Are Harvard-style open access policies lawful under civil law?

Question

The open access movement tries to make scholarly articles freely available online, to move away from the traditional model where publishers charge access to the articles. To support this movement, universities implement open access policies, requiring researchers to make their works freely available.

Open access policies such as that of Harvard or MIT are implemented by granting the university some non-exclusive rights on the works written by faculty. This is very useful as it circumvents subsequent copyright transfers (to some extent).

There are a few articles explaining why this is compatible with copyright law, so in common law (see below). I wonder whether similar policies could be designed under authors' rights, in civil law (for instance the french "droit d'auteur"), where rights transfers seem to obey to slightly different rules.

Useful links:

1. Simon Frankel and Shannon Nestor, Opening the Door: How Faculty Authors Can Implement an Open Access Policy at Their Institutions

2. Eric Priest, Copyright and the Harvard Open Access Mandate, Northwestern Journal of Technology and Intellectual Property, preprint August 1, 2012

Answer 1

Issues considered

Based on the papers you cite, it seems like its not even straightforward in U.S. law. They discuss three main legal questions that are obstacles to implementing an open-access policy:

1. Is there a "teacher exception" to work for hire, giving researchers initial copyright over their papers?
2. Does a non-exclusive partial rights transfer survive a subsequent exclusive copyright transfer?
3. Is a university policy a sufficient legal instrument to achieve the non-exclusive rights transfer in question (2)?

Turns out, this scenario is specific enough that it really matters which jurisdiction is being considered. I took this question as an opportunity to research the copyright regimes of France, Germany and Japan (translations of their respective copyright acts linked). Japanese copyright law is fairly similar to U.S. copyright law in terms of rights transfer, so I will mainly be analyzing the first two (that and I have no competence in Japanese).

I am not in any position to be writing papers over this subject, but in considering questions (2) and (3) with a civil law context, I'll cover some laws on governing rights transfers. I'm not considering question (1) because if the university holds original copyright, then it is trivial for them to implement an open-access policy. I thus assume the faculty members hold original copyright for this answer (which is generally the case in France and Germany anyways).

Author's rights basics

Author's rights are separated into two branches: moral rights and economic rights.

Moral rights are generally non-transferable. Often they cannot be waived and last for eternity. Economic rights are those which can be transferred and exploited, but as you note these may also be subject to restrictions. For the rest of this answer, I will be avoiding the term "copyright" as it is ambiguous: It can mean just the economic rights (like in the translated Japanese), or author's right as a whole (like in the translated German and French).

Note: Links from this point on are in French (English resources weren't sufficient).

Survival of non-exclusive rights transfers

In Germany, this is a straightforward affirmative: Section 33 states:

Exclusive and non-exclusive rights of use shall remain effective with respect to rights of use granted later. [...]

In France, an answer to this question is elusive. This isn't too surprising as French statute hardly references non-exclusive licences. As an example, it took until 2007 for the GPL to be recognized in court. Given that the courts have been leaning towards giving weight to open licenses, my assumption is that they would follow the common-sense approach taken by German law though I've not found any direct statement to that effect.

Implementing an open-access university policy

From an author's right perspective, the biggest issue I see in drafting such a policy is that by default the authors give the university a non-exclusive right of distribution for future articles.

France has particularly strong protections for future works. L131-1 states:

Total transfer of future works shall be null and void.

Though it may look as if this can be easily avoided by adding a few simple small clauses, jurisprudence has been to interpret this in favour of the author when possible. For further information, see here.

While I'm of the opinion the scope of the policy would be narrow enough to avoid the reach of L131-1, there are additional restrictions on publication contracts. Noting that giving the university non-exclusive distribution rights will likely make the university a "publisher" in the eyes of the law, L132-4 states that:

A clause by which the author undertakes to afford a right of preference to a publisher for the publication of his future works of clearly specified kinds shall be lawful.

Such right shall be limited, for each kind of work, to five new works as from the day of signature of the publishing contract concluded for the first work or to works produced by the author within a period of five years from that same date.

This makes it difficult to have a blanket open-access policy. I'm not certain whether an opt-out clause would be enough to avoid the above restriction.

Additionally, France has the moral right of retraction allowing the author to withdraw granted rights of use under strict conditions (L121-4). French moral rights can't be waived so it's futile to account for it in a policy, but it's something to be aware of when implementing an open-access system.

In Germany, while there are some protections for future unknown types of use, the scope is fairly well defined here. This puts the situation squarely under Section 40:

(1) A contract in which the author undertakes to grant rights of use in future works which are not specified in any way or are only referred to by type shall be made in writing. The contract may be terminated by either party after a period of five years following its conclusion. The term of notice shall be six months, unless a shorter term is agreed.

I therefore don't see an issue with this in Germany provided that the policy is specifically agreed to and is renewed with faculty at least every 5 years.

Legislated open-access

Whether or not the university implements a lawful open-access policy (which is challenging in France...), the author has another available option. Both Germany (Section 38(4)) and France (L533-4 I. of the Research Code) have legislated a limited form of open-access that the author has a right to. While the laws are slightly different, they boil down to the following:

After publication in a journal, the author may publish the article in an open-access manner after an embargo period of at most 12 months notwithstanding any exclusive rights transfer to a publisher, provided that the research was at least half funded by public funds.

Answer 2

We can take Harvard's policy as a concrete example, also see their FAQ (the official resolution does not seem to be publically available). The university summary is that "Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles". The claim is that the author must grant a "nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit". There are grandfathering exceptions.

It is legal for an employer to require their employees to grant the employer rights to employment-related works. It would be conceivable to attempt to subsume this under work for hire doctrine, but that would be extremely unpopular and by the university's rules probably could not be imposed unilaterally by e.g. the President. It is also entirely unclear whether work for hire doctrine is relevant, since as a faculty member, you are not "hired to write articles", you are hired to teach classes, perform public service, and conduct research (which may be in some way connected to writing an article). The courts may eventually rule that by nature, "being faculty" means "you are hired to write articles", but that has not yet happened.

Harvard has an IP policy which does cover patents, and covers copyright as well. In general, "Authors are entitled to own the copyright and retain any revenue derived therefrom in books, films, video cassettes, works of art, musical works and other copyrightable materials of whatever nature or kind and in whatever format developed", thought there are exceptions such as if a person is actually commissioned to create something for the university, or if created by a non-teaching employee, and then there is a vague "non-incidental university resources" exception which they attempt to clarify here. At any rate, "work for hire" doctrine would not be applicable to faculty research articles.

As a university rule, which faculty are bound to comply with, disobedience could result in termination, or some other sanction. It is clear that under US law, the university cannot simply assert that an implicit rights transfer is automatically created – it has to be in writing (the author's writing, not the university's). It is possible, though, that an implied license would be found by the courts to exist, in case the university exercises it's presumed right and the author sues the university without having clearly repudiated the license. Harvard claims that the license is "automatic", though that has not as far as I know been tested in court. A person interested in testing this could explicitly deny such a license, and then we could see whether the university fires the person, or ignores the repudiation.

The main legal conflict that might arise (apart from a faculty member not wanting to comply) would be between the publisher and the university, although most publishers have relented officially or unofficially on this point. A publisher may for example require the author to assert that no other licenses have been granted to the work. Consequently, the author would need to either pick a different publisher, or stop being a faculty member at Harvard. The Harvard rule is also incompatible with authors granting exclusive licenses to the publisher. If the author does first grant the mandated license to the university, the author is then responsible for complying with the publisher's copyright requirements (and there is probably an indemnification clause that requires the author to shoulder the burden of litigation between Elsevier and Harvard, if they go to court).