By Shan Sutton

This is a guest post written by Devin Soper, Paolo Mangiafico, and Kevin Smith. The letter was originally submitted to Science, which declined to publish it.

In a recent letter to the editor of Science, Ilya Kapovich states that “unsustainable ethical and legal burdens are placed on faculty in schools with Harvard-style open-access policies.” While it is true that the terms of open access (OA) policies are sometimes inconsistent with those of standard publishing contracts, this legal complexity is the result of the unnecessarily restrictive and complicated language used in such contracts, which typically require authors to assign their copyright to a publisher, and which thereby work against the interests of authors, other researchers, and the public. In contrast, Harvard-style OA policies simplify this situation for authors, making it clear that they and their home institutions retain rights in the works they create, and thereby providing a means of redressing the systemic problems caused by restrictive copyright transfer practices. In this sense, and in addition to making thousands of articles available to those who otherwise would not have access, OA policies are designed to give faculty choices, allowing them to retain more rights in their work than they would under standard publishing contracts, giving them access to a range of tools and services to help them make their work OA — and yet also giving them the option to waive application of the policy with no questions asked.

It is worth noting that these policies are faculty-driven initiatives: rather than being imposed from without, they are devised, developed, and adopted by faculty governance bodies that are dissatisfied with overly complex, restrictive publishing agreements and the problems they cause. Further, there is no evidence to suggest that Harvard-model OA policies present significant legal risk to authors. Since 2008, these policies have been adopted by over 60 schools, which have collectively made openly available tens of thousands of journal articles — and to date no evidence has emerged to indicate that any authors or institutions have had to defend legal claims from publishers after exercising the rights granted to them under their institutional policies.

We agree with Dr. Kapovich that the current landscape of publishing contracts is too complex. Academic authors can and should push against this complexity by challenging scholarly publishers to explain why such complexity, including full transfer of copyrights and a long list of legalistic restrictions, is still needed. A simpler approach, and one that leaves the authors in control of their own works, would be for authors to keep their rights, and only grant to publishers the non-exclusive rights they need to publish the work. This is what institutional open access policies aim to do.

Submitted on behalf of the Steering Committee of the Coalition of Open Access Policy Institutions (COAPI).

Devin Soper, Florida State University
Paolo Mangiafico, Duke University
Kevin L. Smith, J.D., University of Kansas

Shan Sutton

Shan Sutton is Dean of University Libraries at the University of Arizona, where he advocates for models in which academia assumes responsibility for preserving and disseminating the scholarship its members produce. Sutton also asserts the principles of Open Access truly began with Grateful Dead tape trading.

Comments (1)

  1. Publishing contracts may not need to insist on transfer of all rights, but they do need to insist on transfer of exclusive rights for those they need to conduct their business because with only nonexclusive rights publishers could not go to court to defend against infringements. That’s a simple legal fact of life.

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