Report: “Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions”

Covington & Burling LLP litigators Simon J. Frankel and Shannon M. Nestor have written an interesting 18-page overview report

“Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions”

examining the legal issues as to open access policies.

The report looks at:
It concludes with 5 criteria for an effective license.
The authors state —
“For the licensing portion of an open-access policy, it is recommended that an institution adopt a
license, in writing and signed by each faculty author, that contains the following five criteria:
  1. non-exclusive
  2. irrevocable
  3. worldwide
  4. perpetual, and
  5. non-commercial.”

1 thought on “Report: “Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions”


    Frankel & Nestor’s helpful advice to authors about rights retention is very well-informed and valuable, except for this:

    “Finally, we must be careful to distinguish between a license mandate and a deposit mandate. Whereas a licensewhether exclusive or nonexclusivetransfers some amount of rights in the article, a deposit mandate merely allows for (or requires) a physical copy of the article to be given to the institution. Simply handing over a physical copy of an article, or draft of that article, is not sufficient under copyright law to constitute a grant of any rights, as physical possession of an article does not give the owner of that copy any copyright rights in work embodied in the copy.

    “Deposit mandates certainly are useful for institutions to retain the knowledge and scholarship of its faculty members. Indeed, some journals already permit institutional depositories. But such permissions do not address the increasing loss of knowledge in the academic community caused by the ever- increasing costs of journal subscriptions and the inability for academic institutions to keep up with shouldering the burden of those costs. The open access policy goes beyond a simple university depositorylimited in size, scope, and, most universal scope and accessibility. By combining the nonexclusive license discussed in this paper with a deposit policy, an institution can create open access.”

    Simon J. Frankel and Shannon M. Nestor (2010) Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions.

    (1) Most authors are not providing Open Access (OA) to their refereed research output at all today. (Only 20% are providing it.)

    (2) OA Mandates are coming, but still extremely slowly.

    (3) It is much harder to mandate more than less.

    (4) A license mandate is much more than a deposit mandate.

    (5) The majority of journals (60%+) already endorse immediate Open Access self-archiving of the author’s refereed final draft.

    (6) A deposit mandate will immediately provide OA to 60%+ instead of just 20% of refereed research.

    (7) The repository’s eprint-request button can provide almost-OA to all the rest for the time being.

    (8) So what is urgently needed is at least a deposit mandate, today.

    (9) Re-use rights are not urgent, and will be much easier to get once we already have universally mandated OA.

    The Gratis Green OA self-archiving door is open already: All institutions and funders need do is mandate entry. Rights retention and Libre OA can come later.

    Harnad, S. (2008) Waking OA’s “Slumbering Giant”: The University’s Mandate To Mandate Open Access. New Review of Information Networking 14(1): 51 – 68

    Harnad, S. (2008) Which Green OA Mandate Is Optimal? Open Access Archivangelism December 7 2008.

    Harnad, S. (2010) The Immediate Practical Implication of the Houghton Report: Provide Green Open Access Now. Prometheus, 28 (1). pp. 55-59.

    Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S. (2010) Open Access Mandates and the “Fair Dealing” Button. In: Dynamic Fair Dealing: Creating Canadian Culture Online (Rosemary J. Coombe & Darren Wershler, Eds.)

    Suber, Peter (2008) Green/gold OA and gratis/libre OA. Open Access News August 2, 2008

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