According the Chronicle of Higher Education “Harvard University’s Faculty of Arts and Sciences adopted a policy … that requires faculty members to allow the university to make their scholarly articles available free online.” Faculty may ask for a waiver of the policy but the default will be that they provide an electronic copy to the University which then make it available online. As the Chronicle notes, Peter Suber’s posts at Open Access News cover the topic well (text of the motion, Provost’s statement, long post that links to earlier thoughts and other views on the subject). Suber thinks this vote means “Harvard will be the first university in the US to adopt an OA mandate. The Harvard policy will also be one of the first anywhere to be adopted by faculty themselves rather than by administrators.” The University of California has a similar policy in draft form and may have started the process earlier, but Harvard seems to be the first.
Now for the law:
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. 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.
Let’s say it once more, “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.” First does anyone know whether anyone from Harvard Law was invited to this party? Second, although the policy of open-access has merits, when mandated by the University it appears that certain Creative Commons approaches are negated. Third, derivative works problems seem to lurk in this policy. Put differently, where does ShareAlike and non-derivative work restriction fit if at all? Maybe these issues are of less importance than a big move by a big player to go open access, and I hope the idea works. Still the policy seems a bit dictatorial and maybe overbroad. As I have just looked at this one, thoughts are much appreciated.
Last for any institution thinking of an open access move, Suber’s longer post walks through some fascinating nuances of permission (faculty gives the copy to the school, school then posts) and deposit policies (faculty required to handle the posting) for open access as well as offering an overview of the area.
Image by Andrew Dunn, source: WikiCommons; Creative Commons Attribution ShareAlike 2.0 License
Cross-posted at Concurring Opinions
The university mandate may seem troubling at first, but the inertia here has been truly inexcusable. There are so many people that do not have access to scholarly papers.
Also, the university mandate may give the profs a needed bargaining chip in dealing with the anti-open-access journals. Before a university
requirement like this, journals had the upper hand. What’s nice is that if the journals continue playing hardball, they may well lose their Harvard authors, who can start alternatives (such as Varmus’s PLOS Biology).
Somebody had to take the initial “hit” to get the OA ball rolling. Harvard deserves enormous credit for expending the reputational capital necessary to break publishers’ stranglehold on many valuable works in the humanities, social sciences, and sciences.
Let me clarify. I am not saying this move is bad. I am saying that given the slowness and the access to resources, the license (without more information on how it was achieved) seems odd. As you both note, yes, moving the idea forward is good. And Harvard is well placed to handle the need to adjust the policy if it arises. They are supposed to revisit the idea in three years.
Still what do you think about these smaller issues? Do they matter? Should other universities follow the exact example or should they alter the license a little?
I had a similar set of reactions — speaking of “articles” instead of “rights” in the nonprofit part of the policy suggests that IP lawyers were excluded from drafting. Could you expand more on the CC problems? The professor can still release the works under CC, no? But your concern is that Harvard can’t decide to use CC under this policy?
Two snide observations:
(1) Did anybody invite anyone from Harvard University Press or the various HLS law journals to this party? If so, the irony meter would have been pegged: HUP (and the HLS journals) have some of the most unreasonable copyright and permissions policies among university-based academic publishers.
(2) Has anyone considered what the proper treatment of a paper coauthored with a non-Harvard academic might be? It is not clear at all from what I have seen. And this will get really, really interesting with non-US coauthors!
There’s a lot to say about this. I’ll just offer one little thought: At a conference I attended a couple years ago, an audience member complained to a faculty member from MIT that university-wide open access policies like this ultimately benefit schools like MIT (and Harvard), because they build upon the strength of already outsized educational brands. In the main, I don’t agree with that (and I applaud this move by Harvard faculty) but I do think that’s an interesting concern.