Why are there virtually no mandatory open access policies at American universities?
Abstract
Key points
- U.S. university OA policies are far less mandatory than those in the U.K.
- The waiver clauses in U.S. university policies make it easy for authors to decline making their articles OA.
- The relative autonomy – and competitiveness – of U.S. universities may be the reason for weaker OA policies.
- OA in the U.S. is likely to be driven by government funding agency policies rather than by academia.
From my perch in a research library in the United States, it has been very interesting to watch the growth of mandatory open-access (OA) policies in institutions of higher education in the United Kingdom while simultaneously watching the steadfast refusal of similar institutions in the United States to go down the same road. It is not that American institutions are declining to adopt OA policies; they are actually adopting them in increasing numbers. What makes these policies very different from those emerging in British institutions, however, is that with virtually no exceptions, the American policies include ironclad waiver clauses, making OA optional for authors rather than mandatory – even when institutional deposit is required.
- The policy at King's College London ‘requires that… researchers deposit into (the institutional repository) the publisher accepted author final draft/author accepted manuscript version of the full-text… for all peer reviewed journal articles and conference papers’, where allowed by the publisher's self-archiving policies. Where publishers’ policies allow, the policy directs that these articles be made available on an OA basis. No waiver or opt-out is offered (King's College London, .).
- Durham University requires that all affiliated authors ‘provide an electronic copy of all peer reviewed journal articles and conference papers… for deposit in Durham Research Online (DRO), the University's institutional repository’. Again, OA is required where publisher policies allow. In this case, there is a waiver clause, although it requires authors to give a ‘valid reason’ for the waiver request and to provide ‘supporting evidence’ for the rationale offered (Durham University, 2013). As we shall see below, this requirement differs substantially from the waiver clauses routinely found in U.S. institutional OA policies.
- At Trinity College Dublin, ‘all scholarly articles, peer reviewed conference papers, reports and TCD research theses written while the person is a member of staff or a research student’ must be deposited in the institutional repository. Furthermore, ‘open access to the full text paper will be available as soon as is practicable, and not later than six months after publication’. No waivers or exceptions are offered, regardless of publisher's policies (Trinity College Dublin, .).
In the United States, by contrast, while it is increasingly easy to find institutions that have adopted OA policies, many of them featuring mandatory-sounding language, virtually none of them is actually mandatory – all of them include waiver clauses that leave it entirely up to the author whether or not he or she wishes to make his or her work available on an OA basis.
- Harvard's Faculty of Arts and Sciences has adopted an OA policy under which ‘each Faculty member grants (the institution) permission to make available his or her scholarly articles and to exercise the copyright in those articles’. However, ‘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’ (Harvard Faculty of Arts and Sciences, 2008).
- Duke University's policy states that ‘each Faculty member grants to Duke University permission to make available his or her scholarly articles and to reproduce and distribute those article for the purpose of open dissemination’. However, the institution ‘will waive application of the license for a particular article… upon written request by a Faculty member’ (Duke University, 2010).
- At the University of Delaware, ‘each faculty member grants to the University… permission to make available his or her scholarly articles and to exercise copyright in those articles’, in that each of these authors grants the institution ‘a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of their scholarly articles, in any medium, providing that the articles are not sold for profit’. However, ‘the University will automatically waive application of the license for a particular article… upon express direction by a faculty member or their designee’ (University of Delaware, 2015).
Given that the scholarly communication issues faced by authors, libraries, and readers are quite similar whether one is based in the United Kingdom or in the United States, it may seem strange that the policy landscape should be so different between them. After examining and considering this landscape for some time and pondering this issue, I would like to propose three possible reasons for the significant differences between those two policy environments.
FIRST, PUBLIC HIGHER EDUCATION IN THE UNITED STATES IS HIGHLY DECENTRALIZED
The United States is a federation of 50 individual states, each of which has one or more independent systems of public higher education. While the U.S. government does include a Department of Education directed by a Secretary of Education, that department exercises only the broadest sort of oversight over public higher education. Most of the policies that govern day-to-day practices of institutions and their faculty are set at the system or institutional level, and all systems of public higher education are state entities. In the United States, there is simply no such thing as a national system of higher education, such as those that exist in the United Kingom and in other European countries.
This reality has at least two meaningful implications. The first is that state systems tend to guard their governance prerogatives quite jealously, and any attempt by the federal government to impose rules and regulations at any significant level of granularity will tend to be stiffly resisted. It is an important and deeply ingrained feature of American political culture that the states hate being told by ‘the Feds’ how to handle their business, and this is certainly true in the area of higher education. In the United Kingdom, by contrast, agencies such as the Higher Education Funding Council for England and Research Councils UK exercise a significant amount of regulatory and financial control over higher education nationwide.
Perhaps more important, however, is the second implication of this decentralized higher education system: the element of competition. Because the states compete with each other for the best faculty, each public system of higher education has a built-in incentive to offer relatively congenial terms of faculty employment. If, for example, the Utah System of Higher Education were to approve a policy requiring faculty at Utah colleges and universities to grant their institutions a license to act as copyright holders in faculty work, this would immediately give an advantage to the systems in nearby Colorado and Nevada and California (or even far-away Massachusetts and Florida), all of which are constantly trying to poach high-powered faculty from each other. ‘Come to the University of Florida’, one of them might easily say, ‘where we will allow you to retain all the exclusive prerogatives of copyright in your work’. This element of competition, I believe, goes a long way towards explaining both why American systems of higher education have not imposed mandatory OA policies on institutions from above and why those institutions have not imposed them on their faculties. (This is not to say that U.K. institutions do not compete with those of other countries for faculty, only that it is easier to relocate across U.S. state boundaries than to do so across European national boundaries, which greatly enhances the competitiveness of the U.S. market for faculty members.)
SECOND, ROUGHLY HALF OF U.S. NONPROFIT INSTITUTIONS OF HIGHER EDUCATION ARE PRIVATE, NOT PUBLIC
Another feature that sharply distinguishes the U.S. higher education landscape from that of the United Kingdom is the very large number of private institutions in the United States. According to the National Center for Education Statistics, in 2014, there were 4,614 degree-granting postsecondary educational institutions in the United States, a great majority of which are private (2,993) rather than public (1,621) (U.S. Education Department, Institute of Education Sciences, 2014). Of those private institutions, just under half – 1,327 – are for-profit companies, many of which focus on professional training and certification as well as the granting of traditional degrees. If the U.S. Department of Education has only loose and general oversight of the country's 50 state-based higher education systems, it has even less influence over the private institutions. Even if it were possible for the federal government to impose something like an OA policy on public colleges and universities, the policy would be applicable in only about a third of U.S. degree-granting institutions of higher education. Again, this contrasts sharply with the situation in the United Kingdom, where there is a single public system of higher education and relatively few private institutions.
THIRD, THE AMERICAN CONCEPTION OF ACADEMIC FREEDOM INCLUDES A HIGH DEGREE OF FACULTY AUTONOMY WITH REGARDS TO PUBLISHING CHOICES
In the United States, the prevailing definition of ‘academic freedom’ remains the Statement of Principles on Academic and Freedom and Tenure adopted in 1940 by the American Association of University Professors (American Association of University Professors, 1940). The body of that statement opens by saying that ‘teachers are entitled to full freedom in research and in the publication of the results’, which I believe most faculty members in the United States would interpret to mean, among other things, that it is up to them to decide how, when, where, and even whether to publish their research. While faculty tenure committees may reasonably expect candidates for tenure to have published particular kinds of work in particular kinds of venues (given that such publication is generally used as a marker of high-quality scholarship), it has traditionally been left up to the faculty member to decide whether he or she is willing to transfer his or her copyright to a publisher or wishes to make his or her work freely available to the world by means of an institutional deposit or is willing to grant his or her copyright prerogatives to the general public (by means of Creative Commons licensing or the equivalent). In the U.S., policies that take such decisions away from the faculty are very likely to be viewed as infringements on their academic freedom; hence, I believe, the near-universality of ironclad waiver language in those OA policies that do exist at American colleges and universities. Deeply entrenched principles of faculty governance require that such policies be approved by the faculty, and American faculty members, so far, seem in most cases quite unwilling to adopt policies that lessen their ability to choose for themselves how and where they will publish their work. (None of this is to say that academic freedom is not valued in the United Kingdom, of course – only that the concept of ‘full freedom in publication’ is particularly enshrined in the most commonly accepted definition of academic freedom in the United States.)
In light of these three distinguishing factors of the U.S. higher education environment, the near-complete lack of truly mandatory OA policies at the institutional level is perhaps less surprising than it may seem at first glance.
Does this mean that there are no OA mandates in the U.S.? Not at all; it means only that where such mandates exist, they have almost always been imposed by institutions outside of higher education itself – primarily by funding agencies, both private and public.
One of the most notable of these mandates is the one handed down in 2013 by the White House Office of Science and Technology Policy (OSTP), which ‘directs each Federal agency with over $100 million in annual conduct of research and development expenditures to develop a plan to support increased public access to the results of research funded by the federal Government’ (Executive Office of the President, Office of Science and Technology Policy, 2013). Since that directive, 15 of the affected agencies have submitted their plans for approval (Executive Office of the President, Office of Science and Technology Policy, 2016). It is worth noting that the OSTP memo calls for ‘public access’ as distinct from ‘open access’ – the distinction being that while the relevant agencies are required to make funded research results freely available for reading and redistribution, they do not necessarily have to make those results available under terms that freely allow commercial reuse, make possible the unrestricted creation of derivative works, and grant to the public other reuse rights that are considered by many OA advocates to be part and parcel of ‘true’ open access.
On the private side, OA advocates have had notable success in urging major grantmakers, like the Bill and Melinda Gates Foundation (2015) and the Ford Foundation (2015), to adopt much stricter OA policies with regard to the research that they fund. As those foundations draw on endowments totalling in the tens of billions of dollars between them, their policies have a significant impact on the OA landscape for U.S. researchers. In this area – that of both public and private research funding – the U.S. and U.K. landscapes are much more similar.
What does the future hold for OA policymaking in the United States? I would anticipate that the number of public access policies imposed by government funding agencies will continue to grow until they are effectively ubiquitous among those agencies; the arguments in favour of making public the results of publicly funded research are simply too compelling. However, in the sphere of U.S. institutions of higher education, I will be very surprised if truly mandatory and truly open access becomes widespread in the foreseeable future.
Biography
R. Anderson
