Hi, Anneliese. The publication agreements are subject to the pre-existing
conditions (including pre-existing licenses) established by the UC policy.
So whatever rights the author purports to transfer to the publisher, or
whatever other compliance terms to which they agree, are subject to the
prior license taken by the university. What's more, the publisher's know
this because Katie / CDL documented outreach to the publishers advising
them of the pre-existing license. What I often tell scholars who sign
agreements with such terms is that they may wish, if they want, to remind
the publisher of the institutional license before signing. That way, if the
publisher would like them to waive the pre-existing license, they can (if
they want to). This really only comes up in more limited instances in which
the author both intends to sign such a restrictive agreement *and *intends
to deposit the AAM in eScholarship prior to the publisher embargo.

It may be easier to talk by phone, and I'm happy to.

Best,
Rachael

On Tue, Feb 1, 2022 at 12:11 PM Taylor, Anneliese <
[log in to unmask]> wrote:

> Hi all. When it comes to author rights under the UC OA policies, I
> frequently relay that authors have the right to deposit their final
> accepted manuscripts immediately upon publication, without an embargo
> period. This is often contradicted by author publication agreements, which
> state that this version may be made available on a website or in the IR
> after a 12-month or some other embargo period. So I'll refer the author
> to the OSC FAQ
> <https://osc.universityofcalifornia.edu/for-authors/open-access-policy/policy-faq/#:~:text=My%20publisher%E2%80%99s%20policy%20says%20_____________%2C%20which%20is%20different%20from%20UC%E2%80%99s%20OA%20policies.>that
> explains this discrepancy.
>
> My question is, how is this right still preserved even when an author
> signs a publication license agreement contradicting it? I'm thinking about
> how fair use can be thwarted by the library signing a license agreement
> that restricts or eliminates what would be fair use without the license.
> Yet in this case we tell authors that they have the right to share their
> article beyond what is allowed in a standard publication agreement.
>
> Thanks in advance,
> Anneliese
>


-- 
Rachael G. Samberg, J.D., MLIS
Scholarly Communication Officer & Program Director
Office of Scholarly Communication Services
University of California, Berkeley
Doe Library, 189 Annex
Berkeley, CA  94720-6000
Pronouns: she/her

*Guidance*: lib.berkeley.edu/scholarly-communication
*Updates*: @UCB_ScholComm