In my last post, I addressed those who fail to understand why anyone would object to funders mandating CC BY licenses for all publications that result from research they support. There, I made a distinction between those who support CC BY mandates because they fail to understand objections to CC BY and those who fully understand the objections but support funder mandates of CC BY regardless.
I hope that the vast majority of those currently willing to impose a CC BY mandate as part of Plan S suffer only from a failure to understand why someone might sometimes object to a CC BY license. I fear that some, however, fully understand why someone might sometimes opt for a different license and yet feel fully justified in mandating CC BY for everyone, always. Those who understand the objections to a CC BY license mandate, yet fail to take those objections into account, are guilty of embracing domination.
I also promised a second post in which I address those who understand objections to funder CC BY mandates, yet support them nonetheless. This is that post (hence, ‘part 2’ in the title).
ON DOMINATION AND NON-DOMINATION
The language of ‘domination’ is not mine. I take it from Philip Pettit, the leading proponent of what’s sometimes called neo-republicanism. Neo-republicanism is a political theory that proposes the notion of non-domination as a sort of regulatory ideal. For those familiar with Isaiah Berlin’s “Two Concepts of Liberty,” with its ultimate defense of ‘negative’ over ‘positive’ liberty, I take Pettit’s notion of non-domination as further thinking along the same lines. Freedom as non-domination is a version of positive liberty that allows us to overcome Berlin’s argument in favor of negative liberty (or freedom as non-interference).
I issue some caveats.
First, I am not a Pettit scholar. I am not offering here the authoritative reading of Pettit. I don’t know whether Pettit would agree with my reading of him. I don’t know of any places where Pettit discusses academic freedom (but if anyone does, please let me know). I am taking Pettit’s ideas, offering my own interpretation of them, and applying them to the ongoing discussion of Plan S. There are some obvious disanalogies between being a citizen of a republic and a member of the scholarly community. So, insofar as I warp Pettit’s views, please blame me, not Pettit.
Second, I don’t want this post to turn into a philosophic tome. I will endeavor to offer the simplest reading I can of the notion of freedom as non-domination and how it applies to the discussion of Plan S. Again, any resulting distortion of Pettit’s views are my fault.
Third, I am specifically addressing the CC BY mandate of Plan S. I am not arguing against all funder mandates, nor am I arguing against open access to research (or even against Plan S). I am not arguing that the current publishing system is great. I am not arguing that no one should ever publish under a CC BY license. I am arguing that the CC BY mandate should be removed from Plan S. In addition, I also think that mandates, in general, should not dominate the population to which they are applied.
Here’s a short video of Pettit himself discussing the idea of freedom as non-domination.
The basic idea is that we lack freedom insofar as we are subject to another’s will. A slave is not free, even if the slave is subject to a master who never interferes with the slave’s choices or actions. Simply being subject to the will of a master (dominus) renders the slave subject to domination, even if the master never exercises that power. According to the neo-republican conception of freedom as non-domination, then, a slave is not free, no matter how little their master interferes in their life.
This neo-republican account of freedom as non-domination is a version of positive liberty, which Berlin ultimately rejected in favor of his notion of negative liberty, or freedom as non-interference. According to a negative liberty view, as long as the master didn’t interfere with the slave, the slave would be free. According to Pettit’s view — and my own — some measure of interference is actually compatible with freedom as non-domination.
NON-DOMINATION AS A LIMIT ON INTERFERENCE
Berlin argued in favor of negative liberty because he saw a danger in positive liberty — it can be co-opted by totalitarian impulses.
Since, as Berlin saw, positive liberty allows for interference, I can be interfered with under the guise of that interference being an actualization of my freedom. If I want to make Great Britain great again, I have to support Brexit, since that is the general will of the people (we voted leave, so I have to get on board; and not doing so would make me an enemy of freedom — including my own!). The only possible antidote to this sort of totalitarian rationalization, according to Berlin, was to reject the notion of positive liberty as ‘freedom to _____’ (where the blank may be filled in as the general will decides) and embrace the notion of negative liberty as freedom from interference.
Pettit actually redescribes the notion of positive liberty that Berlin rejects in negative terms. Yes, Pettit suggests, freedom is a negative ideal; but instead of freedom from interference, it should be understood as freedom from domination. This allows Pettit to maintain the classical (positive liberty) republican idea of freedom as self-determination, without abandoning us tout court to the general will (which, after all, as Berlin clearly saw, can easily be co-opted).
According to Pettit’s notion of freedom as non-domination, then, I can tolerate interference as long as I’m not being dominated, or subjected to another’s will. Non-domination thus marks the limit of acceptable interference. Advocates of negative liberty also have to admit that a certain amount of interference is necessary — just enough to prevent me from interfering with others, so that the limits of my freedom can be found where my freedom limits the freedom of others. Of course, to an advocate of negative liberty, necessary interference is a necessary evil. A neo-republican, on the other hand, can tolerate quite a bit of interference, as long as it doesn’t rise to the level of domination.
In short, I have to have a say in the laws to which I am subject, such that the imposition of those laws does not dominate me. This doesn’t mean I have carte blanche to reject or disobey laws with which I don’t agree. If I am a member of a constitutional republic (which, as a US citizen, thankfully, I am), some decisions will go against me (alas). But Donald Trump is still my president, even if I voted for a different candidate. The results of that election don’t amount to domination, because I don’t feel I’ve been disenfranchised. Likewise, I pay taxes, both because it’s the law and because I feel I should, even though I don’t like it — again, no domination.
I accept the result of decisions or policies and follow laws, even those that go against my own wishes, just insofar as I don’t feel dominated. As long as I am not dominated, I tolerate the interference. This leaves open the possibility that one could justifiably reject decisions under which one did feel dominated (if I felt my vote weren’t counted, if I were part of a group that had been systematically disenfranchised, if government failed to provide equal protection under the law, if people in government were not subject to and didn’t follow the law, and so on). But votes and policies that go against my wishes without dominating me are simply what Pettit terms ‘tough luck’.
That I feel dominated is a sign of possible domination, but it’s not the only factor. I could be mistaken and shown to be mistaken. Maybe I feel dominated, but I should really accept the result as tough luck. We should be able to determine, in principle, whether a decision we don’t like is a matter of domination or just tough luck. How one goes about that process will depend in many ways on the context. But whether one is dominated is a matter of fact, not simply a matter of opinion.
THE PLAN S CC BY MANDATE AS DOMINATION
There are several ways in which the Plan S CC BY mandate makes me feel dominated.
First, I don’t have a vote. I grant that membership in the scholarly community is disanalogous to citizenship in a state in myriad ways. So, I shouldn’t necessarily expect the same sort of representation I have in government from my membership in the scholarly community. Public funding agencies are strange, half-government-half-academic beasts. But there are rules and norms — and even in some countries, laws — governing the relationship between the state and the academy. For the sake of brevity, let’s group all of these under the rubric of academic freedom.
Setting aside the specifics, that there exists academic freedom in general signals a special sort of relationship between government and academic institutions. Some think academic freedom means non-interference. I never have.
There are myriad ways in which the state can interfere with academic institutions and academics that do not constitute violations of academic freedom. The state can make laws or policies about how research money can or cannot be spent (a prohibition of spending public funds on alcohol or bribes or baubles, for instance); the state can make laws or policies about responsible conduct of research (requiring research on human subjects to undergo IRB review, for instance); the state (or in the US, the states) can make decisions about how much funding to put into university budgets. The list goes on. These sorts of interference do not constitute domination, in my opinion, because academics support them, of our own accord. No academic I know, for instance, would seriously argue that academic freedom implies the freedom to abuse human subjects of research.
As someone sympathetic to the neo-republican notion of freedom as non-domination, I think self-determination is vital to academic freedom. If we compare institutional OA mandates on which faculty have voted with funder mandates that some researchers resist but on which they don’t have a vote, the former respect academic freedom and the latter don’t. That’s because, in the former, the faculty voted to give themselves a mandate. For those who voted against the policy, it was just tough luck. But when we have no ability to vote, as in the case of funder mandates, we are subject to the will of the funders.
Second, on top of the fact that I don’t have a vote, I am worried that I don’t even really have a say. Although I was granted an audience with Robert-Jan Smits and Marc Schiltz and have had conversations online with them (see comments), both of which I appreciate, nothing I said seems to have made an impact. We went from Plan S, to a conversation in which they told me they heard my concerns about the CC BY mandate, to draft guidance that’s unresponsive to my concerns about the CC BY mandate. Unfortunately, I now don’t have high hopes that offering feedback to the draft guidance will have any effect, either.
Compare the cOAlition S request for feedback with what happened when the Common Rule (the US regulation governing research on human subjects) was revised. In the US, comments received detailed responses and quite often changed the proposed policy. When suggested changes were rejected, a detailed rationale was given. Can we expect those sorts of detailed responses to feedback from cOAlition S? Can we expect the implementation guidance to change much? I doubt it.
Maybe they considered my arguments and rejected them, without going into detail as to why (although that wasn’t the impression I was left with after our meeting). Maybe I’m the only one making this argument about the CC BY license mandate. But the mandate negatively affects a group — albeit a small one compared to researchers in the sciences — of researchers across the humanities (and perhaps others in some other fields). I’m not arguing only on my own behalf.
Third, I am not the only one who seems to have an issue with the CC BY mandate. In its response to Plan S, the British Academy writes:
All surveys of HSS academics indicate a substantial majority who will insist on the inclusion of a ‘No Derivatives’ (ND) element in the licence for any OA publication. The Academy thinks their concerns are fully justified.
ALLEA, a federation of almost 60 academies from 40 countries around Europe, writes in its response:
As stated in previous statements, further consultation with the research communities is needed before a licensing model is agreed upon and any
prescription should leave some choice as to the type of open license to adopt.
Insofar as the CC BY mandate systematically discriminates against a minority group of researchers, it dominates us.
Finally, and this is the most disturbing evidence of domination, there appears to be a group of my fellow researchers that views the preceding considerations as irrelevant. Some of them, at least, have fallen prey to the potential corruption of positive liberty that so concerned Berlin. They have slipped into totalitarianism. If we want to make science great again, we are told, supporting funder mandates is the only way to go.
I am not suggesting that every researcher who supports funder mandates doesn’t care about dominating other researchers. I, too, support Open Access. I support some aspects of Plan S. I even support some funder mandates, including some in Plan S, as long as they don’t dominate researchers. Ideally, funder mandates would be crafted to empower researchers.
The CC BY mandate, however, must go. The CC BY mandate must go because it dominates a group of researchers who have legitimate interests in opposing mandatory CC BY licenses. No mandate that dominates a group of researchers in that way should stand; and no researcher should stand for mandates that dominate a group of fellow researchers.
The CC BY mandate must go because it also contributes to totalitarian tendencies among a portion of the research community that sees only one way to achieve Open Access — funder mandates — and Open Access as only one thing — that which meets the definition provided by the Berlin Declaration. Funding agencies should not support such tendencies. Funders should listen to concerns expressed by the researchers they fund, especially when those concerns are expressed by a minority group of researchers.
Above all, my fellow researchers should think again before they suggest that funders mandating CC BY is the only way I can truly be free.
PASSING THE EYEBALL TEST
When Pettit discusses the eyeball test, which he introduces (along with the tough luck test discussed above) as a “user friendly” test of non-domination, he does so from the perspective of a potential slave.
The eyeball test requires that people should be so resourced and protected in the basic choices of life — for short, the basic liberties — that they can look others in the eye without reason for fear or deference.
If I can look you in the eye, then, it’s because I am not, and needn’t fear, being dominated by you.
I think we academics share a sense of basic equality as academics (i.e., we typically assume that those with terminal degrees in physics or chemistry are no more deserving of respect than those with terminal degrees in philosophy or the arts). In general, then, I think we pass the eyeball test and should expect to be able to do so.
But there seems to be another aspect to the eyeball test that Pettit doesn’t discuss — the view from the perspective of a would-be dominus. If, assuming that fellow academics deserve a basic equality of respect, we attempt to dominate some subgroup of academics, would we be able to look them in the eye? I think not. I could do so only if I were comfortable dominating them and I expected them to submit — in other words, only if I failed to see them as equals.
In other words, if, as a would-be dominus, I cannot look my fellow academics in the eye, I actually pass the eyeball test. It is because I recognize that I have attempted to dominate them and because I recognize that as wrong that I look away. Recognizing my wrong, I can correct it and refuse to dominate my fellows.
If I were fully to embrace my attempt to dominate my fellows, however, I could look them in the eye and tell them the mandate they oppose for legitimate reasons is actually for their own good. Or I could look them in they eye while telling them that, even if the mandate harms them, they should support the mandate for the greater good. To be able to look a fellow academic in the eye, expecting them to look away, is just as much a failure of the eyeball test as when someone looks away out of fear or deference.
When someone cannot look us in they eye because they feel subservient, we fail the eyeball test. When we can look another in the eye and expect them to look away, we fail the eyeball test.
In our relations with our fellow academics, we should all, always, be able to pass the eyeball test. This is why, far from supporting funder mandates that dominate a group of academics, we should listen to their concerns. We do not have a vote. We are not represented. But we can, perhaps, together, still have a say. Even if funders attempt to dominate us, we academics should stand together in resisting.
jbrittholbrook 
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Thanks for laying out your arguments so carefully in this and the previous post. I fully accept (and have for a long time) that humanities scholars have a qualitatively different relationship to their written works than academics like myself in the natural sciences.
Like Bianca Kramer (in her comment in the previous post), I think is is possible to understand your criticisms of particular aspects of Plan S (particularly the mandated CC-BY licence) and to care about your concerns even if I don’t wholly agree with them.
What I think is lacking from your argument is sufficient consideration of other stakeholders, primarily the publics who are an audience that the funder members of cOAlition S clearly have in mind. My guess is that you would surely acknowledge their interests but that doesn’t come across in these posts. The focus is on the rights of the scholar. Are you in danger of asserting that the scholar’s rights should always dominate?
In my view the balance of rights requires further debate. The relationship between governments and universities has changed and adapted over the centuries, and particularly so with the expansion of public funding of research after WW2. Through that time it seems to me there has been maintained an uneasy accommodation of the rights of university and their scholars as independent and autonomous. (I’m condensing brutally here – there are of course whole books on these histories). I say uneasy because governments naturally always want to have some measure of control or influence over what happens with the money invested in university activities. The autonomy granted to scholars may seem grudging, perhaps because there is a reluctant acceptance on the part of government of the value that comes from allowing them freedom of inquiry. At the same time, there is a acceptance (often also grudging) from scholars and researchers that public funding should not be taken for granted and comes with certain responsibilities. The claim on public funds cannot be justified purely in terms that only satisfy the priorities of scholars. But nor should the public (or their ministerial representatives) claim that funding gives them full rights to say what the scholars should do with the money.
This balance of rights is a matter of negotiation and I see the development of Plan S as the latest phase in this ongoing negotiation between governments/funders and scholars. I appreciate your concerns about not being heard; though you had a say in talking to Smits, you feel your views were not taken on board in the updated guidance published in November. And although there is a consultation going on at the moment, you and others may feel it is too little, too late given the level of detail that has already been announced. But it’s hard to say how the consultation will play out and I would encourage anyone with a stake in this to make a submission.
To come, at long last, to the question of ‘domination’ I think your argument has some power – and I will continue to reflect on it – but I still question the way in which it seeks to arrogate all decision-making power to the academic. On the particular question of your fear of bad translations that would be enabled by a CC-BY licence I would be interested to know what proportion of translations are bad. Are the bad ones known to be bad? And if so, does this not point to academic norms as a useful means of mitigation? In theory at least, there is also the potential of a greater good to be considered: CC-BY licences might enable the community creation of translations into many different languages that would never happen under traditional modes of publishing. How great that greater good is, to be sure, unquantifiable at present. As a result, much would seem to hang on one’s faith in the future (and the good faith of the various stakeholders) – something that should be debated (which I guess is what we are doing now!). Whether it can be agreed is quite another question, because it is proving so hard to define what is right or optimal.
I am not yet easy in my own mind as to the best way forward. Part of me would incline pragmatically to agree a different settlement for academics in the humanities (for the reason acknowledged at the outset and the often very different – and indirect – way in which humanities scholarship is funded). That might solve the problem of domination. But then I would worry that these disciplines would, by contrast to the natural sciences, be increasingly seen as enclosed and inward-looking – and that they would be missing out on the creative opportunities afforded by OA and open licensing. I can’t imagine that would augur a very bright future. Of course, your mileage may vary.
Thanks for this long and well-considered response, Stephen.
I actually admitted that these two posts were written with researchers’ concerns at the forefront in a twitter discussion with Bianca about her comments on part 1. I was addressing my fellow researchers, since they are the ones I see as both most vocal and most influential in the ongoing Plan S debate. There’s also — in line with the academic norms you invoke — a level of respect among academics that’s vital to my argument. Academics ought to be especially reluctant to dominate their fellows.
I don’t at all question researchers’ responsibility to ‘pay back’ the public investment in that research. I do question whether funder OA mandates accomplish that goal. I’ve been an advocate of ‘societal impact’ policies for years, as long as those policies allow researchers enough latitude to maneuver and to decide how they go about having an impact on their own. But making a scholarly article available OA under CC BY isn’t sufficient for societal impact; nor is not necessary. I’m actually somewhat worried that researchers will view compliance with an OA mandate as sufficient for impact. But being able to download an article for free doesn’t guarantee that the article will be accessible to the public in a meaningful way. It also doesn’t require a mandated CC BY license.
We should not allow anyone to use OA mandates to absolve researchers of their responsibilities to the public.
I do think that there are relevant differences between research in the humanities and research in other fields. I don’t support the use of different licenses for the humanities, however, in part because of the reasons you outline. I don’t want only humanities researchers to be exempt from the CC BY mandate. I want no researchers to be subject to it.
Thank you both for some very useful insight on the licensing issue, academic freedom, and the complex and implicit links between science and society.
A few comments and questions: Do you have other examples of bad use of derivatives, apart from translation, which would enrich the debate, or even bring some CCBY opponents out of the “hard” science woodwork? I fear that different communities being able to pick and choose licenses might open strange and unexpected doors; perhaps hard scientists could weaponize an ND clause to prevent some of their ideas or methods from being reused? Could you recommend or craft a license which could work for everyone? Are we missing the identification of some common denominator, of the content or gist of an article, which should always be fully CCBY?
On a different note, the text and style, as well as the content, of hard science articles may be closer to some researchers’ hearts, egos and reputations than you think. The larger difference is the evolution of small to huge collaborations as the norm since the 1980s, with unpolished text flying in from everywhere. Maybe it’s just me. Maybe a linguist should make a monograph on it.
Thanks, Matthieu.
I’ve been sticking with the notion of bad translations, since it’s fairly easily grasped and I think that it ought to be enough. Once we make articles free to read (gratis OA), I’m not convinced that mandating CC BY (libre OA) does much good, especially with research in the humanities. There’s a lot of appeal to ‘possibilities’ (mostly for other researchers, rather than for the public, that I’ve seen). But, other than adhering to someone’s definition of what constitutes ‘full OA’ — which I think is an arbitrary reason — I don’t see the real appeal.
It’s also, for me, not about the sum total of good vs. bad consequences. I only discussed bad translations in an effort to give an explanation for why some of us in the humanities might oppose having CC BY imposed on us. But it should be enough that we oppose it non-arbitrarily. I should also say that I don’t always oppose a CC BY license. I oppose it being mandated by funders.
I could be wrong about ‘science’ articles. Obviously, I was generalizing. It was my attempt to figure out why so many scientists seem so comfortable supporting a mandate on fellow researchers who have non-arbitrary and non-trivial objections to it.
I would be interested to dissect two things a little bit more:
“We should be able to determine, in principle, whether a decision we don’t like is a matter of domination or just tough luck. How one goes about that process will depend in many ways on the context. But whether one is dominated is a matter of fact, not simply a matter of opinion.”
In cases where there is direct or indirect representation in decision making (through voting) that would indeed seem rather clear (although in the TED talk, Pettit also qualifies that this in itself, is not sufficient). But in cases where it is not about voting, but about discussion and consultation (like with Plan S), what would be the conditions under which a decision you (general you) don’t like is considered domination or not? I suppose the first condition is that objections are heard and seriously considered. But what if comments receive detailed responses and detailed rationale is given when suggested changes are rejected (to take wording from the example on the Common Rule) – but you still don’t agree with those responses and rationale? When is it ‘tough luck’ and when ‘domination’? I don’t see the eye-ball test really work in this case. Or should a policy not be implemented as long as objections remain, period?
And second:
“There are myriad ways in which the state can interfere with academic institutions and academics (…). (…) These sorts of interference do not constitute domination, in my opinion, because academics support them, of our own accord.”
To me, this brings up the intriguing question of whether domination is only an issue when it involves decisions that would go against someone’s will, or whether it is, more principled, about the power to make decisions that someone has no say in, irrespective of whether the decisions themselves are considered ‘good’ or ‘bad’?
In the example of Nora: if the husband would impose on her to do something she would happen to agree with (and might even do on her own accord), but she could not refuse even if she wanted to, would that constitute domination or not?
Thanks, Bianca, for your excellent questions!
I would say the answer to the first is clearer to me than the answer to the second. The clear answer to the first question is that, in cases like Plan S, where there is consultation but not representation, it’s NOT really clear where to draw the line between domination and tough luck. It will be a judgment call, and it will be a judgment without a clear set of criteria. I do think we have some indicators that may help guide our judgment, though. If our objections are taken on board and the plan changed, that’s a really good indicator that we had a say. If our objections receive thorough replies, I think that’s also a pretty good indicator that we had a say. If our objections are ignored, I think that’s a pretty good indicator that we didn’t have a say.
The answer to the second question is actually less clear to me. With the example of Nora, I think it’s clear that Pettit would she’s dominated if she is unable to refuse, period — even if she would be inclined to obey. But I’m not convinced entirely that it’s so simple. In fact, I think that there may be something like the master-slave dialectic at work. Why would Torvald order Nora to do something she wants to do already of her own accord? Maybe it’s because, even though he is ostensibly the master, she has actually succeeded in dominating him? In the case of academics obeying certain requirements (say, of responsible conduct of research), I think they are the ones who really set these requirements up in the first place (and they were later codified into law). So, who’s really the master?