Commentary on: Shieber, Stuart (2009) University
open-access policies as mandates. The Occasional Pamphlet
on scholarly communication.
http://blogs.law.harvard.edu/pamphlet/2009/06/30/university-open-access-poli
cies-as-mandates/
What's in a Word? To "Legislate" and/or to "Legitimize": the
Double-Meaning of (Open Access) "Mandate"
(Hyperlinked version:
http://openaccess.eprints.org/index.php?/archives/605-guid.html
Although there is a hint of the hermeneutic in his reflections on the
uses of the word "mandate," I think Stuart Shieber, the architect of
Harvard's historic Open Access (OA) policy is quite right in spirit.
The word "mandate" is only useful to the extent that it helps get a
deposit policy officially adopted -- and one that most faculty will
actually comply with.
First, note that it has never been suggested that there need to be
penalties for noncompliance. OA, after all, is based solely on
benefits to the researcher; the idea is not to coerce researchers
into doing something that is not in their interest, or something they
would really prefer not to do.
Indeed, the author surveys and outcome studies that I have so often
cited provide evidence that -- far from being opposed to deposit
mandates -- authors welcome them, and comply with them, over 80% of
them willingly.
It is hence natural to ask: if researchers welcome and willingly
comply with deposit mandates, why don't they deposit without a
mandate?
I think this is a fundamental question; that it has an answer; and
that its answer is very revealing and especially relevant here,
because it is related to the double meaning of "mandate", which means
both to "legislate" and to "legitimize":
There are many worries (at least 34 of them, all groundless and
easily answered) keeping most authors from self-archiving on their
own, unmandated. But the principle three are worries (1) that
self-archiving is illegal, (2) that self-archiving may put acceptance
for publication by their preferred journals at risk and (3) that
self-archiving is a time-consuming, low-priority task for already
overloaded academics.
Formal institutional mandates to self-archive alleviate worries (1) -
(3) (and the 31 lesser worries as well) by making it clear to all
that self-archiving is now an official institutional policy of high
priority.
Harvard's mandate alleviates the three worries (although not, in my
opinion, in the optimal way) by (1) mandating rights-retention, but
(2) allowing a waiver or opt-out if the author has any reason not to
comply. This covers legal worries about copyright and practical
worries about publisher prejudice. The ergonomic worry is mooted by
(3) having a proxy service (from the provost's office, not the
dean's!) do the deposit on the author's behalf.
The reason I say the Harvard mandate is not optimal is that -- as
Stuart notes -- the crucial condition for the success and
universality of OA self-archiving mandates is to ensure that the
deposit itself gets done, under all conditions, even if the author
opts out because of worries about legality or publisher prejudice.
This distinction is clearly made in the FAQ accompanying the Harvard
mandate, informing authors that they should deposit their final
refereed drafts upon acceptance for publication whether or not they
opt out of making access to their deposits immediately OA.
Harvard's mandate itself (not just the accompanying FAQ) should have
required immediate deposit, and the opt-out clause should only have
pertained to whether or not access to that deposit is immediately
made OA. The reason is that Closed Access deposit moots both the
worry about legality and the worry about journal prejudice. It is
merely an institution-internal record-keeping matter, not an OA or
publication issue.
But even though the Harvard mandate is suboptimal in this regard,
this probably does not matter greatly, because the combination of
Harvard's official mandate and Harvard's accompanying FAQ have almost
the same effect as including the deposit requirement in the official
mandate would have had. The mandate is in any case noncoercive. There
are no penalties for noncompliance. It merely provides Harvard's
official institutional sanction for self-archiving and it officially
enjoins all faculty to do so. (Note that both "injunction" and
"sanction" likewise have the double-meaning of "mandate": each can
mean either officially legislating something or officially
legitimizing something, or both.)
Now to something closer to ordinary English: There is definitely a
difference between an official request and an official requirement;
and the total failure of the first version of the NIH policy (merely
a request) -- as well as the failure of the current request-policies
of most of the planet's current institutional repositories -- has
shown that only an official requirement can successfully generate
deposits and fill repositories -- as the subsequent NIH policy
upgrade to a mandate and the 90 other institutional and funder
mandates worldwide are demonstrating.
So whereas the word "mandate" (or "requirement") may sometimes be a
handicap at the stage where an institution is still debating about
whether or not to adopt a deposit policy at all, it is definitely an
advantage, indeed a necessity, if the policy, once adopted, is to
succeed in generating compliance: Requirements work, requests don't.
All experience to date has also shown that whereas adding various
positive incentives (rewards for first depositors, "cream of science"
showcasing, librarian assistance and proxy-depositing) to a mandate
can help accelerate compliance, no penalties for noncompliance are
needed. Mandates work if they are officially requirements and not
requests, if compliance monitoring and implementation procedures are
in place, and if the researcher population is well informed of both
the mandate requirements and the benefits of OA.
Having said all that, I would like to close by pointing out one
sanction/incentive (depending on how you look at it) that is already
implicitly built into the academic reward system: Is
"publish-or-perish" a mandate, or merely an admonition?
Academics are not "required" to publish, but they are well-advised to
do so, for success in getting a job, a grant, or a promotion. Nor are
publications merely counted any more, in performance review, like
beans. Their research impact is taken into account too. And it is
precisely research impact that OA enhances.
So making one's research output OA is already connected causally to
the existing "publish-or-perish" reward system of academia, whether
or not OA is mandated. An OA mandate simply closes the causal loop
and makes the causal connection explicit. Indeed, a number of the
mandating institutions have procedurally linked their deposit
mandates to their performance review system:
Faculty already have to submit their refereed publication lists for
performance review today. Several of the universities that mandate
deposit have simply indicated that henceforth the official mode of
submission of publications for performance review will be via deposit
in the Institutional Repository.
This simple, natural procedural update -- not unlike the transition
from submitting paper CVs to submitting digital CVs -- is at the same
time all the sanction/incentive that academics need: To borrow the
title of Steve Lawrence's seminal 2001 Nature paper on the OA impact
advantage: "Online or Invisible."
Hence an OA "mandate" is in essence just another bureaucratic
requirement to do a few extra keystrokes per paper, to deposit a
digital copy in one's institution's IR. This amounts to no more than
a trivial extension to the existing mandate to do the keystrokes to
write and publish the paper in the first place: Publisher or Perish,
Deposit to Flourish.
Stevan Harnad
Received on Sat Jul 04 2009 - 14:45:10 BST