Recently my intern Dave Hansen (another lawyer) and I have been looking at the new author self-archiving policies promulgated by the American Chemical Society and Elsevier. It would be more accurate to say that these policies are anti-archiving; in spite of persistent rhetoric about how committed these publishers are to access to scholarship, the clear intent is to restrict and interfere with decisions faculty authors might make about how best to serve their own interests as scholars.
A comical element was introduced into our consideration early on, when we realized that the two different policies imposed directly opposite requirements for self-archiving. The ACS only allows an author to self-archive their final manuscript if doing so is mandated by her institution, while Elsevier only allows it if it is not. So on each campus the policies must be evaluated and one publisher or the other declared off limits.
In general these publishers’ statements about author rights are confusing and self-contradictory. It seems clear that the intent of these statements, policies and contracts is not to clarify the authors’ obligations so much as it is to confuse and intimidate them. At one point we asked ourselves why we were spending so much time poring over these badly drafted documents, and we realized that we were doing it because we are concerned not to let our faculty authors put themselves into difficult positions. What is clear is that these publishers have no such concern; they are trying to make authors pawns in their effort to dictate campus policies.
We have to start our evaluation of the position that Duke authors would be in, vis-à-vis these publishers, by asking ourselves what exactly the Duke Open Access policy is. From its inception we have maintained that it is not a mandate. Although the policy grants Duke a license to archive the works written by its faculty, there is no requirement or assertion that it will be universally exercised. The license is fully waivable and it was adopted with the commitment that its implementation would not involve Duke authors in conflicting obligations. What the policy most clearly represents is a strong statement that Duke authors want to make their own works as accessible as possible to the largest number of people.
So if this is what we think our policy is, how does it interact with the crazy quilt of rules imposed by these two publishers? Regarding the American Chemical Society, our conclusion was that Duke’s policy is simply incompatible with publication in an ACS journal. ACS only allows an author to self-archive if there is an institutional or funder mandate that they do so, and Duke does not mandate such behavior. ACS authors are treated here with little consideration; their right to make individual decision about their own best interests is simply not respected. So we will communicate to our authors who write for ACS journals that they may not exercise the policy decision that they made 18 months ago because their scholarly society has told them not to. We will ask them to make their unhappiness with this interference with their freedom to determine academic policy known to the ACS.
Elsevier presents a more difficult case. There are multiple policy statements out there, and they are not particularly consistent. It is also not clear which statements will actually end up incorporated in author contracts. What is clear is that Elsevier wants to dictate what policies our faculty can and cannot adopt for itself, which certainly raises the issue of how willing authors will be to surrender the idea of academic freedom.
But our bottom line is that these statements are ineffective in changing our approach at Duke. In a statement sent to the lib-license email list, Alicia Wise of Elsevier tried to explain the new policy by emphasizing that authors would still be able to voluntarily post their final author manuscripts. Only a “mandate” triggers the restriction on author self-posting, according to Ms. Wise. Although there is language in some of the Elsevier documents that suggests otherwise, we are inclined to take Ms. Wise at her word. Our policy is not a mandate, and author participation is entirely voluntary, especially since a final author’s manuscripts can only be obtain from authors on an individual “opt-in” basis. So we do not see a conflict here with the policy our faculty has put in place.
If Elsevier disagrees with our interpretation and thinks that Duke’s policy triggers their denial of authors’ rights to our faculty, they ask us to discuss the matter with them. This we would be happy to do, but we will do it as part of our negotiations to subscribe to their journal packages. In her email message Ms. Wise states, somewhat out of the blue, that “author rights agreements and subscription agreements should be kept separate.” On the contrary, we believe that subscription negotiations are the perfect time for a campus or consortium to take steps to protect its faculty and defend their right to make policy decisions for themselves. If Elsevier wants to interfere with that right, we will address that desire at the point when we are considering investing some of the Universities’ money with them, if only to get their attention.
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For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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