Springer Nature doublespeak
One thing that crops up in politics is situations where politicians attempt to explain a new law they know people won’t like or agree with, and do so by putting a spin on it that describes it in a way that doesn’t seem so bad. This is also true of the publisher Springer Nature’s (SN) information about self-archiving for papers containing rights retention (RR) language. The information is provided on the page about SN journal policies.
The RR language referred to in the information is typically a template statement provided by the funder or institution. The statement, usually included in the acknowledgement section of the submitted paper, informs the publisher that the author (and original copyright holder) has applied a licence, usually a CC-BY licence, to any Author Accepted Manuscript (AAM) arising from the submission. Any AAM is, therefore, pre-licenced at the point of submission. The Wellcome Trust’s version of the statement (or language) that uses this model is as follows:
‘This research was funded in whole, or in part, by the Wellcome Trust [Grant number xxxxx]. For the purpose of open access, the author has applied a CC BY public copyright licence to any Author Accepted Manuscript version arising from this submission.’
Inclusion of the text is a condition of funding that is signed by the researcher, or more often, their university on the formal grant agreement. The Wellcome Trust instructions state:
“To ensure you (or anyone supported/associated with the grant) can comply with our policy, you must apply a Creative Commons Attribution (CC BY) public copyright licence to all Author Accepted Manuscripts arising from submissions to peer-reviewed journals that report original research,”
and goes on to instruct researchers that the template text above must be included “in all submissions.”
Some universities are adopting similar policies to empower their authors to retain their rights. In a typical (UK) institutional rights retention policy situation, ‘the researcher enters into a non-exclusive agreement with the university to make all their papers immediately open access under a Creative Commons attribution (CC BY) licence‘ (University of Cambridge). The agreement for the university AAM to obtain a copy with a CC-BY licence and make it freely available is all done and dusted even before the paper is submitted to the publisher.
Let’s take a close look at what SN says in its advice on this matter to authors:
“Springer Nature only ever assesses manuscripts on their editorial merit. If primary research manuscripts contain Rights Retention Strategy (RRS) language, they will not be rejected on the grounds of its inclusion, and we will not remove that text before publication if it is included in a section that is a normal part of the published primary research article.”
The information gets off to a good start. Assessing manuscripts on editorial merit alone is something any author would want to be reassured about. Equally, authors will be pleased to learn that, even if they include rights retention language, SN will not amend the author’s text by removing the RR statement that the author included in the text they created and provided at no charge to SN for publication. So far, so good. The information continues:
“Authors should note, however, that manuscripts containing statements about open licensing of accepted manuscripts (AMs) can only be published via the immediate gold open access (OA) route, to ensure that authors are not making conflicting licensing commitments, and can comply with any funder or institutional requirements for immediate OA.”
This is where things start to get tricksy. Translation – if the author assigns a prior licence to their AAM and submits the manuscript to a SN subscription journal that also offers an Open Access (OA) option (sometimes known as a hybrid journal), then the publisher will only accept it if the author pays for OA publication (sometimes known as ‘gold’ OA). Mind you, SN is not rejecting the manuscript outright; it’s just that they will ONLY accept it if the author pays. So by extension, if they don’t pay, SN won’t publish the paper, which amounts to a rejection. However hard I try, I can’t seem to tally “only be published via the immediate gold open access (OA) route” with “only accepting manuscripts on their editorial merit.” The wording is slippery here. Like those politicians, SN doesn’t ACTUALLY state that if you don’t, won’t or can’t pay, they will reject your paper. But in practice, that is exactly what they imply. This is pure smoke and mirrors.
The suggestion that it is necessary to be published using the paid gold route to comply with institutional requirements is, in some cases, completely wrong. At the time of writing, increasing numbers of universities have an OA policy that aims for all publications to be OA. However, many universities DO NOT have a fund for APCs. There are also those universities that have a preference for the repository route for OA:
“The University prioritises open access by means of self-archiving in its institutional repository – the so-called ‘green’ route” (University of Oxford).
An institutional RR policy generally applies to all researchers, not just funded ones. This means that a researcher without a research grant from a funder, in an institution with a RR policy but no APC fund and no transformative agreement with SN, cannot meet their university’s requirement. So no, telling authors they can only publish via the gold route is not ensuring all authors can comply with their institution’s requirements for OA. It gets worse:
“Authors who opt to publish via the subscription route will be required to sign our standard subscription licence terms, which only allow the AM to be shared after an embargo period. The subscription licensing terms are incompatible with any attempt to assert prior rights to the AM, and require authors to confirm that Springer Nature’s standard licensing terms will supersede any other terms that the author or any third party may assert apply to any version of the manuscript.”
If your research is funded by, say, Wellcome Trust, or another funder that employs Author Rights Retention as a means to empower authors, SN is well aware that the author is already committed to meet the terms of their EXISTING grant agreement that they, or their university, signed with the research funder. It is an explicit grant condition. The author has to meet that grant condition or risk serious consequences that could affect future funding award applications. Springer Nature KNOWS this. Many funders and institutions have written to them to tell them so when they originally adopted their policies.
I find this irresponsible of SN. Should the author choose to use the repository (or ‘green’) option for OA, SN is, in effect, trying to bully authors into breaking the conditions of their pre-existing grant agreement. They do this by using the words ‘required to sign‘ our licence.
Not only is it irresponsible, it is disrespectful to researchers and adds significant confusion into the process. It is also quite astonishing that SN asks authors to “confirm that Springer Nature’s standard licensing terms will supersede any other terms that the author or any third party may assert.” This is pressuring the author into agreeing, incorrectly, that SN’s terms trump the pre-existing conditions of the grant that they have already signed. They fail to explain to authors that by complying with SN’s terms, they will contravene their existing agreement with their funder or university.
The statement about SN’s terms superseding any other terms is flaky in any case. If the AAM has a prior licence assigned, it has its licence already applied. Whatever the author signs afterwards does not ‘un-license’ it. A CC BY licence cannot be removed just because SN declares their standard licensing terms will supersede it. Once applied, the CC BY licence assigned to the article is inherent in it and simply takes legal precedence over any conflicting language in SN’s later licensing terms. The University of Edinburgh demonstrates this nicely:
“Going forwards all authors automatically grant the University 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.”
The licences are assigned even before the articles are written. The SN’s advice continues:
“Therefore, authors who wish their research to be immediately openly accessible or whose research is supported by a funder that requires immediate OA (e.g. according to Plan S principles) should select to publish via the gold OA route.”
In essence, if you want to make your work OA as your funder requires, you must pay us to do so. There is an important matter in this information on which SN conveniently remains silent. Not all funders, including cOAlition S funders, will pay APCs (Article Processing Charges) for hybrid journals. This means that should an author, thinking they were doing the ‘right thing,’ select the gold OA option for their paper, they will find themselves presented with an invoice for the full amount. Their funder won’t pay – that is already clear – they will also probably find their institution is unlikely to pay. This is yet another irresponsible statement by omission made by SN.
Nowhere does SN state that it will take any author who breaks the publisher’s terms they sign to court – but it is the implicit threat that they just might that understandably makes authors nervous. Such intimidation is both discourteous to authors who are providing the content at no charge to the publisher, as well as threatening.
Not only does SN likely know full well that their terms conflict with pre-existing conditions of the grant for the author, but they also know full well that the funder won’t pay. The result is that the author finds themself in a horribly conflicting position, with the prospect of having to foot a significant bill. This is frankly despicable.
Note also the advice only refers to funders, it does not mention institutions with an OA or RR policy. The University of Edinburgh has been absolutely clear in its response to publishers like SN trying to ‘pull rank’ by asking authors to agree that the publisher’s terms supersede those of their funder or university:
“Many publishers have introduced restrictive publishing agreements which require embargo periods, and 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.
For a claim of procuring a breach of contract to succeed it must be shown that the defendant knew about the prior contract and intended to encourage another person to break it. Our solicitors have prepared a sworn Affidavit confirming service on all the recipients which will be sufficient to confirm that all the named publishers were indeed advised of our position ahead of article publication and that they have subsequently asked an author to breach the terms of their employment contract by accepting a publishing licence.” (University of Edinburgh).
This situation is becoming more absurd as more and more institutions, in agreement with their community of researchers, adopt institutional rights retention policies to support their researchers (see, for example, the N8 statement). As more are adopted, the more SN squirming around prior rights becomes both irrelevant and ridiculous. If publishers like SN won’t respect authors’ needs and wishes to retain their own rights, then their institutions are stepping in to support them.
Nowhere in their information for authors does SN state that it will reject manuscripts that the author wishes to make immediately OA with a CC BY licence via the repository route, and that are submitted to be published behind a paywall in a subscription journal. By being slippery in its use of language, the publisher avoids publicly stating this fact. The method SN uses is not one of REJECTION, but of DEFLECTION: i.e. we don’t actually state we won’t publish your paper (reject) if you insist on asserting your rightful rights and enabling immediate OA via a repository; we will just force you to pay for gold OA.
A reminder of SN’s claim, “Springer Nature only ever assesses manuscripts on their editorial merit.”
I find it quite astonishing that a major service provider, such as Springer Nature, continues to argue that it’s perfectly alright for them to dictate to researchers what they can and can’t do with the papers describing the findings of their research. It is not alright. As I have written before, it is the author and original copyright holder that is licensing the publisher (service provider) to publish their work, not the other way round (see Licence to publish – the boot is on the wrong foot). Publishers do not think up research questions, plan and design research, carry out research, fund research, provide research facilities, or write up research results. They should not, therefore, have the authority to dictate to whom, when and where the results of that research can be disseminated. Authors have rights, and they can exercise them for the benefit of themselves, other researchers, research, and society in general.
I notice that the OASPA response to the NIH RFI 2023 (24th April 2023) includes the statement:
“OASPA has always called for immediate open access to scholarly outputs and so we welcome the move to remove embargos from publications…The widespread adoption of depositing the accepted manuscript into PMC will provide a catalyst to fully take advantage of the range of business models that are not based on APCs (Article Processing/Publishing Charges) or transformative agreements. Furthermore, the proposal of developing language to support authors in retaining their rights and bring clarity to the submission process for both authors and publishers – as well as clear conditions for reuse of published works – is welcomed.”
In favour of zero embargo + no APCs + rights retention + clarity. Springer Nature is a member of OASPA.
On 3rd May 2023, Jisc announced a 3-year deal between UK universities and SN. Although the deal has been agreed, Jisc reported that concerns remain “around Springer Nature’s approach to author rights retention, which some respondents felt created barriers to equitable open-access publishing worldwide, Jisc said.” This, together with SN’s verbal sleight of hand described above, demonstrates how far the service provider remains from the direction of travel towards modern Open Scholarship and respect for researchers. Note too, that not all papers are included – “free-to-read publishing will be available in Nature and Nature research journals, although this option will be restricted to a certain number of papers,” – and many researchers do not fall under such deals.
If nothing else, SN should at least be straightforward and open. It should remove the doublespeak: state publicly and clearly that any manuscript submitted for publication non-OA in a hybrid journal and with RR language enabling the author to disseminate their AAM without embargo under a CC BY licence will be desk rejected. At least that would be clear.