Weak and Strong OA Mandates: Don’t Let the Best Be the Enemy of the Good



SUMMARY: The reason the much stronger author licensing mandate has a far higher consensus/compliance hurdle to surmount is that it raises the problem of authors’ free choice of journals and author risk of journal non-acceptance.
    In contrast, the weaker author deposit mandate (ID/OA) faces only author inertia about doing the few extra keystrokes required. Author surveys and outcome studies on actual practice show that the vast majority of authors will comply with a deposit mandate, willingly.
    Hence it makes no sense at all to delay still further the certainty of immediately providing at least 63% OA + 37% almost-OA (by mandating immediate-deposit), to keep on waiting instead for a much stronger mandate (mandatory author licensing) for which achieving consensus on adoption is far more difficult and author willingness is far less certain. There can be (and are) stronger deposit mandates than ID/OA, but ID/OA is the default option, the mandate for which consensus on adoption is most easily achieved because — unlike the stronger mandates — it effectively moots all copyright concerns.
    If success can be achieved on adopting a stronger mandate, then by all means adopt the stronger mandate (such as Immediate-Deposit/Immediate-OA, or Immediate-Deposit plus a 6-month cap on embargoes, or Immediate-Deposit [without Opt-Out]
plus Author Licensing with Opt-Out).
    But on no account delay the adoption of the weaker, certain mandate that is already within immediate reach, in order to hold out for a stronger, uncertain mandate that is not! It is fine to prefer to have a stronger benefit rather than a weaker one if both are within reach and you have a choice; but it is certainly not fine to fail to grasp a weaker benefit that is already fully within reach in order to hold out for a stronger but much less certain benefit that is not yet within reach. They are not mutually exclusive: Weaker will lead to Stronger.


On 2-Dec-08, at 7:08 AM, Leo Waaijers [LW] wrote (in SPARC-OAForum):

LW: “this is about a comparison between a ?mandate to self-archive? and the usage of a ?licence to publish?.”

For comparability, it needs to be a comparison between a ‘mandate to self-archive’ and a ‘mandate to successfully adopt a license to publish’. Neither self-archiving nor licensing is being done spontaneously by authors, hence we are talking about mandates in both cases, and the question is (1) for which mandate is it more likely that consensus on adoption will be achieved at all, and (2) what is the likelihood of compliance, if mandated? 

Moreover, both questions have to be considered separately for (i) funder mandates and for (ii) institutional mandates, as funders and institutions have different prerogatives. 

(Institutional consortia on mandates are yet another category, though at a time when consensus on adopting even individual institutional mandates is still hard to achieve, reaching successful consortial consensus on mandates is all the more difficult; the analogy with consortial consensus on subscription licensing is, I think, highly misleading: Subscription licensing consortia are based on strong shared interests on the part of institutional libraries, and no countervailing interests on the part of institutional authors; author licensing mandates, in contrast, involve the problem of authors’ free choice of journals and author risk of journal nonacceptance.) 

Hence the reason an author licensing mandate has a much higher consensus/compliance hurdle to surmount is that it raises the problem of authors’ free choice of journals and author risk of journal nonacceptance, whereas author deposit mandates face only the inertia about doing the few extra author keystrokes required — and both surveys and outcome studies on actual practice show that most authors will comply with a deposit mandate, willingly.

LW: “Both tools only apply to the domain of toll-gated publishing where they try to improve the accessibility of publications. It is the copyright owner who decides about the conditions of access and reuse and the toll-gated domain is characterized by many access limitations and conditions that only may be lifted after payment. However, there is an important legal exception to that model; the fair use clause states that these access limitations do not apply for a personal copy.”

Digital documents that are made freely accessible on the web can be accessed, read on-screen, downloaded, stored, printed-off, and data-crunched by any individual user. (They can also be harvested by harvesters like google.) That is the use that access-denied researchers urgently need most today, and that is all the use that (“Gratis”) OA need provide today. (Moreover, the best chance of eventually fulfilling the stronger demands of “Libre” OA, and even an eventual transition to universal Gold OA publishing, is first to mandate and provide universal Green Gratis OA.)

LW: “In the self-archiving approach the author assigns the full copyrights to a publisher and subsequently utilises the fair use clause to facilitate access to the publication. The licence to publish leaves the copyrights with the author, gives the publisher the right of first publishing and adopts an embargo period for other publishing modes.”

This is incorrect, I am afraid. In the self-archiving approach, the author makes the article freely accessible online, and the rest comes with the territory. As I said, this is done with the official blessing of the journal for 63% of journals, providing full OA for all those articles. For the remaining 37%, the author has the option of intially depositing them in Closed Access rather than Open Access (but depositing them immediately in nonetheless) and letting users rely on the “email eprint request” button during any publisher embargo. This is “Almost OA” — and once immediate-deposit mandates are universally adopted, the resultant universal deposit itself will — over and above immediately providing 63% OA + 37% almost-OA — soon usher in 100% OA as a matter of natural course. All along, the only real hurdle has been keystrokes; hence all we really need to surmount that hurdle is universal keystroke mandates.

It makes no sense at all to keep delaying still further the certainty of immediately providing 63% OA + 37% almost-OA (by mandating immediate-deposit) — in order to keep trying instead for a much stronger mandate (mandatory author licensing) on which a consensus for adoption is much harder to achieve (because of the problem of authors’ free choice of journals and author risk of journal nonacceptance) and author compliance much more uncertain — just because of the interim possibility of 37% almost-OA owing to publisher embargoes with an immediate-deposit mandate. Indeed, even the successful universal adoption of a “licence to publish [that] leaves the copyrights with the author, gives the publisher the right of first publishing and adopts an embargo period for other publishing modes” would leave users worse off during the embargo than universal ID/OA.

Providing 63% OA + 37% almost-OA immediately is already fully within reach and long overdue. We should not delay grasping it for one minute longer, in quest of something stronger yet not now within rich and far less certain.

The Immediate-Deposit/Optional Access (ID/OA) Mandate: Rationale and Model

Note that there can be — and are — stronger self-archiving mandates than ID/OA, but that ID/OA is the default option, the mandate for which consensus on adoption is most easily achieved and all legal concerns are completely mooted. If success can be achieved on adopting a stronger mandate — such as Immediate-Deposit/Immediate-OA, or Immediate-Deposit plus a 6-month cap on embargoes, or Immediate-Deposit [without Opt-Out] plus Author Licensing with Opt-Out — then by all means adopt the stronger mandate. But on no account delay the adoption of the weaker, certain mandate that is already within immediate reach, in order to hold out for a stronger, uncertain mandate that is not!

LW: “For a fair comparison of the two tools, let?s assume that in both cases an institutional mandate applies.”

I am afraid that that is not at all a realistic comparison, because it simply assumes (a) that the probability of success in achieving consensus on adopting the mandate in the first place is equally probable for both mandates, the weaker and the stronger one, and that (b) compliance is equally probable in both cases, weaker and stronger. Neither of these assumptions is correct because of the problem of authors’ free choice of journals and author risk of journal nonacceptance. Neither handicap is shared by the weakest, easiest and surest ID/OA mandate, which is only about keystrokes, and already fully within all institutions’ immediate rich.

LW: “When it comes to mandating self-archiving, the only party involved is the author. That makes such a mandate relatively easy of course. But it also has a high price. Open Access remains to the publisher?s discretion.”

The weakest mandate is always relatively the “easiest” (to agree on, adopt, and comply with) but it is also infinitely preferable to no mandate at all, with continued delay and debate, instead, about stronger mandates. Let the weaker mandates be adopted universally, now, and then let’s debate about strengthening them!

What the ID/OA guarantees, immediately, is 63% OA + 37% almost-OA. Every day we keep delaying and speculating about stronger mandates, less certain of consensus and compliance, we are simply losing yet another day of 63% OA + 37% almost-OA, needlessly, after already having allowed years and years of needless delay, and needlessly lost research access, progress and impact.

LW: “Currently that?s a complete mess. Publishers? policies vary widely when it comes to permitting access to different versions (pre-print, post-print, pdf) for different uses (author?s web site, institutional window, educational usage, commercial usage) after different embargo periods. In the meantime for personal copies an end user may use the request button in the same way as she uses the SFX button of her library. (Why not combine the two buttons?). Under the circumstances the request button is a smart invention. Kudos for you!”

    (1) The variation in publisher policy is completely described and covered by 63% OA + 37% almost-OA for OA’s target content: the peer-reviewed postprint. (For the preprint, the figure is even higher; and the publisher’s proprietary PDF is completely irrelevant.)

    (2) The SFX button is largely for licensed (i.e., toll-gated) content for institution-internal users. The “email eprint request” (“Almost-OA”) Button, in contrast, is for all IR-deposited content, worldwide, for any user. There is a world of difference there (and again, the institutional-library subscription-licensing perspective is profoundly misleading, just as it is with the analogy of multi-institution subscription-licensing consortia.)

Nevertheless, yes, it would be fine to add to SFX all links to Closed Access IR deposits and their “email eprint request” buttons (if Ex Libris is interested). The objective, after all, is to interlink all citations. But to make the exercise worthwhile, we must first mandate deposit…

LW: “When an institution considers mandating the usage of the licence to publish they should involve the publishers as well. It would be unfair just to issue such a mandate and leave the authors to the mercy of the publishers.”

    (a) Institutions’ employees, and funders’ fundees can be mandated, but publishers cannot: They are not within employers’ and funders remits.

    (b) A big funding agency like NIH might be in a position to summon publishers to the table, and to apply their clout for the research they fund, but individual universities certainly cannot.

    (c) Institutional library consortia have clout on subscription licensing agreements, but author licensing is another matter, and involves another party: authors.

    (d) Meanwhile, authors would indeed be left “to the mercy of their publishers”  (because of the problem of authors’ free choice of journals and author risk of journal nonacceptance) if individual institutions adopted the stronger author licensing mandates without prior successful consortial negotiations.

    (e) So let’s go ahead and adopt the weaker ID/OA mandate that is already within universal reach, at no risk to the author; and let’s pursue stronger mandates thereafter, rather than needlessly continuing to delay OA still longer, this late in the day, in order to keep holding out for a possible future stronger-mandate.

LW: “It?s my guess that negotiations with publishers may not be prospectless. A common interest, not only for authors and their institutions but also for (some) publishers is to raise their social and academic profile and clear the operational situation. In order to have a stronger position institutions should combine their efforts in (national) consortiums. By the way, I allready know of several occasions where a publisher (including Elsevier and even Wiley) has published articles without the copyrights being transferred to them.” 

    (i) It is not at all evident that the interests in and benefits from OA to authors, institutions and funders are matched by corresponding interests and benefits to publishers!

    (ii) Yes, by all means, if such consortial negotiations are “not prospectless,” pursue them: But not at the price of failing to grasp what is already immediately within reach, which is individual institutional (and funder) Green OA self-archiving mandates.

    (iii) (The occasional individual exception to copyright transfer that has been accommodated for decades by publishers is not the same as a blanket acceptance of universal copyright retention.)

LW: “To conclude. Indeed, in the toll gated domain I prefer mandating the usage of the licence to publish over mandating of self-archiving. The first option involves a higher commitment of the institutions which makes it tougher of course. But the operational result is much clearer and better sustainable.”

It is fine to prefer to have a stronger benefit rather than a weaker one if both are within reach and you have a choice; but it is certainly not fine to fail to grasp a weaker benefit that is already fully within reach in order to keep holding out for a stronger but much less certain benefit that is not yet within reach — especially when they are not mutually exclusive: Weaker will lead to Stronger.

Le mieux est l’ennemi du bien.

Stevan Harnad
American Scientist Open Access Forum