Why you should retain the right to decide how your research paper is used
2022-01-11

University Librarian Simon Bains explores problems – and possible solutions – in balancing embargos and the need for timely access to research, which has been highlighted by the Covid-19 pandemic.

 

In this third instalment of a series about Open Access publishing, I move into what might feel somewhat arcane territory where I discuss embargoes, licences, and rights retention. But bear with me, as this is important and has a bearing on how effectively we can meet mandatory funder requirements, and our own strategic goals.

In my previous blog post, I explained that one of the disadvantages of Green open access (deposit of the manuscript in a repository) over Gold (final paper made open access by the publisher) is that an embargo period is often set by the publisher. This can range from six months to well over a year, although if a funder policy requires open access, this can come with rules about embargoes that restrict their permitted length. For example, UKRI stipulate a maximum embargo period of six months for STEM funded disciplines and twelve months for arts, humanities, and social sciences.

You may delay, but time will not

Why set embargoes? For the perhaps obvious reason that one might assume that if a paper is available immediately in a repository, no one would bother with the actual journal. Publishers are not charities; they need to generate profit, so of course they want to protect their income streams. Interestingly though, evidence that this is genuinely a threat to income is hard to come by. In their explanation of open access policy changes, UKRI state that zero embargo Green “will not endanger the publishing endeavour”. I agree. Much of this income is derived from university libraries. My concern as a university librarian is for an easily discoverable, reassuringly persistent, and professionally produced record of academic research. I am not going to cancel my journal subscriptions simply because alternatives exist, unless and until those alternatives meet all the criteria I have in place.

On the other hand, embargoes limit access to research. Anyone who cannot afford to unlock the paywall must wait. Many researchers globally will not have access to subscription titles. Anyone not in an institution with a subscription must pay per article, subscribe, or wait. This is the antithesis of the open access movement. Research will not build quickly upon research, and during the pandemic we can see very clearly the value in avoiding any delay in releasing findings. How helpful would it be if published virus research was held back from some who could use it, for at least six months?

The new UKRI policy, therefore, requires there to be no embargoes, whether publisher concerns are justified, or not. One might argue (and many do) that publishers have no right to insist, in any case. They do not fund the research, they do not do the research, the Green deposit does not contain any publisher formatting or branding, and if the research is funded by the public purse, what ethical case is there to hide it behind a paywall? The debate has run for many years, but now UKRI, and others, are concluding that the case against embargoes is greater than the case for them.

For every complex problem, there is an answer that is clear, simple, and wrong

Careful thinking is required here. We cannot just ignore embargoes and expect them to go away, even with funder support. How does a researcher comply with a zero embargo policy if their publisher requires one? My hope is that many publishers will change their policies. Faced with this requirement from funders, they risk losing authors to other publishing destination if they continue to insist. If publishers ‘flip’ their publication to entirely open access models, this will continue to provide them with income, but not from subscriptions. I do not believe that zero embargo is a threat in this context. Many publishers now offer ‘read and publish’ deals in which the costs of publishing Gold open access are included. This shifts us away from APCs and towards an affordable model which means we can rely less on Green open access, and in that context, the need for any sort of embargo fades away.

But what if the publishers are less convinced than I am? What if researchers are barred from their preferred title by a publisher’s refusal to agree to drop their embargo? What if a well-meaning policy designed to increase the reach and impact of our research threatens an academic career by barring a researcher’s opportunity to public in the journal of their choice? There are essentially two options here: the researcher chooses another journal, or the institution ignores the embargo. The choice we face is to ignore either the publisher’s requirement, or the funder’s requirement. In my view, the right decision is to do what the funder asks; they are providing the funding that has resulted in the work we are seeking to publish. And of course, we are not being ‘open to all’ if we seek to sustain a paywall-based publishing model. It is easy to understand why we should do it, but we are left wondering how.

The Harvard Model Policy

There is a solution here. Many years ago (2008) Harvard faculties began to adopt a ‘Harvard Model Policy’ which makes clear their rights over research outputs created by their faculty members. To be clear, this does not affect the copyright of each researcher. Instead, the policy requires that researchers grant non-exclusive rights to their faculty. Since then, other universities have adopted similar policies. In the UK, work was done to consider something similar to be adopted across Russell Group members (I was part of this work while at the University of Manchester) but it was felt best to await new UKRI open access guidance. This is now here, and it requires us to ignore embargoes, but does not dictate how; that is left up to us. This has reignited discussions on how to implement ‘rights retention strategies’.

The challenge, as Sally Rumsey explains (very well) is that the usual approach to publication in academic journals is for authors to give publishers licence to publish. If this is an exclusive agreement, then the copyright holder, while retaining copyright, can do nothing without publisher consent. These licences are almost always drawn up by publishers, and I don’t believe that the majority of authors think about them very carefully (do tell me if I’m wrong! I do know of a few cases of academics changing them, or writing their own instead).

This is where it gets interesting. Many universities, including Aberdeen, have IP policies which already establish our nonexclusive rights over our research. Our own policy clearly states that copyright is with the author(s) but:

“Staff grant the University of Aberdeen a perpetual, royalty-free, non-exclusive licence to the Scholarly Works to use, copy, publish and distribute for academic (i.e. research and teaching), promotional and administrative purposes including for archival and open access requirements.”

So, we have this covered, at least in theory. I wonder how many of our authors are fully aware of how this affects the way they sign licences to publish. In my view, we have a communication challenge here, rather than a policy challenge. I’d welcome feedback: perhaps there are examples of our authors making changes to publisher licences.

If one does not risk anything, one risks even more

I don’t wish to imply this is entirely straightforward, or entirely risk free. Consider an example where we assert our non-exclusive rights, but an author has also signed a licence to publish (as we haven’t succeeded in communicating our expectations fully). Can the publisher take legal action if we ignore a required embargo, if it has included in the licence to publish? And if they have the right to do so, would they enact it? Doing so is not free of risk for the publisher either, reputationally. Importantly for the author, who faces the legal risk? Them, or the institution?

There is reassurance needed here, which will come as I develop and consult on a proposal, but in my mind the really important questions here are:

  • Who should determine how our research is published?
  • What should we do to demonstrate we are ‘open to all’?

Of course, my own answers to those questions, as an Open Access enthusiast, do not lead me to conclude that publishers’ licences to publish are right, ethically, or strategically, if they constrain the reach of our research. We, and our funders, are committed to open research. Now is the time to be bold in the face of any resistance from private sector organisations who do not share our mission. I will also note that one university has already taken this step, so it is no longer a theoretical position in the UK. As part of Open Access Week in October 2021, Edinburgh released a new Research Publications and Copyright Policy. Some interesting extracts from this policy:

Immediate Open Access to research outputs, with rights retention, is the direction of travel major researcher funders are taking.

Academic staff at the University of Edinburgh have traditionally, when publishing research outputs, exercised an independent right to assign or give away their scholarly works (in addition to the University’s right). This has enabled the current process of the corresponding author assigning copyright to publishers, which results in many journal articles and scholarly works now being under partial or complete ownership by the academic publishers

Upon acceptance of publication each staff member with a responsibility for research agrees to grant the University of Edinburgh a non‐exclusive, irrevocable, worldwide licence to make manuscripts of their scholarly articles publicly available.

The University of Edinburgh will deposit the accepted manuscript in a digital repository, with article metadata usually available immediately upon deposit and the accepted manuscript being made accessible to the public on the date of first online publication

So there is a precedent, and much interest in this from other UK universities. I would be delighted to see Aberdeen be the next in Scotland (or even the UK?) to adopt this position. I return again to our foundational purpose: we are Open to All. Are we going to compromise on this where we see risk, or are we prepared to be bold?

Do read Sally Rumsey’s excellent piece. I will bring a formal paper on rights retention to RPC early in 2022. I will also be working with my colleagues in Research Libraries UK as we work towards a consistent solution.

 

Simon Bains, University Librarian. (To be found musing about these issues on Twitter @simonjbains).

Published by News, University of Aberdeen

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