University open-access policies as mandates
30 Jun 2009"You can always tell a Harvard man...
but you can't tell him much."
— Source unknown
In the abecedary Harvard A to Z, in the entry under "Deans", the story is told that "a president of the University of Virginia once received a letter requesting a university speaker for an alumni club meeting. To the club's request that he not designate anyone lower than a dean, the president is alleged to have replied that there was no one lower than a dean."
Why do deans get no respect? The reason, of course, is that the deanship is by reputation the quintessential position of responsibility without authority. You are in charge of a faculty who do what they will, not what you would have them. The phenomenon is sometimes referred to as "academic freedom".
I bring this up in the context of questions about "open-access mandates".
A mandate is an official command without option. An open-access mandate is a commandment that a set of authors make their articles openly available. A deposit mandate is a commandment that a set of authors deposit their articles in a repository. This is what scholarly communications people refer to when they talk about mandates.
On the one hand, the Harvard-style policies look like deposit mandates because they state something like this (as taken from the Harvard FAS policy): "[E]ach Faculty member will provide an electronic copy of the final version of the article at no charge" to the university.
On the other hand, the policies allow for a waiver: "The Dean or the Dean's designate will waive application of the policy for a particular article upon written request...".
On the third hand, certain variants of the policy language that we have now moved to (in particular those at the Harvard Kennedy School of Government and Harvard Graduate School of Education) restrict the waiver to the license, rather than the policy overall: "The Dean or Dean's designate will waive application of the license for a particular article upon express direction by a Faculty member."[1]
On the fourth hand, the FAQs at the Office for Scholarly Communication web site advise faculty at all of the schools with open-access policies to deposit their articles in all cases:
What do I have to do to comply with the Open Access Policy?
Here is the two-word answer: always deposit.
On the fifth hand, the FAQ is merely advice, not voted policy.
(I've long ago run out of hands.)
Confused? Don't be, because none of this matters at all.
As any dean will tell you, there is no such thing as a mandate on faculty. One could stipulate a policy that all faculty must wear crimson at monthly faculty meetings; the only result would be benign neglect of the requirement by most faculty and assiduous wearing of blue by a small group interested in tweaking the administration. Trust me.
Try the following thought experiment. Suppose a policy on faculty were established that granted to the university a license in faculty articles but did not explicitly provide for a waiver of the license. Now imagine that a faculty member has an article accepted by a highly prestigious journal that does not allow for author distribution and will not accept an amendment of its copyright transfer policy. Perhaps the author is a junior faculty member soon up for tenure, whose promotion case will be considerably weakened without the publication in question. The author might naturally want to have the license waived even though no waiver is explicitly provided for. The faculty member is likely to storm into the dean's office, howling about the unconscionable practice of taking rights even when it harms the faculty member. Is the university going to distribute the article anyway against the express wishes of the faculty member? Be serious. The dean says "Fine, we won't make use of the license for this article." Voilà, a waiver. So much for university rights retention mandates.
Now suppose the policy "mandated" that every article be deposited into the repository. In practice, the deposit can only occur with the cooperation of the author. No one is going to rifle through faculty members' files or hard drives looking for copies of manuscripts to distribute. If a faculty member refuses to cooperate, no deposit occurs, and a waiver of the deposit requirement has been obtained by default. So much for university deposit mandates.
In summary, whether a waiver procedure is expressly provided for or not, it exists, whether a waiver of a license or of a deposit requirement.
Given that a policy has a waiver option whether expressly provided for or not, it makes great sense to take the high road and provide for the waiver possibility explicitly. This has multiple benefits. First, it acknowledges reality. Second, it explicitly preserves the freedom of the author. Third, it enables much broader acceptance of the policy. Meanwhile, the policy, by specifying rights retention and deposit for those cases where a waiver does not occur, places the defaults in a better place. Such changes in default are known to have dramatic effect on participation rates for activities ranging from 401K participation to organ donation.
That is why the Harvard open-access policy could not be, should not be, and is not a mandate. I've tried to be very careful never to refer to it as a mandate (though I can't promise I've never slipped up). The announcements of the policies at the Faculty of Arts and Sciences, the Kennedy School, and the Graduate School of Education don't refer to the policies as mandates. (The law school announcement does call the policy "mandatory", which I suppose it is strictly speaking, though I would have avoided the term.) But as you can tell, I don't think it would be a mandate even if we'd left out the waiver language, and even given the narrower waiver language that we have now been able to move to.
Just to be clear, there are several things that I am not saying.
I am not claiming that there can be no true open-access mandates on faculty. Rather, such mandates must come from outside academia. Funders and governments can mandate open access because they can, in the end, refuse to fund noncompliers. They have a stick. All a university, school, or dean has, in the end, is a carrot.
I am not saying that university open-access policies are meaningless. Policies can be tremendously important even if they aren't mandates. There is a big difference between the Harvard policy and feel-good requests or exhortations or statements of support for open access. It's not mandate or nothing. What matters is the degree to which faculty participate in providing open access. Having a policy that faculty have overwhelmingly and voluntarily entered into that says we agree that deposits will be the norm and that exceptions will be made only by express direction is very different from no policy at all.
I am not saying that university open-access policies can't be successful. But success has to be based on something more than coercion, because universities just do not have the ability to coerce their faculty, nor would it be advisable to try. Success must be based on broad collective support. This is why it is important that university OA policies ideally be faculty-initiated and faculty-endorsed. To my mind, it is better to have no policy at all than one with hesitant, lukewarm support.
I am not even saying that people shouldn't refer to university OA policies such as Harvard's as mandates (although I do personally avoid the term). There is another sense in which the Harvard-style policies certainly constitute mandates, namely that faculty are technically required to either deposit (say) or expressly opt out of depositing. That may not be the sense that people typically mean when they refer to OA mandates, but the Harvard policy is a mandate in that weaker sense. Refer to a policy as a mandate or not as you see fit.
What I am saying, though, is that worrying about whether a policy is a mandate or not, or whether it allows for waivers or not, is beside the point. All university policies on faculty are waivable, whether they say so or not.
[1] The reason that we adjusted the language from "written request" to "express direction" was first to remove any confusion inhering in the word "request" that it could be denied, and second to make clear that an expression of the direction need not be written in the traditional sense; email and web form direction can serve just as well. Indeed, the most common method for requesting waivers now is through a simple web form that we provide.