Copyright and the Harvard Open Access Mandate

"In Northwestern Journal of Technology and Intellectual Property, forthcoming. From the Abstract: Open access proponents argue that scholars are far more likely to make their articles freely available online if they are required to do so by their university or funding institution. Therefore, if the open access movement is to achieve anything close to its goal of seeing all scholarly articles freely available online, mandates will likely play a significant role. In 2008, the Harvard University Faculty of Arts and Sciences adopted a policy that purports not only to require scholars to deposit their works in open access repositories, but also to grant the university nonexclusive copyright licenses to archive and publicly distribute all faculty-produced scholarly articles. A number of other American universities have since adopted similar policies. The principal aim of this Article is to analyze the legal effect of these Harvard-style open access “permission” mandates. By invoking copyright law terminology in permission mandates, schools might intend that they have the legal effect of transferring nonexclusive rights to the school, thereby clarifying and fortifying the school’s rights to reproduce and publicly disseminate faculty works. However, the legal effect of these mandates is uncertain for several reasons. This Article argues that permission mandates can create legally enforceable, durable nonexclusive licenses. Lastly, the Article considers whether the opt-out nature of permission mandates offends notions of authorial autonomy in copyright." Posted by stevehit to pep.oa pep.biblio oa.mandates oa.new on Mon Sep 10 2012