Faculty members at Harvard Law School unanimously passed a motion on May 7, 2008 committing them to placing copies of their “scholarly articles” in a university-run online archive that would make them freely available to readers. Harvard’s Arts and Science faculty passed a similar motion in February of this year.
In discussing the Harvard Law School motion, as a model for the Stanford Graduate School of Education open access motion, Claude Goldenberg, Roy Pea, Sean Reardon, and John Willinsky prepared a number of questions and responses to help inform faculty members.
Harvard Law School Open Access Motion
The Faculty of the Harvard Law School is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles. More specifically, each Faculty member grants to the President and Fellows a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles authored or co-authored while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean’s designate will waive application of the policy to a particular article upon written request by a Faculty member explaining the need.
Each Faculty member will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Provost’s Office in an appropriate format (such as PDF) specified by the Provost’s Office no later than the date of its publication. The Provost’s Office may make the article available to the public in an open-access repository.
The Office of the Dean will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty from time to time. The policy will be reviewed after three years and a report presented to the Faculty.
Questions and Answers
Why such a motion?
Q: What are the benefits of archiving copies of our articles at Stanford and making them freely available to readers?
A: The evidence to date indicates that providing open access to published journal articles in this manner increases the reading of and engagement with the work, which in our case means further use by educators, policymakers and the interested public (most of whom have no other source of access), as well as colleagues and students here and abroad. 1Historian Robert Darnton, Director of University Library at Harvard, referred to the motion there in terms of “the democratization of knowledge” and this sums it up well, as this initiative follows in the tradition of the public library and public schooling movements of an earlier era.
How would it work?
Q: What would such an archive of our work look like?
A: On having a journal article published, authors would submit a copyright addendum (permitting Stanford to post the work) to accompany the publishers’ copyright agreement, with Stanford GSE granting a waiver to the author should the publisher refuse to accept the terms of the addendum. Once the article was placed in the Stanford GSE archive, readers would be able to find it through the Stanford GSE website by (a) browsing the archive by community or project, author or topic, (b) searching the well indexed archive or (c) clicking on an article link on a faculty member’s or project’s page, as well as through Google and Google Scholar searches. The latest entries to the archive could be listed on the Stanford GSE site, much as we do with the news, and readers can subscribe to receive notifications of new works on certain topics (through a standard mechanism such as RSS). Faculty members, as well as centers and projects, can list works that are available on their homepage. Other materials can be placed in the archive, such as working papers and reports, as well as by students and others associated with Stanford GSE. Most importantly, the motion represents a public commitment to make all of our published, peer-reviewed articles publicly available.
Why such a transfer rights?
Q: My only reservations [in having Stanford GSE consider such a motion] is the part that says we grant to the university…
a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.
Why do we need to do that? Can't we just put in an easy to access, searchable repository and say anyone can access it as long as they don't sell it. Do we really want to give them "irrevocable, worldwide license to exercise any and all rights, etc.?" The other issue is won't journals have an opinion about this? I don't think we can supersede their copyright on whatever they own or claim.
A: The reasoning goes like this -- the university asks that you grant to it this non-exclusive right to post your final version to ensure that the copy can be legally posted on a Stanford site. The majority of publishers (Sage, AERA, Taylor and Francis, Springer, Elsevier, etc.) already grant back to authors this right to archive their work, so retaining this non-exclusive right for the university shouldn't be a problem (with no instances of publisher’s refusal to participate reported in the closely watched instance of Harvard's 4-month-old policy). However, should a publisher insist that it cannot abide by such terms, the author simply seeks a waiver from the university, which is a right of authors built into the motion. Now without such a motion, it's true that a few of us will continue to post copies for free access, legally or not (making it tricky for Stanford GSE to feature links to this work on its site as a public service). However, a motion like this is a way to get Stanford GSE to support and protect, as well as take a visible stand on, access to this knowledge for the longer term, potentially turning the Stanford GSE website into more of a public service, while bringing the whole school on board in sharing what it knows, as an educational principle in and of itself.
Q: So then why not grant "right to post your final version to ensure that the copy can be legally posted and represented as Stanford's contribution to the world." Can't that be done without granting "irrevocable, worldwide license to exercise any and all rights under copyright"? In other words, grant the right to do specifically what we want done with our contributions to the world--make available to any and all... rather than granting irrevocable any and all rights. It's probably a long-shot, but I can imagine some objectionable scenarios.
A: We could go with such an approach, but before we do it may help to look at it this way. Under current conditions, authors typically transfer an “exclusive” and "irrevocable, worldwide license to exercise any and all rights under copyright" to journal publishers. What changes with this open access motion is that prior to transferring the rights requested in the publisher‘s Publication Agreement (including, for example, exclusive commercial rights to the work), an author notifies the publisher that the university has been granted a “non-exclusive” right to post on a worldwide basis a copy of the version submitted to the publisher (after peer review). The transfer of this right is "irrevocable" to preclude you or the publisher from arbitrarily changing the terms (by, for example, claiming a licensing fee). This transfer of copyright does not prevent you from, for example, uploading an updated version to the university archive to more accurately reflect the content published in the journal version of the work.
Q: I still don't fully understand this: how can transfer of copyright be “irrevocable,” yet “does not preclude you from, for example, requesting that the work be updated or removed.” As they say in my country WHAT?.... What if I object that the university wants to make use of my work in a way that I feel is a misinterpretation, mischaracterization, mis-whatever? Can I make them stop it? The only proscription I can see in the resolution is “that the articles are not sold for a profit” which is fine, but is that sufficient? Wouldn't we want spelled out rights we do NOT sign away? (“rights retained include but are not limited to...” etc)
A: Good point. We may want to alter the motion to ensure that faculty members retain further rights over materials posted, for example, with unpublished working papers where more discretion on the faculty’s member part is understandable. However, the right to post our work does not permit the university to misrepresent or mischaracterize our work. If the university were to misrepresent a work in the eyes of a faculty member, and refused to move on this, it would open itself to a libel suit for damaging, in effect, the faculty member’s reputation. This is no different than the situation stands today with respect to a university characterizing a faculty member’s work in its affiliated website, magazines, and other publications, which it can currently do, I believe, without requiring the faculty member’s prior approval.
What would the lawyers say?
Q: The other thought I had was I wonder what the Harvard law people who wrote the motion would say in answer to these questions. Presumably they would know something about the legal ins and outs. I can't imagine that faculty didn't have these and other questions. Although being lawyers maybe they already knew the answers.
A: From John Palfrey (Clinical Professor of Law, Harvard Law School; Executive Director, Berkman Center for Internet & Society; and responsible, along with Terry Fisher for the motion) on being sent this document: I think your responses to the questions are right. The only thing I can say is that we went around and around on these issues, and resolved that the grant of the nonexclusive license should be very broad, to allow for stability over time, and to rely on trust to large degree as well -- that the university would not abuse the broad right. The policy will be reviewed after 3 years (and could be amended or rescinded then). And the danger of a very narrow right, such as the ones described in there, is that you don't know what the university might want collectively to do down the road, and you'd then have an impossible scenario of going back to collect rights later from those who came before. This was our decision, but others might go another way that's better for you.
What about transformations of work?
Q: In granting our university a “nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit” – one of the rights under copyright is to determine who may adapt the work to other forms. In principle, one of our faculty could write a scholarly treatise, say an ethnography of a special school, and have an interest of adapting it as a screenplay or as a movie script. Doesn’t the grant to the university enable the university to do the same? What if the author’s interest and the university’s interests in pursuing that aspect of copyright are in competition? The same point applies to other kinds of derivative works, such as summaries in a Cliff’s Notes style, or an encyclopedic entry, etc. etc.
A: Anyone can take a study of ours and, for example, dramatize an incident from it, as copyright only protects the exact expression of ideas in the study, as well as summarize the study for any purpose. The university could claim that it has a right to employ, in its screenplay, the exact dialogue transcribed in the study, and again our best protection in such cases is the legal right to defend our reputations as researchers. We could opt to only grant the university a “license to make freely available” instead of a “license to exercise any and all rights under copyright,” but the Harvard motion puts the university in a position to seek legal recourse for violations of that copyright.
What is the relation to the creative commons project?
Q: I’ve been noticing with great interest how the Creative Commons project out of Stanford Law Professor Lawrence Lessig’s work has now led to assignment of various forms of open access and re-purposing rights to users of photos, film, and documents of different kinds that have been created by their authors ( http://creativecommons.org/ ). How does the assignment of copyright under the proposed Stanford GSE motion relate to this broader initiative?
A: Yes, Stanford has been at the forefront of this increased openness through a number of initiatives. 2While the Harvard motion is very similar to the particular Creative Common’s licensing option in which the copyright holder allows a work to freely circulate, while requiring author attribution and non-commercial use, a Creative Commons license would allow anyone to post the work, whereas the Harvard motion restricts this right to the university, in addition to the publisher.
1 Steven Hitchcock, “The Effect of Open Access and Downloads ('Hits') on Citation Impact: A Bibliography of Studies, The Open Citation Project, http://opcit.eprints.org/oacitation-biblio.html; John Willinsky, The Access Principle: The Case for Open Access to Research and Scholarship (MIT Press, 2006). Also see C. Hajjem, S. Harnad, and Y. Gingras, “Ten-Year Cross-Disciplinary Comparison of the Growth of Open Access and How It Increases Research Citation Impact,” IEEE Data Engineering Bulletin, 28, No. 4 (2005), 39-47. Analyzing 1,307,038 articles published over 12 years (1992-2003) in ten disciplines (Biology, Business, Economics, Education, Health, Law, Management, Political Science, Psychology, Sociology). Comparing open access and non-open access articles in the same journal/year, open access articles have consistently more citations (25%-250% varying with discipline and year) than non-open access articles.
2 In addition to Creative Commons project at Stanford University, Stanford Library’s Highwire Press makes 1.9 million articles freely available and the Stanford Encyclopedia of Philosophy provides open access to its peer-reviewed contents, while it is also worth acknowledging faculty member Patrick Brown’s role in starting the open access and high-impact Public Library of Science biomedical journals.