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  • Comparing the alignment of University Open Access Policies in Italy

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    Discussion and recommendations.

    1. Open Access policies: good and Italian practices

    In the present subsection, we are going to highlight whether OA policies adopted by Italian universities apply those OA schemes which are generally depicted as the most effective in promoting Open Access. In order to do that, we will preliminarily investigate what OA policy schemes are mainly recommended in order to foster and increase Open Access.

    The “iron law of default inertia” (Giglia 2011) has a power which should not be underestimated (Shieber 2013). It is for that reason that policies implementing an Open-Access-by-default regime are strongly recommended (Shieber 2013) (Swan 2015) (Frankel 2010) (Commission 2016). Please note, as a preliminary remark, that for an Open-Access-by-default scheme to be fruitful, a particular regime is required also for what concerns the deposit which precedes the Open Access: it should in fact be mandatory and non-waivable. However, as we are going to deal with deposit infra (§ …), we do not deepen that theme by now.

    OA policies implementing Open-Access-by-default show to be effective even when accompanied by an opt-out option: “[T]he experience at every school with a waiver option is that the waiver rate is low. At both Harvard and MIT it’s below 5 percent”, state Shieber and Suber (Shieber 2013). Even the recommendations formulated for the ten years from the Budapest Open Access Initiative – whose motto, by the way, significantly was “setting the default to open” (Initiative 2012) – left to policy-makers the choice between granting or not an OA waiver to faculty1, as if it did not weigh on the goals of the Initiative. Again, a recent research enumerated the elements of Open Access policies mainly correlated with policy effectiveness (Swan 2015): “Open Access cannot be waived” was not present. On the other hand, the European Commission – in drawing up the OA regime to be adopted in Horizon2020 – has shown to be not so favourable to according an OA waiver: the Guidelines (Commission 2016) do not mention it; the General Model Grant Agreement (Commission 2015) seems to be a little more supporting, but only through really specific exceptions not related to an author’s independent decision – “the obligation to protect results in Article 27, the confidentiality obligations in Article 36, the security obligations in Article 37 or the obligations to protect personal data in Article 39” (Commission 2015) –, and through very generic statements about author’s will, like Unless it goes against their legitimate interests, each beneficiary must — as soon as possible — ‘disseminate’ its results by disclosing them to the public”2. Anyway, note that the negative correlation between “Open Access cannot be waived” element and deposit rate has been stated (Swan). In fact, omitting a waiver option – making by consequence an author unable to publish with the journals of her choice (Shieber 2013) when they implement publishing rules inconsistent with the OA policy applied by the university – may push faculty to avoid deposit: “If authors have to worry about rights when making the decision whether to deposit in the first place, the cognitive load may well lead them to just not deposit” (Kriegsman 2011). As OA policy provisions requiring deposit – though strongly recommended for their effectiveness in promoting OA (infra, §) – are not easy to materially enforce with regard to restive faculty (infra, §), clauses discouraging deposit should be avoided. Open-Access-by-default can therefore be partitioned in waivable OA and mandatory OA. Pay attention: sometimes a policy is described as “mandatory” or as a “mandate” even when it envisage an opt-out option. It may happen for two main reasons: i. the “mandatory” character actually refers to deposit, not to OA making3; ii. as OA is set as the default, it is “mandatory” until the single faculty engage in active conduct to obtain waiver for a specific contribution4.

    OA policies following the Open-Access-by-default scheme may be distinguished also under another point of view, related to “rights holding”. Here, the discrimination point can be identified in who – according to the policy – holds rights on future contributions in order to make them Open Access: the policy may in fact directly grant the university non-exclusive rights to make future contributions by faculty OA; as an alternative, it may require faculty to retain certain rights when they publish (Shieber 2013). Please note that, when analysing an OA policy under this point of view, also the time factor must be taken into consideration. In fact, OA policies usually make a reference to a (non-exclusive) license granted by the faculty to the institution; however, such a license is most of the time not provided directly by the OA policy: instead, the faculty is required to expressly provide it in the future, with regard to each single contribution she would have written. In that case – given that the mentioned non-exclusive license to the benefit of the policy-maker is required, and not implied – the faculty holds rights on future contributions. The already mentioned extract of Recommendation 1.1 of the “Ten years on from the Budapest Open Access Initiative” recommends to follow the first path: the policy should by itself grant a non-exclusive license to the institution to make future articles Open Access. The alternative option would in fact leave the burden of negotiation with publishers in the hands of faculty, “mak[ing] access uneven” (Shieber 2013). Here, again, the position adopted by the European Commission in its Guidelines on OA (Commission 2016) is not clear. In fact, even if they state that after depositing publications […], beneficiaries must ensure open access” 5, those “beneficiaries” are usually the institutions – not the single authors –; that means that an institution could have already acquired from the faculty – even ex ante, once and for all, with a general OA policy – those rights needed in order to ensure OA, and then use those rights only after the deposit of publications. We can hence hazard to state that the European Commission is indifferent to the adoption of either of the “rights holding” alternatives.

    As we already mentioned, mandatory non-waivable deposit is a feature required for OA-by-default policies in order to be truly effective; but the very same deposit mandate – even if not accompanied by an OA mandate (waivable or not) – has per se the power of fostering Open Access (infra, §): it is not for nothing that Suber and Shieber recommend this path in those cases where policy granting non-exclusive rights to institution is an unattainable solution (Shieber 2013). From its point of view, the already mentioned Recommendation 1.1 promotes – as an alternative to non-exclusive license directly conferred by OA policy – an OA policy “requir[ing] dark or non-OA deposit in the institutional repository until permission for OA can be obtained” (Initiative 2012). Even if the two above-mentioned authors imply that the obtaining of OA permission should be attributed to the institution – “the deposit will be “dark” (non-OA) until the institution can obtain permission to make it OA” (Shieber 2013) – the plain text of the Recommendation is not so univocal: it might rather refer to the author and to permission accorded to her by the publisher, also given that it is preceded by: “When publishers will not allow OA on the university’s preferred terms, we recommend [...]”. It is therefore unclear whether the “Ten years on from the Budapest Open Access Initiative” is recommending policies imposing OA each time faculty own the rights needed in order to do so, or whether it is allowing policies requiring deposit but simply encouraging OA. Anyhow, it can be affirmed that mandatory-deposit policies are considered an option almost as good as Open-Access-by-default ones.

    Concluded this deepened foreword about what practices are generally mainly recommended in OA policies’ world, let’s now examine the Italian situation.

    First of all, OA-by-default is applied by 7,5 of the fourteen policies examined (the University of Firenze in fact require OA only with regard to contributions publicly founded).

    Secondly, none of the examined Italian policies applying OA-by-default – directly grant the university non-exclusive rights to make future contributions by faculty OA. Some doubts might have arisen with regard to the University of Bergamo, as its policy states contributions are made Open Access after notice to the author, and not after author’s authorization 6. However, the policy does not make reference to any (non-exclusive) license, and least of all to any license or right directly conferred through the policy to the institution. From the sole examination of the text of the policy, it is therefore not easy to discern the regime actually applied. However, the policy-maker confirmed that faculty have to sign a non-exclusive license while depositing a contribution: it is that successive license which confers rights to the institution. Some doubts could at first sight have arisen also with regard to the University of Ferrara, as its policy states that the author “grants” (and not “must grant”) a non-exclusive license to the institution 7: according to Suber and Shieber, such expression should in fact be used by institutions in order to obtain rights directly through the policy (Shieber 2013). This is certainly a good advice, but it is not per se sufficient in ensuring a license conferred through the policy. For example, in the case of University of Ferrara, it can be clearly understood that the license is a following act, to be accomplished by the faculty after having negotiated with the publisher 8. Let’s by the way underline that the ROARMAP field “Rights holding” cannot help in clarifying the doubts which could emerge with regard to who, according to the policy, has the rights to make the contribution OA: in fact – given the absence of official more extensive indications about how to interpret each field (infra, §) –, answer “Author retains key rights” is generally chosen by policy-makers every time the policy makes reference to a “non-exclusive license” as “non-exclusive” means that the author is not deprived of her copyright on the contribution. See for example the OA policy by the Politecnico di Milano, which explains that “non-exclusive license” means that “the author maintains complete control of copyright and can then transfer it to a publisher if required” 9. A more specific definition of what are considered – according to the ROARMAP analysis – as “key rights” would certainly help. The missed adoption of OA policies directly granting rights to the policy-maker should not surprise. The CRUI Guidelines underlined how the decision of Harvard’s Faculty of Arts and Sciences to apply such a scheme has generally raised astonishment (CRUI 2009). Moreover, applying such a regime would require to face the issue concerning the relationship between a previous non-exclusive license conferred to the institution and a following inconsistent (exclusive) license conferred to a publisher: could the author be sued by the latter for breach of contract if her contribution is made Open Access?10

    Thirdly, for what concerns OA waiver, it is difficult to bring Italian situation to the waivable vs. mandatory scheme depicted above. In fact, of the seven OA-by-default policies, all allow to waive Open Access when the publisher does not permit to make the Article OA and when other specific circumstances oppose OA (e.g., security, privacy, patentability). However, none of them allows faculty to waive OA on the basis of their own mere will, not justified by a (specific) reason11. Therefore, we cannot talk about an “OA waiver” in the acceptation used, for example, by Suber and Shieber, who – as we mentioned above – recommended it: “Faculty needn’t meet a burden of proof or offer a justification which might be accepted or rejected” (Shieber 2013). However, such “restricted” waiver applied by Italian policies would perfectly fit one of the two interpretations – i.e., recommendation of policies imposing OA each time faculty own the rights needed in order to do so – proposed above of the ambiguous excerpt of Recommendation 1.1 of the “Ten years on from the Budapest Open Access Initiative” (supra, …) .

    Obviously, all the seven policies mentioned above for applying OA-by-default also apply a mandatory regime for deposit. However, not all of them establish this requirement as waivable: Politecnico di Milano’s policy-maker stated that the institution accords deposit waiver to faculty; University of Torino’s policy allow waiver in specific cases; Universities of Ferrara’s and Napoli Federico II’s policies do not specify anything about the deposit waiver regime. Therefore, only Universities of Bergamo, of Milano, and of Padova apply the OA-by-default regime truly recommended: the one which also envisages a non-waivable deposit requirement.

    We stated that a policy establishing a mandatory and non-waivable deposit requirement would have also been effective enough even if not accompanied by an OA requirement. Therefore, for what concerns those seven residual Italian policies not applying an OA-by-default regime, but only requesting or recommending OA, we can notice that only University of Trieste applies such recommended alternative regime of deposit.