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Licence to publish – the boot is on the wrong foot
01/12/2021
In law – at least UK law – copyright is automatically assigned to works created by authors. Authors do not need to apply for it or register copyright in a work they have created. This means that when a researcher has an article accepted for publication, they usually are the copyright holder of that work. The version of the work at this stage in the publishing process is called the Author Accepted Manuscript (AAM).
Authors can decide how their work is used
Researchers seeking to publish a research article in a scholarly journal are usually presented with some form of publishing agreement, commonly at the point of acceptance. Such documents can take the form of a Licence to Publish (LTP). It is a legal requirement that a publisher requires a licence to publish granted to them by the copyright holder (i.e. author) in order to publish the accepted article. Granting the publisher a LTP does not mean that the publisher needs to own the copyright of the article in order to publish it. As a result, there is no need whatsoever for the author to transfer copyright to the publisher. The LTP granted to the publisher may be either exclusive or non-exclusive: frequently, they are of the more restrictive ‘exclusive’ type.
It is precisely because the author is the copyright holder that they have the right to assign a licence to publish. The UK Intellectual Property Office (IPO) states this clearly:
“You can license the use of your work if you own the copyright. You can also decide how your work is used.“
In some cases, permission to publish is at the submission stage. Note that in all cases, the author is the one granting the LTP. However, you would never think that this is the case when you see what actually happens in practice. It appears I am not the only one – see, for example, the excellent NC State University ReproducibiliTea discussion.
But…who is actually in control?
In practice, the LTP is written by and presented to the author by the publisher. Note the direction of travel here – the publisher asks the author to sign a LTP that the publisher has written. An example of a publishers’ LTP is Wiley’s sample Exclusive Licence Agreement. I find it interesting that in this LTP example, the author is referred to not as the legally titled ‘Licensor‘, but merely the submissive ‘Contributor,’ whilst Wiley/Journal are referred to not as the ‘Licensee,’ but as the more dominant ‘Owner.’ Is this a subtle power assertion tactic by the publisher?
With an exclusive agreement, the right to publish is granted to that publisher alone for the term of the licence (which may be perpetual). An exclusive licence means that the author is granting permission for that specific publisher to not only publish, but reproduce, distribute, make available, copy, communicate, display publicly, sell, or rent – and probably more uses that publishers include in their LTPs. The exclusivity assigned to this particular publisher means that the author – the copyright holder – cannot do any of these things without seeking the publisher’s permission once the licence has been granted.
Nevertheless, even publishers realise that completely barricading articles is not beneficial, so they commonly licence back some rights to the author. Authors may be granted rights of use for purposes of teaching or presentation at conferences. However, such licenced rights are often restrictive and can include terms such as when, where and how an AAM, i.e. the author’s content, can be made available, and with whom, i.e. limited sharing and dissemination.
Publishers expect the author to agree to all their terms expressed in the licence. CUP goes as far as stating:
“PLEASE NOTE: Amended/alternative versions of this LTP will not be accepted and may delay or prevent publication.”
With modern submission systems, licences can be presented as ‘click through’ documents. This means that the submitting author has no easy means to amend licence terms which are unacceptable to them. In this way, LTPs are presented as non-negotiable, ‘take-it-or-leave it’ agreements. The publisher has put forth their demands in their own terms. Once the author has signed, the publisher effectively takes full control of content which is not theirs.
Of course, a publisher has every right to define their terms and conditions, and an author can at this stage choose to jump ship and take their manuscript elsewhere. The point is that by agreeing to such supposedly non-negotiable LTPs, a fundamental premise is completely extinguished: that it is the original copyright holder who actively grants a LTP to a 3rd party in order to have their work published and has the authority and power to define the uses of their work. The publisher is in complete control of both the content and how it is used. The creator of the content is left with a begging bowl at the mercy of the publisher as to how they can use work that they created and contributed to that publisher at no charge.
Authors have power
This is just plain wrong: authors should be able to use their own content as they choose.
Authors must be reminded that they are able to assert the rights they own. The author can and should define, or at least negotiate, the terms of use of their work. There is no need for them to allow publishers to make a grab for ownership rights of the content the author created. Authors actually have more power than they often realise.
Publishers know full well that authors are often willing to sign pretty well anything to get their article ‘out of the door’ and published, particularly after a long period of peer review. In this way, publishers have for some considerable time ‘got away’ with insisting that authors sign non-negotiable unidirectional LTPs – no fuss, no bother. Although such non-negotiable LTPs make authors feel as if the publisher has them ‘over a barrel‘ (Will Cross at 22:13), in fact, the publisher is equally wanting to publish at this stage. This means that the author actually has more power than they might think (see Qu + Response from 20:38). It is also worth noting that in 2012 Martin Eve discovered via Deborah Kaplan that T&F offer alternative Author or Company-Owned Copyright Agreements that are non-exclusive – but authors have to make the effort to request them (I do not know if this is still the case). Even so, all authors have the right to negotiate and decline unacceptable terms.
To go some way towards rectifying the problem of authors not being able to use their own works as they choose, cOAlition S funders have produced a Rights Retention Strategy (RRS). The RRS empowers grantees to retain sufficient rights to be able to use their own work and, at the same time, be compliant with their funder’s OA policy. Many authors are already using the RRS, and there are examples of works being available in repositories whilst the publisher’s version is trapped behind a paywall (see example). One should not lose sight of the fact that rights retention and/or assertion is a fundamental principle that enables authors to use their own works as they choose. In this way, the RRS is not created purely as a hoop to be jumped through in order to meet compliance with a funder’s condition of grant.
Don’t stand for it: swap the boot to the other foot
The fact of the matter is, if the system worked as it was intended, we shouldn’t need a RRS. Authors would retain and assert rights as the norm and, having done so, define how their works can be used, for example, by assigning a CC licence. Unfortunately, the current norm is that commercial publishers are dictating use of works to the copyright holders. The boot is on the wrong foot. Some publishers may rail against the RRS – they do so regularly. Some publishers also desperately try to equate the RRS to one publishing model or another. They try to insist that RRS is working against ‘gold’ open access. Rights retention and models of publishing should be mutually exclusive. It has nothing to do with the type of work for that matter – article, preprint, etc. It is a fundamental principle that the creator of the work is the copyright holder and that the copyright holder is able to assert their rights; use their own work as they choose; and define and grant permissions for others to use it. That fundamental principle is also now enshrined in the recently adopted UNESCO Recommendation on Open Science where “193 countries have agreed to abide by common standards for open science. By rallying behind a set of shared values and guiding principles, they have adopted a common roadmap” and which states:
“Any transfer or licensing of copyrights to third parties should not restrict the public’s right to immediate open access to scientific publication.”
UNESCO, (2021). UNESCO Recommendation on Open Science. Para 7a. 23rd Nov 2021.
QED.
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.
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Sally Rumsey
