Open Access and Academic Freedom

Over the last decade there has been a rapid evolution toward increased scholarly publishing online. Much of it remains proprietary publishing available only through paid access, but there are now a number of peer-reviewed gold access online scholarly journals, and book publishers commonly make a table of contents and a sample chapter freely available. Google meanwhile has made the complete texts of millions of public domain books available for free. And there are countless websites devoted to more narrowly defined online publishing projects.

After an initial impetus toward mandating that all Illinois public university faculty put their published articles online for free six months after publication, the Illinois legislature instead passed Public Act 098-0295 in August 2013, a bill directing universities to come up with a plan to deal with the possibility and desirability of making scholarly publications freely available to all citizens. The Illinois law deserves some national publicity since other states may do the same. Existing university policies have generally been adopted by faculty senates. Illinois is initiating a policy through legislative action.

While a university would be performing a useful service by giving faculty a vehicle for voluntary self-archiving, making it possible for them to reprint publications freely online, it would be quite another matter for either a public or a private university to require faculty to place all their publications there. An optional, but not mandated, green access model (in which faculty can reprint publications on a university website) would increase the public availability of published research and promote a trend toward open-access publishing without constraining faculty publication rights.

Yet either an optional or a mandated online publication policy will require adequate funding if it is to fair and practical. Colleges and universities have long needed a stronger commitment to publishing support that makes non-commercial scholarly communication a part of the fabric of the institution. But open access systems require new infrastructure, including appropriate software and either new staff to handle the responsibility or a reassignment of existing staff.

The national American Association of University Professors (AAUP) stands firmly behind the principle that academic freedom guarantees faculty members the right not only to decide what research they want to do and how to do it but also the right to decide how the fruits of their research will be disseminated. Academic freedom does not terminate at the moment when you create a publishable book or essay.

Publications have long been covered by copyright law, and faculty members in the modern university have traditionally owned the rights to work they create that can be copyrighted. It would be a major change in intellectual property tradition, policy, and law for a state or a university to claim ownership or control. Of course a university-mandated free publication requirement does not appear on the surface to affect ownership, but in fact it eviscerates ownership by divesting it of meaningful control. A Creative Commons license is only of limited help at that point, since a freely available publication has pretty much lost all the commercial value associated with copyright.

A policy mandating free and open online publishing — even after a defined period of time — would violate academic freedom and potentially cause serious harm to faculty members. Such a policy relies implicitly on the assumption that both public and private university faculty are no different from other state or company employees, indeed that they are all equivalent to corporate employees, subject to the unqualified workplace dictates of the state or the corporation. But U.S. courts have long recognized that academic freedom is an important value in higher education and that it limits the control the state or an institution can exercise over the distinctive faculty speech rights entailed in teaching and research. A university policy that preempts a potential contract between a researcher and a publisher would abridge academic freedom.

A state-mandated blanket policy requiring open-access publishing would also change the conditions of employment for existing faculty who were hired without such a restriction, effectively significantly changing their academic freedom expectations without their consent. Such a change could not be imposed on individuals by a collective decision or by a vote by a representative body.

The harm at issue would vary by discipline and form of publication. An assistant professor’s tenure case could be seriously damaged if he or she had to seek publication only in gold access journals (those online from the outset) or in journals permitting green access (delayed self-archiving), rather than in the best journals in the field. Science disciplines whose academic journals have traditionally levied page charges, costs often built into grants, may be relatively well-positioned to handle processing fees from open access journals. Humanities, fine arts, and social science disciplines with no such traditions and no such revenue sources would find such a mandate not merely damaging but impossible to honor.

There may well be another disciplinary disadvantage built into a specified wait time for an open-access electronic version to become available. Prospective individual buyers of expensive hardbound academic books typically wait until a paperbound edition is published or until a used hardbound copy becomes available from an online used book service. Faced with a one-year wait for a free electronic copy, how many individuals or libraries would still buy either an electronic or a material version of a scholarly book at all? Paid electronic or hard copy journal subscriptions in many fields would certainly suffer the same fate. Scientists, engineers, or medical faculty might successfully lobby their institutions for more rapid access to the latest papers, but how many humanities disciplines could convincingly wage such a campaign? Mandated gold or green access at least for now is likely to seriously disadvantage humanities, arts, and interpretive social science fields.

Such a campus requirement would be an open invitation for humanities and fine arts faculty who could do so to move elsewhere and would make recruitment in such disciplines much more difficult. Imagine telling a potential senior hire that he or she would have to switch to a publisher supporting green access if they came to your campus.

In any case, gold access publications typically need mechanisms to cover their editorial, copyediting, design, and promotional costs. Nothing would be accomplished by a state or university policy that ignores that reality. Nor is anything to be gained from a university deciding that it knows what is best for publishers on campus or elsewhere.

Given the Illinois bill’s legislative history, concern about its intent may justify raising some questions about the law. Although the Illinois law refers to “articles,” not books, it is not clear that the legislature recognized the difference between article and book publication, or whether such distinctions as those between authored and edited books were anywhere in play. Is a book chapter in an edited book an article? And one may reasonably wonder whether an effort to mandate online book publication might follow. Edited books, for example, would almost always encompass authors from other states or countries; in cases where work was being reprinted the copyrights held by both profit and nonprofit publishers in other states and countries would be at issue. No editor would be likely to be able to get such a range of other publishers to agree to grant open-access online publishing rights to documents whose copyrights they control. An editor would simply have to abandon such a project if he or she had to obtain online publishing rights for its contents, an obvious and intolerable abridgement of academic freedom.

Even a two-year moratorium on open access publication of book chapters would be highly problematic, since that is commonly the point when a publisher seeks to market a paperbound edition. An open access policy limited to journal articles would be far more manageable, but even that should be voluntary.

Even the definitional problems just listed are not well-handled in existing university open access policies. As a University of Illinois library committee noted when it compared policies at Harvard University, the Massachusetts Institute of Technology and the University of California, all refer exclusively to “scholarly articles,” without defining the term. Is a piece of creative nonfiction a scholarly article? Might it convey research findings? Nor is it clear whether the policies cover adjunct or part-time faculty. My own view is that adjunct faculty should be given the opportunity to archive their publications but never be required to do so.

Academic freedom means that a faculty member has the right to choose which journals to publish in and which publishers to offer a book project. Journal editors and book publishers often also approach a faculty member with a potential project. Again, academic freedom grants faculty members the right to accept or reject such offers. A faculty member cannot be required to publish in places that have adopted gold open-access publishing principles or that grant green open-access reprint rights to their authors. A faculty member can, however, request that a contract for publishing an essay be granted through a “nonexclusive first publication rights only” clause, and some publishers who are inclined to offer (or initially do offer) more restrictive contracts are willing to accept such language. That should enable reprinting rights on a university web site. A university policy mandating online reprinting will persuade some, but likely not all, publishers to cooperate, and it still compromises faculty rights. A book publisher, moreover, is far less likely to agree to such terms for an entire book. And those faculty members who regularly propose gathering their scattered journal articles into a book will find that almost impossible to do if all the articles are already available on a university website.

It is also inappropriate for a state to mandate open-access publishing for university published or edited books or journals. A university press has to have the freedom to follow its own rationally chosen business model. Such business models do not typically entail a one-size-fits-all model covering every book and journal. Indeed a press may rely heavily on the income from a few highly marketable books. On the other hand, a press might decide that a particular book would benefit from simultaneous or relatively rapid online open access publication. And in some cases sales of the book might benefit. Publishing professionals with the expertise to make such decisions must be left to do.

That said, there are many benefits to gold access online publication. There is the potential to reach wider audiences and the chance of doing so rapidly. Educational outlets like Times Higher Education and Inside Higher Ed that operate with in-house editorial (rather than peer reviewed) decision making can sometimes publish in a week or less, which can be a considerable benefit with time sensitive publications.

Books that really have no likelihood of reaching a broad audience may be better off being published freely online than in a hardbound edition that can barely sell 200 copies. But that reality does not address editorial cost recovery or the relative prestige issues that faculty have a right — because of academic freedom — to take into account when they make publication decisions. Nor does it make sense to tell an author or publisher that they should not limit a book that can readily sell thousands of copies to a print edition or that they should offer it for free instead. Indeed there are numerous academic authors who publish with commercial publishers who would be quite amused at the suggestion they offer their books or journals for free.

At least at present, moreover, a university press would be at a tremendous — and likely fatal — disadvantage if it offered only online book publication, given that many authors still want to see their book manuscripts published as books and that university tenure and promotion committees still value physical books more highly than electronic ones. A university would garner a very rich bouquet of bad publicity, no few lawsuits, and likely AAUP action if it tried to restrict its faculty to either gold or green access publishers. We all, of course, know the example of a rogue publisher of academic journals that charges extortionate prices for its publications. But that requires targeted action, not a wholesale regime of academic freedom restraint as a solution.

The bottom line is that universities should move forward with increased gold and green publishing opportunities, not with mandates, prohibitions, and penalties — and with faculty leadership and attention to differences in types of publications, fields, and, most importantly, the preservation of individual choice. Faculty need a mechanism to opt out of the expectation that articles will be made freely available without offering a reason. Such an opt-out mechanism should, like that at Berkeley, be automatic, automated, and immediate. Not overseen by a bureaucrat making decisions about what does and does not qualify for an exception. One hopes that, with a system to encourage, but not mandate, open access publishing, the state legislature, including the bill’s main sponsor, will be satisfied. If not, as I’ve tried to indicate, we will be in for a rough ride.