RE: the Double-Meaning of (Open Access) "Mandate"

["Joseph Esposito" <espositoj@gmail.com>]

Are we talking about "double meaning" here or "double talk"? 
Corrupting the language doesn't make for a better world.

Joe Esposito

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Stevan Harnad
Sent: Sunday, July 05, 2009 6:09 PM
To: SPARC Open Access Forum
Subject: the Double-Meaning of (Open Access) "Mandate"

*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 
positiveincentives (rewards 
<http://listserver.sigmaxi.org/sc/wa.exe?A2=ind06&L=american-scientist-open-access-forum&F=l&P=13736>forfirst 
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=UTF8&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>