When it was announced that the faculty at Princeton University had unanimously adopted an open access policy for scholarly articles they authored, it was great news for the open access community, but it was also the cause of some overheated rhetoric. Since the operative language of the Princeton policy differs very little from that that was adopted at Duke back in March, 2010, this is a good opportunity to reflect on what has, and has not, been done.
In all such policies the university is given a license in the works that is prior to any copyright transfer to a publisher. Technically, therefore, the rights that are transferred are subject to that license; hence the language of “banning” the wholesale transfer of copyright, which has received a lot of attention. I wanted to point out, however, that this rhetoric about a “ban” did not come from Princeton itself, but from a single blogger, to whose post all the stories that use that language point. That blogger has now changed the post, including a quote from a Princeton official saying that the faculty is not being “banned” from anything. Even the URL has changed; the corrected version of the post is here.
The differences amongst universities regarding these policies come in implementation. Some universities may elect to act in a way that is contrary to the terms of the publication agreements the authors enter into (by posting articles or versions of articles where the publication agreement purports not to permit the specific posting). Doing so would seem to be legally permissible under the claim of a prior license, but it could also put the faculty members in a difficult position unless they are very careful about what they sign (as they should be but seldom are). An alternative is for the university to exercise the license in a more nuanced way, taking into account the various publisher policies as much as possible. That, of course, makes open access repositories much more labor-intensive and difficult, especially as publishers change their policies to try a thwart these expressions of authorial rights. How Princeton will actually implement its policy is still an open question, since they do not yet have a repository of their own.
Earlier today I received an inquiry about the Princeton policy from a colleague at another university. To what degree, he asked, is this similar to the university simply claiming that scholarly articles are work made for hire? My answer, of course, was that these policies are the very opposite of an institutional claim of work for hire. If that were done, in fact, no such license would be necessary. But these policies are founded on faculty ownership and express the desire of a faculty, as copyright owners, to manage their rights in a more socially and personally beneficial way. It is important to note that the open access policies now in place at a couple of dozen U.S. institutions have all been adopted by the faculties themselves; they decided to grant a non-exclusive license to the university, which, again, they could not do except as copyright owners.
Probably the most important fact about these policies, indeed, is that they represent an assertion of authorial control. We so often hear publishers and others in the content industry talk about protecting copyright, by which they usually mean the rights they hold by assignment from a creator, that it is salutary to remind academics that they own copyright in their scholarship from the moment their original expression is fixed in tangible form. Transferring those rights to a publisher is one option they have, and it has become a tradition. But it is only one option, and the tradition is beginning to be questioned, as this recent article from Times Higher Education and this one from Inside Higher Ed forcibly demonstrate.
Open access policies are not, at their root, either “land grabs” by institutions or acts of defiance aimed at publishers. They are simply a recognition of the fact that authors are the initial owners of copyright, and they express a desire by those owners to manage their rights intentionally and in a way that most clearly benefits the goals of scholarship.