Clarifying the Harvard policies: a response

My friend and ex-colleague Matt Welsh has an interesting post supporting the Research Without Walls pledge, in which he talks about the Harvard open-access policies. He says:

Another way to fight back is for your home institution to require all of your work be made open. Harvard was one of the first major universities to do this. This ambitious effort, spearheaded by my colleague Stuart Shieber, required all Harvard affiliates to submit copies of their published work to the open-access Harvard DASH archive. While in theory this sounds great, there are several problems with this in practice. First, it requires individual scientists to do the legwork of securing the rights and submitting the work to the archive. This is a huge pain and most folks don't bother. Second, it requires that scientists attach a Harvard-supplied "rider" to the copyright license (e.g., from the ACM or IEEE) allowing Harvard to maintain an open-access copy in the DASH repository. Many, many publishers have pushed back on this. Harvard's response was to allow its affiliates to get an (automatic) waiver of the open-access requirement. Well, as soon as word got out that Harvard was granting these waivers, the publishers started refusing to accept the riders wholesale, claiming that the scientist could just request a waiver. So the publishers tend to win.

I wrote a response to his post, clarifying some apparent misconceptions about the policy, but it was too long for his blogging platform's comment system, so I decided to post it here in its entirety. Here it is:

There's a lot to like about your post, and I agree with much of what you say. But I'd like to clarify some specific issues about the Harvard open-access policies, which are in place at seven of the Harvard schools as well as MIT, Duke, Stanford, and elsewhere.

The policy has two aspects. First, the policy commits faculty to (as you say) "submitting the work to the archive", that is, providing a copy of the final manuscript of each article, to be deposited into Harvard's DASH open-access repository. Doing so involves filling out a web form with metadata about the article and uploading a file. But if that is too much trouble, we provide a simpler web form that is tantamount to just uploading the file. Or you can email the file to the OSC. Or one of our "open-access fellows" can make the deposit on your behalf. We also harvest articles from other repositories such as PubMed Central and arXiv. I can't imagine that providing the articles is "a huge pain".

Second, by virtue of the policy, Harvard faculty grant a nonexclusive transferable license to the university in all our scholarly articles. This license occurs as soon as copyright vests in the article, so it predates and therefore dominates any later transfer of copyright to a publisher. Since the policy license is transferable, the university can and does transfer it back to the author, so the author automatically retains rights in each article, without having to take any further action. Because of this policy, the "legwork of securing the rights" is actually eliminated. By doing nothing at all, the author retains rights in the article.

You mention attaching a rider to publication agreements. Although we provide an addendum generator to generate such riders, and we recommend that authors use them, attaching an addendum is not required to retain rights. The only point of the addendum is to alert the publisher that the author has already given Harvard non-exclusive rights to the article (though publishers undoubtedly are already aware of the fact; the policy and its license have been widely publicized).

Because we want the policy to work in the interest of faculty and guarantee the free choice of faculty as to the disposition of their works, the license is waivable at the sole discretion of the author. Thus, rights retention moves from an opt-in regime without the policy to an opt-out regime with the policy. The waiver aspect of the policy was not a response to publisher pushback, but has in fact been in the policies from the beginning. The waiver was intended to preserve complete freedom of choice for authors in rights retention.

As is found in many areas (organ donation, 401K participation), participation tends to be much higher with opt-out than opt-in systems, and that holds for rights retention as well. We have found that the waiver rate is extraordinarily low, contra your assumption. For FAS, we estimate it at perhaps 5% of articles. In total, the number of waivers we have issued is in the very low hundreds, out of the many thousands of articles that have been published by Harvard faculty since the policy was in force. MIT has tracked the waiver rate more accurately, and has reported a 1.5% waiver rate. So for well over 90% of articles, authors are retaining broad rights to use their articles.

The statement that "Many, many publishers have pushed back on this" is false. Less than a handful of publishers have established systematic policies to require waivers of the license, which accounts for the exceptionally low waiver rate. Indeed, over a third of all waivers are attributable to a single journal.

The Harvard approach to rights retention and open-access provision for articles is not a silver bullet to solve all problems in scholarly publishing. It has a limited goal: to provide an alternate venue for openly disseminating our articles and to retain the rights to do so. It is extremely successful at that goal. Many thousands of articles have been deposited in DASH, accounting for over half a million downloads. Nonetheless, other efforts need to be made to address the underlying market dysfunction in scholarly publishing, and we are actively engaged there too. For those interested in what we're up to along those lines, I recommend taking a look at the various posts at my blog, The Occasional Pamphlet, which discusses issues of open access and scholarly communication more generally.