The following article was originally published on the LSE Impact Blog on October 26, 2022 


Launched in 2021 by cOAlition S (an international consortium of research funders) the Rights Retention Strategy (RRS) aims to ensure that researchers funded by these organisations retain the rights to their work. Reflecting on the implementation of the strategy a year after its launch, cOAlition S Ambassador Sally Rumsey, outlines the aims of the RRS its success to date and the potential for the wider application of the RRS across other institutions.


The cOalition S Rights Retention Strategy (RRS) came into force for its “early adopters” in January 2021. The RRS ensures that authors apply a CC BY licence to the Author Accepted Manuscript of their submissions. That licence declared at submission has legal precedence over any later publisher’s licensing agreement. It enables authors to retain sufficient rights on their articles, making it possible for the author to reuse their work as they see fit, and to make a copy of their published article immediately available in a repository. In this way, cOAlition S funded authors can meet their funder’s open access (OA) requirements. The RRS is encapsulated in cOAlition S research grant agreements. It is intended to circumvent the restrictive conditions publishers impose on authors in licence to publish agreements.

There are now numerous examples of authors who have used the RRS and made their article freely available in a repository whilst the publisher’s version remains behind a paywall (For example: Author’s Accepted Manuscript (AAM) and Publisher’s Version).

However, there are still difficulties and barriers for authors. Although the RRS establishes sufficient copyrights over the AAM, some publishers counter it under contract law. They do so despite, having been previously informed about the RRS and fully aware that requirements are embedded in authors’ grant contracts.

cOAlition S funders can only influence those researchers whose research they fund and the funder plays no part in the agreement between author and publisher. A change in national laws could break the stranglehold publishers hold over researchers’ rights, but such a move would take time. This being said, institutions can support their staff to retain their rights now. Currently most institutions lack awareness that their researchers are freely giving away their copyrights, to the detriment of the individual researcher, the institution, and the general public. Thoughtlessly handing over those rights is arguably a form of academic exploitation.

Thankfully, institutions are becoming wise to this anomaly, and a growing band of universities is adopting local institutional author rights retention policies (IARRP). This enables their researchers to retain ownership of rights and content in the works they create.

IARRPs are not just ‘nice to have.’ They are an essential policy instrument to support researchers on a par with examination regulations, employment & career development, and health & safety policies.

An IARRP largely consists of the following elements:

  • Researchers (i.e. authors) retain copyright as a function of their institution’s regulations. It supports all researchers, not just funded ones.
  • Researchers agree to grant the University a non‐exclusive, irrevocable, worldwide licence to make article manuscripts publicly available under the terms of a (typically) Creative Commons Attribution (CC BY) licence.
  • Researchers provide the university with a copy of their works for deposit in the institution’s repository.
  • The university will make the copy of the work freely and immediately available.
  • The policy typically applies to research articles and conference proceedings.

IARRPs are not new: Harvard adopted a policy in 2008 and many others followed. A new wave of adoptions is underway, some encouraged by the implementation of the cOAlition S RRS. Recent adopters include the universities of TromsøEdinburghSheffield Hallam, and the Norwegian University of Science and Technology (NTNU). There’s a year-long pilot at Cambridge and a pilot starting at the University of Oxford in 2023.

Recent adopters acknowledge the previous work of Harvard and others, and the preparatory work on the UKSCL (UK Scholarly Communications Licence). They note that consultation with other adopters is helpful.

Universities’ with IARRPs have considered the following:

  • IARRPs enable them to remain relevant in a changing environment, and for future flexibility.
  • Academics across all disciplines must be involved, and staff in relevant support departments. Familiarity with internal committee structure is key.
  • IARRPs can provide a realistic alternative when negotiating journal deals (budgetary considerations).
  • IARRP simplify copyright permission procedures for researchers
  • IARRPs support publication choice for authors and allay fears of legal action from publishers (“Our researchers do not have to inform the publisher and can be at ease as NTNU will take legal responsibility.”
  • IARRPs reduce administrative burden on support staff (for example by removing the need to manage embargoes)
  • IARRPs recognise ‘ownership of expression of ideas by researchers

Such policies recognise the central role and importance of the institutional repository as the corpus of the university’s members’ publications, and for preserving, maximising visibility, and disseminating research outputs.

Recently two institutions, Edinburgh and Cambridge, published progress reports on their policy implementations.

Notable points include:

  • Some publishers continue to state that RR (rights retention) is not ‘permitted’ and that they require an embargo period.
  • Some Cambridge authors refused to bow to publishers’ demands for appropriation of their rights or swapping to a paid option, and submitted their papers elsewhere.
  • Both institutions experienced an increase in the numbers of items across a variety of publishers deposited in their repository using the RR policy. Although a significant proportion of Edinburgh’s articles are open via paid OA routes (for example via Transformative Agreements), the RR policy enabled ‘the remaining 27% to be published via the repository Green OA route mostly without embargo.’
  • Even if inclusion of the RR statement is technically unnecessary because the article is published OA, some publishers insisted on removing it. Sam Moore at Cambridge surmises that this is because they do not want any additional publicity for the initiative.
  • Researchers require support. They are not always aware that the policy is there to help them.

Most importantly Edinburgh reports that “some publishers even assert that their licensing terms will supersede any other prior agreements. We dispute this and if challenged the University will be able to bring a legal claim against the publisher as they have willingly procured a breach of contract against our pre-existing rights.

In the case of funded grantees, rights retention is often treated as a compliance matter. This misses recognition of rights retention as a core factor in control and ownership within modern open scholarship. Control of when, how, and to whom research findings are disseminated, and ownership of the content, should not be handed over to a 3rd party service provider, i.e. a publisher. A service provider should be paid for services – not take control and ownership of content.

RR enables ownership and control of intellectual content to remain where it belongs – within academia. It is heartening that this fundamental principle is being recognised, and institutions are stepping up to support their researchers via the growing adoption of IARRPs. It is hoped, too, that federal funders in the US operating under the recent OSTP guidelines will be keen to adopt similar policies.

In 2008 Harvard’s Faculty of Arts & Sciences voted unanimously to adopt a ground-breaking open access policy. Since then, over 70 other institutions, including other Harvard faculties, Stanford and MIT, have adopted similar policies based on the Harvard model. In Europe, such institutional policies have, so far, been slow to get off the ground.

We are beginning to see that situation change.

The Norwegian University of Science and Technology (NTNU) is introducing its own Rights Retention Strategy, in effect from 1 October 2022, which ensures Open Access to all new scientific articles published by NTNU’s researchers from day one. In the following interview, NTNU’s Library Director Sigurd Eriksson describes the new scheme, highlights the benefits for NTNU researchers and shares his tips on how other universities can adopt similar policies towards making all publications openly available as quickly as possible.


cOAlition S: Could you please, describe the author copyright policy you have adopted at the Norwegian University of Science and Technology?

Sigurd Eriksson: With a Rights Retention Strategy, we ensure that our researchers can publish their work wherever they want while maintaining their rights to use and distribute their work. As part of our Policy for Open Science, researchers at NTNU must archive their scientific work in our institutional repository, NTNU Open, through the national research information system, CRIStin. For articles that are not published gold OA, authors must deposit the Author Accepted Manuscript (green OA) under a CC BY license. By implementing a Rights Retention Strategy, their work will be made openly available immediately after publishing, regardless of the embargo period for self-archiving often imposed through the publisher’s license agreement. With a rights retention policy and open access through our institutional repository, NTNU takes legal responsibility for its authors’ copyrights.

By implementing a Rights Retention Strategy, their work will be made openly available immediately after publishing, regardless of the embargo period for self-archiving often imposed through the publisher’s license agreement. With a rights retention policy and open access through our institutional repository, NTNU takes legal responsibility for its authors’ copyrights.

cOAlition S: Why did the idea of adopting an institutional OA/copyright policy emerge?

Sigurd Eriksson: We were first inspired by the Rights Retention Strategy developed by cOAlition S. It is our policy to make all scientific articles from NTNU openly available, yet in the past three years about 25% were still neither gold OA nor deposited (green OA). Also, articles must be deposited in a local or national repository to be included in the performance-based financing of the institution.

We believe many researchers are reluctant to deposit in our institutional repository (green OA), likely out of fear of violating any license agreements signed with the publisher, often imposing a 12–24-month embargo period for self-archiving. Publications in hybrid journals are no longer financially supported by cOAlition S funders. We realized that a rights retention policy could be a leverage in our negotiations with publishers offering read-and-publish or “transformative” agreements, as well as a motivator for our researchers to upload their peer-reviewed manuscripts in our institutional repository.

cOAlition S: How was the agreement reached across the institution?

Sigurd Eriksson: In 2021, our Library Director sent briefings about the Rights Retention Strategy to the University Research Committee, which included members of all faculties of NTNU. In spring 2022, the suggested strategy was processed by the Library Council, then send back to the Research Committee and, finally, to the rector for approval.

cOAlition S: What challenges had to be overcome before it was agreed to adopt the policy?

Sigurd Eriksson: The rector and rector’s management team wanted a broad anchoring in the professional environments at NTNU. We obtained support by allowing the case to mature over time and by gathering experience from other institutions. Establishing a dialogue with the University in Tromsø, who were the first in Norway to implement a rights retention strategy on 1.01.2022, was especially helpful.

cOAlition S: What are the advantages of adopting the policy for your researchers and your institution?

Sigurd Eriksson: Our researchers can publish wherever they want, maintain the ownership of their work, and are no longer bound by an embargo period before they themselves can grant open access to their accepted manuscripts after publishing. Our researchers do not have to inform the publisher and can be at ease as NTNU will take legal responsibility.

Our researchers can publish wherever they want, maintain the ownership of their work, and are no longer bound by an embargo period before they themselves can grant open access to their accepted manuscripts after publishing.

cOAlition S: In conclusion, what are your three top tips for any other university considering adopting a similar permissions-based Open Access policy to yours?

Sigurd Eriksson:

1. Contact other institutions that have adopted a rights retention policy advice. They are likely happy to share their experience, knowing that others will follow their example.
2. Make it as easy as possible for the researchers to follow the policy by having the institution take care of the administrative work towards publishers.
3. Be extra thoughtful of how you formulate information about the rights retention policy on your intranet. A list of questions and answers (FAQ) can be very helpful for authors.


Recommended reading

Pursuing a common aim

Those involved in the creation of research outputs agree that Open Access (OA) benefits researchers, research, and society in general. Publishers have responded by offering OA publication in some or all of their journals. This consensus implies a common aim and indicates a shift towards a wider OA environment which has been underway for some time.

Even though much progress has been made towards a fully OA world, there is still a considerable way to go before OA becomes globally ubiquitous. By a fully OA world, I mean a world where all research papers are fully open.

Some funders, becoming impatient with the pace of progress, have taken steps to accelerate OA for articles by adopting OA requirements as conditions of their research awards. Although this has markedly affected progress in OA via mixed publishing models, funders’ influence is limited. In order to achieve universal OA that is sustainable for, and in the control of the research community, in as short a timeframe as possible, further widespread strategic action is needed by everyone involved. In short, the common aim requires collective action.

A simple policy requirement…

As either charitable or taxpayer-funded organisations, research funders want, and are even obliged, to maximise the impact and reach of the research they fund. This goal is served by ensuring immediate OA to the papers resulting from such research. We can describe the funders’ requirement from their grantees extraordinarily simply:

All peer reviewed papers resulting from research funded by < Funder> must be made immediately available (without embargo) and free to use under an open licence. 

Conscious that dissemination is not cost-free, a funder usually provides financial resources to cover publication costs, with the proviso that such resources must be used responsibly. Funders do not support OA publication at any price. The policy usually includes a clause to the effect: < Funder> will cover reasonable OA publication/dissemination costs. 

It really is that simple. Such a policy covers all that is needed: the work can be immediately open, usable, and paid for. On examination, many research funders’ policies align with this simple outline.

… in a complex publication system

Anecdotally, authors and their support staff complain about having to wrestle with multiple complex policies. I shall use the UKRI OA policy as an example. Boiled down to its simplest level, the policy is as follows:

All peer reviewed articles resulting from research funded by UKRI must be made immediately available (without embargo) in either a fully OA journal/platform or in an OA repository and free to use under a CC BY licence. A block grant is awarded to eligible research organisations to support the implementation of the policy. 

David Sweeney of Research England articulated it like this: 

In essence, it is as simple as ‘no embargoes, no hybrid payments’”.

What funders require is clear and can be captured in a short paragraph. In the OA world described in my introduction, where all agree OA is a ‘good thing,’ one would expect that meeting such requirements would not be difficult, whatever journal an academic wanted to write for. However, on inspection, we find that the UKRI OA policy sections referring to research articles comprise 13 clauses + 2 annexes & glossary, plus additional FAQs running to 11 pages.

Why has such a simple policy ballooned?

David Sweeney went on to say:

The policy is simple, but the complexity of the scholarly publication system means that some of the detail is challenging and we have therefore set out our accompanying material.

Researchers frequently find that meeting their funder’s requirements is fraught with difficulties. Many are confused and frustrated by having to deal with complex rules, terms, conditions, and barriers to their choice. Why can’t a researcher select any mainstream scholarly journal they wish and be certain that they can meet their funder’s criteria by publishing in that journal? Publishers have chosen, presumably to gain competitive advantage in attracting submissions, to enhance a basic publication offer with a range of distinctive but complicated features which then have to be navigated to ensure full and immediate open access. The tripwires for researchers are:

  • Payment can only be made for OA in a fully OA journal or platform. Despite a long transition period, many have not yet ‘flipped’ to full OA. The reasons for eschewing the OA options provided by subscription journals (known as ‘hybrid’ OA) have been extensively rehearsed.
  • Many mainstream publishers continue to insist that authors who wish to use the repository route to OA should embargo their AAMs (Author Accepted Manuscripts). These publishers impose terms and conditions that directly conflict with an author’s existing grant agreement, putting them in an unacceptable position. Publishers have been asked to provide clarity for authors but have not answered that request.
  • Most publishers offer publication of OA articles under CC BY licences for funded authors. However, some do not ‘permit’ CC BY licences for repository OA (for example, Elsevier requires authors to attach a CC-BY-NC-ND license to AAMs). See also discussion of unacceptable ND licence assignment here.
  • Price: What is a reasonable OA publication/dissemination cost? Many researchers (and funders) understandably question high prices, such as that of Nature Publishing (EUR 9,500 APC). They are concerned about, in effect, paying for rejection: the price for a single published article includes the cost for rejecting 95% of papers submitted to Nature. Funders are reluctant to do that: those rejected papers can’t all be poor science.

A related but equally pernicious problem is that of authors (understandably) feeling they need to publish in ‘glamour’ titles with brand names and high-impact factors for career advancement. 

The power to effect change

Control of when, how and to whom research findings are disseminated is generally in the wrong place, i.e. in the hands of publishers. Publishing is a service industry; publishers are neither research practitioners nor research enablers. Governance and control of scholarship dissemination should not be the domain of a service industry, no matter how ‘world class’ or ‘quality’ their products.

 

Publishing is a service industry; publishers are neither research practitioners nor research enablers. Governance and control of scholarship dissemination should not be the domain of a service industry, no matter how ‘world class’ or ‘quality’ their products. 

If researchers had control over when, how and to whom their research is disseminated, compliance with the simple policy would be just that — simple. They could choose their favourite fully OA journal and submit their manuscript to it. Provided the price was reasonable, they would comply. If the journal were a subscription journal, they would comply via the repository route. Now that most cOAlition S funders have accepted peer reviewed papers that are not published in a journal as first-class research outputs, authors may have a third option of a non-journal route. The choice would be up to the researcher. 

Equally, if both institutions and researchers implemented DORA-like research assessment and evaluation principles, the focus would be on the intrinsic merits of the research and not the title of the journal in which it was published. Researchers and institutions have been sluggish in implementing change to research assessment and evaluation. Researchers feel they can’t change their publishing practice because they are held ‘over a barrel’ if their journal of choice does not offer compliant terms, and they won’t change their publishing practice because it would be career suicide. Funders have tried to be sensitive to researchers’ journal preferences, but this has generally led to policy complexity.

Funders could be brutal about applying their terms: if a journal does not meet the basic requirements, researchers should find a different outlet. Instead, they try to help both parties, researchers and publishers, by means of exceptions and alternatives, to identify routes towards their ultimate goals. The understanding is that such exceptions are transitory and temporary, but this directly results in complexity. Some funders, for example, end up providing ‘clarity’ and exceptions in long documents or FAQs. Funders with relatively brief policies (such as the Gates Foundation and SFI) have noticed that problems arise when authors try to comply. 

To address such tensions, funders may employ or permit a variety of mechanisms:

If publishers wish to be in receipt of a funder’s money, they need to ensure their journals offer terms that meet that funders’ criteria. By hard-coding OA terms into grant conditions, the funder gives the author power to say what they want – or they will be forced to publish elsewhere.

Collective action is needed

If the accepted worthy goal of a transition to full and immediate OA is to be achieved, all parties need to make a conscious decision to effect change. Funders have leverage because they can set OA conditions on grants. Nonetheless, funders’ influence is limited, because they can set conditions ONLY for their grantees (and their institutions). The funder’s role is therefore limited in what they can do to drive change towards a fully open and affordable OA environment. Each of the interested parties needs to play its role.

If the accepted worthy goal of a transition to full and immediate OA is to be achieved, all parties need to make a conscious decision to effect change. 

  • Publishers:
    • The simple solution: ensure fully OA journals offer publication services at a universally reasonable and equitable price. Even better, adopt the free-to-publish ‘diamond’ model, so journals are OPA (Open Publication and Access).
    • Do not impose barriers to authors’ rights for the use of AAMs. No journal should stand in the way of repository OA.
    • Abandon Impact Factors as a proxy for prestige.

Admittedly, the changes above are not going to happen any time soon.

According to the New York Times, in response to the recent OSTP (US Office of Science & Technology Policy) memo: ‘A spokeswoman for Springer Nature said that funding agencies must increase their financial support for the publications in exchange for the research to be free to the public.’ In other words, funders should pay large publishers even more money to achieve full OA. I disagree but anticipate intense lobbying by major publishers in an attempt to secure their shareholder-focused view of scholarship.  

  • Researchers and Journal editors:
    • Be aware that you have power and use it: retain your rights and use publishers as a paid service, not as a controller of scholarship; if you are an editor, attempt to amend journal policies.
    • Be aware of the price and consider diamond OA journals (see DOAJ).
    • Consider alternative dissemination and scholarly discourse options, including peer reviewed preprints.
    • Work with your institution and your colleagues to implement DORA-like principles.
    • As the original copyright holder, place rights retention conditions on your article when you submit it. Journals would have the right to reject it immediately, but such short-sighted actions will soon come to be seen as bizarre.
  • Institutions:
    • Implement DORA or similar principles and be seen to act on those principles.
    • Implement an institutional rights retention policy in support of your researchers.

Following the OSTP announcement, there has been a flurry of responses, many concerned that major publishers will ultimately be the ones that benefit (by publication moving from an unacceptable paywall model to a disliked OA model). Others are sceptical that the outcome will benefit research and researchers. I tend to agree with Sharla Lair:

We all have choices. We can choose to tweet every way this can fail or we can all work together to ensure that this one act inspires and implements change beyond what we have been imagining thus far. If there is a weakness somewhere, then how do we fix it? We are not victims!

In summary, research funders can be powerful catalysts for change, but the extent of their influence is limited. To achieve global fully OA in an acceptable way to the research community, all parties, including researchers and institutions, must take action.


Dr Ginny Barbour, Director of  Open Access Australasia, illustrates in the following article the power and potential of research repositories. The article was originally published in the Campus Morning Mail, an independent newsletter written and published by Stephen Matchett.


 

If there’s one thing that it’s hard to disagree with, it’s that open access is here to stay in the Australian research landscape. There is impetus from overseas initiatives such as Plan S from cOAlition S and bodies such as UNESCO in its Open Science Recommendation, and interest and support from the Australian Chief Scientist. The NHMRC consulted on revising their OA policy last year and in Aotearoa New Zealand, the Office of the Prime Minister’s Chief Science Advisor, has released a report on open access there.

Where there is a lack of consensus is in how open access should be achieved. The majority of governments, international bodies such as UNESCO, institutions, researchers, and publishers along with groups such as Open Access Australasia (the group I work for), and prominent international organisations such as COAR and SPARC are committed to a diverse ecosystem of open publishing supported through a variety of means, nicely summed up in the phrase “bibliodiversity”.

Yet a minority of commercial publishers, especially and most recently articulated by Springer Nature’s Steven Inchcoombe insist that the only route to open access should be through journals, and not just any journals, but specifically hybrid journals, which of course are the journals that make up the bulk of the journals that Springer Nature and other large publishers still rely on for revenue.

So where do we go from here? There’s a long history of increased consolidation in the scholarly publishing industry, first for journals and now more recently for the services that support scholarly communication. Larivière and colleagues were the first to really highlight this issue in their 2015 paper “The Oligopoly of Academic Publishers in the Digital Era” showing then that in chemistry for example more than 70 per cent of journals were owned by just five publishers—up from 40 per cent in 1975. Though the actual percentages vary by discipline, the trend for all journals is relentless consolidation and increasing influence of a small number of publishers.

The consolidation of infrastructure and services that underpin scholarly communication is perhaps even more alarming. Whereas journals changing hands does not generally lead to them being shut down or amalgamated into other journals, for services the reverse is true. Mendeley began as an innovative start up, but once bought by Elsevier became more of just a reference manager tool, whose functionality for researchers seems to be being gradually stripped away, while at the same time collecting valuable data for the publisher about who is reading and sharing what – an increasing concern in publishing.

Institutional and disciplinary repositories offer a community-owned, robust alternative. Their very distributed state gives a degree of stability and flexibility of approach that publishers simply can’t replicate. Repositories provide access to publications, but also an array of unique content including theses, research reports, audiovisual-content, code and data. They also support the retention of rights by authors, as the recently updated UNSW OA policy enshrines. Yet, publishers decry repositories, claiming that “Green [repository based open access] doesn’t offer the benefits of higher citations and increased downloads that come with gold [journal based] open access; it isn’t the version that researchers want, and is not sustainable for publishers”. However, the facts simply don’t support these arguments and fail to recognise the huge use of and, increasingly, innovation happening within the repository system.

Repositories have a critical role in archiving, preserving and sharing the diverse content produced by universities so it can be used by others and have the greatest impact on our society. Repositories such as QUT’s, for example, see a huge volume of downloads of their content — more than 1.3 million downloads so far this year of its just over 122,000 items. In Latin America, there is a distributed network of national repositories, La Referencia which hold more than 2.3 million articles as well as more than 400,000 doctoral theses. And repositories are now at the forefront of non-commercial innovation in open access, aligning with services such as overlay journals that review and distribute content held by repositories, interoperability that links outputs across the whole research lifecycle, and open peer review.

The importance of such innovation was recently recognised by cOAlition S in their statement on peer review, where they noted that “scholarly papers that have been subject to a journal-independent standard peer review process with an implicit or explicit validation– are considered by most cOAlition S organisations to be of equivalent merit and status as peer-reviewed publications that are published in a recognised journal or on a platform.”

Repositories are an innovative and fundamental part of the global open access ecosystem. Instead of seeking to minimise the role of repositories, publishers should recognise their complementarity and their role in maximising the bibliodiversity that has to be the future of open access.

For the fourth time in less than seven years, the community of science and technology leaders have issued a statement calling on publishers to make disease-specific research open access.  In 2016 the focus was Zika; in 2018, Ebola; in 2020, COVID-19 and in 2022, it is for research relating to monkeypox. To misquote Oscar Wilde, to ask once may be regarded as a misfortune; to ask on four occasions looks like carelessness.

These calls for research to be made Open Access recognise that immediate access to research can accelerate the global response to public health emergencies. Hitherto, publishers have responded positively to these requests and made relevant research free to read.  For example, Elsevier and Springer Nature alone have deposited around 200k COVID-related articles into PubMed Central.  And, it seems likely that they, and many other publishers, will respond accordingly in making monkeypox research freely accessible.

However, even when publishers provide free access to this research, it is typically time-limited and may contain restrictions on how the research can be reused. Indeed, a recent study looking at the impact of the statement calling for COVID research to be made Open Access, concluded that some publishers “have already started re-introducing paywalls” for this content. Given that the pandemic is ongoing, this is both disappointing and worrying.

Open Access should not be dictated by the perceived urgency of a disease but should apply to all research.

To avoid such problems in the future – and obviate the need of having to ask publishers to make research open access – research funders should simply require that the outputs of the research they fund are made openly available at the time of publication and published with an open licence (CC BY).  This licence allows others to build on this research (subject to the norms of academic attribution) without having to seek permission or pay any licence fees.

Although this approach will not open up the archive of past papers, it will ensure that all current and future research is made Open Access. And more importantly, it will ensure that all funded research is made Open Access, not just articles related to a specific emergency. Given the ongoing challenges we all face – climate change, food and water security, diseases – we need to act now to ensure the research findings are made Open Access.

For funders not to put in place policies that ensure Open Access to the research record may indeed look like carelessness at this point. To help realise this ambition, we urge all research funders to consider aligning their Open Access policies with Plan S and, where appropriate, joining cOAlition S to deliver full and immediate open access.

Imagine this scenario. You’ve written an article and want to make it Open Access (OA). To do this, you submit it to a journal that enables gold OA, i.e. the publisher makes the article immediately OA on publication. You decide to apply a Creative Commons CC-BY-NC-ND licence to your manuscript. This licence does not allow users, by default, to make commercial use (NC=non-commercial) nor derivatives (ND=no derivatives) unless they receive a corresponding authorisation. On acceptance, the publisher of the journal presents you with a Licence to Publish (LTP). This is where the problems surrounding the assignment of the CC-BY-NC-ND licence start.

The LTP comprises the grant of a licence to the publisher by you, the original copyright holder and licensor, required for the publisher to publish your article. It also includes a long list of Terms & Conditions created by the publisher. For now, I’ll skate over the fact that you, as the author, are the original copyright holder, and as such, it is you who grants the LTP. Nevertheless, the LTP and its terms and conditions are written by the publisher using their terms – I have written about this unacceptable cock-eyed situation previously (see Licence to publish – the boot is on the wrong foot).

You opt for an NC-ND licence because you are of the opinion that a) you don’t want other people to sell your work without your (the author and copyright holder’s) express permission, nor b) do you want other people to make derivative works (such as translations or abridged versions, i.e. adapted material) from your article without your express permission. As the copyright holder, one would expect that it is you, the author, who applies the CC licence to your open access work. This is explained clearly in information published by the UK Intellectual Property Office:

“As a copyright owner, it is for you to decide whether and how to license use of your work….You can license the use of your work if you own the copyright. You can also decide how your work is used.”

You think you’ve sorted it out: the article is Open Access, you have applied your preferred licence for other users, and you have retained copyright. You assume that, as the copyright holder and licensor, you have retained rights to continue to use your article as you choose, and other users can use your article as you have specifically prescribed via the licence.

Well, think again.

Take a look at this example licence to publish that the publisher Elsevier requires of authors choosing to publish under a CC-BY-NC-ND licence. There are major problems for authors with this LTP.

 

1. Firstly, the LTP is an exclusive licence

On the copyright information, Elsevier states that: 

For articles published open access, the authors license exclusive rights in their article to Elsevier where a CC-BY-NC-ND end user license is selected

To begin with, I thought, how pointless is that? The article is being published open access under a CC licence assigned by the author and copyright holder. However, on closer examination, it would seem it is a case of a publisher rights grab from authors. 

‘I hereby grant to Journal Owner [i.e. Elsevier] an exclusive publishing and distribution license in the manuscript identified above and any tables, illustrations or other material submitted for publication as part of the manuscript (the “Article”) in print, electronic and all other media (whether now known or later developed), in any form, in all languages, throughout the world, for the full term of copyright, and the right to license others to do the same, effective when the Article is accepted for publication.’

These terms mean that there are restrictions placed on the author and copyright holder’s use of the manuscript. Note especially the phrase “and the right to license others to do the same”: any sub-licensing is in the control of the publisher. If you compare the exclusive LTP terms to the full Elsevier copyright transfer agreement, you will notice there is little difference.

Step back and remind yourself that this licence is for Open Access articles where the author retains copyright. In this case, the author’s copyright – your copyright – has been severely abused.

 

2. NC-ND for whom?

You, as the author and continuing copyright holder, may believe that, as the licensor, you are the one who has assigned the CC-BY-NC-ND licence to your work. Unfortunately, you’d be mistaken. By agreeing to Elsevier’s terms, you have given the publisher permission to assign that licence!

“The publisher will apply the Creative Commons Attribution-Noncommercial-NoDerivative Works 4.0 International License (CC-BY-NC-ND) to the Article where it publishes the Article in the journal on its online platforms on an Open Access basis.”

That formulation may seem fairly innocuous, but in fact, it has considerable consequences for the author. This becomes crystal clear in the LTP clause that states:

“As the author of the Article, I understand that I shall have: (i) the same rights to reuse the Article as those allowed to third party users of the Article under the CC-BY-NC-ND License.”

Authors may be under the impression that by assigning an NC-ND licence to their work they are protecting their article for themselves as the author and copyright holder. In fact, they are protecting their article for the benefit of Elsevier! Particularly note the clause:

I understand that the license of publishing rights I have granted to the Journal gives the Journal the exclusive right to make or sub-license commercial use.

Most likely, authors would be extremely unhappy to learn this. Academics are attracted to NC-ND licences to prevent unauthorised use of their work under these conditions and to allow them to retain control of onward use. Elsevier’s licensing terms mean that they have control of authorisation and that only they can choose to make and authorise derivatives and commercial use of the work, rather than the author and copyright holder. The publisher’s restrictions placed on the author mean that:

  • If the author and copyright holder wants to make commercial use of the article themselves – they have to ask Elsevier’s permission. My reading of Elsevier’s policies means this includes restrictions on posting on commercial academic networking sites such as Academia.Edu unless Elsevier has a special agreement with them and an embargo is imposed – I’m happy to be corrected if this is wrong.
  • Any 3rd party that wishes to request a licence to make commercial use of your work has to make that request to and be granted permission by Elsevier, not the Author and copyright holder. 
  • Anyone wanting to make a derivative work has to ask Elsevier’s permission rather than the author and copyright holder: the author has no say in what derivative works are permitted.
  • If the author and copyright holder wants to make a derivative work from their own manuscript – and let’s remember they are still the copyright holder – they have to ask Elsevier’s permission.

 

3. Who is ‘the user’ in ‘user licences’?

According to Elsevier, on its licences information page,The user licenses [i.e. CC licences] define how readers and the general public can use the article without needing further permissions (my emphasis). And:

“Creative Commons Attribution – NonCommercial – NoDerivs 4.0 (CC BY – NC – ND) – Allows users to copy and distribute the Article, provided this is not done for commercial purposes, and further does not permit distribution of the Article if it is changed or edited in any way,…”

Similar information is displayed on other pages on the Elsevier website: Open Access licences (‘how readers can reuse open access articles’); Sharing policy FAQs (‘What does a CC-BY-NC-ND license allow others to do with my work?’ – refers to usersand readersand although for AAMs, links to further details on OA publication licences page)

It’s not until one finds the Copyright page that alarm bells start to ring.

‘For open access articles, authors will also have additional rights, depending on the Creative Commons end user license that they select. This Creative Commons license sets out the rights that readers (as well as the authors) have to re-use and share the article.’

The information on this page lists limits and restrictions on the use of the article under ‘Author rights’ that the author is bound by.  Let’s not forget the author in this case is the copyright holder and licensor. The ‘helpful’ link where this is all ‘explained in more detail’ leads to an example of a non-exclusive, CC-BY licence – completely irrelevant in this case. 

With the complex information across these numerous pages, one would be forgiven for not realising that the restrictions imposed on ‘users’ and ‘readers’ specifically apply to the author as well. On the three information pages provided by Elsevier (licences information, OA licences, and sharing policy FAQs), it is not explicitly stated that the CC-BY-NC-ND restrictions apply to the author in the same way as to all users, readers and the general public.

 

Taking researchers for a ride

I surmise that authors are not presented with these CC-BY-NC-ND restrictions until the point of acceptance when they are presented with the publisher’s LTP. This is the point where various rounds of peer review have taken place, and authors are less likely to jump ship. The specific terms of the licence are not made crystal clear at the outset, i.e. submission (similar to WileyYou can find the Open Access Agreement in Author Services once the article is accepted – I, therefore, haven’t been able to check Wiley’s OA Agreement). I would welcome corrections if I am mistaken here. If it is the case, it would be more respectful to authors if they were presented with the terms the publisher wants them to agree to (but the author might think unacceptable) at the outset, so they can decide whether to proceed, negotiate, or not (see also cOAlition S ‘Enabling Open Access through clarity and transparency: a request to publishers).

In my opinion, Elsevier’s OA CC-BY-NC-ND LTP does not support Elsevier’s claim that their publishing agreement supports authors’ ‘need to share, disseminate and maximize the impact of their research’. By imposing unnecessary restrictions, it is doing precisely the opposite.

This is yet another case of a publisher asserting governance, control and ownership of scholarly content. The publisher offers a service that, for a fee, provides publishing services for the manuscript. The publisher is not the creator of the intellectual content – the author and creator should remain the owner of that content and in control of that content. It is why cOAlition S and others such as EUA and individual institutions are taking steps so that authors and institutions regain control of scholarly content. In this case – the author should retain the right to assign the CC-BY-NC-ND licence; the author should retain the right to make or grant commercial use of their work if they choose; and the author and copyright holder should retain the right to make derivatives, and to licence others to make derivatives as they, the author and content creator, permits. Not a 3rd party publisher.

 


* Although I stumbled across the discrepancies described in this blog independently, I fully acknowledge the excellent piece by Ryan Regier from November 25, 2018, who documented this well before I encountered the problems and went into more detail in his blog. I recommend you read Ryan Regier’s blog entryWhy does Elsevier require an exclusive rights transfer to publish Open Access? 

In 2008 Harvard’s Faculty of Arts & Sciences voted unanimously to adopt a ground-breaking open access policy. Since then, over 70 other institutions, including other Harvard faculties, Stanford and MIT, have adopted similar policies based on the Harvard model. In Europe such institutional policies have, so far, been slow to get off the ground.

We are beginning to see that situation change.

Sheffield Hallam University (SHU) has recently announced its new Research Publications and Copyright Policy, which will come into force on the 15th of October 2022. In the following interview, Eddy Verbaan, Head of Library Research Support at Sheffield Hallam University, explains why SHU decided to make Rights Retention a dominant driver of its new policy, how they benefited from similar institutional policies and what steps could other universities take towards the same direction.


cOAlition S: Could you please, describe the author copyright policy you have adopted at Sheffield Hallam University?

Eddy Verbaan: First, authors must include a rights retention statement in their submissions to journals and conference proceedings. This is the same statement that is required by the Wellcome Trust, UK Research and Innovation (UKRI), and the National Institute for Health and Care Research (NIHR).

Secondly, authors automatically license the university to disseminate their Author Accepted Manuscript without delay under the CC BY license via our repository. This is accomplished in our new policy by expanding on provisions already available in our staff IP policy and our student terms and conditions, which stipulate that our authors own their copyright but that they give the university a non-exclusive royalty-free licence to use their work for certain purposes. The new policy simply defines one of those purposes.

Lastly, the policy provides a mechanism for our authors to opt out of the requirements for immediacy and licensing if necessary.

cOAlition S: Where and why did the idea of adopting an institutional OA/copyright policy emerge?

Eddy Verbaan: We started exploring a rights retention policy when discussions around the UK-SCL initiative first emerged. From the outset, it was clear that rights retention is closely aligned with our university’s ambition to be the world’s leading applied university, and with our library strategic plan which includes a goal to advance open research. We already knew that Open Access is vital for the kind of university we are, as it helps us to share our research beyond academia with the people and organisations that we work with as an applied university. Making open access immediate, rather than after a delay, can play a role in increasing the reach and impact of our research.

Our local groundwork, collaboration and coalition building to advocate and prepare for rights retention reduced our dependence on the realisation of a UK-SCL. We had investigated how a UK-SCL aligned Open Access policy could be implemented, prior to the new UKRI policy, which put us in a good position to seek approval for a new institutional policy this year (2022). Watching and learning from the innovation of Edinburgh and Cambridge gave us more confidence to do so.

 

Making open access immediate, rather than after a delay, can play a role in increasing the reach and impact of our research.

cOAlition S: How was the agreement reached across the institution?

Eddy Verbaan: In a nutshell, we reached the agreement by working through existing governance structures and by aligning with existing strategic activity. It helped that earlier in the year we had proposed and gained approval for an Open Research position statement and that Wayne Cranton, our Dean of Research, and Nick Woolley, our Director of Library and Campus Services, were members of the UUK and JISC groups working to achieve sector level Open Access agreements with publishers.

Our primary forum was the existing Open Research Operations Group. This is a cross-university group that reports directly to our Research and Innovation Committee and which I chair as the library’s Head of Research Support. The group has representation from relevant stakeholders including the researchers, the library, research administration, and IT services. Early discussions about and support for UK-SCL first emerged in this group.

When we felt there was a strong case for action, we went to the Research and Innovation Committee to ask for support to propose a rights retention policy, which – given our work up to that point – we were able to articulate quite clearly. Support was given, and we convened a small task-and-finish group with members from the Open Research Operations Group, supplemented with colleagues from HR and legal services, whose contributions would prove to be vital. We created a risk register, explored how rights retention fits with employment contracts as well as with publishing agreements and consulted with the trade union. We also wrote a paper presenting the case for rights retention, which included a draft policy and recommendations for implementation. This was brought back to the Research and Innovation Committee who approved our proposal.

The main area of concern centred on questions of procedure and practicalities, such as informing co-authors. We were able to address these concerns by developing detailed guidance, including email templates, and through the provision of library support.

 

cOAlition S: What challenges had to be overcome before it was agreed to adopt the policy?

Eddy Verbaan: The main challenge was mindset, reaching a fuller and shared understanding of risk and reward, and establishing for example that there was nothing mutually exclusive between rights retention, version of record, and a healthy publishing industry.

It certainly helped that at the start of the process, we agreed on a set of design principles within which our task-and-finish group was going to work. The most important of these was that there should be as little administrative burden on our authors as possible, so as to avoid unwelcome workload and to maximise engagement with the new policy. We were confident that not only could we achieve this for rights retention, but that by actually taking this policy direction we were keeping things simple for authors.

Of course, our main challenge is yet to come. We have translated strategy to policy, which now in turn requires implementation as practice to then achieve impact. The main risk we identify here is that our authors may not feel sufficiently confident or empowered to include the rights retention statement in their submissions, or that they would not see the benefits of doing this. Our next action will be to communicate the why’s and how’s of our new policy to our university’s research community.

 

cOAlition S: What are the advantages of adopting the policy for your researchers and your institution?

Eddy Verbaan: We have issued a call to action ‘publish with power, retain your rights’ – a variation of the cOAlition S campaign slogan – and articulated the benefits for researchers as follows:
1. Authors achieve immediate and wide dissemination without restrictions
2. They retain more rights over their own work
3. They also retain the freedom to publish where they see fit
4. Whilst automatically complying with all external open access requirements

The first and foremost benefit for the institution is that we improve the communication of our research in line with our open research ambitions and our ambition to be the world’s leading applied University. For us, a key message is that improving the reach of research improves potential impact, in particular beyond academia. For example, a researcher in criminology may be better able to influence probation practises if their research is freely available online, preferably in the places where probation practitioners are active.

Secondly, because rights retention means that our authors will automatically comply with all external open access requirements, there is a clear benefit for the institution in satisfying our funders’ conditions for funding.

It is perhaps also a question of future-proofing. We know that the open access policy for the next national research assessment (REF) will be aligned with UKRI’s new open access policy and will therefore be based on Plan S principles. Introducing REF-compliant author behaviour now, will make sure this behaviour is already embedded by the time the new REF policy actually comes into force.

The first and foremost benefit for the institution is that we improve the communication of our research in line with our open research ambitions and our ambition to be the world’s leading applied University. Improving the reach of research improves potential impact, in particular beyond academia.

cOAlition S: In conclusion, what are your three top tips for any other university considering adopting a similar Open Access and copyright policy to yours?

Eddy Verbaan: Each institution will have its own peculiarities and unique challenges. But based on my own experience in my own institution, my top tips would be:
1. Understand risk and reward. Don’t get bogged down in what could go wrong, but be realistic about the likelihood and severity of potential issues. Perhaps you will find that the benefits outweigh the risks, as we did!
2. Learn from good practices but be confident you can do things as an institution – don’t wait for others to take the lead. Even the UK-SCL initiative would require institutions to implement the policy locally. We certainly benefited greatly from the thinking and exchange of the UK-SCL community and what we saw being developed at Edinburgh and Cambridge.
3. Foster a coalition of stakeholders willing to work together and come on a journey with you. We had already built a network of open research champions by the time we decided to go down the institutional rights retention route, and they have already proven invaluable in advocacy for rights retention.

I also have a bonus tip: keep it simple. In essence, rights retention is actually straightforward. Although many people will keep telling you this is a complex issue, it doesn’t have to be. You can still boil it down to a few key benefits that are achieved with just one simple action.

 


More questions about the new Research Publications and Copyright Policy at Sheffield Hallam University? 

Visit the new Research Publications and Copyright Policy page or contact Eddy Verbaan.

In 2008 Harvard’s Faculty of Arts & Sciences voted unanimously to adopt a ground-breaking open access policy. Since then, over 70 other institutions, including other Harvard faculties, Stanford and MIT, have adopted similar policies based on the Harvard model. In Europe such institutional policies have, so far, been slow to get off the ground.

We are beginning to see that situation change.

Birkbeck, University of London, has recently launched its new Open Research Policy, in line with its founder’s vision of opening access to research findings, outputs and outcomes. In the following interview, Paul Rigg, Senior Assistant Librarian (Repository & Digital Media Management) at Birkbeck, explains why and how this policy was developed and shares three tips for any other institution that might consider adopting a similar approach. Special thanks to Sarah Lee, Head of Research Strategy Support at Birkbeck, for her edits and suggestions in shaping this piece.


cOAlition S: Could you please, describe the author copyright policy you have adopted at Birkbeck, University of London?

Paul Rigg: The Open Access facets of Birkbeck’s new Open Research policy currently apply only to “short-form” publications; that is, a) peer-reviewed, original articles appearing in journals or online publishing platforms (including review articles) and b) peer-reviewed conference papers accepted by journals, conference proceedings with an ISSN, or online platforms publishing original work.

Where a publication is not accepted in a fully OA journal/platform which meets licensing and technical criteria or is participating in a Transformative Agreement, the College requires authors to retain certain rights to their work. This is so it can be shared via the Green open access route with no embargo, under a CC BY licence. The researcher must include the following statement in the funding acknowledgement section and in any letter or cover note accompanying the submission: ‘for the purposes of open access, the author has applied a CC BY public copyright licence to any author accepted manuscript version arising from this submission’.

 

cOAlition S: Why did the idea of adopting an institutional rights retention policy emerge?

Paul Rigg: In 1823, the College’s founder Dr George Birkbeck set out his vision: ‘now is the time for universal benefits of the blessings of knowledge’. That statement continues to underpin the mission and culture of the institution and will be one of the principal foci when we celebrate our bicentennial. Rights retention is a key element of our new Open Research Policy and having the policy in place before this anniversary is one of the ways we are re-energising our mission for the 21st Century.

One of the benefits of rights retention is the easing of the increasing “policy stack” in Open Access. With Plan S applying to UKRI- and Wellcome-funded authors, and REF rules to a broader swathe of researchers, the College felt that clarification and distillation were necessary to give a few clearly defined rules applying to as many people as possible.

We also want to show our solidarity with other UK Higher Education Institutions (HEIs); Birkbeck is at the forefront of open access through our diamond platform, the Open Library of the Humanities, and has long been part of a group carefully considering the implementation of a UK Scholarly Communications Licence (UKSCL). As “big deals” with publishers become unsustainable for many, Open Access is becoming increasingly important to enable researchers to read, and build on, the work of their peers. As a relatively small but mission-driven institution, Birkbeck is potentially in a better position to pivot than many larger HEIs.

As ‘big deals’ with publishers become unsustainable for many, Open Access is becoming increasingly important to enable researchers to read, and build on, the work of their peers.

cOAlition S: How was the agreement reached across the institution?

Paul Rigg: A data policy was being developed concurrently with a new open publications policy, so combining these into an overarching open research policy made sense. During the summer of 2021, a first draft was drawn up by members of our Open Research Working Group. Once general principles were ratified, the policy went through several drafts incorporating input from colleagues, including the repository manager, data manager, and other specialists. It was sent to the College’s Research Committee in October 2021, then Academic Board in November 2021, before being reviewed by our Governors. A more “dynamic” guidance document incorporating information from both Wellcome Trust and UKRI will accompany the policy.

 

cOAlition S: What challenges had to be overcome before it was agreed to adopt the policy?

Paul Rigg: There was concern in academic circles that this kind of policy effectively prevents publishing with some major publishers who will not tolerate rights retention. This is a legitimate concern but one we are working through with our academic colleagues as the situation evolves.

Our policy is an open research policy rather than specifically an open access policy, giving us an opportunity to further clarify aspects of data protection legislation and GDPR. Parts of the policy were rewritten to address participant data and confidentiality, with explicit reference to GDPR.

A future challenge is that by ensuring that the policy runs parallel to existing open access initiatives (Wellcome and UKRI), we will need to stay up to date on even minor alterations to those.

 

cOAlition S: What are the advantages of adopting the policy for your researchers and your institution?

Paul Rigg: The primary advantage is that open access gets our research out into the world; it enhances not just the visibility and reach of the college but of individual researchers. It enables better communication of ideas and easier collaboration as a means of exploring them. In short, it supports us to deliver our mission better. Rights retention specifically acknowledges not just the hard work but also the ownership of the expression of ideas by researchers.

The College hopes rights retention will help normalise deposit on BIROn (Birkbeck Institutional Research Online, the College’s institutional repository) without embargoes, thus smoothing compliance with UKRI and Wellcome policies, not to mention supporting planning for the next REF exercise.

Rights retention specifically acknowledges not just the hard work but also the ownership of the expression of ideas by researchers.

cOAlition S: In conclusion, what are your three top tips for any other university considering adopting a similar permissions-based Open Access policy to yours?

Paul Rigg: 1) Listen to concerns from your academics and take them seriously. Many of these can be context-specific, and academic buy-in is crucial to the evolution of publishing culture.

2) Provide a clear route for help and advice when things don’t go according to plan. Colleagues can contact named individuals who are collaborating across professional services and liaising with external sources at both funders and other HEIs. This network is helping to define and resolve some of the challenges arising from the roll-out of the new policy.

3) Acknowledge that we are all in a learning phase and that there will be bumps in the road. Approaches may be dependent on circumstances, so solutions are not always applicable across all contexts. Funders do not always seem to have satisfactory answers to questions which have not been asked before. Academics face unique challenges as many variables come into play on any given piece of work. We cannot yet see the horizon; at times, we cannot see a few metres ahead, but the ground is there, and we all have a role to play in shaping it.

 


More questions about Birkbeck’s Open Research Policy?