Relevant to the exchange below, Stevan and I have conversed as follows in the blogosphere:
I've written,
http://carrollogos.blogspot.com/2008/02/harvard-policy-response-to-stevan.html
Harvard policy - Response to Stevan Harnad
Stevan Harnad is a forceful advocate for open access, and I agree with most of what he advocates. I do have a different view than he does about the connection between open access and copyright and his analysis of the Harvard policy calls this to the fore.
My response is essentially the same as Peter Suber's. I'll add that Stevan characterizes the policy as reservation of rights. I think that's mistaken. Under the policy, the author continues to own all of the exclusive rights under copyright and remains free to transfer all of them to a journal publisher.
What the Harvard policy calls for is a non-exclusive license, which is the same thing as permission. All that the FAS have done is agreed that they have granted Harvard permission to post their work in the repository and that Harvard may grant others similar permission so long as copies are not being sold for a profit.
Stevan responded:
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 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.
But some have not. And among the some who have not are some of the journals that authors (including Harvard authors) most want to publish in.
And that's the point: 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 most negotiate a non-exclusive license) with such 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 their journal of choice.
And that's exactly the needless trade-off that 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 only from the copyright renegotiation requirement 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.
(Two thirds of those deposits can then immediately be set as Open Access, because their journals already officially endorse it; and access to the remaining third of the deposits can be set as Closed Access for the time being, with the Institutional Repository's semi-automatic "email eprint request" ["Fair Use"] button providing almost-immediate almost-OA during any access embargo period -- until the growing OA hastens the natural, inevitable and well-deserved death of access embargoes as well as exclusive copyright transfer.)
But insist instead on co-bundling the Harvard mandate with the copyright retention requirement, and its opt-out clause, and it is hardly even a mandate at all, its probability of success, its deposit rate and its adoptability by other universities are all diminished -- and all needlessly, with no corresponding gain, just an easily avoided loss.
Michael W. Carroll
Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
610-519-7088 (voice)
610-519-5672 (fax)
Research papers:
http://law.bepress.com/michael_carroll
http://ssrn.com/author=330326
blog:
http://www.carrollogos.org/
See also www.creativecommons.org
>>> Stevan Harnad <harnad_at_ECS.SOTON.AC.UK> 02/14/08 9:23 AM >>>
** Cross-Posted **
On Wed, 13 Feb 2008, Terry Martin (Law, Harvard) wrote:
> Stevan,
>
> I'm sure your version is preferable to the one actually passed by FAS.
> Some of us urged a more forceful approach. However, those with a
> better political sense thought otherwise.
>
> Note also that only the Faculty of Arts and Sciences - large as it is
> has accepted this policy. It has yet to be debated at the schools of
> law, business, medical, education, design, divinity, or public
> administration.
>
> Terry
Dear Terry,
The Harvard OA Mandate is potentially so important that I hope both
political sense and pragmatism still has time to prevail, so as to remedy
the few but fundamental flaws in the current draft Mandate.
The irony is that the Harvard Mandate needs a *less* forceful approach,
not a more forceful one, in order to be much more powerful and effective.
An analogy with the history of the NIH OA policy is especially instructive
and revealing here: The original draft of that NIH policy also had
(three) fundamental flaws -- (1) that it was not a mandate (it was a
request rather than a requirement), (2) that it allowed deposit itself
to be delayed as long as a year, and (3) that it insisted on direct
central deposit (in PubMed Central) instead of deposit in the author's
own university's Institutional Repository (IR) (and then central harvesting
to PubMed Central).
http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/4549.html
The NIH policy failed, completely, but it took three years to realize and
remedy this failure. The remedy was (1) to upgrade the NIH policy to a
mandate, (2) to require immediate -- not delayed -- deposit (allowing an
embargo of up to one year, but applicable only to the date at which access
to the deposit was set as OA; the deposit itself had to be immediate).
(The NIH insistence on central deposit (3), instead of institutional
deposit and central harvesting, has not yet been remedied. But Harvard's
institutional mandate, if its own flaws can be corrected so its policy
can be adopted by all universities, US and worldwide, will also remedy
this last of the three NIH mandate's flaws.)
Four years ago I went to Washington to try to explain to Norka Ruiz
Bravo's group at NIH exactly how and why the three small but crucial
changes (1)-(3) in the draft NIH policy needed to be made if it was to
succeed. It was decided not to heed the advice, and to go ahead and adopt
the draft policy as it was. As a result, three more years of NIH research
access and impact had been lost, needlessly. (And during those three
years, all the biomedical funders on the planet were reflexively
imitating the failed NIH policy!)
Now NIH has it almost right. The two most important corrections have
been made: (1) It is now a requirement rather than just a request, and
the (2) requirement is for immediate deposit, not delayed deposit.
That's called the Immediate-Deposit/Optional-Access ID/OA mandate.
http://openaccess.eprints.org/index.php?/archives/71-guid.html
(The access embargo is only allowed for the date of OA-setting, which is
just fine, because of the potential power of repositories' automatized
"email eprint request" Buttons to fulfill all research usage needs for
Closed Access deposits during any embargo interval).
http://openaccess.eprints.org/index.php?/archives/274-guid.html
The one remaining flaw in the NIH mandate is the one that the right
mandate from Harvard now would help to remedy:
Funder and University mandates need to be complementary and
convergent. NIH still insists on mandating direct central deposit in
PubMed Central -- instead of reinforcing and building upon university
mandates by likewise mandating deposit in each author's own University
Institution Repository (IR). (From there, PubMed Central -- and any
other central repository or indexer -- could harvest the deposits,
with the author needing only to provide NIH with the URL!).
A realistic, viable mandate from Harvard now would be taken up by all
universities worldwide, and it would ensure that funder mandates, too,
would begin stipulating direct, convergent deposit in authors' own
University IRs, instead of helter-skelter divergent deposit in diverse
CRs. Then central collections and indexes could be harvested from the
worldwide distributed network of OA IRs -- using the OAI harvesting
protocol, which was created for that specific purpose, and with which
all IRs are compliant.
But if NIH's mistake had been to make its mandate too weak (only (1)
a request, and (2) an allowable year-long delay in deposit), Harvard's
mistake is making its mandate too *strong*, and needlessly so, with an
"opt-out" clause having to be added as a consequence. This in turn makes
the Harvard policy needlessly *weak* (indeed, no longer a mandate at all)!
The reason Harvard had to put in the opt-out clause is obvious: Otherwise
the policy would have faced a predictable (and justified) author revolt:
(That is the sense in which "better political sense" prevailed!)
It is one thing to demand that the article be deposited in Harvard's
IR. That just costs a few keystrokes, and brings palpable benefits to
the author and institution. But it's quite another thing to demand that
the author accept the risk of failure to successfully negotiate copyright
retention with his journal of choice, and thereby being forced to publish
in a lesser journal. (Whether or not that risk is real, it is definitely a
reasonable, perceived risk for publish-or-perish authors, even at Harvard,
and hence a risk that rightly obliged those with "better political sense"
at Harvard to add the opt-out clause. Without the opt-out clause it is
unlikely that the policy motion could have passed at all.)
But with an opt-out clause, a mandate is no longer a mandate: it's just
a request! And the reason the NIH request had failed was that it had
been just a request rather than a mandate!
The right remedy is hence to modularize the mandate, so as separately
(a) to require immediate deposit, with no opt-out, and also (b) to
request/require copyright-retention, but to allow an opt-out from the
latter.
In reality, for at least 62% of refereed postprints and a further 30%
of pre-refereeing preprints, there is no need for copyright retention
at all in order to provide OA because this 91% of journals have already
officially endorsed immediate OA self-archiving in one form or the
other. (Online access, free for all, by the way, moots all of the other
uses which authors imagine they would need to retain copyright in order
to allow or license!)
http://romeo.eprints.org/stats.php
To fulfill all immediate research usage needs for any of the articles from
those journals that have not yet endorsed immediate OA self-archiving
(38% for postprints, 9% for preprints), the IRs will all have the
semi-automatic almost-immediate, almost-OA Button. (This will not only
provide for all immediate usage needs during any embargoes, but it
will also soon bring the rest of the journal policies into line with
those that already endorse immediate OA self-archiving, under mounting
pressure from the worldwide research community's growing experience
with -- and increasing reliance and eventual insistence upon -- the
palpable benefits of OA, thanks to the growing number of mandates.)
So nothing is lost by weakening the Harvard policy, as recommended, to
make immediate deposit mandatory, with no opt-out, allowing opt-out
only on the (unnecessary) requirement to retain copyright.
In the current draft mandate, by bundling the two together, and allowing
opt-out on the entire package, Harvard instead gets the worst of both:
The author deterrent effect of insisting on copyright retention, plus
the consequent loophole of Harvard authors simply choosing to opt out
of depositing altogether.
Harvard's rationale was that its authors, if they have to opt out paper
by paper, will find it too tiresome to keep opting out, and will prefer
to try to renegotiate copyright with their journals instead. Much more
likely, authors will draft standard form letters for the Provost's
office saying "The right journal for this work is X, and X does not
allow copyright retention, so I regret but I must opt out for this
work.").
An opt-out letter is much easier (and more likely of success) than the
(real and apparent) risks of trying to renegotiate copyright. And the
Provost's Office is certainly in no position to argue with Harvard
authors on the appropriate outlet for their work.
Journals would no doubt be quite pleased if Harvard decided to over-reach
and needlessly mandate copyright retention, with opt-out, instead of
just mandating immediate deposit, without opt-out:
That way the journals that have endorsed immediate OA self-archiving
could appear progressive on OA, confident that without a deposit mandate
very few authors bother to self-archive spontaneously (as the case of
NIH and many other non-mandatory policies has repeatedly shown: indeed,
that was exactly what gave rise to the deposit mandate movement).
So because the current wording of the Harvard mandate does not mandate
the deposit itself, but only the copyright retention, with the option
of opting out, the journals can again count on most authors to take the
path of least resistance: opting out. (Publishers are already singing
the praises of this opt-out option as "author choice.")
As with the failed NIH policy, if Harvard does not upgrade its
policy now, it will take three years to confirm empirically that
the draft policy has failed.
Yet Harvard's mandate is so easy to fix pre-emptively now, with no loss
in its intended effect, and a far greater likelihood of compliance
and OA, as already tried and demonstrated by other universities that
have adopted the ID/OA mandate.
It is not even clear why Harvard feels it needs to independently re-invent
the OA mandate wheel, when there are already 15 successful university
mandates and 22 successful funder mandates adopted already, not one of
them needing to mandate copyright retention or to allow opt-out. All that
is needed is for Harvard to adopt ID/OA, and all the other universities
of the world would follow suit!
The notion that copyright retention is the solution to
the research accessibility problem is far from new: It was
prominently mooted a decade ago in Science by 12 co-authors
http://www.sciencemag.org/cgi/content/full/281/5382/1459 and has
gotten precisely nowhere since then, despite being repeatedly revived,
notionally, in university after university, by either the library or
legal staff, year after year.
And the reason copyright retention is a nonstarter is that it contains a
gratuitous, disabling deterrent: needlessly putting at risk the actual
and perceived probability of being accepted by the author's journal
of choice. Hence the need to allow opt-out, which in turn effectively
reduces any mandate to a mere request.
An ID/OA mandate does not have that deterrent. ID/OA has already been
demonstrated, repeatedly, to successfully approach 100% compliance within
two years of adoption. ID/OA does not require copyright retention, or
opt-out.
And, most ironically of all, ID/OA will almost certainly lead,
eventually, to copyright retention too! But to do that, it must first
reach 100% OA. And universal ID/OA mandates will ensure that.
Needlessly attempting instead to impose the stronger mandate first
will not.
I hope Harvard will make the small parametric adjustments needed to
maximize the likelihood that its historic mandate will succeed, and will
be emulated by all other universities worldwide.
I close with a re-posting of the small but crucial changes in the
wording of the mandate that are needed to prevent the copyright-retention
requirement from compromising the deposit requirement.
First, here is the Harvard OA mandate as it now stands:
http://www.fas.harvard.edu/~secfas/February_2008_Agenda.pdf
Motion on behalf of the Provost's Committee on Scholarly Publishing:
The Faculty of Arts and Sciences of Harvard University is committed to
disseminating the fruits of its research and scholarship as widely
as possible. In keeping with that commitment, the Faculty adopts
the following policy:
[COPYRIGHT RETENTION POLICY] Each Faculty member grants to the
President and Fellows of Harvard College 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.
[OPT-OUT CLAUSE] The policy will apply to all scholarly articles
written while the person is a member of the Faculty except for any
articles completed before the adoption of this policy and any articles
for which the Faculty member entered into an incompatible licensing
or assignment agreement before the adoption of this policy. The
Dean or the Dean's designate will waive application of the policy
for a particular article upon written request by a Faculty member
explaining the need.
[DEPOSIT MANDATE] To assist the University in distributing the
articles, each Faculty member will provide an electronic copy of
the final version of the article at no charge to the appropriate
representative of the Provost's Office in an appropriate format
(such as PDF) specified by the Provost's Office. The Provost's
Office may make the article available to the public in an open-access
repository.
The Office of the Dean will be responsible for interpreting this
policy, resolving disputes concerning its interpretation and
application, and recommending changes to the Faculty from time to
time. The policy will be reviewed after three years and a report
presented to the Faculty.
Now here are the small but crucial changes that will immunize the deposit
requirement against any opt-outs from the copyright-retention
requirement. Note the re-ordering of the clauses, and the addition of
the CAPITALIZED PASSAGES. (Other universities can, if they wish, drop the
two paragraphs preceded by an asterisk * completely):
Motion on behalf of the Provost's Committee on Scholarly Publishing:
The Faculty of Arts and Sciences of Harvard University is committed to
disseminating the fruits of its research and scholarship as widely
as possible. In keeping with that commitment, the Faculty adopts
the following policy:
[DEPOSIT MANDATE] To assist the University IN PROVIDING OPEN ACCESS
TO ALL SCHOLARLY ARTICLES PUBLISHED BY ITS FACULTY MEMBERS, each
Faculty member IS REQUIRED TO provide, IMMEDIATELY UPON ACCEPTANCE
FOR PUBLICATION, an electronic copy of the final version of each
article at no charge to the appropriate representative of the
Provost's Office in an appropriate format (such as PDF) specified
by the Provost's Office. THIS CAN BE DONE EITHER BY DEPOSITING IT
DIRECTLY IN HARVARD'S INSTITUTIONAL REPOSITORY OR BY EMAILING IT TO
THE PROVOST'S OFFICE TO BE DEPOSITED ON THE AUTHOR'S BEHALF.
*[COPYRIGHT RETENTION POLICY] Each Faculty member IS ALSO
ENCOURAGED TO GRANT to the President and Fellows of Harvard
College 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.
*[POLICY OPT-OUT CLAUSE] The COPYRIGHT RETENTION AND
LICENCE-GRANTING POLICY will apply to all scholarly articles
written while the person is a member of the Faculty except
for any articles completed before the adoption of this policy
and any articles for which the Faculty member entered into
an incompatible licensing or assignment agreement before the
adoption of this policy. The Dean or the Dean's designate
will waive application of the policy for a particular article
upon written request by a Faculty member explaining the need.
The Office of the Dean will be responsible for interpreting this
policy, resolving disputes concerning its interpretation and
application, and recommending changes to the Faculty from time to
time. The policy will be reviewed after three years and a report
presented to the Faculty.
Hyperlinked version of this posting:
http://openaccess.eprints.org/index.php?/archives/362-guid.html
Stevan Harnad
AMERICAN SCIENTIST OPEN ACCESS FORUM:
http://amsci-forum.amsci.org/archives/American-Scientist-Open-Access-Forum.h
tml
http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/
UNIVERSITIES and RESEARCH FUNDERS:
If you have adopted or plan to adopt a policy of providing Open Access
to your own research article output, please describe your policy at:
http://www.eprints.org/signup/sign.php
http://openaccess.eprints.org/index.php?/archives/71-guid.html
http://openaccess.eprints.org/index.php?/archives/136-guid.html
OPEN-ACCESS-PROVISION POLICY:
BOAI-1 ("Green"): Publish your article in a suitable toll-access journal
http://romeo.eprints.org/
OR
BOAI-2 ("Gold"): Publish your article in an open-access journal if/when
a suitable one exists.
http://www.doaj.org/
AND
in BOTH cases self-archive a supplementary version of your article
in your own institutional repository.
http://www.eprints.org/self-faq/
http://archives.eprints.org/
http://openaccess.eprints.org/
Stevan Harnad
AMERICAN SCIENTIST OPEN ACCESS FORUM:
http://amsci-forum.amsci.org/archives/American-Scientist-Open-Access-Forum.html
http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/
UNIVERSITIES and RESEARCH FUNDERS:
If you have adopted or plan to adopt a policy of providing Open Access
to your own research article output, please describe your policy at:
http://www.eprints.org/signup/sign.php
http://openaccess.eprints.org/index.php?/archives/71-guid.html
http://openaccess.eprints.org/index.php?/archives/136-guid.html
OPEN-ACCESS-PROVISION POLICY:
BOAI-1 ("Green"): Publish your article in a suitable toll-access journal
http://romeo.eprints.org/
OR
BOAI-2 ("Gold"): Publish your article in an open-access journal if/when
a suitable one exists.
http://www.doaj.org/
AND
in BOTH cases self-archive a supplementary version of your article
in your own institutional repository.
http://www.eprints.org/self-faq/
http://archives.eprints.org/
http://openaccess.eprints.org/
Received on Thu Feb 21 2008 - 04:00:56 GMT