(1) Two Kinds of OA: Gratis and Libre: There are two kinds of Open Access (OA) — “gratis” (free online access) and “libre” (free online access plus certain re-use rights) — but Gideon Burton seems to be writing about OA as if there were only one kind (“libre”). (See: “Open Access: ‘Gratis’ and ‘Libre’“)
The gratis/libre distinction matters a lot, because it is critical to the strategy for successfully achieving OA (of either kind) at all. There is still very little OA today, but most of what OA there is is gratis, not libre. The fastest and surest way to achieve 100% OA is for universities and funders to mandate OA, and they are at last beginning to do so. But universities and funders can (and hence should) only mandate gratis OA, not libre OA. All peer-reviewed journal article authors are “give-away authors“: They want their work to be freely accessible online. But most do not want their texts themselves (as opposed to just their findings) to be re-used and re-mixed as if they were data, software, or disney cartoons. Author-sanctioned re-use rights can come after we have reached 100% gratis OA; needlessly insisting on them pre-emptively only hampers progress toward reaching 100% OA itself. (See: “The Giveaway/NonGiveaway Distinction”)“.
(2) Two Ways to Reach 100% OA: The Golden Road and the Green Road: There are two roads to 100% OA, the “golden road” of authors publishing in OA journals and the “green road” of authors publishing in conventional journals but also self-archiving their articles in their own Institutional Repositories (IRs) to make them OA. (See: “OA Publishing is OA, but OA is Not OA Publishing“).
The green/gold distinction matters even more than the gratis/libre distinction, because Green OA can be mandated by universities and funders, whereas gold OA cannot. Moreover, most journals already have a green (63%) or pale-green (32%) policy on author OA self-archiving, whereas only about 15% of journals are gold OA journals, and the rest cannot be mandated by universities and funders to convert. Universal green OA self-archiving mandates may eventually induce publishers to convert to gold, but they cannot do so if we do not first adopt the green mandates. “Gold Fever” — treating OA as if it just meant gold OA — is the single most common error made by commentators on OA (whether proponents or opponents). (See: “Please Don’t Conflate Green and Gold OA“).
(3) Two Ways Not to Try to Mandate OA: Too Strong and Too Weak: Gideon Burton is a proponent of a green OA mandate at his own university (Brigham Young University, BYU), and this is very timely, valuable, and welcome. But in advocating the Harvard mandate model — which is not just a mandate to provide green, gratis OA by depositing articles in the institutional repository, but a requirement for authors to successfully negotiate with their publishers the retention of certain re-use rights — Gideon is advocating a mandate that is both stronger and weaker than necessary. Not only does such a nonoptimal mandate model make it less likely that a consensus will be successfully reached on adopting an OA mandate at all (has BYU adopted this OA mandate?) but it also makes full author compliance uncertain even if a consensus on adoption is successfully achieved. (See: “Which Green OA Mandate Is Optimal?“)
The reason the Harvard mandate model is too strong is that it requires more than just self-archiving in the university’s IR: It requires successful rights renegotiation by each author, with each publisher. But since only Harvard authors are subject to the mandate, and not their publishers, the successful outcome of such a negotiation cannot be guaranteed. So the Harvard mandate allows authors to opt out — which in turn weakens it into something less than a mandate, as authors need not comply. The mandate is too strong, in that it demands more than necessary, which in turn makes it necessary to allow opt-out, weakening it more than necessary. And the mandate is also needlesly weak in that it fails to require immediate deposit, without opt-out, irrespective of the success or failure of rights renegotiations. On the Harvard model, if any author elects to opt out of rights renegotiation, he need not deposit at all.
And yet a mandate to deposit the author’s final, peer-reviewed draft, immediately upon acceptance for publication, regardless of whether rights have or have not been successfully renegotiated, can provide immediate OA to at least 63% of deposits (as noted above, because 63% of journals are already green on author OA self-archiving) and immediate “Almost-OA” for the remaining 37% (thanks to the IR’s semi-automatic “email eprint request” Button, whereby any user webwide who reaches any deposit to which access is closed rather than open — because the publisher has vetoed or embargoed OA to the deposit — can, with just one click, request a single copy for personal research use, and the author can in turn, likewise with just one click, authorize the immediate automatic emailing of that single copy to the requester by the IR software).
“Almost OA” can tide over research usage needs during any publisher embargo period — but only if immediate deposit is mandated, without opt-out. The Harvard model does not mandate immediate deposit, without opt-out. Most Harvard authors may have the clout and the gumption to successfully negotiate rights retention anyway, but it is far from clear that all, most or even many authors at other universities worldwide would have Harvard-authors’ clout or gumption. So not only are many likely to opt out of such an opt-out mandate, but they and their institutions are hence far less likely to opt for adopting such a needlessly strong (and weak) mandate in the first place.
So I suggest that BYU (and all other universities — and funders too) opt for the optimal green gratis OA mandate — Immediate Deposit (without Opt-Out) plus Optional Access-Setting (as OA or Closed Access plus the “Almost-OA” Button). (I call this mandate the IDOA mandate and Peter Suber calls it the DDR (Dual Deposit Release) mandate.) If a stronger mandate can successfully achieve consensus on adoption, then by all means adopt that! But on no account delay or imperil achieving successful consensus on adopting a mandate at all, by insisting on a needlessly stronger mandate — and on no account needlessly weaken the mandate by allowing opt-out from deposit itself. The devil is indeed in these seemingly minor details. (See: “Optimizing OA Self-Archiving Mandates: What? Where? When? Why? How?“)