Rights retention and open access

28 October 2021

Many authors know that they hold all rights prior to publication and would like to retain more rights after publication. One problem is that modifying a publisher’s standard contract is daunting and difficult. Authors who aren’t lawyers may not know exactly what revisions to request. In any case, a growing number of publishers now use online contracts giving authors an option to click assent but no option to propose modifications. 

The first solution to this problem was the author addendum, introduced around 2004. An author addendum is a proposed modification to the publisher’s contract. Most addenda start with language to this effect, “Notwithstanding anything in the attached contract, the author retains the following rights...” and close with language to this effect, “If the publisher publishes the author’s article without expressly rejecting this addendum, the publisher will be deemed to have agreed to it.” Addenda make author-publisher negotiation unnecessary and are written by lawyers. Addenda make author-publisher negotiation unnecessary and are written by lawyers.But they are just proposed modifications and many publishers can and do reject them. In any case, the ongoing shift to click-through contracts is blocking the option. 

The next solution was a funder OA policy with a rights-retention provision. This was pioneered by the Wellcome Trust in October 2005 and followed by the US National Institutes of Health (NIH) in April 2008. Both made rights-retention implicit in their policies and explicit in their FAQs. See the Wellcome FAQ from 2005, especially Question 18, and the NIH FAQ, especially Question III.A.1 and Question III.A.5. Both funders required grantees to retain the rights needed to authorize OA, and to exercise those rights by authorizing OA through PubMed Central (or Europe PubMed Central). When journals didn’t allow OA on these terms, grantees had to look for another journal.

Today, many other funding agencies use rights-retention OA policies. Among the most notable examples are the cOAlition S funders behind Plan S, which now requires rights-retention. The Plan S method requires grantees “to indicate [to a journal] that any [accepted author manuscript] arising from the submission is already licensed CC BY.” In January 2021, Wellcome changed the way it implements rights retention, from its original method to the Plan S method.

The Horizon Europe funding programme for 2021 to 2027 differs from Horizon 2020 in part by adding a rights-retention requirement. The Horizon Europe funding programme for 2021 to 2027 differs from Horizon 2020 in part by adding a rights-retention requirement. In contrast to cOAlition S, Horizon Europe does not require grantees to apply an open license to their future accepted manuscript at the time of submission, but only encourages grantees to notify the publisher of their grant agreement obligations. Although the European Research Council withdrew as a supporter of cOAlition S in July 2020, it remained part of Horizon Europe and subject to the Horizon Europe OA policy, including its rights-retention provision. The new UK Research and Innovation (UKRI) OA policy (August 2021) has a rights-retention provision on the Plan S model.

In February 2008, the Harvard Faculty of Arts and Sciences adopted the first university-level rights-retention OA policy. Today all Harvard schools have rights-retention OA policies. On the Harvard model, faculty vote to grant a set of nonexclusive rights to the university, which uses the rights to authorize OA through its institutional repository. At the same time, it grants the same set of nonexclusive rights back to the faculty authors. 

Why grant back to faculty the same rights the faculty granted to the university? To ensure that faculty still hold these rights after signing their publishing contracts, and to ensure that the policies go beyond institutional rights retention to author rights retention.

If you think it would be hard to persuade faculty to vote for such policies, note that all the votes at Harvard’s nine schools were supermajorities and four were unanimous. Faculty at more than 80 universities or units within universities have adopted Harvard-style rights-retention policies, in North America, Europe, Africa, Asia, and Australasia. For more detail on the Harvard approach, see the guide to good practices for university OA policies that I maintain with Stuart Shieber.

A rights-retention policy might retain only the nonexclusive right needed to make a work OA. But retaining a wider set of nonexclusive rights is far more useful. As I argued in a recent article, rights retention should “give authors as much freedom as possible to use and reuse their own work after publication rights retention should “give authors as much freedom as possible to use and reuse their own work after publication...[for example, to free] authors to release revised or expanded editions, to reuse articles in anthologies or monographs, and to authorize translations, text mining, and the copying needed for long-term preservation.”

NIH-style rights-retention policies have no opt-outs for authors. Yet as far as we can tell, all publishers have accommodated themselves to it, despite initially strong opposition. Since August 2008, the Open Access Directory has collected publisher policies on NIH-funded authors and has not yet found a single publisher unwilling to comply with the NIH’s terms.

Harvard-style university policies do let authors opt out of the university’s OA license and a small number of publishers (half of half a dozen) require it as a condition of publication. I’ve argued elsewhere that university policies should support opt-outs to allow faculty to submit work to the journals of their choice, while funder policies might well remain exceptionless.  university policies should support opt-outs to allow faculty to submit work to the journals of their choice

Why retain rights? Here are five benefits.

  1. When publishers hold the key rights, publishers get to make the OA decision. When authors hold them, authors get to make the OA decision. The same goes for decisions on reuse, mining, and so on.

  2. When authors want OA and hold the key rights, they avoid the delay and effort of seeking permission. They also avoid the risk of a ‘no’ answer.

  3. Institutional rights-retention policies are more effective than asking, encouraging, or requiring authors to retain rights on their own. As Stuart Shieber and I argued in our good-practices guide, asking authors to retain rights on their own asks them to negotiate with publishers. “That is difficult to do. Many [authors] are intimidated by the prospect and will not do it. Even if all tried it, some will succeed and some will fail. Some will get one set of rights and some will get another. That will make access uneven and multiply implementation headaches.”

  4. Rights retention makes repository-based (“green”) OA faster and more frictionless. Many publishers already permit green OA, though often with restrictive terms and conditions. Some don’t permit it at all. Rights retention overcomes those obstacles at a stroke.

  5. By streamlining green OA, rights retention saves early-career researchers (ECRs) from a painful dilemma. When their funders require OA, and their promotion and tenure committees favor certain non-OA journals, green OA lets ECRs satisfy both. They can publish in the journals expected by the promotion and tenure committee and use green OA to comply with the funder OA policy.

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  Peter Suber ©Peter Suber 
Peter Suber is the Director of the Harvard Office for Scholarly Communication (in the Library) and Director of the Harvard Open Access Project (in the Berkman Klein Center for Internet & Society). By training he's a philosopher and lawyer; he stepped down from his position as a full professor of philosophy in 2003 to work full-time on open access. He was the principal drafter of the Budapest Open Access Initiative (2002), serves on the boards of many groups devoted to open access and scholarly communication, and has been active in fostering open access for many years through his research, speaking, and writing.l

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