There’s no reason to suppose that the materials hosted on university or other Institutional Repositories are unlicensed, quite the opposite in fact. There are many articles out there behind paywalls that could be hosted open access but aren’t depending on the particular journal and funding body policies. There are plugins available for most institutional repository software to assist the author, and the body in charge of IP in the institution in this.
These systems use DOIs to keep track of different instances of the same article, just like Google Scholar does. It would be trivial for publishers to trawl for unlicensed and not allowable content. It would be quite problematic for the institutions concerned (well, you would actually most likely get a friendly enough request as they would assume you had made an honest mistake).
This plugin, which doesn’t index the fulltext of anything that isn’t fully allowable, tells you what kind of open access it is: a fully open access journal, a preprint server (most of the content of IRs) or an open access article in a paid for journal.
I’m all for open access on all research though too often the discussion really involves career progression of early career academics. While first world problems are still problems I think we would be better making all published research open access. I believe universities are chock full of clever people so they should work out their HR policies in a way that doesn’t enrich Elsevier to the great cost of humanity.
