Harvard-style open access policies are great. I’m glad my institution has one, and I think the mechanics are both clever and generally beneficial. But I’m often frustrated about some of the fiddly implementation details that leave faculty confused or, worse, exposed. These are university policies, thoughtfully crafted, that universities can and should stand behind. This means more than just crafting the license and alerting publishers; in my read, it also requires sensible notice and takedown policy and elimination of all doubt when it comes to inconsistencies with faculty contractual obligations.
Owning your OA policy step 1: take the breach of contract issue head on
Here’s the problem: Harvard-style OA policies take the form of a license that faculty (and maybe others) grant to the university.
But many of the publishing agreements faculty sign purport to transfer or license some or all of their rights to their work to the publisher and warrant that the rights are being granted unencumbered.
The smart folks who crafted these things took a good look at the copyright act (Section 205(d)-(e)) and reached the conclusion that this state of affairs poses no real problem so long as publishers are made aware of the OA policies. Concentration in the scholarly publishing industry helps quite a bit in that regard.
At least, there’s no problem if your sole interest is ensuring the validity of the university’s right to make covered works available to the public. But what if you want to ensure faculty aren’t at risk for complying? Or avoiding compliance for fear of legal risk?
There are awfully good arguments to be made that there simply isn’t credible legal risk for authors signing these problematic publishing agreements. Even if faculty authors are in breach of their warranties, what would the damages be? Authors are (typically) giving away their work for free. And (much to consternation of OA advocates) the availability of scholarship in IRs does not appear to date to have reduced publisher revenues. Besides, the publishers’ knowledge of OA policies and their relative sophistication have bad faith written all over them.
From experience, I can say that faculty non-compliance for fear of legal risk is a real phenomenon. Understanding the priority of conflicting transfers under Section 205 is not exactly common knowledge, and the in and outs of contract enforceability and damages are equally esoteric. What do faculty see? They see a promise to their publisher that would seem to prevent them from contributing to the repository.
At UC, our materials say not to worry about inconsistent agreements, but we don’t make the argument strongly enough. And, frankly, knowing that this practice might well give rise to contract liability (albeit, probably only nominal liability) is an uncomfortable position from which to be telling folks not to worry about it.
If the university believes that there’s nothing to worry about here (which I think is absolutely reasonable) it should take the additional step and put its money where its mouth is: promise to defend its authors against any actions alleging policy compliance to be a breach of the authors’ warranties. Own your policy! If the risk is truly nominal, which again is a reasonable position, then shifting the risk to the University should not be a big deal.
Owning your OA policy step 2: give up on the DMCA
Anybody reading this has probably heard some version of this rant already. I’m sorry for beating this dead horse, but I’m only more convinced with time that this is important. I’m thoroughly unconvinced by the argument that the placement of articles in institutional repositories in compliance with university open access policies is somehow a DMCA safe harbor eligible activity. Employees of an institution complying with an institutional policy? Those aren’t 512(c) “users,” those are “employees acting within the scope of their employment.” And you know what? That’s not a bad thing.
When operating as if were running a safe-harbor eligible operation, the institution effectively declines to exercise its knowledge and expertise of its policies and of the law, and lets the decision of how to respond to a properly filed takedown request lie instead with faculty. Given that (a) faculty knowledge of the legal mechanics of OA policies is severely limited, (b) institutional interest in keeping covered in material in its repository is (in theory) high, (c) few takedown notices are issued to IRs to begin with, and (d) institutions should not be throwing their faculty under the bus for compliance with institutional policy, I’m not sure that this is an optimal means for handling takedown notices.
Owning your policy means standing up for it when challenged, whether the challenge takes the for of a takedown or a breach of contract action. It makes communicating with authors less complicated and it leaves the institution properly responsible for institutional policy. I think it’s a no brainer.