Open Access and University IP Policies in the United States | Authors Alliance

"In practice, however, control over copyrighted works is often more complicated. When it comes to open access scholarly publishing, the story is particularly complicated because the default allocation of rights is often modified by an complex series of employment agreements, institutional open access policies, grant terms, relationships (often not well defined) between co-authors, and of course the publishing agreement between the author and the publisher. Because open access publishing is so dependent on those terms, it’s important to have a clear understanding of who holds what rights and how they can exercise them....

A growing number of universities have policies, enacted at the behest of faculty, that specifically provide rights to make faculty scholarship openly available. The “Harvard model” is probably the most common, or at least the most well known. These types of policies allocate a license to the university, to exercise on behalf of the individual creator, with the specific intent of making the work available free of charge. Often these policies will include special limitations (e.g., the university cannot sell access to the article) or allow for faculty to opt-out (often by seeking a waiver)....

Although the existing, somewhat messy, maze of institutional IP policies, publishing agreements, and OA policies can seem daunting, understanding their terms is important for authors who want to see their works made openly available. I’ll leave for another day to explore whether it’s a good thing that the rights situation is so complex. In many situations, rights thickets like these can be a real detriment to authors and access to their works. In this case the situation is at least nuanced such that authors are able to leverage pre-existing licenses to avoid negotiating away the bundle of rights they need to see their works made available openly."