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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

Thoughts on the new White House OSTP open access memo

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Dr. Samuel A. Moore, Scholarly Communication Specialist, Cambridge University Libraries

In the USA last Thursday, the White House Office of Science and Technology Policy announced its decision to mandate public access to all federally funded research articles and data. From 2026, the permitted embargo period of one year for funded publications will be removed and all publications arising from federal funding will have to be immediately accessible through a repository. Although more details are to be announced, my colleague Niamh Tumelty, the OSC’s Head of Open Research Services, shared a helpful summary of the policy and some initial reaction here. I want to offer my own personal assessment of what the new policy might mean from the perspective of open access to research articles, something we are working hard to promote and support throughout the university.

To be sure, the new OSTP memo is big news: the US produces a huge amount of research that will now be made immediately available without payment to the world at large. Following in the footsteps of Plan S in Europe, the open access policy landscape is rapidly evolving away from embargo periods and towards immediate access to research across all disciplines. Publishing industry consultants Clarke & Esposito have even argued that this intervention will make the subscription journal all the more unviable, eventually leading to its demise.

Indeed, responses from the publishing industry have been mixed. The STM Association, for example, offer a muted one-paragraph response claiming tepid support for the memo, while organisations such as the AAP were more vocally against what they see as a lack of ‘formal, meaningful consultation or public input’ on the memo, despite the fact that many more details are still to be announced (presumably, following consultation). A similar sense of frustration was displayed by some of the authors of the industry-supported Scholarly Kitchen blog. It’s fair to say that the publishing industry itself – at least the part of it that makes money from journal subscriptions – has not welcomed the new memo with open arms.

Understandably, funders and advocacy organisations have welcomed the news. Johan Rooryck from Coalition S called the memo a ‘game changer for scholarly publishing’, while the Open Research Funders Group ‘applauds bold OSTP action’ in its response. Open access advocates SPARC described the memo as a ‘historic win’ for open access and a ‘giant step towards realizing our collective goal of ensuring that sharing knowledge is a human right – for everyone’. Certainly, for those arguing in favour of greater public access to research, the memo will indeed result in just this. But I still have my reservations.

My PhD thesis analysed and assessed the creation and implementation of open access policy in the UK. As Cambridge researchers no doubt know, the open access policy landscape is composed of a number of mandates, with varying degrees of complexity, and affects the vast majority of UK researchers in one way or another. This is for better and for worse: there is an increase in bureaucracy associated with open access policy (particularly through repositories), even though it results in greater access to research. However, when you remove this bureaucracy through more seamless approaches to OA like transformative agreements, there is a risk of consolidating the power of large commercial publishers who dominate this space and make obscene profits (a fear also shared by Jeff Pooley in his write-up of the policy). There is therefore a delicate balance to be struck between simply throwing money at market-based solutions and requiring researchers and librarians to take on more of the burden of compliance.

The problem with indiscriminate policy mandates for public access to research, such as the OSTP’s memo, is that they shore up the idea that publishing has to be provided by a private industry that is not especially accountable to research communities or the university more broadly. This is precisely because these policies are indiscriminate and therefore apply to everyone equally, which for academic publishing means benefitting those already in a good position to profit. Larger commercial publishers have worked out better than anyone else how to monetise open access through a range of different business models. As long as researchers need to continue publishing with the bigger publishers, which they do for career reasons, these publishers will always be in a better position to benefit from open access policies. It is hard to imagine how the individual funding bodies could implement the OSTP memo in a way that does foreground a more bibliodiverse publishing system at the expense of commercialism (not least because this goal does not appear to be the target of the memo).  

I do not mean to overplay the pessimism here: it is great that we are heading for a world of much more open access research. The point now is to couple this policy with funding and support to continue building the capacity of an ethical and accountable publishing ecosystem, all while trying to embed these ethical alternatives within the mainstream. This kind of culture change cannot be achieved by mandates like the OSTP is proposing, but it can be achieved by the harder work of raising awareness of alternatives and highlighting the downsides of current approaches to publishing. It is also important to reveal the ways in which research cultures shape how researchers decide to publish their work – often at the expense of experimentation and openness – and how they can be changed for the better.

So I am interested to see how the memo is implemented in practice, especially how it is funded and the conditions set on immediate access to research. I am also keen to see what role, if any, rights retention plays in the implementation and how US libraries decide to support the policy and the changing environment more broadly. Ultimately, however, the move to a more scholar-led and scholar-governed ecosystem will not occur on an open/closed binary, nor on a top-down/bottom-up one, and so we must find a range of ways to support new cultures of knowledge production and dissemination in the university and beyond.

Image taken from Public Domain Pictures

Rights Retention Pilot

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This interview is reposted with agreement from the sOApbox blog. It is one of a series of blog posts outlining how different institutions are introducing rights retention policies to support their researchers in sharing their research as widely as possible.

14/04/2022
In 2008 Harvard’s Faculty of Arts & Sciences voted unanimously to adopt a ground-breaking open access policy. Since then, over 70 other institutions, including other Harvard faculties, Stanford and MIT, have adopted similar policies based on the Harvard model. In Europe such institutional policies have, so far, been slow to get off the ground.

We are beginning to see that situation change.

The University of Cambridge has recently established a pilot rights retention scheme on an opt-in basis, with a view to informing the next revision of the University’s Open Access policy. In the following interview, Niamh Tumelty, Head of Open Research Services at the University of Cambridge, describes the purpose of the pilot, how researchers can benefit from it and shares her tips for any other institution that might consider adopting a similar policy.

cOAlition S: Could you, please, describe the author copyright policy you have adopted at your university?

Niamh Tumelty: We are inviting researchers to participate in a Rights Retention Pilot, which will run for one year starting April 2022. Participating researchers will grant the University a non-exclusive licence to the accepted manuscripts of any articles submitted during the pilot, making it easier for us to support them in meeting their funder requirements by uploading their manuscripts to our institutional repository, Apollo, without needing to apply an embargo. The pilot has launched using a CC BY approach as required by most cOAlition S funders, and we are exploring providing an option for alternative licences for researchers who do not have that specific requirement.

The researcher will notify the journal by including the rights retention statement on submission. When the paper has been accepted, the researcher will upload the accepted manuscript as normal via Symplectic Elements, indicating during the upload process that they have retained their rights. The Open Access team will do their usual checks, advise the researcher on what will happen next and arrange for the article to be made available on Apollo.

We will closely monitor what happens during the pilot and all participating researchers will be able to comment on their experiences. We will review all feedback and use it to inform our next review of our institutional open access policy.

cOAlition S: Why did the idea of adopting an institutional rights retention policy emerge?

Niamh Tumelty: The introduction of the requirement for immediate open access to research supported by cOAlition S funders has proven challenging in practice, with some publishers offering no compliant publishing route and others charging unsustainable prices for immediate open access to the final published version. Unless researchers want to move exclusively to publishing in journals that are diamond, fully gold or included within read & publish agreements, they need a way to retain sufficient rights, so that they always have the option to post their accepted paper online to achieve open sharing of their scholarship. Some disciplines have been left with little or no choice about where they can publish their research while meeting their funder requirements and their own goals for open research.

“The rights retention strategy is a key tool to enable researchers to openly publish in whatever journal will reach the most appropriate audience.”

cOAlition S: How was consensus reached across the institution?

Niamh Tumelty: The fact that immediate OA is now a funder requirement for the majority of our researchers made the conversation relatively easy. We held a number of discussions at the Open Research Steering Committee to ensure that we had as full an understanding as possible, providing examples of issues that were arising in the first year of the Wellcome Trust rights retention requirement in the absence of an institutional policy.

We considered developing an institutional opt-out policy as others have done but concluded that the highly devolved nature of the University of Cambridge would have made it extremely difficult to conduct a thorough consultation and reach consensus by the deadline of 1 April 2022. We agreed that the most appropriate next step at Cambridge was to run a pilot on an opt-in basis. A working group was established to design this pilot and included researchers from across a range of disciplines along with open access and scholarly communication experts from Cambridge University Libraries. The working group met every two weeks from mid-January to the end of March to consider the issue from different disciplinary perspectives and to develop the approach for the pilot. We drew heavily on the policy that was introduced at the University of Edinburgh earlier this year, learning also from the UK Scholarly Communications Licence and Model Policy and recommendations that have been publicly shared by Harvard University. We brought the proposed pilot to the University’s Research Policy Committee for comment and took legal advice on the detail of how we would approach this before launching.

The beauty of a pilot approach is that no researcher has to participate – they have a choice about whether or not to opt in and will have the opportunity to influence whatever policy is ultimately introduced across the university. We can take this year to really understand the issues in detail and to build consensus about the best approach for Cambridge.

cOAlition S: What challenges had to be overcome before it was agreed to adopt the policy?

Niamh Tumelty: The biggest challenge in the lead up to the pilot has been understanding and developing confidence in the rights retention strategy. The expert legal advice we received following the announcement of the Wellcome Trust requirements and again as we designed the detail of our approach was critical in enabling us to develop the pilot. Now, our challenge is to clearly communicate and explain rights retention to our many researchers as a route they can choose when publishing and to grapple with any issues that arise during the pilot year before developing any full institutional policy.

cOAlition S: What are the advantages of adopting the policy for your researchers and your institution?

Niamh Tumelty: The rights retention strategy is a key tool to enable researchers to openly publish in whatever journal will reach the most appropriate audience. It may be that some publishers decide to reject any papers in which the author has retained their rights, but this seems an unsustainable position given the growing number of authors whose funders require immediate open access for all outputs.

The advantage of a pilot approach rather than a full institutional policy is that it provides space and time for deep engagement across our highly devolved university. It creates a framework for the researchers that wanted to have an early route to support them in retaining their rights and for the open access team that advises and supports them. It enables us to generate evidence from our own researchers, to build confidence and trust and to refine the approach ahead of shaping a full institutional policy.

“Researchers are in a stronger position than they realise – if publishers want to continue getting this free content from our researchers, they will need to develop publishing routes that meet the needs of their academic communities.”

cOAlition S: As a conclusion, what are your three top tips for any other university considering adopting a similar permissions-based Open Access policy to yours?

Niamh Tumelty: 1) Include a range of disciplinary perspectives from the earliest stages of planning. This early consideration will make it easier to tailor the messaging to different parts of the university, taking into account the different drivers and concerns that come into play. Make sure that the humanities perspective is included – too often in open research initiatives the humanities appear to be an afterthought, if considered at all.

2) Anticipate the questions that will be asked and make sure that you have clear and honest answers to those questions. Be honest and open about the fact that we are learning through the process (while building on the experiences of those who have gone before) and that there will be challenges. This enhances credibility and manages expectations as the policy beds in.

3) Have confidence in this approach! This is not new – researchers have been retaining their rights in this way for over a decade and it is becoming increasingly common practice across a range of institutions. Researchers are in a stronger position than they realise – if publishers want to continue getting this free content from our researchers, they will need to develop publishing routes that meet the needs of their academic communities.