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

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SUMMARY:    Stuart Shieber is right in his reflections on the word "mandate," which is only useful if it helps get a deposit policy adopted and complied with. Author surveys and outcome studies show that most authors comply with self-archiving mandates willingly, so why do they need a mandate at all? Authors worry that self-archiving (1) is illegal, (2) puts acceptance for publication at risk and (3) and is time-consuming. Because it means both "legislate" and "legitimize," a "mandate" alleviates (1) - (3) by making self-archiving an official institutional requirement. Mandates need to ensure that authors deposit their final refereed drafts upon acceptance for publication whether or not they opt out of making access to their deposits immediately Open Access. The option of Closed Access deposit moots worries about legality or journal prejudice, making deposit merely an institution-internal record-keeping matter. But there is still a big difference between a request and a requirement. The failure of the first version of the NIH policy (merely a request) has shown that only an official requirement can generate deposits and fill repositories. There need be no penalties for noncompliance. Citations count, and OA enhances citations. Hence making one's research output OA is already connected causally to the existing "publish-or-perish" reward system of academia. A number of mandating institutions have accordingly coupled their deposit mandates procedurally to their performance review system: Faculty already have to submit their refereed publication lists for performance review today, so the only other thing needed is an administrative notice that henceforth the official mode of submission of publications for performance review will be via deposit in the Institutional Repository.

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What's in a word? Although there is a hint of the hermeneutic in his reflections on the uses of the word "mandate," I think Stuart Shieber, the architect of Harvard's historic Open Access (OA) policy 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.

Carrots not sticks. First, note that it has never been suggested that there need to be penalties for noncompliance. OA, after all, is based solely on benefits 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.

Authors are willing. Indeed, the author surveys and outcome studies 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.

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

To legitimize by legislating. 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":

Alleviating worries. There are many worries (at least 34 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 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.

Opt-outs. Harvard's mandate alleviates the three worries (although not, in my opinion, in the optimal 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.

Optimality. 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.

Deposit in any case. This distinction is clearly made in the FAQ 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.

Institutional record-keeping. Hence it is Harvard's mandate itself (not just the accompanying FAQ) that should require immediate deposit; and the opt-out clause should only pertain to whether or not access to that mandatory deposit is immediately made OA. The reason is that Closed Access 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.

After the FAQ. But even though the Harvard mandate in its current form 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.)

Lesson from NIH. Now to something closer to ordinary English: There is definitely a difference between an official request and an official requirement; and the total failure of the first version of the NIH policy (merely a request) -- as well as the persistent failure of the current request-policies of all the nonmandatory institutional repositories to date -- has confirmed that only an official requirement can successfully generate deposits and fill repositories -- as the subsequent NIH policy upgrade to a mandate and the 90 other institutional and funder mandates worldwide are demonstrating.

Requirements work, requests don't. 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.

No penalties for noncompliance. All experience to date has also shown that whereas adding various positive incentives (rewards for first depositors, "cream of science" showcasing, librarian assistance and proxy-depositing) 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.

"Publish-or-perish." 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?

Research impact. 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.

Performance review. 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 their deposit mandates to their performance review system as follows:

Submission format. Faculty just about everywhere already have to submit their refereed publication lists for performance review today. Several of the universities that mandate deposit have simply updated their submission procedure such that henceforth the official mode of submission of publications for performance review will be via deposit in the Institutional Repository.

"Online or invisible." 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 on the OA impact advantage: "Online or Invisible."

Keystroke mandate. Hence an OA "mandate" is in essence just another bureaucratic requirement to do a few extra keystrokes per paper, to deposit a digital copy in one's institution's IR. This amounts to no more than a trivial extension to academia's existing "mandate" to do the keystrokes to write and publish the paper in the first place: Publish or Perish, Deposit to Flourish.

Stevan Harnad
American Scientist Open Access Forum