Intellectual Property Law

Open Crimson: Harvard?s Arts and Sciences Goes Open Access

By Deven Desai

According the Chronicle of Higher Education “Harvard University?s Faculty of Arts and Sciences adopted a policy … that requires faculty members to allow the university to make their scholarly articles available free online.” Faculty may ask for a waiver of the policy but the default will be that they provide an electronic copy to the University which then make it available online. As the Chronicle notes, Peter Suber’s posts at Open Access News cover the topic well (text of the motion, Provost’s statement, long post that links to earlier thoughts and other views on the subject). Suber thinks this vote means “Harvard will be the first university in the US to adopt an OA mandate. The Harvard policy will also be one of the first anywhere to be adopted by faculty themselves rather than by administrators.” The University of California has a similar policy in draft form and may have started the process earlier, but Harvard seems to be the first.

Now for the law:

In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean?s designate will waive application of the policy for a particular article upon written request by a Faculty member explaining the need.

Let’s say it once more, “a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.” First does anyone know whether anyone from Harvard Law was invited to this party? Second, although the policy of open-access has merits, when mandated by the University it appears that certain Creative Commons approaches are negated. Third, derivative works problems seem to lurk in this policy. Put differently, where does ShareAlike and non-derivative work restriction fit if at all? Maybe these issues are of less importance than a big move by a big player to go open access, and I hope the idea works. Still the policy seems a bit dictatorial and maybe overbroad. As I have just looked at this one, thoughts are much appreciated.

Last for any institution thinking of an open access move, Suber’s longer post walks through some fascinating nuances of permission (faculty gives the copy to the school, school then posts) and deposit policies (faculty required to handle the posting) for open access as well as offering an overview of the area.

Image by Andrew Dunn, source: WikiCommons; Creative Commons Attribution ShareAlike 2.0 License

Cross-posted at Concurring Opinions

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Full post as published by Madisonian.net on February 13, 2008 (boomark / email).