Go back

A critique of the Emerald Statement relating to UK rights retention strategies

14/02/2024

Emerald should be applauded for adopting a policy since 2014 that states authors may make their accepted manuscript (AAM) freely available at the date of Emerald’s publication – this is more liberal than many large publishers. As part of its Open Research policies, and in response to the widespread adoption of Institutional Rights Retention Policies (IRRPs) in the UK, Emerald has published a ‘Statement relating to rights retention strategies.’ The following critique examines the statement in detail.

The Emerald Green Open Access policy “has allowed authors to self-archive their Author Accepted Manuscript (AAM) under a CC-BY-NC licence, should they choose to do so. This allows authors and their institutions to fulfil any open mandates required by funders.”

  •  Ignoring for now the fact that it is the publisher, not the researcher, holding the power over the author’s distribution of their intellectual creation (Emerald ‘has allowed’), most funders prefer a CC-BY licence, not a CC-BY-NC licence. Emerald permits authors to use a CC-BY licence if a transformative Agreement is in place, or if an APC has been paid, but note that cOAlition S funders’ financial support for transformative agreements is due to cease after 2024.

“a CC-BY-NC licence…protects the rights of the author and publisher by preventing subsequent commercial use of the AAM.”

  • I disagree. Emerald insisting on a CC-BY-NC licence for the AAM does not protect the rights of the author. If I understand correctly, owing to the transfer of copyright, it is Emerald that holds the right to license others, including the author, to make any further commercial use of the article. As the Green OA instructions state “If anyone wishes to use that AAM for commercial purposes, they should see Marketplace [The Copyright Clearance Centre’s ‘Marketplace is your source for copyright permissions, content, and reprints’].” The Non-Commercial element of the licence is therefore there to protect the rights and commercial interests of the publisher. I’m happy to be corrected if this is wrong.

“a number of UK universities have implemented a ‘Rights Retention Strategy’ which compels authors to deposit AAMs in their institutional repository.”

  • The use of the word ‘compels’ implies that researchers are forced to deposit their works. On the contrary, institutional RR policies are generally adopted both in support of and with the support of their academic staff.

“this [IRRP] approach undermines the rights of authors who lose control over where or how their work is subsequently published or otherwise commercially exploited.”

  • As noted above, institutional RR policies are generally adopted both in support of and with the support of their academic staff. 
  • Assuming the main complaint of Emerald is the CC-BY licence, where any work released under a CC-BY license – the standard OA publishing licence – be it publisher’s version or AAM, can be re-published and commercially exploited. There are millions of articles published under this licence. “CC BY articles in fully-OA journals are by far the dominant type of articles published by OASPA members… CC BY remains dominant in hybrid journals too.” (OASPA blog). This therefore appears to be a broader argument against CC BY generally.
  • If I am correct above, Emerald authors have already lost control over “how their work is…commercially exploited”…… to Emerald.
  • By submitting to Emerald’s conditions for Green OA which include a number of restrictions, authors lose control over how they can use and disseminate their own work. 

“this approach is a threat to the integrity of the research published. AAMs could be disseminated widely with no ability for publishers to correct or retract the work and no obligation for those subsequently publishing the work to comply with COPE guidelines.”

  • The same could be argued for any work published under a CC-BY licence – see above. The same is also true about corrections or retractions for works disseminated under the current CC-BY-NC licence. 

“the legal basis under which a University can claim to ‘retain’ rights to an AAM is flawed.”

  • Universities do not typically retain rights. The university as an employer typically waives its copyright in articles. With an IRRP, the author grants the university a licence to make the work OA under a CC BY licence. Some universities have opted for policy titles such as ‘Copyright and Publications Policy’ rather than Rights Retention policy to clarify this point. See for example the policy at the University of Edinburgh: “Upon acceptance of publication each staff member with a responsibility for research agrees to grant the University of Edinburgh a non‐exclusive, irrevocable, worldwide licence to make manuscripts of their scholarly articles publicly available under the terms of a Creative Commons Attribution (CC BY) licence, or a more permissive licence.”
  • I would welcome an explanation from Emerald as to how, in their view, the legal basis of UK universities’ policies is flawed.

“This approach ignores the significant value and investment that publishers make in the peer review process and in their journal brands.”

  • IRRPs do not ignore the value of the publisher. Researchers, universities and funders are all aware of the value that publishers can add, and the investment they make to create their products and run their services. For articles published in subscription journals, the publisher continues to receive payment for the work, even if the AAM is made freely available. This argument conflates the publishing service with the original rights of the author to their own intellectual content. In my opinion, the two should be treated as separate entities. The publisher can continue to take advantage of the content given to them at no charge by the author to promote their brand, and thereby make a return on their investment. Let’s not forget either that the peer review process relies on the (generally) unremunerated input of scholars. The unremunerated input from academia is considerable, and not an “investment that publishers make in the peer review process”, but rather an unremunerated intellectual investment by scholars themselves.

“The intellectual property [IP] rights in an AAM are a combination of the work of the author and that of the publisher.”

  • My understanding is that the IP rights in the content of the AAM are legally the result of creation by the author and original copyright holder who wrote the work, and then made any changes following peer review. The publisher has not made any intellectual input in creating the content at this point.

“Whilst in some cases the university may own author copyright under an employment contract, it cannot unilaterally ‘retain’ the rights of the publisher or co-authors who may not be employees.”

  • As mentioned above, the university does not retain the rights of the publisher, nor usually the author, or co-authors. The university is granted a licence to make a copy available. Co-authors will have agreed to the dissemination beforehand – in the same way, they do when the corresponding author signs the publisher’s licence to publish on behalf of all authors.

The Emerald statement does not categorically state that articles backed by IRRPs and submitted for consideration for publication will be rejected. The company says that it remains ‘open to consider any equitable approach that increases Open Access routes for our authors.’ This suggests that articles will not be rejected at submission, or later, on the grounds of prior licences such as IRRPs. Clarity on this matter would be welcome.

The Emerald statement relating to rights retention strategies appears to show some misunderstandings as to how UK IRRPs operate (for example, that the author licences the university – the university doesn’t retain rights). On a broader note, in my opinion, there is a fundamental problem with the statement – like many publishers’ sharing policies: it is based on the premise that it is the publisher who dictates both where and how the author can disseminate their intellectual creation. That is, the publisher imposes restrictions on use by the author. Herein lies the problem. As I continue to reiterate, the boot is on the wrong foot. The author’s own dissemination of their research findings is for the researcher to decide, not an external 3rd party service provider who has had no input to the research process. Emerald’s green OA policy, although more liberal than most, is basically a set of restrictions on the use of the author’s content by the author. For example, AAMs can only be disseminated “On scholarly collaboration networks (SCNs) that have signed up to the STM article sharing principles” and ‘We do not currently allow uploading of the AAM to ResearchGate or Academia.edu.’ Such restrictions are precisely the reason why increasing numbers of UK institutions are adopting RR policies.


Sally Rumsey

Sally Rumsey was, until July 2022, Jisc’s OA Expert working as support for cOAlition S in all areas covered by Plan S, especially the Plan S Rights Retention Strategy. Prior to that, she was Head of Scholarly Communications & RDM, Bodleian Libraries, University of Oxford. There she managed the University’s repository service for research outputs, Oxford University Research Archive (ORA and ORA-Data https://ora.ox.ac.uk). She was previously e-Services Librarian and manager of the repository at the London School of Economics. Sally remains a member of the UKSCL (Scholarly Communications Licence) group.

View all posts by Sally Rumsey