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While this is not a carte blanche to let you license your paper to just anybody under any terms, it does allow you to e.g. submit your paper to an institutional preprint repository, like the UC open access policy mandates. It even goes beyond that, and lets you submit the final, published version of your paper to such a repository, too, provided that you wait out the embargo period until doing so.

While this is not a carte blanche to let you license your paper to just anybody under any terms, it does allow you to e.g. submit your paper to an institutional preprint repository, like the UC open access policy mandates. After waiting out the embargo period, it even lets you submit the accepted version of your paper to such a repository, too.

Basically, any publishing agreement vetted by a halfway competent lawyer will already have a clause requiring the author to assert that they in fact do have the authority to grant the journal the rights that the agreement says they do. For exclusive copyright transfers, this is likely to explicitly include an explicit or at least implicit assertion that the author has not granted any prior conflicting licenses to the article.

Basically, any publishing agreement vetted by a halfway competent lawyer will already have a clause requiring the author to assert that they in fact do have the authority to grant the journal the rights that the agreement says they do. For exclusive copyright transfers, this is likely to include an explicit or at least implicit assertion that the author has not granted any prior conflicting licenses to the article.

Addendum: So what is the point of an institutional Open Access policy, like the University of California has recently enacted, then, if it's not a legal trick to get around publishers' agreements?

The way I see it, this policy accomplishes several things:

• Making free preprint distribution the default rather than an exception. For a long time, many publishers have already permitted such distribution, but since it involves extra work for authors (both figuring out whether such distribution is permitted, and then actually uploading the papers), a lot of them may not have bothered. By making preprint distribution the institutional default, and requiring authors to get an explicit waiver to opt out, submitting papers to the repository becomes the "path of least resistance" for authors.

• Centralization: Even when authors do make their preprints available, it's often on their personal web pages, where they may be hard to find and which may or may not persist. The UC policy requires all preprints to be submitted to a single centralized repository, where they can be reliably stored and indexed.

• Building up a critical mass: If an individual author e-mails a journal that doesn't normally allow preprint sharing, and asks for an exception to their standard publishing agreement, the publisher may be tempted to just brush them off as not worth the trouble. With an institutional policy, publishers with restrictive publishing agreements now face a choice between a) relaxing their terms to make them compatible with the policy, or b) requiring all authors from UC to obtain waivers. As more and bigger institutions adopt such policies, option (a) starts looking more and more attractive to publishers.

• Institutional support: At institutions and departments with no prior tradition of doing so, an author who wanted to upload their papers to a preprint server may have been essentially on their own — they'd need to figure out all the legal and technical details themselves, and if they needed to negotiate the matter with a publisher, they'd basically be one person wrangling with a big corporation. If they asked for help from colleagues or admin staff, they might be met with shrugs and blank stares.

  With the new policy, authors now have the whole university behind them, both in negotiations and simply in dealing with the technicalities. They can also have confidence that, if they should happen to accidentally violate an ambiguous publishing agreement by uploading their paper to the institutional repository, the university will support them in negotiating a settlement with the publisher.

• Establishing a presumption of preprint sharing. Arguably, by setting up the open access policy and announcing it widely, the university is creating a presumption that publishers should know about the policy, and thus know that they need to ask authors from UC to submit a waiver if they don't want to allow institutional preprint distribution. If the journal accepted a manuscript from a UC author, without clearly communicating the need for a waiver, they might be argued to have implicitly consented to the preprint distribution, especially if the situation was otherwise ambiguous. This is a legal trick of sorts, but it's not really a loophole so much as simply stacking the playing field, and it's only possible because the university is big enough that publishers might be reasonably expected to be aware of their general policies.