Concerning CC BY mandates, part 2

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).


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.


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 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.


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.


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.


Draft “Guidance on the Implementation of Plan S” fails to alleviate concerns about CC BY

Earlier this week, cOAlition S released its draft Guidance on the Implementation of Plan S, which retains the requirement that publications resulting from cOAlition S funding be licensed under terms laid out in the Berlin Declaration.

For scholarly articles the public should be granted a worldwide, royalty-free, non-exclusive, irrevocable license to share (i.e. copy and redistribute the material in any medium or format) and adapt (i.e. remix, transform, and build upon the material) the work for any purpose, including commercially, provided proper attribution is given to the author.

Unfortunately, this guidance fails to respond adequately to the fact that many researchers – especially in the arts and humanities, but including also some scientists – would sometimes choose a license granting fewer reuse rights.

I know that my particular Twitter bubble doesn’t represent everyone; and it does include quite a few Open Access (OA) advocates, who tend to support the use of maximally open licenses (such as CC BY). Nonetheless, I’ve been surprised to find that most of the folks I interact with on Twitter seem either not to understand why anyone would object to mandating such an open license or have no problem supporting such a mandate over the objections of colleagues. Not understanding the objections is one thing. Not caring about the objections is quite another. I address each possibility, in turn. Here, I focus only on the problem of not understanding the objections. In a later post, I will address the problem of not caring.

First, though, a few points of clarification. The draft Guidance (at least with reference to licenses) explicitly concerns scholarly journal articles only, leaving guidance on books and book chapters until a later date.

The following guidance further specifies the principles of Plan S and provides paths for their implementation regarding scholarly articles. The guidance is directed at cOAlition S members and the wider international research community. cOAlition S will, at a later stage, issue guidance on Open Access monographs and book chapters.

I do think this makes some difference. Personally, I am much less likely to opt for a more restrictive license on scholarly articles than I would on a book. For me, book chapters are actually closer to journal articles in this regard. That doesn’t mean I fully support a license mandate for journal articles; but I do think I’d have less frequent or momentous worries about open-licensing an article or book chapter than I would a book.

For the sake of brevity, and since the draft Guidance will mandate CC BY 4.0 licenses for all scholarly articles, I use ‘CC BY’ to refer to the sort of open license mandated by the draft Guidance.

All scholarly articles that result from research funded by members of cOAlition S must be openly available immediately upon publication without any embargo period. They must be permanently accessible under an open license allowing for re-use for any purpose, subject to proper attribution of authorship. cOAlition S recommends using Creative Commons licenses (CC) for all scholarly publications and will by default require the CC BY Attribution 4.0 license for scholarly articles.

I also refer to ‘the author’ throughout this post, even though the author may not be the copyright holder of the work. Plan S initially mandated that authors retain copyright. The draft Guidance seems to have opened the door to the idea that there may be other rightsholders (such as the author’s institution, although perhaps even the publisher). I don’t address this question in this post.

For the record, I have no objection to the requirement to make journal articles immediately available and free to read (gratis). It is the option virtually all authors would choose, given the power. Insofar as Plan S “mandates” immediate gratis OA, it actually empowers authors. Mandating CC BY (or CC BY-SA or CC0 versions of libre) does not. Adopting a license mandate is a matter of domination, not empowerment. More on that, later.

One more preliminary: acknowledgements. In addition to the inhabitants of my Twittersphere, with whom I’ve had some excellent exchanges, I heard a great presentation as part of the NJIT Department of Humanities Fall Colloquium Series that spurred my thinking on this matter. On November 7, Lisa DeTora of Hofstra presented on “Not Quite Mythology: The Functional Limitations of Biomedical Language.” The views I outline below owe much to her talk. 


Mandating CC BY treats all articles as if they were scientific articles. But published articles mean different things in different fields. In the sciences, for instance, it is more typical to perceive the publication as simply describing the experiment or reporting on the results of the research. Although priority in publication of results is vital, scientists fully expect others to build upon, modify, and eventually abandon their results as science progresses. A CC BY or equivalent license makes some sense in the context of articles considered as merely containers for information to which the scientist is not wedded in a personal way.

But in the humanities, to paraphrase Nietzsche, nothing is impersonal. In the humanities, the publication itself actually constitutes the research. I still quote the Ancients in my own field of philosophy. That’s not because I haven’t read the latest literature. It’s because Plato and Aristotle have stood the test of time. At the risk of sounding as if I have delusions of grandeur, I hope the same for my own works.

In the sciences, articles might be thought to contain information that, like water, could be poured into various containers and retain its essential characteristics. Although one might prefer to be published in Science or Nature, ultimately, the container doesn’t matter. What matters most is the discovery, and to a lesser extent, the discoverer. Attribution is sufficient.

In the humanities, we have similar preferences for pet journals. I agree that this tendency should be corrected, and that the particular journal in which one is published should matter less than what’s published. But our conception of what’s published — of articles — is different. It’s not so easy to separate form and content in the humanities. To suggest that a philosophy article is simply information that could be transferred easily from place to place would be akin to suggesting we try to pour a marble statue — not water — into a container that could barely hold the statue’s volume of material. To manage it, one would have to destroy the statue.

One tends to attach a name to a theory or discovery in the sciences in one of a few circumstances: 1) when the discovery is new or big or a prize is awarded — as with the Higgs boson (though everyone seems uncomfortable focusing on Higgs alone, and credit is shared around); 2) when the theory has been surpassed — as with Aristotelian physics; or 3) when one wants to undermine a theory — as with creationist attacks on ‘Darwinism’.

In the humanities, attaching names to works or theories is important and routine.  Despite what you may have heard, there’s no such thing as ‘Utilitarianism’, but rather Bentham’s, Mill’s, or Singer’s versions thereof. It makes a difference whether one refers to a Jamesian or Deweyian pragmatism. The practice of naming in the humanities is not reserved for a flash in the pan or for theories that didn’t pan out. In the humanities, one’s name — including, but not limited to, one’s reputation as a good researcher — is important.

Derivative works are a more sensitive matter in the humanities than in the sciences. One’s works present oneself — not just one’s findings — to the scholarly community. The focus of a translated work in the humanities is on the author, not on the translator. It is the author’s introduction to a new country’s readers. It is not by chance that most works in the humanities are single-authored.

Translating a work of philosophy, to pick my own field, is not something that can be done willy-nilly by an algorithm without destroying vital aspects of the work, thereby misrepresenting the author. Nor can a translation simply be thrown together by anyone who understands both languages. A good translation of a difficult text is more difficult than that.

A good translation depends on forming a relationship with the translator, such that he or she is actually familiar with the author’s work in the original language. They need to understand the subtleties of the argument and the choices the author made between terms in the original language in order to craft a good translation in the new language. Ideally, the author would have a relationship with more than one such person, so that the translation could be checked by someone the author trusts. All of this would involve a great deal of time, effort, and discussion.

A bad translation of a difficult text misrepresents the author’s views in ways that can severely damage their name. A good translation can help make it. Rumor has it that even native speakers of German read Norman Kemp Smith’s English translation of Kant’s Critique of Pure Reason. No one, however, is under the impression that the author of the work is anyone other than Kant.

On the link to the Google Books version of the Critique of Pure Reason, the preview is from Kemp Smith’s introduction, in which he describes the process of translating Kant. He was careful and meticulous and thought everything through. He studied and benefited from previous translations. He was writing commentaries on Kant — which is to say, he was a Kant scholar, not simply a Scotsman who spoke fair German. It took years. Kemp Smith’s is the sort of translation we need and generally aspire to in the humanities.

This is not to say that all translations in the humanities are good. Martin Paul Eve discusses the controversy over a particular translation of Michel Foucault, noting that perhaps some translation — even a poor or controversial one — is better than no translation at all. An author who holds such a view and has no objection to subjecting their work to rough translations can always choose a CC BY or equivalent license. Mandating that all authors explicitly grant permission for their works to be treated roughly, though, is unfair and fundamentally misunderstands the nature of research in the humanities.

The application of a more restrictive license — CC BY-ND, say, which would prevent others from making derivative works without the author’s permission — does not bar the author from granting permission for other uses in the future. Indeed, since the potential translator would actually need to contact the author to obtain permission to translate the work, such an arrangement could facilitate the formation of the sort of trusting relationship necessary for a good translation.


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.

Since this is a strong charge, I want to take my time in making it. I also want to appeal relatively quickly to those who simply misunderstand objections to a CC BY license mandate. For these reasons, I will publish this post now and issue a promise to complete the second post later. [EDIT: part 2 now available HERE.]

I should add, briefly, that I am now rethinking my position on the CC BY license mandate. Heretofore, I had floated the possibility that cOAlition S could safely mandate a CC BY license without dominating authors as long as they were to offer a no-questions-asked waiver. Providing such an opt-out option would mirror the Harvard Open Access Policy, which I discuss in some detail here. Upon further review, however, I am leaning toward the position that even a mandate with a waiver would dominate authors. If anyone is interested in how my thinking has developed and cannot wait for the second post on this topic, here’s a hint.




If you take the red pill, Plan S will show you the way to academic freedom

As readers of this blog and a few people on Twitter know, I’ve been talking a lot recently about academic freedom, especially as it relates to Plan S. In case anyone wants to explore the blog or things I’ve published, they’ll see three things: 1) I generally argue against the idea that Open Access (OA) mandates infringe upon academic freedom; 2) I am generally in favor of OA, especially insofar as it empowers researchers to have positive impacts on society; and 3) I have some specific issues about the way Plan S is formulated. I make distinctions between Plan S and other OA mandates and don’t think that being critical of certain aspects of Plan S means that I’m anti-OA. It doesn’t even mean I’m anti-Plan S. It means I have some specific concerns about how Plan S might impact academic freedom.

In the past couple of months, I’ve had nice exchanges on the topic with Rebecca Lawrence, Stephen Curry, Martin Eve, Peter Suber, and others. Along with Lynn Kamerlin, Stephen and I published a correspondence piece in Nature arguing that discussions of academic freedom are vital, ongoing, and ought not to be dismissed as stifling debate surrounding Plan S.

Indeed, the Fair Open Access Alliance Board recently penned a set of recommendations on Plan S that included the following:

We recommend formulating a detailed statement on how the demands of Plan S interact with legal and cultural norms of academic freedom to select a publication venue. Laws and customs vary enormously around the world. In the UK, for instance, there is no legal statute that confers an explicit right of researchers to select publication venue, but in the States this is more thoroughly encoded, since, academic freedom explicitly extends to choosing the publication venue under the 1940 AAUP declaration. In Germany, authors have a constitutional right to publish where they want.

This is not to suggest that the FOAA Board agrees that Plan S infringes on academic freedom.

As we have said before, academic freedom does not extend to burying one’s research behind a paywall. To paraphrase a well-known dictum: your academic freedom to publish wherever you want ends where my right to freely access your research starts.

But it is to suggest that, despite the fact that they tend to think that Plan S does not infringe upon academic freedom, they nevertheless recommend working out in detail how Plan S impacts academic freedom. Academic freedom is a serious, non-trivial issue whether you think Plan S infringes upon it or not.

Unfortunately, too many OA advocates are too dismissive of any discussion of academic freedom. In what follows, I’m going to examine a thread on Twitter from today that I saw when Micah Vandegrift tweeted about it.

I know Micah and we’ve been tweeting back and forth on the question of academic freedom. So, I replied; but I also looked at the thread by Jason Hoyt. I don’t know Jason. After reading Hoyt’s thread, I intended to ignore it and simply continue my discussion with Micah. I still plan to continue that discussion. However, Hoyt’s thread came up again today in a context that made it unavoidable for me to discuss.

For those who don’t know, David Sweeney (along with John-Arne Røttingen) has taken on the task of composing the implementation language — drafting the actual policy — that will be based on the Plan S principles. Given that I think the most serious problems with Plan S are those surrounding its impact on academic freedom, and given that I think issues surrounding academic freedom are generally growing in importance in today’s political climate, what Sweeney thinks about academic freedom is too important to ignore.

Let me preface this discussion with the following caveat. What follows is not a personal attack. I do not know Jason Hoyt, and I have no reason to attack him personally. I am, however, going to attack the argument he put forward in his thread.

Hoyt’s thread is more involved than other dismissals of discussing academic freedom in connection with Plan S; but it also jives with many other tweets I’ve seen from OA advocates who aren’t as inclined to think critically about OA and academic freedom as the folks already mentioned, above. In order to attack Hoyt’s argument, I’ll try my best to reconstruct it in the strongest possible form; then, I’ll show why it fails.

To put my critique of Hoyt’s argument in a nutshell, the thread employs more pseudoreasoning than actual argumentation. It unfairly represents the position of those it is arguing against (that’s a strawman); it attacks its opponents, rather than arguing against their claims (that’s an ad hominem);  and it ends in a way that preempts any criticism of the thread (this sophistic-ated move doesn’t have a name with which I’m familiar).

Let’s begin at the end, with this sophistic-ated move.

These are the penultimate and final tweets in the thread. Focusing on the final tweet, it impugns those who would pick out the weakest points of Hoyt’s argument to attack as “weaker-minded critics,” who “won’t volunteer their Conflicts of Interest.” We’re warned to “keep that in mind” in order to inoculate  Hoyt’s argument against attack. Holbrook thinks Hoyt’s argument is weak? Holbrook must be weak-minded. I wonder what Holbrook is hiding? It’s a sort of preemptive ad hominem that I’ve dubbed a ‘sophistic-ated’ move, because it’s reminiscent of the — rationally illegitimate — moves Plato describes the Sophists making against Socrates.

Since it appears Hoyt thinks the weakest part of his argument is his extended metaphor comparing our academic freedom to that of a frog in a pot of water being brought slowly to a boil,

I won’t spend any time attacking it. (Who wants to embrace a charge of being weak-minded, after all?)

As we’ve seen, Hoyt begins the thread by calling the argument that Plan S infringes on academic freedom a red herring. In order to substantiate that claim, Hoyt would have to examine the actual argument and show that the truth of the premises is irrelevant to the truth of the conclusion. He doesn’t do either. He just asserts that the academic freedom argument is a red herring.

He then proceeds to make some assertions about academic freedom.

Let’s assume for the sake of argument that it’s true that we misunderstand academic freedom. Let’s assume it’s true that it was invented “decades ago” and now has taken on a new meaning very different from “being in control.” We think we have academic freedom, he suggests, but we are mistaken. The academic freedom of old has been reduced to the illusion of control.

He continues, suggesting that the academic freedom that doesn’t exist is merely a manipulative ploy.

The illusion of academic freedom — perhaps that’s why Hoyt keeps putting ‘Academic Freedom’ in scare quotes — is being used by a minority to defeat the emerging new normal of OA.

There’s an extended frog-in-water interlude, followed by this:

The meaning of academic freedom — now without scare quotes, so maybe a non-illusory version? probably just a typo — can change. Sometimes, in order for old (now illusory, presumably) norms to change, we need an outside agent (because frog).

Enter Plan S to save us!

Plan S cannot single-handedly restore academic freedom to its true glory, but it’s a step in the right direction.

Trying hard to offer a charitable reading here, I think Hoyt’s claim is that the illusion of academic freedom is propping up the current monopoly of “subscription paywall” journals. From the previous tweet, though, Plan S will help us recover actual academic freedom, I guess by breaking this illusion-supported monopoly?

OK, good — it seems I was following. So, far from impinging on academic freedom as the illusionistas would have us believe, Plan S is actually our only hope for restoring academic freedom to its original glory.

Embrace Plan S, because it’s your only hope of regaining your freedom from the illusionistas!

Now to attempt to reconstruct the argument in its strongest possible form. When Hoyt claims that the academic freedom argument against Plan S is a red herring, he doesn’t actually mean that he’s examined the argument and found its premises irrelevant to the conclusion that Plan S impinges on academic freedom. What he means is that those making the argument are trying to fool us with a false notion of academic freedom. Opponents of Plan S are telling us they’re protecting our academic freedom, but they are lying. In reality they are keeping us trapped in a monopoly of subscription journals. Plan S can’t be impinging on academic freedom, because Plan S is trying to kill the monopoly of subscription journals and open up space for new OA entrants to provide the reality, rather than the illusion, of academic freedom.

Notice that I left out the final tweet in my reconstruction of Hoyt’s argument. That’s because it’s really a low blow that has no place in a good faith argument. Imagine if I were to suggest here that anything that Hoyt or anyone who defends his argument says is a clear indication that they are merely publishing populists who want to destroy scientific institutions and profit from the resulting confusion. It’s not fair play to employ such a preemptive attack on critics.

Unfortunately, even the strongest possible reconstruction of Hoyt’s argument utilizes both the strawman and ad hominem attacks.  It’s a strawman because it presents its opponents as arguing Plan S impinges on academic freedom only to fool us into supporting the status quo monopoly of subscription publishers. That’s simply not what I or anyone else I’ve seen making the academic freedom argument about Plan S is saying.  It’s an ad hominem, as well, since — even leaving out the preemptive attack at the end — it impugns our motives. Hoyt’s thread suggests that anyone arguing against Plan S on academic freedom grounds is a liar.

There’s plenty of room for rational disagreement on the issue of Plan S and its impacts on academic freedom. Unfortunately, there’s also a plethora of tweets that echo the tone of Hoyt’s thread. Some advocates of Plan S have simply dismissed the academic freedom argument as ‘baloney’. Saying it doesn’t make it so. Arguments are needed. I and others have presented some arguments that Plan S, as written, has the potential to infringe on academic freedom. I invite anyone to offer an argument in response. I’m very happy to engage. But those merely offering disdain and dismissal should reconsider.

I am currently waiting to see the implementation language that Sweeney and Røttingen are crafting. Since it will be made available for public consultation, we’ll all have the opportunity to examine the draft policy and offer our input. I hope that people realize that we might disagree; but there’s a way to do that respectfully and without resorting to misrepresenting others and personal attacks.

I expect that Sweeney and Røttingen and others charged with finalizing the implementation of Plan S will listen to input from a wide variety of perspectives. No doubt, they are already aware that some have their own prejudices already built in to their positions. Many established subscription publishers may resist the implementation of Plan S. Many emerging OA publishers may embrace it. Researchers views are likely to vary pretty widely. I hope the implementers of Plan S are able to take these different perspectives into account and to distinguish carefully between rational arguments and pseudoreasoning attacks. If we work together in good faith, we can attempt to craft a policy that actually empowers researchers and society to engage in open knowledge practices for the benefit of all.


On Open Access, Academic Freedom, and Science Policy — A Reply to Suber

I have argued that Plan S, if we were to take the 10 principles as currently written as policy, would impinge on academic freedom. It’s interesting who dismisses this claim out of hand and who actually responds to my argument, even if they disagree with me. I think Peter Suber is a member of the latter camp, even if his responses have not been as long and involved as my exchanges with Stephen Curry.

In what follows, I try to reconstruct Suber’s position on academic freedom and Open Access (OA), to go a bit further in my various attempts at defining academic freedom, and to argue more fully, pace Suber, that Plan S does impinge on academic freedom.

This reply struck me as odd, given Suber’s position on whether university OA mandates impinge on academic freedom:

6) Open access mandates infringe academic freedom

This is true for gold open access but not for green. But if you believe that all open access is gold, then this myth follows as a lemma. Because only about one-third of peer-reviewed journals are open access, requiring researchers to submit new work to open access journals would severely limit their freedom to submit work to the journals of their choice. By contrast, green open access is compatible with publishing in non-open access journals, which means that green open access mandates can respect author freedom to publish where they please. That is why literally all university open access mandates are green, not gold. It’s also why the green/gold distinction is significant, not fussy, and why myths suppressing recognition of green open access are harmful, not merely false.

To be clear, Suber is arguing that the claim that OA mandates infringe academic freedom is a myth. The myth would hold as reality, for Suber, only if such policies mandated publication in Gold (journal) venues. Insofar as such policies mandate Green OA (depositing some version of a published work in an institutional repository), they “respect author freedom to publish where they please.” I think it’s safe to say that Suber — at least the Suber of five years ago — held that author freedom to publish where they please is an aspect of academic freedom.

Since Plan S does restrict options for authors regarding where they publish, it seems like Suber ought to conclude that Plan S impinges on academic freedom. But he doesn’t; so, there must be more to the story.

It’s possible Suber changed his mind that freedom to choose their publication venue is part of academic freedom. I don’t think this is the case, though. Here’s more of our Twitter exchange:

So, the relevant principles to which Suber referred me a week ago are as follows:

2.  Universities should not limit the freedom of faculty to submit their work to the journals of their choice.

2.1.  If it weren’t for Principle 2, universities could require faculty to submit their articles to OA journals rather than deposit them in an OA repository (a gold OA mandate rather than a green OA mandate).  But there aren’t yet enough OA journals; there aren’t yet first-rate OA journals in every research niche; and even one day when there are, a university policy to rule out submission to a journal based solely on its business model would needlessly limit faculty freedom.  Not even the urgent need for OA justifies that kind of restriction, as long as we can achieve OA through OA repositories.  That’s why all university and funder OA mandates focus on green OA (through OA repositories) rather than gold OA (through OA journals).

But of course OA journals still deserve support.  See Principle 3.

2.2.  If annotation 2.1 doesn’t stand on its own, it may be because it presupposes another premise.  As I put it elsewhere:  “The purpose of the campaign for OA is the constructive one of providing OA to a larger and larger body of literature, not the destructive one of putting non-OA journals or publishers out of business. The consequences may or may not overlap (this is contingent), but the purposes do not overlap.”

2.3.  If it weren’t for Principle 2, universities could require faculty to deposit some version of their peer-reviewed journal articles in the IR, for OA, with or without an embargo, and faculty would have to avoid journals that did not allow OA archiving on those terms.  But that would needlessly limit faculty freedom to submit to the journals of their choice.  To respect faculty freedom, universities must allow exemptions (waivers, opt-outs) for faculty submitting to journals that do not allow OA archiving on the university’s terms.  However, when enough universities adopt OA mandates, then all journals would have to accommodate them, and therefore the first type of policy (no opt-outs) would no longer limit faculty freedom or violate Principle 2.  But until we approach that point, Principle 2 requires the second type of policy (with opt-outs).  Moreover, allowing an opt-out on OA is compatible with not allowing an opt-out on IR deposits themselves.  See the Appendix for more detail.

2.4.  The strategy to require OA archiving, and to require researchers to avoid publishers that will not allow it, was pioneered by the Wellcome Trust.  The WT’s example has been followed by some other funding agencies, most notably the UK Medical Research Council and the US National Institutes of Health.  Because I support these policies, as well as annotation 2.3, I should therefore point out that Principle 2 is designed for universities, not funding agencies.  Funding agencies are essentially charities, spending money on research because it is in the public interest.  They have an interest in making that research as useful and widely available as possible, and virtually no competing interests.  Universities have the same charitable purpose but many competing interests, such as nurturing researchers more than research projects, nurturing them over their entire careers, and erecting bulwarks of policy and custom to protect academic freedom.

2.5.  If we hasten the day when all or most journals allow postprint archiving, then we hasten the day when universities could adopt no-opt-out OA policies (as opposed to both no-opt-out deposit policies and opt-out OA policies) without violating Principle 2.  One way to do that is for universities to demand the right for postprint archiving when negotiating licensing terms for subscription or renewal.  OhioLink publicly committed itself to this strategy in 2006, the only library consortium I know to do so.  (OhioLink is a consortium of 86 academic libraries in Ohio representing more than 600,000 faculty, students, and staff.)  Several major universities are also trying this strategy, but so far without a public announcement.  Public or private, I recommend that all universities do what they can to negotiate better terms for their authors, not just better terms for their readers.

I included all of the annotations of principle 2, since I think all are relevant to this discussion. But one thing is clear: the Peter Suber of 10 years ago (author of the principles), 5 years ago (the mythbuster), and one week ago (on Twitter) agree that restricting a researcher’s choice of publication venue would impinge on academic freedom.

So, why would Plan S not impinge on academic freedom, according to Suber? There are actually two answers. One is contained in 2.4, above: “Principle 2 is designed for universities, not funding agencies.” I will get into the details of Suber’s argument for separating universities and funding agencies in a moment. But the bottom line is that Suber here allows funding agencies to adopt policies that would, were those policies adopted by universities, impinge on academic freedom.

Second, Suber holds that although the freedom to choose venue of publication should not be restricted by university policies on pain of impinging on academic freedom, freedom to choose venue of publication is not all there is to academic freedom.

So, although Plan S impinges on researchers’ free choice of publication venue, it does not infringe on what Suber calls the heart of academic freedom: to pursue the truth in teaching and research free from reprisals other than disagreement among academic peers.

I agreed with Suber on Twitter that, if we limit academic freedom to this “heart” definition, then Plan S does not impinge upon it. But what is the argument for limiting our definition of academic freedom in this way? Or does Suber want to say that Plan S infringes on academic freedom, but only at the margins (not the heart)? If the former, I still want to see an argument. If the latter, then why should universities be restricted from infringing on the ‘marginal’ freedom of researchers to choose the venue where they submit manuscripts for publication?

Suber offers a few reasons for thinking that his Principle 2 should apply to universities but not to funding agencies. The first is the claim that, “Funding agencies are essentially charities, spending money on research because it is in the public interest.” Because they are charities, Suber holds, “They have an interest in making that research as useful and widely available as possible, and virtually no competing interests.” Universities, on the other hand, “have the same charitable purpose but many competing interests, such as nurturing researchers more than research projects, nurturing them over their entire careers, and erecting bulwarks of policy and custom to protect academic freedom.” This is a really interesting comparison; but I’m not convinced.

I’m especially not convinced that universities and funding agencies have the same goals, but that the university has ‘competing interests’ that call into question its commitment to those goals. Maybe the idea here is that universities are more invested in individual researchers and therefore need to erect barriers against societal interference? So, perhaps Suber holds that funding agencies are freer to pursue the goal of benefiting society, since agencies don’t have to worry as much about individual researchers? Although I grant that funding agencies and universities play different roles in knowledge production, I don’t think it’s quite right to suggest that they both charitably aimed at the public good, but that universities also have to prioritize the special interests of their faculty, which sometimes gets in the way of their charitable aims.

But let’s run with the idea for a moment and suppose that, where funding agencies are charitable organizations, universities are philanthropic organizations. The difference is that charities provide somewhat more immediate — and one-off — relief for particular individuals suffering from particular problems, while philanthropic organizations take a longer view and try to address underlying issues and attend to systemic causes of problems. Where charities offer tactical interventions to alleviate instances of suffering (providing food or clothing, say, like the Salvation Army), philanthropic organizations are strategic, aiming to eliminate suffering from a particular cause tout court (ending poverty, like the Gates Foundation).

On this interpretation, funding agencies provide grants to benefit individual researchers or research teams, but universities nurture the research enterprise as a whole.

As intriguing as such a comparison might be, it breaks down in various ways. First, charitable organizations don’t give their charity in the expectation of an immediate return on their investment. They might give you food to alleviate your hunger; but they don’t then turn around and say, OK, now that you’ve had your breakfast, what are you going to do for society? Funding agencies do, however, often ask researchers for returns on their investment. I think that’s justified. But that’s because public research funding agencies are not charities. There’s a real difference between the US Department of Agriculture’s Food Distribution Programs and its National Institute of Food and Agriculture. The latter funds research on food, while the former distributes food. Since it’s obvious that public money used for research might be used for other purposes, there is a necessity for public funding agencies to make a case for their benefits to society (aka ‘broader impacts’). I agree that OA policies should be part of that case; but not in ways that hinder rather than empower researchers.

Second, it’s far from clear that funding agencies don’t also try to nurture researchers, sometimes over their whole careers, and that they don’t try to erect “bulwarks of policy and custom” to protect academic freedom. Many researchers experience continuous, career-long support for their research. Agencies even try to nurture early career researchers in their efforts to establish themselves. And there is no greater bulwark of policy than the process of peer review of grant proposals (Holbrook 2017, Baldwin 2018).

I grant that there is a difference in the roles played by funding agencies and universities; but the difference between them is not one that supports the idea that funding agencies can infringe on academic freedom in ways universities cannot (Suber’s principle 2.4). If anything, funding agencies have to be more careful than universities about infringing on academic freedom.

Here I want to invoke something that Robert Post said, and which I think is vital to this conversation: “The most basic point about academic freedom is that I, as a professor, can only be judged by my peers.” This claim expresses the same intuition underlying my earlier appeals to academic norms as key to academic freedom, since it’s about us academics giving ourselves the law (it’s a matter of autonomy). Existing academic norms support the idea that academics should be able to choose the venues to which they submit manuscripts for publication.

For me, this is  the key difference between university OA policies and funder mandates. The former — like the policy at Harvard — have been voted on by the faculty. Insofar as it comes from the funders, rather than being voted on by the faculty at universities, Plan S would be an ‘outside’ imposition. If waivers to university policies are essential in order for the university to avoid infringing on academic freedom, they are even more necessary in the case of funding agency OA mandates. Suber’s Principle 2 should apply to funding agencies, as well.

Mr. Smits Goes to Washington

News article just published today in Nature.

Robert-Jan Smits on Plan S

I haven’t watched this, yet; but I feel it’s important to put it here to provide context.

On Academic Freedom and Responsibility

Today, Stephen Curry published a piece on his blog on “Academic freedom and responsibility: why Plan S is not unethical,” and I want to offer a response to some of his arguments here.

The first thing to say is that I think Curry and I agree on quite a few points. We especially agree that to speak of academic freedom means we should also to speak of academic responsibility. For six years (2012-2018), I was a member of the American Association for the Advancement of Science (AAAS) Committee on Scientific Freedom and Responsibility. I fully support the AAAS Statement on Scientific Freedom and Responsibility, which the Committee co-authored:

Scientific freedom and scientific responsibility are essential to the advancement of human knowledge for the benefit of all. Scientific freedom is the freedom to engage in scientific inquiry, pursue and apply knowledge, and communicate openly. This freedom is inextricably linked to and must be exercised in accordance with scientific responsibility. Scientific responsibility is the duty to conduct and apply science with integrity, in the interest of humanity, in a spirit of stewardship for the environment, and with respect for human rights.

In particular, the Statement clearly expresses the key point that freedom and responsibility are inextricably linked, such that freedom must be exercised in accordance with responsibility. The same applies to academic freedom more generally. I am very much opposed to the idea that, under the rubric of academic freedom, anything goes!

Another point of agreement with Curry is that Plan S presents an opportunity for us to discuss our academic freedom and responsibility.  I thank him for not simply dismissing concerns about academic freedom and for engaging in conversation! I only wish more of our fellow academics would be so willing to engage.

I think we also agree that the main point of disagreement between us is how best to balance our academic freedom and academic responsibility. I think it would be fair to say that, prima facie, I favor limiting academic freedom less than Curry does; or, perhaps, that he favors a more restrictive scope for academic freedom than I do; or maybe that he would draw the line between freedom and responsibility differently from how I would. So, the locus of the discussion is here.

Now, to turn to the details of Curry’s post. Based on conversations on Twitter today, I don’t think it’s necessary to spend too much time on this first point; but we can always revisit it, if I’m wrong. Curry’s initial argument against the academic freedom arguments made by my colleagues and me is that they rest on shaky foundations. In particular, Curry hones in on the claim that the freedom to publish in venues of our choice is fundamental to academic freedom, writing:

If we are to properly debate the question of whether choice of publication venue is a “basic tenet” of academic freedom, we need an evidence base of some sort.

Noting that we failed to provide a citation for this claim, Curry seeks evidence in various statements on academic freedom. He finds some evidence in a publisher’s statement, but then notes that a publisher has a vested interest. He finds no evidence in the Wikipedia entry on academic freedom. He finds some evidence in the AAUP 1940 Statement on Academic Freedom, which calls for “full freedom in research and in the publication of results;” but he argues that this call is vague and does not specifically mention freedom of venue in which to publish. (As for the bit about “pecuniary return,” I’m pretty sure that applies to patents or to publications that might produce royalties — so, if I do some research to make money, not if I get a grant, from which I don’t profit financially.) Curry then proceeds to search for evidence in a 1997 UNESCO statement on academic freedom that says: “Higher-education teaching personnel should be free to publish the results of research and scholarship in books, journals and databases of their own choice.” Curry then goes on to examine the UNESCO document more fully and concludes (his emphasis):

The preamble and principles put a clear emphasis on academic freedom as a freedom from undue political interference in the questions that academics may ask and write about, and it is this concern that seems uppermost in their minds when they write about the freedom to publish.

This is important, since the discussion today on Twitter between Curry and Richard Poynder turned on precisely whether UNESCO had a negative view of academic freedom (freedom from interference, as Curry argued) or a positive view (freedom to publish in venue of choice, as Poynder argued). I discuss this distinction between negative and positive views on academic freedom in greater detail here; but I think this difference underlies a lot of the disagreements about the topic.

The bottom line of Curry’s attempts to find “evidence” for the claim that the right to choose where to publish is fundamental to academic freedom is that he could not find any that would provide unequivocal support. For that reason, he concludes that the claim rests on shaky foundations.

My response may sound odd, since it is a claim I was a party to that is under attack. But I hold that, even if all the sources Curry explored agreed explicitly with the claim that choice of publication venue is vital to academic freedom, that would not provide unequivocal support for the claim. UNESCO’s recommendations don’t have the force of international law; AAUP cannot impose its definition on anyone; Wikipedia is good, but it’s not that good; and, yes, the publishers have a vested interest.

However, that these organizations don’t provide unequivocal support for the claim doesn’t show that the claim rests on shaky foundations; these sources were never meant to serve as foundations for the claim. As I said in an earlier post,

Academic freedom would be a thing — an ethical thing — even if there were no laws about it.

So, the first point of disagreement between Curry and me concerns what would constitute evidence for the claim that choice of venue of publication is fundamental to academic freedom.  I think the fact that academics normally expect to be able to choose the venue of publication for their research supports the claim that choice of venue is a fundamental aspect of academic freedom better than any of these definitions examined by Curry (even had they provided unequivocal statements in favor of choice of venue). Michael J. Barany tweeted something today that I haven’t had a chance to read, yet, that may force me to reexamine this claim:

Until I do read it, though, I think that the academic norms with which I’m familiar with regard to venue of publication support the claim that being able to submit a manuscript to the venue of your choice is a normal expectation for an academic. Moreover, I think that academic norms provide at least prima facie support for  claims about academic freedom in general. Can academic norms be questioned? Of course! I’ve argued for years now that academics receiving public funding for their research have a duty to the public to try to ensure that their research will have broader societal impacts. For quite a while, academics wanted to insist they didn’t have such a duty. So, my approach was to try to engage academics in a discussion on the topic. This, I take it, is also the approach Curry is taking with regard to Plan S.

So, based on my knowledge (which is, of course, limited) of academic norms, I would say academics have the following expectations that all fall under the rubric of academic freedom:

  • Subject to the needs of the department, and provided I don’t veer wildly off course or just keep repeating the same things every class, I get to teach what I want.
  • I get to pick my own research topics, I get to pick my own research approach, I get to write what I want to write, how I want to write it, and submit it where I want for publication.
  • I get to have political opinions and state them publicly, as long as I make clear I am not speaking on behalf of my employer.

This isn’t an exhaustive list, but it’s one I think most academics would look at and say, yeah, that’s about right.

Note that the list already includes some limitations that would also fall under academic responsibility (to the department and to the university). I think there are others, including:

  • I should conduct all of my research and teaching with integrity and respect for others.
  • I should (at a bare minimum) follow all the tenets of what’s known as Responsible Conduct of Research (no plagiarism, falsification, fabrication, etc.).
  • I should put as much effort into teaching as I do into research, trying to integrate them whenever possible.
  • I should try to mentor junior colleagues.
  • I should exhibit collegiality with all my colleagues.
  • I should participate in creating a culture that precludes racial, gender, and sexual harassment.
  • I should try to ensure that my research and teaching have (positive) broader impacts on society.
  • I should help students who want to have positive broader impacts on society.
  • I should try to engage members of society, rather than staying cloistered in my university.

I expect less agreement on this list of responsibilities. But I do agree with Curry that discussing our freedoms and responsibilities is a really good way to continue the discussion.