Open Access News

Stuart Shieber, Are the Harvard open-access policies unfair to publishers? The Occasional Pamphlet, June 9, 2009.  Excerpt:

Recently, the representative of a major scientific journal publisher expressed to me the sentiment that the position that Harvard faculty have taken through our open-access policies — setting the default for rights retention to retain rights by default rather than to eschew rights by default — is in some sense unfair to subscription-based journals that require embargoes, that we are favoring one scholarly publishing business model over another and setting up an unlevel playing field.

By way of background, the Harvard open-access policies specify that faculty authors grant a nonexclusive license to the university to distribute our articles, which can be waived for any reason at the sole discretion of the authors. The license applies immediately upon copyright vesting in the article, and thus predates any transfer of copyright to a publisher. If a publisher has a policy that is inconsistent with this license — for instance in requiring that no distributions occur until expiration of an embargo period — then it must either make an exception for an article falling under the OA policy or get the author to obtain a waiver of the license. Open-access journal publishers, who do not mandate embargoes on distribution, will not need to engage their authors in obtaining waivers. The publisher in question thought that this difference was an unfairness toward embargo-carrying subscription-based publishers because it favored open-access publishers....

[This] argument...is fallacious....

[F]or the purpose of this discussion, let us stipulate (counterfactually to my mind) that wholesale adoption of the Harvard policy would in fact prove detrimental to the business of subscription-based journals at least a little bit.  Does that make it intrinsically unfair? ...

[The present objection] seems to rely on an assumption that the Harvard policy is an undue intervention, whereas without the policy, there is no intervention. It seems to go something like this: In designing a system of rights allocation between author and publisher, the approach in which all rights are transferred to the publisher with the publisher selecting some rights to provide back to the author is the privileged position, and any other arrangement involves some kind of intervention. But what makes that the privileged (nonintervening) position? Why isn’t the privileged position an approach in which all rights are transferred to the publisher subject to a nonexclusive limited noncommercial license to the author, with a publisher’s requirement for exclusive transfer of all copyright being the intervention? It is true that one was the status quo ante for some time, but that is a historical contingency, and gives it no privileged position as consisting of the appropriate default position. There is in fact no privileged position one way or the other.  All choices of design involve intervention....

Another way of thinking about the issue is this: The faculty must make a decision about what portion of their rights they retain by default: none, a few, a lot, this subset, that subset.  A decision is inevitable; there is no option of making no decision.  The status quo ante made a decision, namely that no rights were retained by default.  The Harvard policy makes a different decision, that a nonexclusive limited license is retained by default; some other policy might state that exclusive rights are retained by default.  But one way or another, a decision must be made.  The faculty are obviously inclined to make decisions that benefit them as they perceive it, and have done so.  The change is not from making no decision to making a decision, it is from making one decision to making another that the faculty perceives as preferable....

I appreciate that some publishers may not like the waiver process, and I do not begrudge them that view or think it is unreasonable.  But preferring X to Y doesn’t mean that Y is unfair.