The Hybrid Copyright Retention and Deposit Mandate

From: Stevan Harnad <>
Date: Fri, 22 Feb 2008 21:49:07 +0000

Hyperlinked version:

    SUMMARY: In a blog posting that I quote and comment upon below, my OA
    comrade-at-arms, Peter Suber, compares Harvard's Copyright-Retention
    Mandate, with opt-out (CMo), with an immediate Deposit Mandate,
    with no-opt-out (DMn). The amendment of the Harvard mandate that I
    am urging, however, is not to substitute DMn for CMo but to upgrade
    CMo so as to jointly mandate BOTH CMo AND DMn (the former with an
    opt-out option, the latter without: CMo+DMn). That way the Harvard
    policy will capture all the deposits that would have been made by
    authors who did not opt out of copyright retention PLUS the deposits
    that would not have been made, because the author had opted out of
    the copyright retention clause. The amended mandate only gains;
    it loses nothing at all of what would have been generated by the
    original Harvard mandate alone.

> Peter Suber: I'm not saying that the Harvard-style mandate
> will generate a higher level of compliance and OA than a dual
> deposit-release style mandate (or what Stevan calls immediate
> deposit/optional access). I think this remains to be seen.

I agree that whether CMo or DMn would generate a higher level of
compliance and of OA would remain to be seen (though we already know
from Arthur Sale's data that DMn approaches 80-100% within two years).

But that is not what I propose. I propose adding the Deposit Mandate
(with no opt-out) (DMn) to Harvard's current Copyright Retention Mandate
(CMo) (with opt-out, exactly as it already is now):

Not CMo vs. DMn, but CMo vs. CMo+DMn.

> Peter Suber: At Harvard, faculty will give the institution permission
> to host copies of their articles in the institutional repository,
> when they don't opt out, and Harvard will take responsibility for
> making the actual deposits.

There are two components here: (1) the CMo mandate itself, plus (2) an
implementational detail: Harvard engages to do the deposit on the
author's behalf (this is elsewhere called mediated or "proxy" deposit).

There are things to be said for and against this implementational
detail: Yes, it's easier for an author if all he needs to do is pass his
digital paper to someone else to deposit it for him. Many repositories
have tried that, with a certain amount of success.

But authors depositing for themselves (or their students or assistants
doing it for them) is a more direct way of doing it then putting it in a
central queue, and it has some perks of its own: potentially faster
turnaround time, more direct author control, assimilation into the
author's standard routine for drafting and publishing a paper. And it
only takes a few minutes worth of keystrokes per paper, over and above
all the keystrokes involved in writing it and submitting it for

More important, direct author deposit does not risk a delay in waiting
for indirect deposit mediated by a third party (neither the author nor
the journal).

The jury is still out on which of the two ways of implementing deposit
is the more reliable and efficient deposit procedure (but my guess is
that it will prove to be direct author deposit).

> Peter Suber: If Harvard is fleet and efficient in making these
> deposits, then it could provide immediate OA to all the articles not
> subject to opt-outs (which, for the sake of argument, let's peg at
> 95% of the total).

I will leave the implementational detail (direct vs mediated deposit) as
an open empirical question.

But it does not seem to me to be sufficient to assume, for the sake of
argument, a 95% non-opt-out rate -- especially in weighing CMo vs.

If, three years hence, the non-opt-out rate turned out to have been 75%,
50% or 25%, the implications concerning whether it would have been
better to adopt CMo or CMo+DMn from the outset would be very different.

So everything rides on what the actual opt-out rate for CMo would
actually turn out to be, and no one has any idea, as this would be the
first CMo mandate.

But since the comparison is CMo vs. CMo+DMn (rather than CMo vs. DMn),
it is not clear that we need to know how the deposit rate and the OA
rate for CMo alone would compare to the OA rate for DMn alone.

We do already know from Arthur Sale's empirical analyses as well as the
growth data on the other mandated IRs, that the compliance rate for DMn
mandates approaches 100% within 2 years.

So with CMo+DMn we know we would have at least 80-100% deposits -- plus
whatever deposits CMo alone would have yielded, over and above that. (No
need to know or assume how many would have been: CNo+DMn would inherit
them all.)

> Peter Suber: If Harvard is slow to make these deposits, then it will
> miss a beautiful opportunity arising from the permissions it will
> have in hand, and may as well defer to publisher embargoes.

Peter is expressing concern here about the possible delay in mediated
deposit (I am concerned about that too) and comparing that to the delay
arising from publisher embargoes.

But a far bigger worry is the opt-out rate, hence the size of the loss
in deposits (both the OA deposits and Closed Access, almost-OA

Moreover, my proposed amendment, CMo+DMn, included an implementational
suggestion too, that would help remedy this: The Harvard Mandate does
not currently stipulate how the paper is to be provided to the Provost's
office for mediated deposit. One potential way is by email. But another
is by the author's depositing it directly in Harvard's Institutional
Repository and just emailing the Provost's office the URL plus the
permission. This would cover those cases where the author does not
opt-out of the CMo component of CMo+DMn.

But even in cases where the author does opt out of the CMo component of
CMo+DMn, there would still be the DMn component, requiring the deposit
in the IR, and its resultant OA and almost-OA (which, if mandated
without allowing opt-out, would total 80-100% within two years).

> Peter Suber: Likewise, if opt-outs are rare, the level of OA could
> approach 100%; if they are common, it would be much lower.

This just repeats that we have no idea what the opt-out rates of a CMo
mandate would be, with or without mediated deposit. If opt-out is low,
it's low, if it's high, it's high. Unlike with DMn, we do not know in
advance what it will be. (But we do know that another prominent policy
with an opt-out -- the initial NIH non-mandate -- failed dramatically
until the opt-out was removed by upgrading it to a mandate, after the
attendant loss of another three years of research access, usage and

> Peter Suber: By contrast, under a dual deposit-release strategy,
> Harvard could have 100% of the articles on deposit. But a good
> percentage of them would be subject to publisher embargoes and about
> one-third of them would be subject to flat publisher prohibitions
> on OA archiving.

The current figures are: 62% of journals endorse making postprint
deposits OA immediately (and an additional 29% for preprints); about 38%
only endorse making postprint deposits OA after an embargo period --
which ranges from 6 months to forever.

(Let's round off the immediate/embargo ratio at 60% of deposits set as
immediate OA and the remaining 40% of deposits set as "Closed Access,"
but with almost-OA provided during the embargo by the semi-automatic
"email eprint request" Button.)

Now here is the critical point: Peter is here comparing the deposit rate
(100%) and OA rate (60%) for a no-opt-out DMn mandate alone with the
corresponding deposit and OA rate for a CMo mandate with opt-out (in that
case both percentages being, identically, the unknown percentage: XX%).

But the relevant comparison for my proposed amendment would be the
deposit rate and OA rate (both XX%) for CMo alone versus the deposit
rate and OA rate for CMo+DMn:

Those are, respectively, XX% + 100% = 100% and XX% + 60% (which is at
least 60%, plus whatever the non-opt-out copyright retention rate is for
the articles that are not already part of that 60%).

In other words, there is no loss in copyright retention and only
potential gain in OA, with CMo+DMn, compared to CMo alone.

And let's not forget that, with 100% deposit, there will also be
systematic almost-immediate, almost-OA for all the non-OA deposits
(thanks to the semi-automatic "email eprint request" Button). That too
is a pure gain, with no loss, compared to the current CMo-only policy.

> Peter Suber: Hence, each type of policy risks delayed OA (one
> through institutional sluggishness, one through publisher embargoes),
> and each risks incomplete OA (one through faculty opt outs and one
> through deference to publisher policies).

Peter is here comparing (1) delay because of mediated deposit arising
from CMo alone with (2) delay because of publisher embargoes arising DMn

But for the proposed amendment, the pertinent comparison would be
between CMo alone and CMo+DMn. And that comparison shows that there
would be no losses and only gains, if CMo were upgraded to CMo+DMn,
whether in terms of opt-outs, deposits, OA, almost-OA or delays.

Here's another way to put this same point. The comparison between CMo
and CMo+DMn must take into consideration:

        (1) Green publishers that endorse immediate author postprint
self-archiving but do not agree to rights-retention (i.e., they insist
on exclusive rights transfer despite the pressure from CMo mandates like
Harvard's): Authors who would not want to renounce those journals, would
opt out. Hence no deposit and no OA, even for those Green journals.

        (2) Embargoed or Gray publishers that don't agree to rights
retention (despite the pressure from CMo mandates like Harvard's): Here
again, authors who don't want to renounce those journals opt out. Hence
no deposit and no almost-immediate, almost-OA...

Hence it is essential to include in one's reckoning the (1) unknown
Green opt-outs and their resulting non-deposits and OA loss, plus the
(2) unknown Pale-Green and Gray opt-outs and their resulting
non-deposits and loss of almost-OA. Both of these would arise from
opt-out because of unwillingness or failure to renegotiate CMo.

(Harvard's speed in doing mediated deposit, though salient too, is not,
I think, nearly as critical as the risk of loss of (1) and (2).)

> Peter Suber: If the two key variables -- speed of deposit and level of
> opt-outs-- work in Harvard's favor, then its policy could be better
> than a dual deposit-release strategy. But if not, not. Because this
> is contingent, I can't recommend one type of policy over the other
> without knowing more about the probabilities.

Again, this empirical uncertainty is pertinent to a comparison between
the CMo policy and the DMn policy.

But the comparison I am recommending is between the CMo policy and the
CMo+DMn policy. There we can already calculate apriori that CMo+DMn can
only be better, not worse, than CMo alone, on all points of comparison:
deposits, delays, opt-outs, OA, and almost-OA.

> Peter Suber: Because Harvard's is the first university-level mandate
> to focus on permissions rather than deposits, it deserves a chance
> to show how well it can work.

Yes. But adopting CMo+DMn instead of CMo alone does not diminish that
chance one bit: It just adds additional, independent likelihood of
success to it.

Or, put another way, it makes it possible to experiment with a Copyright
Mandate without any need to sacrifice the already demonstrated success
and benefits of a Deposit Mandate in exchange.

> Peter Suber: Can the two types of policy be blended, so that Harvard
> faculty give permissions (subject to an opt-out) and make deposits
> (not subject an opt-out)? Yes. But if Harvard is fleet and efficient
> in making the deposits, that won't be necessary.

The degree to which CMo+DMn would generate (1) more deposits, (2) more
OA and (3) more almost-OA than CMo alone depends on what the (unknown)
opt-out rate for CMo alone will prove to be.

CMo+DMn is accordingly an insurance policy. Whether an insurance policy
was necessary is only known after the insured period has elapsed. But in
this case, since the insurance policy would cost nothing but a consensus
from Harvard, I think Harvard has nothing to lose and everything to gain
if it adopts CMo+DMn now, from the outset, rather than waiting for the
three year trial period to elapse.


The following is not from Peter's blog posting but from an off-line
email exchange (reproduced with permission):

> Peter Suber (email): "I'd have no objection to the addition of [a DMn]
> mandate (indeed, I'd be among the first to call for the addition of
> such a mandate) if it would improve upon the procedures Harvard puts
> in place to make the deposits itself."

It would not only improve on the implementation of the submission and
deposit process, but -- incomparably more important -- it would improve
on the deposit rate, the OA rate, and the almost-OA rate! All the gains
would be from the (unknown) percentage of authors who would opt out of
the present CMo mandate. And CMo+DMn would not lose anything from what
the present CMo mandate will generate from the authors who would not opt

> Peter Suber (email): However, it's certainly possible that if the
> original resolution had included a deposit mandate, it would not have
> been adopted by faculty. We'll never know."

Peter, when you give your talk at Harvard's Berkman Center on March 17
(assuming that the CMo policy has not been miraculously upgraded to
CMo+DMn in the meanwhile!), would you consider raising the following
three questions explicitly:

        (i) Was Harvard's successful consensus on adopting CMo reached
because of the "C" (Copyright Retention) or the "o" (the option to opt

        (ii) Would consensus not have been reached with CMo+DMn (or DMn

        (iii) Having reached consensus on CMo, is it not now possible to
reach consensus on upgrading CMo to CMo+DMn?

Because if CMo+DMn was not even considered in the FAS deliberations, or
it was not adopted because of concern that a policy without an opt-out
would not be complied with, then it might be helpful to point out (1)
Alma's Swan's international, cross-discipline author survey results,
which found that 95% of researchers report they would comply with an OA
self-archiving mandate from their universities or their funders (81% of
them willingly); and (2) Arthur Sale's comparative studies on actual
author behaviour, which confirmed that the OA self-archiving rates for
universities with an OA self-archiving mandate (with no opt-out!)
approach 80-100% within 2 years of adoption, whereas universities where
deposit is not mandatory languish at deposit rates of c. 15%.

With CMo+DMn Harvard has nothing to lose and everything to gain. Perhaps
if this is made sufficiently clear now, an upgrade is still possible,
rather than waiting for a 3-year trial period to decide (as with the
first, failed NIH policy)...

Stevan Harnad

If you have adopted or plan to adopt a policy of providing Open Access
to your own research article output, please describe your policy at:

    BOAI-1 ("Green"): Publish your article in a suitable toll-access journal
    BOAI-2 ("Gold"): Publish your article in an open-access journal if/when
    a suitable one exists.
    in BOTH cases self-archive a supplementary version of your article
    in your own institutional repository.
Received on Fri Feb 22 2008 - 23:44:19 GMT

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