{"id":1515,"date":"2012-09-17T09:28:35","date_gmt":"2012-09-17T13:28:35","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/pamphlet\/?p=1515"},"modified":"2012-09-14T17:29:49","modified_gmt":"2012-09-14T21:29:49","slug":"is-the-harvard-open-access-policy-legally-sound","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2012\/09\/17\/is-the-harvard-open-access-policy-legally-sound\/","title":{"rendered":"Is the Harvard open-access policy legally sound?"},"content":{"rendered":"\n\n\n\n
\"...evidenced<\/a><\/td>\n<\/tr>\n
…evidenced by a written instrument…<\/span>
\n“To Sign a Contract 3<\/a>” image by shho<\/a>. Used by permission<\/a>.<\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

The idea behind rights-retention open-access policies is, as this year\u2019s OA Week slogan<\/a> goes, to \u201cset the default to open access\u201d. Traditionally, authors retained rights to their scholarly articles only if they expressly negotiated with their publishers to do so. Rights-retention OA policies\u2014like those at Harvard<\/a> and many other universities, and as exemplified by our Model Policy<\/a>\u2014change the default so that authors retain open-access rights unless they expressly opt out.<\/p>\n

The technique the policies use is a kind of \u201crights loop\u201d:<\/p>\n

    \n
  1. The policy has the effect of granting a transferable nonexclusive license to the university as soon as copyright vests in the article. This license precedes and survives any later transfer to a publisher.<\/li>\n
  2. The university can grant the licensed rights back to the author (as well as making use of them itself, primarily through distribution of the article from a repository).<\/li>\n<\/ol>\n

    The author retains rights by using the university as a kind of holding area for those rights. The waiver provision, under sole control of the author, means that this rights retention is a default, but defeasible.<\/p>\n

    This at least was the theory, but what are the legalities of the matter? In designing Harvard\u2019s OA policy, we spent a lot of time trying\u00a0to make sure that the reality would match the theory. Now, Eric Priest<\/a>, a professor at the University of Oregon School of Law<\/a>, has done a detailed analysis of the policy (forthcoming in the Northwestern Journal of Technology and Intellectual Property and available open access from SSRN<\/a>) to determine if the legal premise of the policy is sound. The bottom line: It is. Those charged with writing such policies will want to read the article in detail. I\u2019ll only give a summary of the conclusions here, and mention how at Harvard we have been optimizing our own implementation of the policy to further strengthen its legal basis.<\/p>\n

    Priest\u2019s conclusion is well summarized in the following quote:<\/p>\n

    The principal aim of this Article has been to analyze the legal effect of \u201cHarvard-style\u201d open access permission mandates. This required first analyzing whether scholars are the legal authors (and therefore initial owners) of their scholarly articles under the Copyright Act\u2019s work made for hire rules. It then required determining whether a permission mandate in fact vests, as its terms suggest, nonexclusive licenses in the university for all scholarly articles created by its faculty. Lastly, this analysis required determining whether those licenses survive after the faculty member who writes the article transfers copyright ownership to a publisher. As the foregoing analysis shows, in the Author\u2019s opinion the answer to all three of these questions is \u201cyes\u201d: scholars should be deemed the authors of their works, and permission mandates create in universities effective, durable nonexclusive licenses to archive and distribute faculty scholarship and permit the university to license others to do the same.<\/p><\/blockquote>\n

    Although Priest\u2019s analysis agrees with our own that the policies work in and of themselves\u00a0(at least those using the wording that we have promulgated in\u00a0our own policies at Harvard<\/a>\u00a0and in our\u00a0Model Policy<\/a>), he notes various ways in which the arguments for the various legal aspects can be even further strengthened, revolving around Section 205(e) of the Copyright Act<\/a>, which holds that \u201ca nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed\u201d.<\/p>\n

    Priest argues at length and in detail that no individual written instrument is required for the survival of the nonexclusive license.\u00a0But obtaining such an individual written instrument certainly can\u2019t hurt. In fact, at Harvard we do obtain such a written instrument. There are two paths by which articles enter the DASH repository<\/a> for distribution pursuant to an OA policy: Authors can deposit them themselves, or someone (a faculty assistant or a member of the Office for Scholarly Communication<\/a> staff) can deposit them on behalf of the authors. In the first case, the author assents (via a click-through statement<\/a>) to an affirmation of the nonexclusive license:<\/p>\n

    I confirm my grant to Harvard of a non-exclusive license with respect to my scholarly articles, including the Work, as set forth in the open access policy found at http:\/\/osc.hul.harvard.edu\/ that was adopted by the Harvard Faculty or School of which I am a member.<\/p><\/blockquote>\n

    In the second case, our workflow requires that authors have provided us with an \u201cAssistance Authorization Form\u201d, available either as a click-through web form or\u00a0print version<\/a>\u00a0to be signed. This form gives the OSC and any named assistants the right to act on the faculty member’s behalf as depositor, and also provides assent to the statement<\/p>\n

    In addition, if I am a member of a Harvard Faculty or School that has adopted an open access policy found at http:\/\/osc.hul.harvard.edu\/, this confirms my grant to Harvard of a non-exclusive license with respect to my scholarly articles as set forth in that policy.<\/p><\/blockquote>\n

    Authors need only provide this form once; thereafter, we can act on their behalf in depositing articles.<\/p>\n

    Thus, no matter how an article enters the DASH repository, we have an express affirmation of the OA policy\u2019s nonexclusive license, providing yet a further satisfaction of the Section 205(e) \u201cwritten instrument\u201d clause.<\/p>\n

    Priest mentions another way of strengthening the argument of survival of the nonexclusive license, namely, incorporating the license into faculty employment agreements, either directly or by reference. This provides further backup that the license is individually affirmed through the employment agreement. We take additional steps along these lines at Harvard as well.<\/p>\n

    One of the most attractive aspects of the default rights retention approach to open-access policies is that the author retains rights automatically, without having to negotiate individually with publishers and regardless of the particularities and exigencies of any later publication agreement, while maintaining complete author choice in the matter through the open license waiver option. It is good to know that a thorough independent legal review of our approach has ratified that understanding.<\/p>\n","protected":false},"excerpt":{"rendered":"

    …evidenced by a written instrument… “To Sign a Contract 3” image by shho. Used by permission. The idea behind rights-retention open-access policies is, as this year\u2019s OA Week slogan goes, to \u201cset the default to open access\u201d. Traditionally, authors retained rights to their scholarly articles only if they expressly negotiated with their publishers to do […]<\/p>\n","protected":false},"author":2110,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[618,68],"tags":[],"class_list":["post-1515","post","type-post","status-publish","format-standard","hentry","category-open-access","category-scholarly-communication"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p5pLfN-or","jetpack-related-posts":[{"id":471,"url":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2010\/06\/09\/a-proposal-to-simplify-the-university-of-north-texas-open-access-policy\/","url_meta":{"origin":1515,"position":0},"title":"A proposal to simplify the University of North Texas open-access policy","author":"Stuart Shieber","date":"Wednesday, June 9, 2010","format":false,"excerpt":"\"In High Places\", statue by Gerald Balciar, University of North Texas - Denton campus, installed 1990. Image via Wikipedia. The University of North Texas is engaged in a laudable process of designing an open-access policy for their community. Draft language for their policy is now available at their site on\u2026","rel":"","context":"In "open access"","block_context":{"text":"open access","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/category\/scholarly-communication\/open-access\/"},"img":{"alt_text":"","src":"http:\/\/upload.wikimedia.org\/wikipedia\/en\/thumb\/c\/c4\/UNT_Eagle_statue.jpg\/300px-UNT_Eagle_statue.jpg","width":350,"height":200},"classes":[]},{"id":256,"url":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2009\/07\/28\/publishers-cooperating-with-the-harvard-oa-policy\/","url_meta":{"origin":1515,"position":1},"title":"Publishers cooperating with the Harvard OA policy","author":"Stuart Shieber","date":"Tuesday, July 28, 2009","format":false,"excerpt":"One of the advantages of the Harvard open-access policies is that the university's cumulation of rights allows it to negotiate directly with publishers on behalf of covered authors. Such discussions can lead to win-win agreements in which Harvard authors can more simply comply with the open-access policies they have voted\u2026","rel":"","context":"In "open access"","block_context":{"text":"open access","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/category\/scholarly-communication\/open-access\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1089,"url":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2011\/12\/02\/clarifying-the-harvard-policies-a-response\/","url_meta":{"origin":1515,"position":2},"title":"Clarifying the Harvard policies: a response","author":"Stuart Shieber","date":"Friday, December 2, 2011","format":false,"excerpt":"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.\u00a0Harvard was one of the\u2026","rel":"","context":"In "open access"","block_context":{"text":"open access","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/category\/scholarly-communication\/open-access\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":15,"url":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2009\/06\/09\/are-the-harvard-open-access-policies-unfair\/","url_meta":{"origin":1515,"position":3},"title":"Are the Harvard open-access policies unfair to publishers?","author":"Stuart Shieber","date":"Tuesday, June 9, 2009","format":false,"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 \u2014 setting the default for rights retention to retain rights by default rather than to eschew rights by default \u2014 is in some sense\u2026","rel":"","context":"In "open access"","block_context":{"text":"open access","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/category\/scholarly-communication\/open-access\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1552,"url":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2012\/10\/17\/guide-released-on-good-practices-for-university-open-access-policies\/","url_meta":{"origin":1515,"position":4},"title":"Guide released on good practices for university open-access policies","author":"Stuart Shieber","date":"Wednesday, October 17, 2012","format":false,"excerpt":"I'm pleased to forward on the announcement that the Harvard Open Access Project has just released an initial version of a guide on \"good practices for university open-access policies\". It was put together by Peter Suber and myself with help from many, including Ellen Finnie Duranceau, Ada Emmett, Heather Joseph,\u2026","rel":"","context":"In "open access"","block_context":{"text":"open access","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/category\/scholarly-communication\/open-access\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":210,"url":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2009\/06\/30\/university-open-access-policies-as-mandates\/","url_meta":{"origin":1515,"position":5},"title":"University open-access policies as mandates","author":"Stuart Shieber","date":"Tuesday, June 30, 2009","format":false,"excerpt":"\"You can always tell a Harvard man... but you can't tell him much.\" \u2014 Source unknown In the abecedary Harvard A to Z, in the entry under \"Deans\", the story is told that \"a president of the University of Virginia once received a letter requesting a university speaker for an\u2026","rel":"","context":"In "open access"","block_context":{"text":"open access","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/category\/scholarly-communication\/open-access\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/posts\/1515","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/users\/2110"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/comments?post=1515"}],"version-history":[{"count":14,"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/posts\/1515\/revisions"}],"predecessor-version":[{"id":1535,"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/posts\/1515\/revisions\/1535"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/media?parent=1515"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/categories?post=1515"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/wp-json\/wp\/v2\/tags?post=1515"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}