I’d like to share a little bit about the road to OA policy adoption and implementation at FSU. By reflecting on some of the factors that paved the way to our successful vote, as well as the nature of the work that followed, my hope is that our experience might help or encourage those who are considering or working toward adopting a policy at their own institutions.
Abstract: Open access proponents argue that scholars are far more likely to make their articles freely available online if they are required to do so by their university or funding institution. Therefore, if the open access movement is to achieve anything close to its goal of seeing all scholarly articles freely available online, mandates will likely play a significant role. In 2008, the Harvard University Faculty of Arts and Sciences adopted a policy that purports not only to require scholars to deposit their works in open access repositories, but also to grant the university nonexclusive copyright licenses to archive and publicly distribute all faculty-produced scholarly articles. A number of other American universities have since adopted similar policies. The principal aim of this Article is to analyze the legal effect of these Harvard-style open access “permission” mandates.
By invoking copyright law terminology in permission mandates, schools might intend that they have the legal effect of transferring nonexclusive rights to the school, thereby clarifying and fortifying the school’s rights to reproduce and publicly disseminate faculty works. However, the legal effect of these mandates is uncertain for several reasons. First, it is unsettled whether scholars or their university employers are the authors and initial owners of scholarly articles under U.S. copyright law’s work-made-for-hire rules, which vest authorship and copyright ownership in the employer for works created by employees within the scope of employment. Second, the mandates are broad university policies that purport to grant the university nonexclusive copyright licenses in every scholarly article unless a faculty member affirmatively opts out on a per-article basis. Are the policies specific enough to provide the essential terms of the grant? Furthermore, can the mere adoption of a school policy, without some additional affirmative act by the author, effectuate such a grant without unduly encroaching upon the author’s autonomy interests? Lastly, even if the policies effectuate nonexclusive license grants, will the licenses survive after the author transfers copyright ownership to a journal publisher as per common practice? Section 205(e) of the Copyright Act provides that a prior nonexclusive license evidenced in a writing signed by the right holder prevails over a subsequent conflicting transfer of copyright ownership, so the answer appears to turn on whether permission mandates satisfy the requirements of § 205(e).
This Article argues that permission mandates can create legally enforceable, durable nonexclusive licenses. First, it argues that although there are important justifications, including academic freedom concerns, for recognizing the controversial “teacher exception” to the work for hire rules for scholarly articles, such an exception may be unnecessary because a strong argument also exists that much scholarship is produced outside the scope of employment for work for hire purposes. Second, it argues that permission mandates provide sufficient evidence of the grantor’s intent and the rights granted to create effective nonexclusive licenses. Third, permission mandates satisfy the requirements of § 205(e) and establish the license’s priority over the subsequent transfer of copyright ownership largely because they fulfill the underlying purposes of § 205(e) by providing sufficient evidence and notice of the license to potential copyright transferees (typically academic publishers). In reaching these conclusions, this Article emphasizes that Courts should consider the uniformity costs (social costs resulting from applying uniform rules and granting uniform entitlements across diverse conditions) that arise from applying to scholarly articles copyright rules developed to address proprietary models of information production. Applying the relevant copyright rules in a manner sensitive to the nonmarket nature of scholarly production is the most effective way to reduce these social costs, and reinforces the conclusion that mandate licenses are enforceable.
Lastly, the Article considers whether the opt-out nature of permission mandates offends notions of authorial autonomy in copyright. It compares permission mandates with another high profile opt-out licensing regime: the proposed Google Books settlement agreement, which the court rejected partly because of authorial autonomy concerns. Authorial autonomy is far less of a concern for scholarly articles than for the books at issue in the Google Books case, however, due to the nonmarket nature of scholarly article production coupled with academic community norms. Accordingly, it does not substantially interfere with authors’ autonomy interests to find that the opt-out structure of permission mandates creates valid nonexclusive licenses in universities.
“A new assessment of the first years of Horizon 2020, the EU’s research and innovation programme, shows that it is on track to help create jobs and growth, tackle our biggest societal challenges and improve people’s lives. Horizon 2020 has clear European added value by producing demonstrable benefits compared to national or regional-level support, but it has been so successful in attracting the best researchers and innovators that it could have spent four times its budget in support of excellent projects.
These are some of the main findings of the interim evaluation of Horizon 2020 published today by the European Commission.
Carlos Moedas, Commissioner for Research, Science and Innovation said: “Horizon 2020’s interim evaluation and stakeholder feedback confirm that an EU programme for research and innovation is an invaluable asset for Europe that fuels economic growth, creates the jobs of tomorrow and tackles the societal challenges of our time. However, we can always do even better, and will use the lessons learned to make Horizon 2020’s last three years even more effective, and to design a fit-for-purpose successor programme“. …”
“In total there’s a 55% Green OA/45% Gold OA split, and given that Green OA represents more inconvenience than most of our academic colleagues unfamiliar with arXiv have ever been willing to tolerate, it is very unlikely indeed that the University would have achieved such high compliance had the Library not provided a mediated Green OA deposit service. The data confirms our approach helped make Green Open Access an organisational habit practically overnight.
The approach has come at a cost however; over the past year, supporting the HEFCE OA policy has taken up the majority of the team’s bandwidth with most of our 9am-5pm conversations being in some way related to a paper’s compliance with one or more funder OA policy.
Now that our current processes have bedded in, and in anticipation of the launch of the new UK Scholarly Communications License (UK-SCL) – for more on this read Chris Banks’s article or watch her UKSG presentation – and further developments from Jisc, we hope that over the next 12 months we can tilt the balance away from this reductionist approach to our scholarly output and focus on other elements of the scholarly communication ecosystem. For example, we are already in discussions with Altmetric about incorporating their tools into our OA workflows to help our academics build connections with audiences and are keen to roll this out soon – from early conversations with academics we think this is something they’re really going to like.”
Abstract: The adoption of open access (OA) policies that require participation rather than request it is often accompanied by concerns about whether such mandates violate researchers’ academic freedoms. This issue has not been well explored, particularly in the Canadian context. However the recent adoption of an OA policy from Canada’s major funding agencies and the development of the Fair access to Science and Technology Research Act (FASTR) in the United States has made addressing the issue of academic freedom and OA policies an important issue in academic institutions. This paper will investigate the relationship between OA mandates and academic freedom with the context of the recent OA policy at the University of Windsor as a point of reference. While this investigation concludes that adopting OA policies that require faculty participation at the institutional level should not be an issue of academic freedom, it is important to understand the varied factors that contribute to this tension. This includes misunderstandings about journal based (gold) and repository based (green) OA, growing discontent about increased managerialism in universities and commercialization of research, as well as potential vagueness within collective agreements’ language regarding academic freedom and publication. Despite these potential roadblocks, a case can be made that OA policies are not in conflict with academic freedom given they do not produce the harms that academic freedom is intended to protect.
Abstract: Implementing open access is a tough job. Legitimate authority, sufficient resources and the right timing are crucial. Pioneers, role models and flagship institutions all have faced considerable challenges in meeting their own aims and achieving a recognized success. Professionals charged with implementing policy typically need several years to accomplish significant progress. Many institutions adopting open access policies probably need to do more, much more, if the commitment to open access is to be meaningful.
A first generation of open access policy development and implementation is coming to a close. It is thus possible to begin evaluation. Evaluating implementation establishes evidence, enables reflection, and may foster the emergence of a second generation of open access policies.
This study is based on a small number of cases, examining the implementation of open access around the world. Some of the pioneer institutions with open access mandates have been included, as well as some newer cases. The emergence of the new stakeholders in publishing is examined, such as digital repositories, research funders and research organisations.
Because this is a groundbreaking study, no claim is made that the results are representative. The emphasis is on variety and on defining a methodological standard. Each case is reconstructed individually on the basis of public documents and background information, and supported by interviews with professionals responsible for open access implementation.
Implementation is typically based on targeting researchers as authors. Indeed, the author is pivotal to any open access solution. This is the ‘tertium comparationis’ that facilitates an examination of the similarities and differences across instances in an effort to build a broader policy research agenda.
In a final section, open access is placed in the wider context of the evolution of digital scholarship. This clarifies how published research results are destined to become a key component of digital research infrastructures that provide inputs and outputs for research, teaching and learning in real time.
The ten cases examined in detail are:
– Refining green open access policy: Queensland University of Technology (September 2003)
– Refining policy to foster deposit: University of Zurich (July 2005)
– National platform, open collection, decentralized policy: the HAL platform (June-October 2006)
– Maximising a funder’s impact: The Wellcome Trust (October 2006)
– Implementing open access as a digital infrastructure: UK PMC (January 2007)
– Learning from global research infrastructure: SCOAP3 (April 2007)
– Linking public access to open data: Howard Hughes Medical Institute (January 2008)
– Open access to all publications, internationally: Austrian Science Fund (FWF, March 2008)
– One policy, sixty publication strategies: Fraunhofer-Gesellschaft (July 2008)
– Open Access complements the Research Information System: The University of Pretoria (May 2009)
“Journal papers and conference proceedings accepted for publication from April 2016 must be deposited in an institutional and/or subject repository within three months of acceptance, and following this must be made open access, in order to be eligible for submission to the next Research Evaluation Framework in the United Kingdom. This paper describes the programme to facilitate this at the University of Edinburgh’s College of Medicine and Veterinary Medicine.”
“Widely considered a successful implementation, the National Institutes of Health instituted a Term and Condition of Award to its extensive research grants program requiring recipients to deposit their article manuscripts in the PubMed Central repository upon acceptance in a peer-reviewed journal. Manuscripts, including all supplemental materials and graphics, must be made publicly available on PubMed Central within 12 months of the official publication date. The policy transitioned from a voluntary system of deposits in 2005 to an obligatory one in April 2008, stepping up compliance with consequences like funding delays starting in 2013. Because of the unconditional nature of the grant condition, the NIH Public Access Policy is better known as the NIH mandate–and occasionally as the NIH Open Access Mandate, although the policy does not specify that grant recipients must use the Open Access publishing model, in which authors pay for publication. “