Drafting a policy
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- 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 recommend a policy 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; and they support these benefits without the need to negotiate with publishers and while preserving academic freedom, author choice, and consistency with copyright law.
- Although we find this kind of policy preferable, other kinds of policies can also be effective, and we discuss them as well. Some kinds of policies we find counterproductive, and we advise against them.
Statement of goals of the policy
- Many policies start 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.
- If you want to permit all the benefits of OA, then a narrow statement of the policy's purpose could give unwanted support to a plaintiff, court, or future administrator at your own institution trying to force a narrow reading on the policy. Even an innocent-seeming phrase like "for the purpose of open dissemination" could be interpreted later to prevent text mining, or to prevent the institution from transferring rights back to the author. Finally, any clause limiting the range of nonexclusive rights that authors grant to the university will in turn limit the range of rights that the university could later transfer back to the author.
Types of policy
- There are at least six types of university OA policy. Here we organize them by their methods for avoiding copyright troubles.
- The policy grants the institution certain nonexclusive rights to future research articles published by faculty. This sort of policy typically offers authors a waiver option or opt-out from that license. It also requires deposit in the repository.
- We recommend type #1 in this guide. Most of the good practices collected here are about that sort of policy.
- An equally acceptable variation can be satisfied either by depositing in an OA repository or by publishing in an OA journal. We call these green/gold agnostic policies and discuss them further in the entry on depositing in the repository.
- The policy requires faculty to retain certain nonexclusive rights when they publish future research articles. Whether or not it offers authors a waiver option, it requires deposit in the repository.
- We do not recommend #2 because it requires faculty to negotiate with publishers in order to retain the needed rights. That is difficult to do. Many faculty are intimidated by the prospect and will not 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.
- The policy seeks no rights at all, and simply requires deposit in the repository. If the institution already has permission to make a work OA, then it makes it OA from the moment of deposit. Otherwise the deposit will be "dark" (non-OA) until the institution can obtain permission to make it OA. During the period of dark deposit, at least the metadata will be OA.
- When type #1 policies are politically unattainable on a certain campus, then we recommend type #3. We prefer #1 to #3 because #1 provides permission to make articles OA and #3 does not.
- 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.
- 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 listed here, properly implemented, avoid copyright infringement.
- Similarly, some institutions believe that an opt-out for authors, as in #1, is the same as an opt-out for publishers, as in #4. But that is also mistaken. Publishers have reasons or incentives to opt out far more often than authors.
- The policy does not require OA in any sense, but merely requests or encourages it.
- 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.
- 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 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.
- The policy grants the institution certain nonexclusive rights to future research articles published by faculty. This sort of policy typically offers authors a waiver option or opt-out from that license. It also requires deposit in the repository.
- For independent analyses concluding that type #1 policies are lawful, and provide legally sufficient permission for OA, at least in the United States, 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, vol. 10, no. 7, 2012. (Perma.cc link.)
- For an independent analysis concluding that type #1 policies are legally sound under Dutch law, see Saskia Woutersen-Windhouwer, Damiaan van Eeten, and Arjan de Rooy, Het Harvard Open Access-licentiemodel in het Nederlands recht, Nederlands Juristenblad, October 25, 2019.
- For not-so-independent analyses, see:
- Stuart Shieber's blog post on the Eric Priest article above, Is the Harvard open-access policy legally sound? The Occasional Pamphlet, September 17, 2012 (perma.cc link).
- Peter Suber, Author rights and the Harvard open access policies: a response to Patrick Alexander, Insights, April 21, 2021 (perma.cc link).
- Peter Suber Author rights under university rights-retention OA policies, May 27, 2021. A handout for a remote talk.
- On our preference for type #1 and type #3 policies over the other four types, see Recommendation 1.1 from the BOAI-10 statement (September 2012): "When publishers will not allow OA on the university’s preferred terms, we recommend either of two courses. The policy may require dark or non-OA deposit in the institutional repository until permission for OA can be obtained. Or the policy may grant the institution a nonexclusive right to make future faculty research articles OA through the institutional repository (with or without the option for faculty to waive this grant of rights for any given publication)."
Grant of rights to the institution
- The policy should be worded so that the act of adopting the policy is the same as the act of granting the university certain nonexclusive rights. The policy should not merely ask, encourage, or require faculty to retain certain rights in the future, when they sign publishing agreements. It should say, "Each faculty member grants...", or "hereby grants...", not "will grant..." or "must grant...."
- By granting the rights at the time of the vote, 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.
- The grant of rights should be as wide as possible while limiting itself to nonexclusive rights.
- For example, the February 2008 policy of the Harvard Faculty of Arts and Sciences (the first policy of this kind) put it this way: "Each Faculty member grants to the [university] permission to make available his or her scholarly articles and to exercise the copyright in those articles. In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit."
- Some institutions following this model drop the "not-sold-for-a-profit" proviso. If your institution can do that, we recommend it. That will give the institutions the rights needed to authorize CC-BY for policy-covered works.
- For works with co-authors, this kind of policy grants the institution the specified nonexclusive rights when any co-author is covered by the policy.
- We recommend that a co-author covered by this kind of policy inform the other co-authors that this is the case, and that (unless the local co-author obtains a waiver) the work will become OA through his/her institutional repository.
- Note that in what follows we'll often refer to the grant of rights as the "license" or "permission" for OA.
- For the relationship between this grant of rights and the work-for-hire doctrine, see our entry on academic freedom.
Mistakes in the grant of rights to the institution
- Some policies start with the grant of rights recommended here, but then muddy the waters with confusing or inconsistent additional language.
- One mistake is to accompany the grant of rights with a provision encouraging faculty to negotiate with publishers to retain some or all of the same rights already granted to the institution. This is confusing because the grant of rights through the policy makes that kind of negotiation unnecessary, and one key purpose of a rights-retention policy is to make that kind of negotiation unnecessary. The "grant of rights clause" and the "negotiation clause" might even be inconsistent, one making negotiation unnecessary for OA, and the other implying that it's necessary. (A negotiation clause would be more justified if it aimed to insure that authors only sign contracts consistent with the policy; for more on this, see our entry on author addenda.)
- Another mistake is to accompany the grant of rights with a provision creating a loophole for publishers whose publication agreements, or in-house copyright policies, do not allow OA on the university's terms. This is confusing because the grant of rights through the policy already closes that loophole, and one key purpose is to close that loophole. The two clauses might even be inconsistent, one implying that publishers have no opt-out (except by requiring authors to obtain waivers), and other implying that publishers may opt out at will.
- Another mistake is to grant rights to "published scholarly articles" rather than to "scholarly articles" more broadly. This language could easily be interpreted to mean that the author grants no rights to the institution until the article is published. By then, of course, many authors will have already signed publishing contracts, and will have far fewer rights to grant to the institution. Often they will not have enough rights to authorize OA through the institutional repository. The same problem could arise if the grant of rights is limited to "peer-reviewed scholarly articles", because by the time an article is peer-reviewed, many authors will already have signed copyright transfer agreements with publishers. One purpose of the "grant of rights" provision of the policy is to grant a wider rather than a narrower set of nonexclusive rights to the institution, and to do so before the author signs a publishing contract and loses the power to grant such a wide range of rights. If the institution wishes to limit repository deposits to a certain subset of scholarly articles, such as those that are peer-reviewed and/or published, it can say so elsewhere in the policy or in its implementation plan.
- A related mistake is for the grant of rights to apply only to articles deposited in the repository, rather than all future articles by the authors covered by the policy. The problem here is that policy-covered works deposited in the repository are usually "accepted author manuscripts" that have already been published. When that's the case, the authors will have already signed publishing contracts and will therefore possess far fewer rights to grant to the institution. See the previous bullet point for more detail on this problem.
- For reasons to grant a wider rather than a narrower range of nonexclusive rights to the institution, see the entry above on stating the goals of the policy.
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.
- If well-written, the waiver option will only apply to the grant of rights, not to deposit in the repository. That is, authors should deposit their new articles in the repository even when they obtain waivers. (More under waivers below.)
- Works by a covered author should be deposited in the author's institutional repository even if co-authors also choose to deposit in their own institutional repositories, and even if one or more of them choose to deposit in a disciplinary repository as well.
- The policy needn't require faculty to make deposits themselves. The deposits could be made by others (librarians, faculty assistants, student workers, etc.) 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.
- The present recommendation calls for a green policy (OA through repositories), not a gold policy (OA through journals).
- You needn't use this insider language when trying to educate constituents about the policy, and probably shouldn't. The green/gold terminology is not self-explanatory and can alienate newcomers. But for those who know the terminology, it can be helpful shorthand.
- A variation on this policy could be called green/gold agnostic. A green/gold agnostic policy can be satisfied by green OA or gold OA, at the author's choice. The important part of the present recommendation is that the policy should always allow a green compliance option.
- Green/gold agnostic policies can live up to all the recommendations in this guide.
- Although we support OA journals, we advise against gold-only and gold-favoring policies. Expecting faculty to submit new works to OA journals would severely limit their freedom to submit work the venues of their choice. (See the entry on academic freedom.) Entirely apart from where you stand on that issue, it could also reduce the faculty support needed to adopt the policy. Green policies are entirely compatible with author freedom to submit new work to the venues of their choice. Moreover, if the policy's OA conditions are met (e.g. on timing, licensing, and so on), then further restrictions would be arbitrary and unnecessary. In addition, gold policies usually require funding to cover author-side fees at a growing number of OA journals. But green policies require no such funding. Finally, gold policies could lock in the genre of the journal article at a time when scholarly genres are evolving in many constructive directions. Green policies are entirely compatible with that evolution.
- For the same reasons that gold-only and gold-leaning policies would be unwise, letting faculty mistake a green policy for a gold one could derail the policy initiative. Unfortunately the idea that "all OA is gold OA" is a common misunderstanding. Policy proponents should watch out for it and correct it whenever it arises.
- The policy should specify that the deposited version should be the final version of the author's peer-reviewed manuscript, sometimes called the accepted author manuscript (AAM). 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 should include any post-review copy-editing done collaboratively between author and journal. It need not include any post-review copy editing done unilaterally by the journal. Nor need it include the journal's pagination, file format, or look and feel.
- The accepted author manuscript (AAM) should be distinguished from the version of record (VOR), which could include post-review edits made unilaterally by the journal. Both of these version should be distinguished from the the submitted version, preprint, or author's original (AO), which has not yet been peer-reviewed.
- These terms are based on the NISO-recommended terminology from April 2008 (perma.cc link).
- In communicating with faculty, one useful piece of advice is to keep the accepted author manuscript, and deposit it in the repository, before moving on to the next project.
- Authors who don't save the AAM at the time of acceptance may have trouble finding it later.
- Authors who don't deposit it at the time of acceptance, may be too wrapped up in new projects to deposit it later.
- If the publisher consents, then the institution should deposit the published version of the article (version of record or VOR) to complement the AAM already on deposit.
- This could be mentioned in the policy itself or simply made an implementation practice.
- The VOR should only replace the AAM when the VOR allows at least as many reuse rights as the AAM. Some publishers will be happy to make this substitution in order to prevent the circulation of multiple versions. However, when the VOR carries a more restrictive license than the AAM, then the VOR should be deposited alongside the AAM, and the latter should remain in the repository.
- SHERPA RoMEO keeps a list of publishers willing to allow deposit and distribution of the VOR.
- The policy should require faculty to deposit at the time a new article is accepted for publication, or no later than the date of publication.
- This kind of early or immediate deposit makes compliance easier for authors, who don't have to dig up old manuscripts after moving on to other projects. For the same reason, it cultivates the useful habit of depositing before one forgets to deposit, or before preoccupation with exciting new work becomes an access barrier to valuable past work.
- Early deposit also raises the odds that the author can locate the accepted author manuscript, and distinguish it from other versions.
- Oxford University encapsulates this advice in its short and memorable phrase, Act on Acceptance.
- When an article is deposited with an embargo, then early or immediate deposit allows the early or immediate release of metadata. This improves the article's discoverability, which mitigates the damage caused by the embargo.
- Even when authors want an embargo, they should still deposit between the time of acceptance and the time of publication, rather than waiting for the embargo to run. In those cases, the text of the article will be dark (non-OA) during the embargo period and only the metadata will be OA. Most contemporary repositories allow dark deposits to become OA on a given schedule.
- The kind of rights-retention policy recommended here gives the institution a nonexclusive license to all future scholarly articles by covered. A waiver is an exception to that institutional license. If an author does not want the institution to exercise its nonexclusive rights over a given article, the author should get a waiver for that article.
- The policy should make clear that the institution will always grant waivers (or opt-outs), no questions asked. Faculty needn't offer a justification or meet a burden of proof. To prevent 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.
- To allay potential faculty concerns that an institution may override a waiver in the future, the waiver should contain language that it may not be revoked by the institution.
- 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 author. Standing waivers would defeat the purpose of shifting the default to permission for OA.
- A waiver for a particular article means that the institution will not exercise any the policy's nonexclusive rights over that article.
- Hence, for that article the university has no permission from the policy to provide OA. However, the university may have permission from another source, such as the author (who may have retained rights from the publisher) or the publisher (who may give standing permission for repository-based OA after a certain embargo period).
- For example, if the publisher allows repository-based OA six months after publication, then the university will eventually have permission from the publisher even if it doesn't have permission from 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 embargo runs or the new permission takes effect.
- The waiver provision of the policy need not promise that the university will never make a copy of the work OA. On the contrary, the policy (or implementing documents) might well say that the university will make faculty work OA whenever it has legally sufficient permission to do so.
- Waivers (or opt-outs) should apply only to the license or grant of rights to the institution, not to the deposit in the repository. Faculty should deposit their articles in the repository even when they obtain waivers. At least initially, these would be dark or non-OA deposits.
- In this sense the policy has two large provisions, one granting a certain license to the institution and the other calling for certain deposits in the repository. The waiver provision should limit itself to the first. That's why it's better to talk about waiving the license than waiving the policy.
- Following this practice (applying the waiver only to the license, not to the whole policy) allows the institution to adopt simpler messaging: "Always deposit!" It also allows authors to cultivate a general habit of deposit. In both ways, it supports compliance. It helps preserve the dark deposits, and helps distribute as well as preserve the open deposits. And because the institution will often get permission at a later date to open up dark deposits, having the work already on deposit makes it much easier to take advantage of that permission.
- For one way to fulfill the previous recommendations, see the language used in the Harvard letter granting a waiver:
- "Pursuant to the Open Access Policy adopted by [school within Harvard] on [date], this communication serves to notify you that your request for a waiver of the Open Access license for [article title] in [journal name] has been granted....This waiver may not be revoked by Harvard, and Harvard will have no license under the policy unless you choose to relinquish the waiver....Independent of the waiver, we recommend that you deposit your article in the DASH repository as specified in the [school within Harvard] Open Access Policy. You can do so regardless of the waiver status of the article or any agreement that you may have signed with a publisher...."
- Some OA supporters worry that a waiver option will make the policy ineffective. They worry that the waiver rate will be high, for example, above 50%. However, the experience at every school with a waiver option is that the waiver rate is low.
- At both Harvard and MIT it's below 5%.
- At the University of California, waivers are also rare, though it doesn't give a percentage.
- Omitting a waiver option would limit faculty freedom to submit new work to the journals or publishers of their choice. Including a waiver option preserves that freedom without impeding OA. The kind of policy we recommend shifts the default to OA. It uses faculty inertia to support OA rather than to support standard copyright transfers that give the OA decision to publishers. Faculty who worry that a waiver option might entail a high waiver rate should not underestimate the power of changing the default. Shifting the default can and does change behavior on a large scale.
- In this guide we use the terms "waiver" and "opt-out" interchangeably.
- Also see the entry on waivers in the section on Talking about a policy. Preview (as noted above): It's much better to talk about waiving the license than waiving the policy.
- 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 the initial deposit.
- For schools and authors, embargoes are much better than waivers.
- When the author obtains a waiver, neither the school nor the author may exercise the large bundle of nonexclusive rights granted by the policy. When the author obtains an embargo and not a waiver, both the school and the author may exercise those rights, with the temporary exception that they may not provide OA for the length of the embargo. Needless to say, the best situation is when authors obtain neither a waiver nor an embargo.
- When a publisher demands a waiver from an author as a condition of publication, check to see whether it would be satisfied by an embargo instead. Many will.
- Also see our entry on transferring rights back to the author. Under the kind of policy we recommend, institutions with nonexclusive rights granted by the policy may grant them back to the authors, giving authors far more rights to reuse their own work than they would have had without this type of policy. Authors who want to maximize their rights to reuse their own work should be the first to avoid obtaining waivers.
- In our experience, many authors and publishers who want waivers really want embargoes, or would be satisfied with embargoes. Hence, when possible, see whether those seeking waivers would accept embargoes instead.
- 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, at least without a significant concession from the journal or publisher in exchange. 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 scholarly journals and conference proceedings.
- The policy should not cover scholarly writings that generate royalties (textbooks, monographs) or writings not considered scholarly in the field (op-ed pieces, popular articles). In our experience, widening the policy to require deposit of royalty-producing work or non-scholarly work will increase faculty resistance and decrease the odds that faculty will adopt it.
- 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."
- The scope of the repository can be wider than the scope of the policy. That is, the repository can accept works not covered by the policy, and with permission can still make them OA. This is desirable. In another section we recommend that the repository accept, welcome, and encourage deposits that are not required by the policy or covered by the policy license.
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 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.
- For example, see Harvard's offer to do CV Scrapes for researchers.
- The first OA policies at Harvard and MIT only covered faculty. But after their adoption, both institutions wanted to extend the benefits of rights-retention OA to other kinds of researchers, such as librarians, administrators, staff, fellows, and students. Both took the same approach: a form that any non-faculty researcher could sign, granting the institution the same nonexclusive rights granted by the faculty policies.
- See the Harvard school-level policies, adopted between 2008 (Faculty of Arts and Sciences) and 2014 (Harvard Medical School. Harvard announced (perma.cc link) its Individual Open-Access License in October 2018. To make sure that the IOAL could cover librarians, Harvard exempted librarian scholarship from the work-for-hire doctrine (perma.cc link) at the same time it adopted the IOAL.
- See the original 2009 MIT OA policy (perma.cc link). MIT announced (perma.cc link) its optional license (perma.cc link) for non-faculty authors in April 2017.
- The University of California OA policy of 2013 (perma.cc link) was also limited to faculty. In October 2015 UC amended or updated (perma.cc link) the policy to cover non-faculty researchers as well.
- The kind of policy we recommend here not only grants rights to the institution, but also allows the institution to grant 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 grant 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.
- This gives authors far more rights to reuse their own work than they have under standard or even progressive publishing contracts. It also gives authors more rights they have under other types of university OA policy.
- This not only helps access, use, and reuse. It promotes author freedom. Hence, when well-explained, it also helps muster faculty support for the policy in the first place. However, in our experience, this feature of the policy is often overlooked or badly explained.
- The broader the set of rights granted to the institution under the policy, the broader the set of rights the institution can grant back to authors.
- 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 it provides direct rights retention by institutions, and indirect rights retention by authors.
Transferring rights to others
- Authors subject to this kind of policy may still sign publishing contracts with publishers. The policy grants certain nonexclusive rights to the institution, and authors should not sign contracts giving the same rights to publishers (or other parties). However, they will never need to do so. The vast majority of publishers agree that they can obtain the rights they need for publication without requiring authors to obtain waivers. But when authors wish to publish with a publisher who thinks otherwise, they may obtain a waiver, no questions asked.
- For detail on alerting publishers to the rights already granted to the institution, see the entry on author addenda. For detail on waiving the grant of rights to the institution for a given work, see the entry on waivers.
Enhancing user rights
- Authors subject to this kind policy may use open licenses, such as Creative Commons licenses, to enhance user rights. The kind of policy we recommend here is compatible with the use of open licenses but does not require them. Institutions may adopt this kind of policy and decide afterwards when or whether to use open licenses. Similarly, it may adopt this kind of policy and leave authors free to make these decisions on their own, case by case.
- The policy should include a provision making a certain office or committee responsible 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 office charged with implementing the policy.
- Once a policy is adopted by faculty vote, it's very hard to change by faculty vote. Since implementation details should be easy to change, they should be left out of the policy. When it's desirable to share both the draft policy language and the draft implementation plan, just be sure to keep the two distinct. That way the policy itself is not enlarged to include the implementation plan, and can remain brief and minimal, while the implementation group retains the flexibility to adjust its plan, within the guidelines of the policy, to suit changing circumstances.
Separating the issues
- A university requiring "green" OA (deposit in OA repositories) may also encourage "gold" OA (publishing in OA journals). But it should be careful about doing both in the same document. Where it has been tried, faculty tend to assume that the policy requires gold OA, or publishing in OA journals, and thereby limits their freedom to submit new work to the journals of their choice.
- Part of the background here is that many people still mistakenly believe that all OA is gold OA, and therefore that any policy trying to assure OA must be trying to assure gold OA.
- One variation on the theme of a green OA policy is a green/gold agnostic policy, which can be satisfied by green or gold OA, at the author's choice. For more on those, see the entry above on depositing in the repository. But unless a policy initiative explicitly aims at a green/gold agnostic policy, it's better not to mix the discussion of green OA with discussion of gold OA (using any terminology, such as "OA journals", "OA publishers", or "OA publishing"). Of if there are good reasons to discuss gold OA, then the policy documents should make clear that the policy does not require publishing in OA journals (is not a gold-only policy), and that faculty retain the freedom to submit new work to the journals of their choice.
- 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's separate from the journal fund, and the fund should make clear that it's separate from the green OA policy. Otherwise faculty might think that the policy requires faculty to submit new work to OA journals, a common and harmful misunderstanding.
- We offer some other recommendations on separating the issues in the section on Adopting a policy.
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