» Is the Harvard open-access policy legally sound? The Occasional Pamphlet

abernard102@gmail.com 2012-09-18

Summary:

The idea behind rights-retention open-access policies is, as this year’s OA Week slogan goes, to ‘set the default to open access’. Traditionally, authors retained rights to their scholarly articles only if they expressly negotiated with their publishers to do so. Rights-retention OA policies—like those at Harvard and many other universities, and as exemplified by our Model Policy—change the default so that authors retain open-access rights unless they expressly opt out.  The technique the policies use is a kind of ‘rights loop’: [1] The policy has the effect of granting a transferable nonexclusive license to the university as soon as copyright vests in the article. This license precedes and survives any later transfer to a publisher. [2] The university can grant the licensed rights back to the author (as well as making use of them itself, primarily through distribution of the article from a repository).  The author retains rights by using the university as a kind of holding area for those rights. The waiver provision, under sole control of the author, means that this rights retention is a default, but defeasible.  This at least was the theory, but what are the legalities of the matter? In designing Harvard’s OA policy, we spent a lot of time trying to make sure that the reality would match the theory. Now, Eric Priest, a professor at the University of Oregon School of Law, has done a detailed analysis of the policy (forthcoming in the Northwestern Journal of Technology and Intellectual Property and available open access from SSRN) to determine if the legal premise of the policy is sound. The bottom line: It is. Those charged with writing such policies will want to read the article in detail. I’ll only give a summary of the conclusions here, and mention how at Harvard we have been optimizing our own implementation of the policy to further strengthen its legal basis.  Priest’s conclusion is well summarized in the following quote: ‘The principal aim of this Article has been to analyze the legal effect of ‘Harvard-style’ open access permission mandates. This required first analyzing whether scholars are the legal authors (and therefore initial owners) of their scholarly articles under the Copyright Act’s work made for hire rules. It then required determining whether a permission mandate in fact vests, as its terms suggest, nonexclusive licenses in the university for all scholarly articles created by its faculty. Lastly, this analysis required determining whether those licenses survive after the faculty member who writes the article transfers copyright ownership to a publisher. As the foregoing analysis shows, in the Author’s opinion the answer to all three of these questions is “yes”: scholars should be deemed the authors of their works, and permission mandates create in universities effective, durable nonexclusive licenses to archive and distribute faculty scholarship and permit the university to license others to do the same.’  Although Priest’s analysis agrees with our own that the policies work in and of themselves (at least those using the wording that we have promulgated in our own policies at Harvard and in our Model Policy), he notes various ways in which the arguments for the various legal aspects can be even further strengthened..”

Link:

http://blogs.law.harvard.edu/pamphlet/2012/09/17/is-the-harvard-open-access-policy-legally-sound/

From feeds:

Berkman Center Community - Test » The Occasional Pamphlet
Open Access Tracking Project (OATP) » abernard102@gmail.com

Tags:

oa.harvard.u oa.dash oa.law oa.oregon.u oa.repositories oa.libre oa.policies oa.rights-retention oa.copyright oa.policies.universities oa.universities oa.hei oa.case oa.case.policies oa.case.policies.universities oa.scholcomm

Authors:

Stuart Shieber

Date tagged:

09/18/2012, 04:20

Date published:

09/17/2012, 12:15