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The difference between a library license and publisher contracts is that usually in a library license we say "we will not use the content for X," and if we say that, we're breaching our contract to do X later, even if would be fair use. I don't think I've seen a publication contract where the author is being asked to agree that "I will not post my AAM on a repository in the next year." Instead they usually talk about what rights the author has. Looking at a recent Elsevier example, I see "I understand that I retain or am hereby granted... the Author Rights. ... The Author Rights include ... sharing... the Accepted Manuscript on certain websites and usually after an embargo period."
Adn like Rachael said, we don't care what rights the author has, because we're relying on the rights the University has through that prior license.

-Katie

On Tue, Feb 1, 2022 at 3:13 PM Rachael Samberg <[log in to unmask]<mailto:[log in to unmask]>> wrote:
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]<mailto:[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<http://lib.berkeley.edu/scholarly-communication>
Updates: @UCB_ScholComm