Open Access (OA) mandates generally come from one of two directions: some are imposed by funders and others are imposed by authors’ institutions. But put all mandates together, and it seems to me that they can be subdivided into three categories: those that are not real (meaning that they do not actually require anything of the author and therefore can’t reasonably be called “mandates”), those that are real (meaning that their prescriptions are at least theoretically mandatory) and those that are to some degree powerful (meaning not only that their prescriptions are mandatory in theory, but that they also provide mechanisms designed to compel compliance).
Funder mandates tend to be powerful by their nature: when a grant provider says “you have to publish your results in an OA venue or you won’t get further funding from us,” authors have a real incentive to comply. The power of these mandates is, however, demonstrably less than absolute: even with such incentives, compliance is never perfect and is often far from perfect. Nevertheless, funder mandates are usually relatively powerful.
Institutional mandates are a much more mixed bag. Some are powerful, many are not, and a great many of them are not even real. But it’s interesting to note that patterns of “mandatoriness” can be discerned across countries. A spot-check of the ROARMAP database is instructive: Australian and British institutional mandates tend to be real, such as the ones at Victoria University and the University of Southampton. These generally require OA deposit without exception, though often allowing for temporary embargoes where required by publishers. Institutional mandates in the United States, however, are very rarely real, and while they may be called “mandates” colloquially, they often turn out to be little more than statements of institutional preference.
In the U.S., the pattern these non-mandatory mandates take is pretty consistent. The policy document describing them usually consists of the following elements (or some variation on them):
- A statement of commitment to the broader dissemination of research;
- A statement that all authors who publish the results of research performed as faculty members grant the institution a license to exercise essentially all copyright prerogatives in regard to the work;
- A requirement that all such publications be placed in the institutional repository;
- A clause allowing faculty members to opt out of participation upon request and usually without condition.
To be clear: the opt-out language is very often absolute — faculty are sometimes required to give a reason for opting out, but I have never seen a policy that defines acceptable and unacceptable reasons.
Given that compliance with these (non-)mandates is so often purely voluntary, what real-world effect do they really have? I would suggest that they have at least two significant–though perhaps not equally important–effects.
First of all, they offer a relatively low-cost and very low-risk way for an institution publicly to affirm its support for the idea and the ideals of OA. There is increasing pressure on academic institutions to do so; the rhetoric around scholarly communication problems is sharp, even fierce, and an OA policy that is locally generated and publicly expressed will tend to relieve that pressure — even if the real-world impact of the policy is relatively small. (This dynamic helps explain why, in many cases, the language used in the main body of the policy is quite strong; when the safety valve of an opt-out clause is provided at the end, the language in the main body of the declaration can be very strong without increasing the risk of faculty revolt.)
Second, an OA policy can switch the traditional default setting of scholarly publishing. The traditional default setting is for copyright to remain uniquely with the author despite the fact that the work was created as part of the author’s employment. (This alone is an interesting quirk of academia—that what would be considered “works for hire” in virtually any other employment context are not so considered there.) In those unusual cases where a university asserts copyright in the works of scholarship that are created on campus, this constitutes a legally significant shift in the status quo. When (much more commonly) a university leaves copyright in the hands of the author but claims a “nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright,” the OA policy’s effect may be less legally meaningful, but still represents an important philosophical shift: the institution is claiming for itself a whole new set of rights over the author’s work. (Whether this represents a salutary shift or a negative one is open to debate; what is not ambiguous, I think, is its significance.)
At the beginning of this posting I made passing mention of ROARMAP, the Registry of Open Access Repositories Mandatory Archiving Policies. I consulted that registry multiple times while doing background research for this posting, and as I did so I began to notice an interesting pattern of errors and misinformation — a pattern that is highly relevant to the question of what does and doesn’t constitute an OA “mandate.” That will be the topic of tomorrow’s posting.