What is a Green OA Policy?
A Green Open Access Opt-out Policy might be more accurately described as a Retention of Faculty Rights to Own, Deposit and Disseminate Their Scholarly Articles. It is a legal tool that faculty Senates can pass whereby faculty automatically and collectively retain copyright of their future accepted journal articles, while leaving individual faculty free to opt-out of the policy whenever they want or whenever a journal requires.
The legal mechanism by which copyright is retained is the automatic and collective grant of a reciprocal, worldwide, nonexclusive, irrevocable license to the university to host faculty articles as soon as they are accepted for publication. This license allows faculty authors and others to distribute the author’s final peer-reviewed version of an article, i.e., the “Author’s Accepted Manuscript/Version” (AAM/AAV) openly and immediately without any cost to the faculty or university, which leads to far greater visibility, impact, and citations for faculty research. Faculty, students, alumni, the taxpaying public, and global scholarship all benefit from Green OA policies.
Why Should CSU Go Green?
California is the most progressive state in the country when it comes to legislation for Open Data, Open Educational Resources, and Green Open Access articles. California AB-2192 mandates that state grant recipients self-archive grant-funded accepted articles (= Green OA articles) in a public IR, including CSU ScholarWorks, so that taxpayers can read the research they are funding. University Senates have the unique power and privilege to expand those protections to allow for all future faculty journal articles to be legally archived and made freely available to the taxpaying public. The UC Systemwide Academic Senate passed a Green OA policy in 2013, and in 2015 the UC President expanded those same protections to all UC administrators, staff, and students.
If ever there were a time when CSU faculty and students needed reliable and immediate access to academic research, it is during a pandemic that is forcing us to build online curriculum and include online resources. Publishers are providing temporarily free access to content during COVID-19 but still plan to charge universities and readers later to access that content. Temporary access to quality academic content in times of crisis is insufficient. We need a sustainable scholarly information infrastructure that secures free and open access to research. All journal articles deposited under a Green OA policy are evergreen, permalinked content that can be used in any course by anyone, freely and forever. Publishers routinely take down faculty uploaded articles from ResearchGate and Academia.edu, but they can’t take down legally cleared and hosted content.
Our Mission of Justice
The CSU’s mission to “advance and extend knowledge, learning, and culture, especially throughout California” is clearly served when we host legally licensed, OA versions of our faculty articles. Currently our articles are largely trapped behind publisher paywalls that only allow access to wealthy, predominantly white persons or persons currently affiliated with wealthy institutions in North America and Europe. Green OA policies bridge the information divides of wealth, class, race, language, culture, and nationality to make all future accepted journal articles legally and freely available to everyone, everywhere, forever. Everyone wins with Green OA policies, except journal publisher monopolies that make 15%-40% profit margins from academic authors doing 99% of the journal article work royalty-free.
A History of Struggle
CSU Fullerton Policy
Three times during 2017-2019 CSU Fullerton Academic Senate Library committee passed a Green OA policy, but Office of General Counsel (OGC) attorneys repeatedly blocked it from coming to a plenary vote.
Academic Senate of the CSU unanimously approved AS-3376-FA/19, asking the Chancellor’s Office to lead the effort to create a system-wide model Green OA policy that every campus could pass, but OGC attorneys have obstructed the work of the ad hoc committee tasked to do that.
CSU East Bay Policy
In May 2020, CSUEB Academic Senate passed a Green OA policy, but OGC attorneys blocked it from getting signed and implemented.
A Call to Action
Having 23 identical Green OA policies passed the same AY will make it far cleaner, simpler and easier for CSU ScholarWorks repository administrators and automated systems to check for rights to deposit accepted articles.
Why the Urgency?
Every year CSU faculty surrender copyright over thousands of journal articles and fail to secure legal licenses to distribute their articles openly and freely with the world, when Green OA policies could automatically protect and secure those rights. CSU faculty are at a major disadvantage to faculty at other universities who are protected by such policies, which allow them to share their articles openly and immediately upon acceptance instead of waiting for publication and letting publishers dictate all terms of distribution.
Why the Legal Concern?
National copyright expert attorneys from the UC, Harvard, and KU have written official letters of legal support for a CSU Green OA Policy and have graciously made themselves available to consult with CSU Presidents, Provosts, and Academic Senates about Green OA policies. Nearly 90 US university faculties have passed such policies, including–unanimously–the faculty of Harvard Law School.
Correcting Specious Claims
Conflict with CBA?
OGC attorneys have claimed that such a policy would conflict with the CBA. This is false. CFA legal has issued an official statement of No Conflict, and copyright ownership of future, faculty-authored journal articles has never been a serious topic in past negotiations.
Work for Hire?
OGC attorneys have claimed that faculty journal articles are works for hire. This is false. It runs contradictory to US Copyright law and the entire academic journal publishing industry, wherein authors retain copyright until and unless they sign an agreement to transfer it. Such a claim also makes no sense in financial terms, because journal articles almost never generate author royalties.
Legal Risk in IR Deposit?
OGC attorneys have claimed that archiving faculty’s accepted articles under a Green OA policy in the CSU ScholarWorks institutional repository would expose the CSU to litigation. This is false. Publishers have fully accepted and complied with dozens of university Green OA policies for well over a decade now. For example, the UC system typically gets only four take down notices a year, all from one journal, simply because the incorrect version was deposited.
- A Model CSU Green Open Access Policy (based on the policies passed by CSUEB Academic Senate and by CSU Fullerton Senate Library committee, both closely matching the UC Faculty Senate Green Open Access policy)
- ASCSU OA Ad Hoc Committee Legal Analysis Meeting Notes with guests Angus MacDonald and Katie Fortney, lead IP and Copyright counsel at the University of California Office of the President
- Green OA Policy FAQs and Myths vs. Facts
- Harvard’s Good Practices for University Open-Access Policies
- CSU Green Open Access Policy Contacts by Campus (NB: most university Green Open Access policies are created and passed by the persistent advocacy of teaching and/or library faculty.)