The Occasional Pamphlet

The University of North Texas is engaged in a laudable process of designing an open-access policy for their community. Draft language for their policy is now available at their site on open access; the most recent version is as of June 7.

They are pursuing a Harnad-style ID/OA policy, requiring deposit of articles but pursuing distribution only to the extent that publishers’ agreements allow. Although I prefer a Harvard-style approach, this is also quite a good and reasonable approach. I have some concerns though about the details of the UNT working out of the policy. In particular, they have incorporated into the statement of the policy some language from the Harvard-style policies, which doesn’t sit comfortably with the basic approach they have taken. Below, I argue that the intention of their policy can be more consistently specified, and in the process greatly simplified.

Here is the operative language in the current policy draft. (There is much more to the policy document, but the core is described in these paragraphs.)

In support of greater access to scholarly works, the UNT Community Members agree to the following for peer-reviewed, accepted-for-publication journal articles:

1. Immediate Deposit: Each UNT Community Member deposits a digital copy of his/her accepted manuscript, no later than the date of its publication. Deposit is made into the UNT Libraries scholarly works repository. Deposit of manuscripts provides long-lasting protection and preservation of scholarly works from loss due to computer failures.
2. Open Access/Optional Delayed Open Access: The author is encouraged to make the deposit available to the public by setting access to the deposit as Open Access Immediately Upon Deposit (the default). Upon express direction by a UNT Community Member for an individual article, the Provost or Provost’s designate (e.g., the Scholarly Communication Officer) will adjust the Open Access Immediately Upon Deposit requirement to align with the UNT Community Member’s request and/or to align with publishers’ policies regarding open access of self-archived works.
3. Licensing: Each UNT Community Member grants to UNT permission to make scholarly peer-reviewed journal articles to which he or she made intellectual contributions publicly available in the UNT Libraries Scholarly Works Repository for the purpose of open dissemination and preservation, subject to Open Access option selected above. Each UNT community member grants to UNT a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to his or her scholarly articles, in any medium, and to authorize others to do so, provided that the articles are not sold. The Provost or Provost’s designate (e.g., the Scholarly Communication Officer) will waive application of the license for a particular article upon express direction by a community member.

The first paragraph mandates deposit of the manuscript. The second specifies distribution consistent with publishers’ policies. So far, this is the ID/OA policy.

The third paragraph seems to specify rights retention à la a Harvard-style policy. In fact, a policy consisting of just paragraphs 1 and 3 would more or less constitute the Harvard policy. But why would broad rights need to be retained (paragraph 3) if no distribution beyond what publishers will allow (paragraph 2) is envisioned? Indeed, such broad rights retention may well lead to the possibility that the policy would inherit the problematic aspects of the Harvard-style policy (occasional requirements by publishers to get waivers of the license), without its advantages (wholesale rights retention for a broad swath of articles independent of publishers’ policies). There is an inherent tension between the second and third paragraphs that acts to the detriment of the policy. In summary, if you’re not going to use rights beyond what publishers allow, don’t retain them. It just muddies the water.

This might argue for merely dropping paragraph 3 and going for a straight ID/OA policy, and that would be one reasonable approach. (Another reasonable approach would be to drop paragraph 2 and go for a Harvard-style policy, but this is clearly not UNT’s intention.) However, there is one advantage to the rights retention aspect, namely that once the policy is enacted, no further effort will be needed for the university to acquire by default whichever rights the publishers do allow. But this advantage can be maintained without the broad language of the third paragraph, and in so doing, the entire policy can be simplified considerably.

My recommendation would be to simplify the third paragraph to grant only those rights needed to do what the policy envisions. Something along the following lines would work:

Licensing: Each UNT Community Member grants to UNT permission to make scholarly peer-reviewed journal articles to which he or she made intellectual contributions publicly available in the UNT Libraries Scholarly Works Repository for the purpose of open dissemination and preservation subject to publishers’ restrictions. In legal terms, each UNT community member grants to UNT for each of his or her scholarly articles a nonexclusive, irrevocable, worldwide license to exercise those rights under copyright that the author retains in any agreements with the article’s publishers. The Provost or Provost’s designate (e.g., the Scholarly Communication Officer) will waive application of the license for a particular article upon express direction by a community member.

Once this restricted license is in force, UNT would have rights to distribute as widely as the publisher allows but no more, as is clearly the policy’s original intent. At that point, the second paragraph (encouraging the author to allow distribution as broadly as possible) would no longer be needed. The university could already do so based on the license it was granted. If an author didn’t want the university to distribute the article for any reason (as envisioned in the second paragraph phrase “to align with the UNT Community Member’s request”), the waiver aspect of the licensing clause would already allow for this.

Presumably, the number of waivers generated under this approach would be minuscule, as publishers would have no incentive whatsoever to require a waiver for publication; the policy involves no license to the university beyond what a publisher would already allow.

While we’re adjusting language, I’d also recommend dropping the sentence providing motivation for deposit, which is appropriate for the explanatory material about the policy, but not its formal statement.

With these changes, the UNT policy becomes much simpler, more consistent, and would be what it was presumably envisioned as, an ID/OA policy with a built-in license to make sure that the university could distribute articles to the extent publishers allowed. This approach is an interesting variant open-access policy to be considered by other institutions in addition to the original ID/OA and Harvard-style approaches.

For completeness, the language I would propose (at least while hewing as close to the original UNT language as possible) would be something like the following:

In support of greater access to scholarly works, the UNT Community Members agree to the following for peer-reviewed, accepted-for-publication journal articles:

1. Immediate Deposit: Each UNT Community Member deposits a digital copy of his/her accepted manuscript, no later than the date of its publication into the UNT Libraries scholarly works repository.
2. Licensing: Each UNT Community Member grants to UNT permission to make scholarly peer-reviewed journal articles to which he or she made intellectual contributions publicly available in the UNT Libraries Scholarly Works Repository for the purpose of open dissemination and preservation subject to publishers’ restrictions. In legal terms, each UNT community member grants to UNT for reach of his or her scholarly articles a nonexclusive, irrevocable, worldwide license to exercise those rights under copyright that the author retains in any agreements with the article’s publishers. The Provost or Provost’s designate (e.g., the Scholarly Communication Officer) will waive application of the license for a particular article upon express direction by a community member.

I must mention that I am not a lawyer, and have not vetted my proposal with any lawyers, and am not making any claims about the legal force or appropriateness of the original or modified language. That is the job for the UNT General Counsel’s Office.