Open Access News

Before the Stanford University School of Education (SUSE) voted to adopt an OA mandate, it discussed the OA mandate adopted by Harvard Law School in May 2008. 

Here's the Stanford Q&A about the Harvard policy and the motion unanimously adopted by the SUSE faculty.  Thanks to Stanford's John Willinsky for the documents, permission to distribute them, and for his pivotal role in developing the policy at SUSE.

From the Q&A about the Harvard policy:

Question: What are the benefits of archiving copies of our articles at Stanford and making them freely available to readers?

Response: The evidence to date indicates that providing open access to published journal articles in this manner increases the reading of and engagement with the work, which in our case means further use by educators, policymakers and the interested public (most of whom have no other source of access), as well as colleagues and students here and abroad....

Question: What would such an archive of our work look like?

Response: On having a journal article published, authors would submit to the publishers a prepared copyright addendum (permitting Stanford to post the work) that would accompany the publishers’ copyright agreement. SUSE would grant to any author who requested it a waiver excusing them from complying with the motion should a publisher refuse to accept the terms of the addendum. SUSE staff would be able to upload the article to the SUSE archive. Once the article was placed in the SUSE archive, readers would be able to find it through the SUSE website by (a) browsing the archive by community or project, author or topic, (b) searching the well indexed archive or (c) clicking on an article link on a faculty member’s or project’s page, as well as through Google and Google Scholar searches....

Question: My only reservation...is the part that says we grant to the university…

a nonexclusive, irrevocable, 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.

Why do we need to do that? Can't we just put in an easy to access, searchable repository and say anyone can access it as long as they don't sell it....

Response: The reasoning goes like this -- the university asks that you grant to it this non-exclusive right to post your final version to ensure that the copy can be legally posted on a Stanford site. The majority of publishers (Sage, AERA, Taylor and Francis, Springer, Elsevier, etc.) already grant back to authors this right to archive their work, so retaining this non-exclusive right for the university shouldn't be a problem (with no instances of publisher’s refusal to participate reported in the closely watched instance of Harvard's 4-month-old policy). However, should a publisher insist that it cannot abide by such terms, the author simply seeks a waiver from the university, which is a right of authors built into the motion...

Question: ...Can't that be done without granting "irrevocable, worldwide license to exercise any and all rights under copyright"? In other words, grant the right to do specifically what we want done with our contributions to the world--make available to any and all... rather than granting irrevocable any and all rights....

Response: ...Under current conditions, we typically transfer an exclusive and "irrevocable, worldwide license to exercise any and all rights under copyright" to journal publishers. What changes with an archiving motion such as this is that “nonexclusive” rights are transferred by the author to both publisher and university. The university needs a “worldwide” copyright transfer to post a copy that will be globally accessible. The transfer is "irrevocable," in both cases, to prevent you from arbitrarily changing the terms (by, for example, claiming a licensing fee). This transfer of copyright does not preclude you from, for example, requesting that a work be updated or removed. Journals are rightly reluctant to do this (and typically note changes made in the journal); the university would want to make similar changes to reflect the scholarly record, as well, as this motion covers published work....

Question: The other thought I had was I wonder what the Harvard law people who wrote the motion would say in answer to these questions. Presumably they would know something about the legal ins and outs....

Response: From John Palfrey (Clinical Professor of Law, Harvard Law School; Executive Director, Berkman Center for Internet & Society; and responsible, along with Terry Fisher for the motion) on being sent this document: I think your responses to the questions are right. The only thing I can say is that we went around and around on these issues, and resolved that the grant of the nonexclusive license should be very broad, to allow for stability over time, and to rely on trust to large degree as well -- that the university would not abuse the broad right. The policy will be reviewed after 3 years (and could be amended or rescinded then). And the danger of a very narrow right...is that you don't know what the university might want collectively to do down the road, and you'd then have an impossible scenario of going back to collect rights later from those who came before. This was our decision, but others might go another way that's better for you....

From the motion unanimously adopted by the SUSE faculty:

This motion, based on the Harvard Law School open access motion, was passed unanimously by the faculty of the School of Education, Stanford University on June 10, 2008, and was cleared by the Provost's Office and Stanford University's legal counsel on June 25th, 2008.

Stanford University School of Education Open Access Motion
In recognition of its responsibility to make its research and scholarship as widely and publicly available as possible, the faculty of the Stanford University School of Education is determined to take advantage of new technologies to increase access to its work among scholars worldwide, educators, policymakers, and the public. In support of greater openness in scholarly and educational endeavors, the faculty of the School of Education agree to the following policy:

Faculty members grant to the Stanford University permission to make publicly available their scholarly articles and to exercise the copyright in those articles. They grant to Stanford University a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to their scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are properly attributed to the authors not sold for a profit.
The policy will apply to all scholarly articles authored or co-authored while a faculty member of the School of Education, beginning with articles for which the publisher's copyright agreement has yet to be signed. The Dean or the Dean's designate will waive application of the policy upon written request from faculty who wish to publish an article with a publisher who will not agree to the terms of this policy (which will be presented to the publishers in the form of an addendum to the copyright agreement).

No later than the date of publication, faculty members will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Dean of Education's Office, who will make the article available to the public in an open-access repository operated by Stanford University....

Comments

• There are now three university school or departmental OA mandates in the US:  the new one at SUSE and the two from Harvard (Faculty of Arts and Sciences in February 2008, and the Law School in May 2008).  All three were adopted by unanimous faculty votes.  Kudos to all involved at SUSE, especially John Willinsky who initiated the policy.
• There's now no doubt that the Harvard policies (on top of the 20+ other university OA mandates worldwide) will influence other universities to follow suit.  The question now is what Stanford will add to that momentum.
• Since the Stanford policy so closely tracks the Harvard Law policy, which in turn closely tracks the Harvard FAS policy, much of my analysis of the Harvard FAS policy applies here as well:

  The publishing lobby has often argued that the call for OA mandates is a sign that researchers oppose OA and must be coerced.  This argument always flew in the face of the evidence, but the unanimous Harvard vote should be the last nail in the coffin in which we bury the idea.  For the same reason, the Harvard vote decisively confirms Alma Swan's finding that the overwhelming majority of researchers do not resent OA mandates and would willingly comply with one from their funder or university....

  Is a policy with an automatic opt-out on request still a mandate?  This is an unfruitful question which devolves quickly into a verbal dispute.  A better question is whether opt-outs will be rare or common....

  Pat Schroeder, President of the Association of American Publishers (AAP), told Science Magazine that Harvard's willingness to grant opt-outs means that the policy is not a mandate.  OK.  But even Pat Schroeder knows that shifting the default and requiring dissenters to opt out can be a game-changer.  Otherwise she wouldn't object to Google's opt-out Library Project or make her organization the lead plaintiff in a lawsuit to stop it....

  Even at schools with more mandatory mandates, or no opt-outs, successful implementation depends...on expectations, education, assistance, and incentives, not coercion....

  The Harvard policy shifts the default from non-archiving to archiving, and shifts the burden from OA cooperators to OA dissenters.  That's much more than a mere request or encouragement.... 

  [Opting out] is not a heavy burden, but then neither is OA archiving.  As we well know from long experience on the other side of this line, even a light burden can change behavior on a large scale....

  Harvard is not acquiring ownership, just a non-exclusive license....This has two important legal consequences, when faculty do not request opt-outs.  First, Harvard will have an express license from the copyright holder to host and disseminate OA copies of these works.  Second, publishers will never acquire the rights which would allow them to forbid OA archiving at Harvard or to claim that it infringes their copyright.

  This elegantly solves every copyright-based objection to OA archiving....The less elegant and less effective alternative adopted at some funding agencies and universities is to require OA archiving except when publisher policies don't allow it, thereby giving the opt-out to publishers rather than authors....

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