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Is a Rights Retention Clause needed for OA books?

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Dr. Rupert Gatti is a Fellow and Director of Studies in Economics at Trinity College, Cambridge, and co-founder of the non-profit Open Book Publishers.

In recent discussion about funder-imposed Rights Retention Strategies (RRS) I realised that there is an important consideration for funders of Open Access (OA) books and book chapters that differs significantly to the standard arguments for RRS with journal articles, and that I haven’t seen articulated elsewhere.

The standard motivation for applying RRS to article submissions is that it ensures that the Author Accepted Manuscript (AAM) can be shared and reused under a CC BY licence even if there are greater restrictions over reuse of the final published article. Consequently it allows the author to comply with a funder’s OA mandate without having to pay the publisher’s Article Processing Charge (APC) or requiring the publisher to apply a CC BY licence to the published version. 

(As an aside, such a licence applied to a submitted book manuscript would present no difficulties for Open Book Publishers (OBP) as we require, no –  we impose!, Rights Retention for authors in any case. OBP’s standard contract is that the author maintains all copyright control of their work and provides OBP only with a non-exclusive licence to publish their work in various printed and digital formats. So a RRS would provide no issues for us, or for any of the many other OA book publishers who adopt similar policies.)

In situations where a book is published under a more restrictive CC licence, rather than CC BY, I believe there is a separate case for funders to require that an author Rights Retention Clause be inserted into the final publishing contract the author signs with the publisher.

Many funders are, or have signalled that they will be, allowing more restrictive licences than CC BY for books and book chapters. I believe there ARE very good academic reasons why NC and/or ND licences are the appropriate ones to use in some situations, which typically revolve around the scholarly integrity of the work (for example when the material published is culturally sensitive). Humanities and Social Science scholars have been raising these concerns for several years now, and I agree with many of them. For me, the critical consideration is when the reasons used to justify restrictions on re-use are SCHOLARLY – and based around the scholarly integrity of the work – rather than commercial or based around the perceived needs or demands of the publisher. 

By design, when a title is published under one of these more restrictive licences (say NC-ND) anybody wanting to reuse components of the book will need to seek permission from the copyright holder, in much the same way as for an ‘all rights reserved’ work. Typically, for books, the publishers require the authors to assign the copyright, or controls over the copyright permissions, to them – which means that for the full extent of the copyright term (typically author’s lifetime + 90 years) it is the PUBLISHER that has control over and decides on any allowed reuse of the work, rather than the author. 

This, of course, breaks the scholarly argument for imposing the restrictive licence in the first place. If the material is culturally sensitive then it is the AUTHOR who needs to be making any reuse decisions – based on the author’s understanding of the sensitivities, and possibly in consultation with a community of people. The publisher often has none of that knowledge or understanding, and may allow reuses in inappropriate situations (especially if financial remuneration is involved) or not allow appropriate reuses (especially if sufficient financial remuneration is not involved). 

An example may be helpful. Let us suppose that a scholarly work on a culturally sensitive topic is published using a CC BY-NC-ND licence. It may matter enormously how and by whom any translation of the work is created, how the work is commercialised, the specific pronunciation used in any audio edition, or the nature of the images used to illustrate a subsequent edition. With control in the hands of the publisher, culturally insensitive derivative works may be approved, and new works that have been carefully created with the approval of the community may be denied.  

If a funding body is allowing the use of more restrictive licences on scholarly rather than solely commercial grounds – then it is surely also important to ensure that control over reuse of the content is maintained by the scholar/author rather than allowing the publisher to usurp those rights.  

To achieve that, the copyright assignment and reuse controls have to be assigned to the author within the publication contract signed by the author, and thus some form of Rights Retention Clause needs to be included. Without an explicit presubmission funder mandate, authors alone are unlikely to have sufficient bargaining power to ensure the inclusion of such a clause in the publishing contract they sign.

Of course this doesn’t fully resolve the situation when the author dies. By default it will be the author’s estate which heredits those rights and controls for the last 90 years of the copyright term, and they may be no more informed than the publisher about cultural sensitivities. So a further question arises: can/should a rights assignment for the period after the author’s death also be included or considered a requirement of the publishing contract in these circumstances? At the very least, this would seem to be something to encourage authors to consider and include in the publishing contract as well.

Finally, it may be worth noting that the standard RRS on the submitted manuscript alone is not sufficient in the situations described above, as without the proposed clause in the final contract the publisher will still have permission to approve inappropriate reuse of the final published work without need to consult the author.

Acknowledgements: Thanks to Lucy Barnes, Stephen Eglen, Graham Stone, Alessandra Tosi and Niamh Tumelty for helpful feedback on an earlier draft of this post.

This blog has been cross-posted on the Open Book Publisher Blog: http://blogs.openbookpublishers.com/is-a-rights-retention-clause-needed-for-oa-books

Open Research in the Humanities: Research Evaluation 

Humanities, research assessment, ,

Authors: Emma Gilby, Matthias Ammon, Rachel Leow and Sam Moore

This is the sixth and final of a series of blog posts, presenting the reflections of the Working Group on Open Research in the Humanities.  Read the opening post here. The working group aimed to reframe open research in a way that was more meaningful to humanities disciplines, and their work will inform the University of Cambridge approach to open research.  This post discusses opportunities and challenges for research evaluation in the arts and humanities. The direction of travel in the Open Research discussion is away from any straightforward use of metrics in research evaluation. This is hugely in favour of the arts and humanities.

Opportunities 

The arts and humanities have never used metrics in the same way as their STEM colleagues. This is partly because of the slower speed of publishing and the in-depth editorial process (18-24 months from submission to publication might be considered standard), and partly because ‘citation indices’ are less relevant when one’s contribution is to be part of a broad, ongoing cultural conversation rather than to generate data from scratch (see above, on CORE data). So the diversification of research evaluation enshrined in DORA (https://sfdora.org), and the questioning of the uncritical use of metrics and altmetrics by administrators, grant funders and promotion committees, is a positive development. It allows for a general move away from established academic platforms and formats, as discussed above.  

Support required 

Some pressing questions about research evaluation remain, which might account for some perceived hostility from some quarters towards a move away from established academic platforms. Who is doing the work of reading and assessing these multiple new formats? How do we evaluate success? Is success measured in terms of ‘reach’ – number of Twitter followers or blog readers etc? This would take us down the route of clickbait and skew towards already-popular, English-language material; this is a particular danger with processes designed to evaluate web traffic.  

What guidance is available for established academics looking to credit other colleagues for their social media contributions, in particular? An anxiety often expressed is that ‘there is a lot of rubbish on the internet’. How do we sift through? In general, research evaluation takes time and effort, and there is a sense that this work needs to be properly measured and quantified. For example, if an evaluator spends 20 minutes per CV on 60 CVs, that is 20 hours of work before one even gets into reading and evaluating actual outputs. In the context of a busy teaching term, such additional labour is barely possible and contributes to a general sense of stress within the profession. Looking for a kind of shorthand to facilitate swift and accurate evaluation of a wide range of (possibly unfamiliar) formats is therefore the pragmatic approach.  

The discussion of narrative CVs in the DORA context implies an amalgamation of the traditional CV and the cover letter. In our institution as no doubt in others too, it would be useful to have some HR guidance here on what appointment panels should ask for (e.g. no cover letter, but a paragraph each on a candidate’s three main research achievements?).  

There was a feeling in the working group that Cambridge is perhaps behind other universities who make ‘open research’ a category for assessment in itself, and who guide their employment panels and candidates accordingly. Indeed, Cambridge’s traditional division of the criteria for promotion into the discrete categories of ‘research’, ‘teaching’ and ‘general contribution’ seems actively to work against the whole idea of ‘open research’. It suggests unhelpfully that ‘service to the community’, ‘teaching’ and ‘research’ do not overlap. This division seems to have survived the recent overhaul of the academic promotions exercise.