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Rights retention: publisher responses to the University’s pilot

The University’s one-year rights retention pilot has been running for six months now, during which time many papers containing the rights retention declaration have been submitted by Cambridge authors. As expected, the Office of Scholarly Communication is receiving more queries about rights retention from Cambridge academics, many of which relate to how publishers are responding to submissions containing the rights retention declaration. This post covers some of these queries to offer a picture of how rights retention is being received.   

It is worth reminding ourselves what the rights retention pilot entails. All researchers at Cambridge can sign up to participate in the pilot here. In doing so, 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. When a researcher submits an article to a publisher, they include the following statement in the acknowledgements or funding section of the article file: 

For the purpose of open access, the author has applied a Creative Commons Attribution (CC BY) licence to any Author Accepted Manuscript version arising from this submission’ 

Upon editorial acceptance, the researcher uploads a copy of the accepted manuscript to Symplectic Elements. The Open Access team will deposit the manuscript into Apollo and will release it publicly at the appropriate time. 

Publisher responses 

One of the primary fears researchers have regarding rights retention is that a publisher may editorially reject their article at the point of submission. While we are still dealing in small numbers of submissions and queries associated with the pilot, we have heard from at least two researchers that have been rejected from the journal at the point of submission due to rights retention language in their manuscript. In these cases, journals from the Seismological Society of America and the American Society of Hematology informed the respective authors that rights retention is not permitted because copyright transfer and an embargo period is required for publication in their journals. As a consequence, the authors in each case decided to submit to an alternative journal so that they could comply with their funder requirements. We are also aware of authors who received different answers from the American Society of Hematology, including to pay a fee or to accept rights retention. We hope rights retention will be approved in due course by the publisher as an acceptable route for all authors. 

A second group of publishers have asked for the rights retention language to be removed either because they deemed it not necessary to comply with or because another compliant route was available to the authors. For example, a journal published by Springer Nature asked for the rights retention language to be removed because it was not required for compliance purposes (because the article was submitted prior to the relevant policy coming into effect). Journals published by Elsevier, the American Chemical Society and Optica all asked for the rights retention language to be removed because of pre-existing publishing agreements that allow Cambridge researchers to publish open access free of charge. In these instances, authors were willing to remove the language from the final published version and so it was not clear what would have happened if they had not done so. We have received advice that removing this wording does not negate the fact that the publisher has been informed of the prior licence and so rights retention is still permissible here. We are recommending that researchers include the rights retention declaration where possible even when publishers ask for it to be removed.  

Despite the queries reported here, we have also seen a notable uptick in the number of submissions in the repository containing rights retention language, including within journals published by Elsevier, Wiley, Sage, Springer Nature, the Royal Society of Chemistry, Company of Biologists and JMIR Publications (to name a few). One journal published by the American Psychological Association was willing to accept immediate CC BY for UKRI-funded authors, although this was still subject to a copyright transfer agreement. In the case of Springer Nature, acceptance of the rights retention language also entailed payment of colour charges – something the authors had not anticipated and which we detailed further in this Twitter thread. We urge publishers to be as clear as possible about whether they accept rights retention and upon what conditions.  

I am sharing this data because it offers a snapshot of some of the responses we have seen from publishers so far. While we encourage our researchers to report any publisher pushback, we cannot be sure of all publisher responses, simply because researchers are under no obligation to report them. It is interesting, though, that some publishers are asking researchers to remove the rights retention declaration when there is a publishing agreement in place. We can hypothesise that this is because publishers want to prevent as many articles as possible from using this language because it would set a precedent for other researchers without access to such agreements to use rights retention too. Given this, the Office of Scholarly Communication is continuing to advise that the declaration is included in all manuscripts where possible, although this will be down to how persistent an author wants to be in requesting the language be retained.  

Is a Rights Retention Clause needed for OA books?

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

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
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