before the vote
- Make clear that the policy requires deposit in an OA repository, not submission to an OA journal. (It's about green OA, not gold OA.) It does not limit faculty freedom to submit work to the journals of their choice.
- Make clear that the waiver option guarantees that faculty are free to decide for or against OA for every one of their publications. The policy merely shifts the default from non-deposit and non-OA to deposit and OA.
- Make clear that "softening" the policy to opt-in is pointless. All institutions without opt-out policies already have opt-in policies.
- Make clear that the waiver option also gives publishers the right to require a waiver as a condition of publication. Hence, publishers who decide that the costs exceed the benefits may protect themselves, at will, and may do so without refusing to publish faculty at institutions with OA policies. Hence, faculty who worry about protecting certain vulnerable publishers, such as society publishers, should understand that the policy already gives those publishers the means to protect themselves, if they see the need to do so. Faculty needn't paternalize those publishers by voting down the policy, and they needn't decide on the publisher's behalf that publishing authors without waivers would harm. However, faculty should explain to the publishers they wish to protect that the waiver option provides all the protection they need. Many publishers do not understand that.
- Also see the recommendations on Talking about a policy.
Implementing a policy
- 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." Hence, universities implementing the kind of policy recommended here --granting non-exclusive rights to the institution-- should ask authors to sign a "written instrument" affirming the policy. When authors sign such a statement, the grant of rights embodied in the policy will prevail over a later publishing contract inconsistent with the policy.
- 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 may take the position that the nonexclusive license in the policy will prevail in any case, and 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.
- At Harvard, articles enter the repository by two paths: a faculty member may deposit articles directly or an assistant may deposit an article on behalf of a faculty member. In the former case, one dialog box in the deposit process asks the faculty member to affirm the grant of rights (the license) in the policy. In the latter case, Harvard asks the faculty member to sign an assistance authorization form containing an affirmation of the grant of rights. When new faculty are hired, they are asked to sign a form affirming the grant of rights as well. These forms count as a written instrument for the purpose of 17 USC 205.e.
- If the budget permits, the institution should train student workers to make deposits on behalf of faculty.
- The repository should make traffic data available to authors. Evidence suggests that this encourages deposits.
- The repository should publicize the "most viewed" or "most downloadaded" articles, and the "most viewed" departments, e.g. on the repository front page or in a regular column in the school newspaper.
- ///replace this section with the new and growing section on incentivizing deposits
- 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 (true?///).
- Some publishers may require faculty to obtain a waiver as a condition of publication. Institutions should 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. For example, it is better for the institutional to provide OA under an embargo than for the author to obtain a waiver.
- If the policy already granted the institution the rights needed for OA, then faculty need not obtain those rights in individual negotiations with publishers. An author addendum is one way for authors to request rights that a standard publishing contract would not otherwise allow. Hence, for policies of the kind we recommend, author addenda are as unnecessary as individual author-publisher negotiations.
- However, author addenda may be desirable anyway. An author 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 publishing contracts inconsistent with the policy and signed after the policy takes effect. Because the policy takes priority, authors who sign publishing contracts inconsistent with the policy may be unable to live up to the 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.
- 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.
- 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.
- 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.
- 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.
- If a publisher sends a reasonable take-down request to the repository, the repository should always comply. (///But should the article be removed or merely go dark?)
- 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 ///??
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 the faculty will never need to obtain waivers to publish in the publisher's journals. These agreements may contain any provisions consistent with the policy and agreeable to both sides. (At Harvard they are called "treaties".)
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.
Incentivizing deposits in the repository
- Example. Foster, Nancy Fried, and Susan Gibbons. 2005. Understanding faculty to improve content recruitment for institutional repositories. D-Lib Magazine 11(1): doi:10.1045/january2005-foster.
- The University of Rochester’s “Researcher Page” offers faculty personalization within its institutional repository. This DSpace add-on enables the “collocation of the material into collections and the labeling of those collections” by each faculty member. Interested faculty build their personal research collection, which can list contact information, research interests, and a photo alongside their work. By doing so, the researcher creates an individualized space within the repository, branding work as her/his own.
Talking about a policy
- 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 entails, 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 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 or 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, the OA policy could be framed as a reaffirmation that these rights belong to faculty. The policy grants the (non-exclusive) rights to the institution, but 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.
- 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.
- If the word "mandate" suggests commands or coercion incompatible with academic freedom, then avoid the word "mandate". 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.
- ///quote from parts of PS short book; we may still want to emphasize that this kind of policy is stronger than a mere request or encouragement.
"Opt-out" and "opt-in"
- A waiver option creates an "opt-out" policy. In that sense in "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).
- 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.