Open Access News

Yesterday Mike Carroll wrote three blog posts (1, 2, 3) which included some disagreements with Stevan Harnad about the Harvard policy and copyright.  Today Stevan wrote a response, Upgrade Harvard's Opt-Out Copyright Retention Mandate: Add a No-Opt-Out Deposit Mandate.  Excerpt:

Some Journals (Alas) Still Demand Exclusive Copyright Transfer

I think I understand fully what Michael Carroll, Peter Suber and the current draft of the Harvard Policy are saying. My shorthand descriptor -- "copyright retention" -- captures precisely the feature of the Harvard policy that should, I urge, be modified (ever so slightly).

Many journals currently require authors to transfer exclusive rights to the publisher in exchange for publication.

Let me hasten to add: I think this is deplorable. I don't think authors should have to do it. And I am certain publishers will cease to make this a condition of publication once OA prevails: some have already ceased demanding it....

In order to be able to grant Harvard the license that the current Harvard OA Mandate requires, Harvard authors would have to successfully renegotiate the retention of their rights (i.e., they must negotiate a non-exclusive license) with those journals.

And if the journal is their journal of choice, and the negotiation is unsuccessful, then the Harvard author must either opt out of the Harvard mandate or not publish in his journal of choice.

And that's exactly what my recommended amendment is intended to avert: by requiring deposit independently of requiring copyright retention (or reservation, or renegotiation). Then the opt-out can be from the copyright renegotiation requirement only, and not from the deposit requirement too.

This preserves all the virtues and intended benefits of the current Harvard mandate, and adds the further benefit of 100% deposit, with no opt-out....

Upgrade Harvard's Opt-Out Copyright Retention Mandate By Adding a No-Opt-Out Deposit Mandate: No Loss, Only Gain

Michael Carroll, Peter Suber and I are in complete agreement on every point of substance save one: What is the mandate that is the most likely to generate the most OA?

Michael and Peter (and Harvard!) think it is a Copyright Retention Mandate with opt-out (CRM). I think it is a Deposit Mandate without opt-out (DM), which can be trivially added to the Copyright Retention Mandate with opt-out (CRM).

In other words, Harvard can have its (CRM) cake, and eat it (DR) too!

That contingency is completely missing in Michael's analysis of my proposal.

Michael points out that even if a Harvard author opts out of CRM, he can still deposit his article if he wishes to.

But if voluntary deposit -- just for the sake of the benefits of OA, or just because one's university or funder had invited deposit -- had been capable of generating enough OA, then (1) mandates would not have proved necessary, (2) NIH's invitation policy would not have failed and would not now have had to be upgraded to an immediate deposit mandate, and (3) the hundreds of institutional repositories with invitations instead of mandates worldwide would not be hovering for years at spontaneous deposit rates of 5-15% while the (still few) mandated repositories approach 100% within two years.

An opt-out mandate is not a mandate....

I hope that makes the logic and the contingencies of my proposal still clearer. I might add that exactly the same logic was used in designing the ID/OA (immediate-deposit, optional-access) mandate itself (the one Peter calls the Dual Deposit/Release mandate):

There the logic was that if an institution could not reach agreement on adopting the stronger immediate OA mandate (for copyright reasons, say), then it makes no sense to adopt a delayed-deposit mandate, or, worse, an opt-out "mandate," which allows the publisher's embargo policy to determine that date at which the deposit is made:

It makes far more sense to mandate immediate deposit in every instance, with the publisher's embargo policy applicable only to the date on which the deposit is made OA ("released"), thereby allowing almost-OA to tide over the embargo, thanks to the Button....

Comments

• As I said yesterday, if the conversation continues, I'll post links but not excerpts.  The best way to follow the full dialogue is to follow their two blogs (Mike, Stevan).
• My original comments on the Harvard policy should speak for themselves, and I'll have more to say in the March issue of SOAN.  But here I can clarify one aspect of my position.  I'm not saying that the Harvard-style mandate will generate a higher level of compliance and OA than a dual deposit-release style mandate (or what Stevan calls immediate deposit / optional access).  This remains to be seen.  At Harvard, faculty will give the institution permission to host copies of their articles in the institutional repository, when they don't opt out, and Harvard will take responsibility for making the actual deposits.  If Harvard is fleet and efficient in making these deposits, then it could provide immediate OA to all the articles not subject to opt-outs (which, for the sake of argument, let's peg at 95% of the total).  If Harvard is slow to make these deposits, then it will miss a beautiful opportunity arising from the permissions it will have in hand, and may as well defer to publisher embargoes.  Likewise, if opt-outs are rare, the level of OA could approach 100%; if they are common, it would be much lower.  By contrast, under a dual deposit-release strategy, Harvard could have 100% of the articles on deposit.  But a good percentage of them would be subject to publisher embargoes and about one-third of them would be subject to flat publisher prohibitions on OA archiving.  Hence, each type of policy risks delayed OA (one through institutional sluggishness, one through publisher embargoes), and each risks incomplete OA (one through faculty opt outs and one through deference to publisher policies).  If the two key variables --speed of deposit and level of opt-outs-- work in Harvard's favor, then its policy could be better than a dual deposit-release strategy.  But if not, not.  Because this is contingent, I can't recommend one type of policy over the other without knowing more about the probabilities.  Because Harvard's is the first university-level mandate to focus on permissions rather than deposits, it deserves a chance to show how well it can work.  Can the two types of policy be blended, so that Harvard faculty give permissions (subject to an opt-out) and make deposits (not subject an opt-out)?  Yes.  But if Harvard is fleet and efficient in making the deposits, that won't be necessary.  The ball is in Harvard's court.