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Exclusive licence to publish – now here’s a thing

25/07/2022

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? 



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.

Ignasi Labastida

Ignasi holds a PhD in Physics from the University of Barcelona where currently he is the rector's delegate for Open Science. Since 2019 he is chairing the Board of SPARC Europe. He led the introduction and adaptation of the Creative Commons licenses in Spain, being the public leader of this project.