[BOAI] What's in a Word? To "Legislate" and/or to "Legitimize": the Double-Meaning of (Open Access) "Mandate"

[Stevan Harnad]

*Re:* Shieber, Stuart (2009) University open-access policies as
mandates<http://blogs.law.harvard.edu/pamphlet/2009/06/30/university-open-access-policies-as-mandates/>.
*The Occasional Pamphlet on scholarly communication*.


Although there is a hint of the hermeneutic in his
reflections<http://blogs.law.harvard.edu/pamphlet/2009/06/30/university-open-access-policies-as-mandates/>
on
the uses of the word "mandate," I think Stuart Shieber, the architect
of Harvard's
historic Open Access (OA)
policy<http://www.eprints.org/openaccess/policysignup/fullinfo.php?inst=Harvard%20University%3A%20Faculty%20of%20Arts%20and%20Sciences>
is
quite right in spirit. The word "mandate" is only useful to the extent that
it helps get a deposit policy officially adopted -- and one that most
faculty will actually comply with.

First, note that it has never been suggested that there need to be penalties
for noncompliance. OA, after all, is based solely on
benefits<http://opcit.eprints.org/oacitation-biblio.html> to
the researcher; the idea is not to coerce researchers into doing something
that is not in their interest, or something they would really prefer not to
do.

Indeed, the author surveys <http://eprints.ecs.soton.ac.uk/11006/> and outcome
studies<http://fcms.its.utas.edu.au/scieng/comp/project.asp?lProjectId=1830>
that
I have so often cited provide evidence that -- far from being opposed to
deposit mandates -- authors welcome them, and comply with them, over 80% of
them willingly.

It is hence natural to ask: if researchers welcome and willingly comply with
deposit mandates, *why don't they deposit without a mandate?*

I think this is a fundamental question; that it has an answer; and that its
answer is very revealing and especially relevant here, because it is related
to the double meaning of "mandate", which means both to "legislate" and to
"legitimize":

There are many worries (at least
34<http://www.eprints.org/openaccess/self-faq/#32-worries> of
them, all groundless and easily answered) keeping most authors from
self-archiving on their own, unmandated. But the principle three are worries
(1) that self-archiving is illegal, (2) that self-archiving may put
acceptance for publication by their preferred journals at risk and (3) that
self-archiving is a time-consuming, low-priority task for already overloaded
academics.

Formal institutional mandates to self-archive
alleviate<http://eprints.ecs.soton.ac.uk/12094/> worries
(1) - (3) (and the 31 lesser worries as well) by making it clear to all that
self-archiving is now an official institutional policy of high priority.

Harvard's mandate alleviates the three worries (although not, in my opinion,
in the optimal<http://openaccess.eprints.org/index.php?/archives/494-guid.html>
way)
by (1) mandating rights-retention, but (2) allowing a waiver or opt-out if
the author has any reason not to comply. This covers legal worries about
copyright and practical worries about publisher prejudice. The ergonomic
worry is mooted by (3) having a proxy service (from the provost's office,
not the dean's!) do the deposit on the author's behalf.

The reason I say the Harvard mandate is not optimal is that -- as Stuart
notes -- the crucial condition for the success and universality of OA
self-archiving mandates is *to ensure that the deposit itself gets done,
under all conditions*, even if the author opts out because of worries about
legality or publisher prejudice.

This distinction is clearly made in the
FAQ<http://openaccess.eprints.org/index.php?/archives/545-guid.html>
accompanying
the Harvard mandate, informing authors that they should deposit their final
refereed drafts upon acceptance for publication *whether or not they opt out
of making access to their deposits immediately OA*.

Harvard's mandate itself (not just the accompanying FAQ) should have
required immediate deposit, and the opt-out clause should only have
pertained to whether or not access to that deposit is immediately made
OA<http://openaccess.eprints.org/index.php?/archives/364-guid.html>.
The reason is that Closed
Access<http://openaccess.eprints.org/index.php?/archives/274-guid.html>
deposit
moots both the worry about legality and the worry about journal prejudice.
It is merely an institution-internal record-keeping matter, not an OA or
publication issue.

But even though the Harvard mandate is suboptimal in this regard, this
probably does not matter greatly, because the combination of Harvard's
official mandate and Harvard's accompanying FAQ have almost the same effect
as including the deposit requirement in the official mandate would have had.
The mandate is in any case noncoercive. There are no penalties for
noncompliance. It merely provides Harvard's official institutional sanction
for self-archiving and it officially enjoins all faculty to do so. (Note
that both "injunction" and "sanction" likewise have the double-meaning of
"mandate": each can mean either officially legislating something or
officially legitimizing something, or both.)

Now to something closer to ordinary English: There is definitely a
difference between an official *request* and an official*requirement*; and
the total failure<http://www.taxpayeraccess.org/nih/2007housecalltoaction.html>
of
the first version of the NIH policy (merely a request) -- as well as the
failure of the current request-policies of most of the planet's current
institutional repositories -- has shown that only an official requirement
can successfully generate deposits and fill repositories -- as the subsequent
NIH policy upgrade to a
mandate<http://www.libraryjournal.com/info/CA6581624.html#news1> and
the 90 other institutional and funder
mandates<http://www.eprints.org/openaccess/policysignup/> worldwide
are demonstrating.

So whereas the word "mandate" (or "requirement") may sometimes be a handicap
at the stage where an institution is still debating about whether or not to
adopt a deposit policy at all, it is definitely an advantage, indeed a
necessity, if the policy, once adopted, is to succeed in generating
compliance: Requirements work, requests don't.

All experience to date has also shown that whereas adding various positive
incentives (rewards<http://listserver.sigmaxi.org/sc/wa.exe?A2=ind06&L=american-scientist-open-access-forum&F=l&P=13736>
for
first depositors, "cream of
science<http://www.ariadne.ac.uk/issue53/waaijers/>"
showcasing, librarian assistance and
proxy-depositing<http://www.eprints.org/documentation/handbook/libraries.php>)
to a mandate can help accelerate compliance, no penalties for noncompliance
are needed. Mandates work if they are officially requirements and not
requests, if compliance monitoring and implementation procedures are in
place, and if the researcher population is well informed of both the mandate
requirements and the benefits of OA.

Having said all that, I would like to close by pointing out one
sanction/incentive (depending on how you look at it) that is already
implicitly built into the academic reward system: Is "publish-or-perish" a
mandate, or merely an admonition?

Academics are not "required" to publish, but they are well-advised to do so,
for success in getting a job, a grant, or a promotion. Nor are publications
merely counted any more, in performance review, like beans. Their research
impact is taken into account too. And it is precisely research impact that OA
enhances <http://opcit.eprints.org/oacitation-biblio.html>.

So making one's research output OA is already connected causally to the
existing "publish-or-perish" reward system of academia, whether or not OA is
mandated. An OA mandate simply closes the causal loop and makes the causal
connection explicit. Indeed, a number of the mandating institutions
have procedurally
linked <http://openaccess.eprints.org/index.php?/archives/502-guid.html> their
deposit mandates to their performance review system:

Faculty already have to submit their refereed publication lists for
performance review today. Several of the universities that mandate deposit
have simply indicated that *henceforth the official mode of submission of
publications for performance review will be via deposit in the Institutional
Repository*.

This simple, natural procedural update -- not unlike the transition from
submitting paper CVs to submitting digital CVs -- is at the same time all
the sanction/incentive that academics need: To borrow the title of Steve
Lawrence's seminal 2001 Nature
paper<http://citeseer.ist.psu.edu/online-nature01/> on
the OA impact advantage: "*Online or Invisible*."

Hence an OA "mandate" is in essence just another bureaucratic requirement to
do a few extra keystrokes per
paper<http://blogsearch.google.ca/blogsearch?hl=en&num=100&c2coff=1&safe=active&ie=UTF-8&q=%22keystroke+mandate%22+blogurl:http://openaccess.eprints.org/&filter=0&sa=N>,
to deposit a digital copy in one's institution's IR. This amounts to no more
than a trivial extension <http://eprints.ecs.soton.ac.uk/10688/> to the
existing mandate to do the keystrokes to write and publish the paper in the
first place: Publisher or Perish, Deposit to
Flourish<http://www.ercim.org/publication/Ercim_News/enw64/harnad.html>
.

*Stevan Harnad <http://www.eprints.org/openaccess/>*
American Scientist Open Access
Forum<http://amsci-forum.amsci.org/archives/American-Scientist-Open-Access-Forum.html>
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