Removing the Con from Contract Law: Licence to Publish Agreements

Why we need a secondary publishing obligation in European law

Academic authors should no longer be left powerless when it comes to copyright and licensing of their works. This insight is highlighted by the May 2023 Council Conclusions on Scholarly Publishing. It also clearly comes out as a strong theme in two recent reports on Author Rights Retention and Secondary Publishing Rights, funded by Knowledge Rights 21. The successful transition to Open Science depends on addressing long-standing imbalances in the respective positions of authors and publishers.

One of the most prominent examples of this is the sleight of hand that publishers are using in what are called “Licence to Publish Agreements” (LTPs). These are agreements between authors and scientific journals that regulate how copyright is transferred, which rights, and under what conditions this takes place. 

The problems we are seeing with these LTPs can be solved quite simply with the introduction of a well-crafted secondary publishing obligation in law. Irrespective of the terms of the licence, laws such as this allow republication of publicly funded articles in an open access repository once first published (most typically by a scholarly journal), ideally immediately.

So what’s going on?

Many authors have little experience of copyright and contract law. Moreover, it is entirely understandable that most authors will be more interested in the fact that their work is being published in a journal than paying attention to the nitty gritty of the terms and conditions of publication. It is for reasons such as this that the May 2023 European Council conclusions highlighted the need to build greater capacity among researchers and in academic institutions around intellectual property.

The complexity of contractual terms and conditions means that publishers’  lawyers have a built-in advantage when negotiating who has what rights concerning an article or other work. As a result, too often, authors end up signing away their rights, and as a result the general public lose their right to freely use research they have funded. As a result, the transition to Open Science stalls. 

Turning to the specific case of LTPs, it is a common practice in the promotion of Open Science that the funder or institution pays article processing charges for the author, in exchange for which the publisher publishes the article openly. This is especially the case with so-called gold open access journals, but also hybrid journals. As part of this agreement, the author and publisher sign an LTP.  The problem is that despite the research funder paying for the publication, these agreements too often grant a suite of exclusive rights to the publisher, and as a consequence remove many fundamentally important rights from the author (and the public who funded it).

To put another way, even though the author technically retains the copyright in the article, the author – through the operation of contract law – agrees to simultaneously grant publishers a wide-range of rights (including exclusive commercial use) while waiving their own rights to use their work other than in limited circumstances.

During a workshop on rights retention with research librarians in Stockholm, it was highlighted how gold or hybrid OA journals often present an option for the author in LTPs to choose between a CC BY licence and a CC-BY-NC-ND licence. The first licence only requires attribution from the “reuser”, whereas the second licence forbids commercial use and the subsequent re-use of the article in other ways (derivatives). 

In the case of the latter licence, while it is presented as an option for the author to retain commercial and downstream uses that involve derived works, in reality this isn’t the case. This is because the LTP Agreements essentially transfer all economic rights to the publisher, leaving the author with only the right to be named and a handful of other rights which don’t interfere with the publisher’s commercial business. e.g. the ability to extend the article to a book, include it in a thesis, or use excerpts elsewhere. Meanwhile, not only does the publisher have the exclusive and sole right to use the article commercially or make adaptations, but also, only they can sub-license and grant others the right to use the work for commercial purposes.

Thus, authors are unwittingly granting all publication and distribution rights to the publisher while restricting their own uses. 

We know that this is a problem. For example, one study, based on a small sample of authors, showed that in 2023 58% of authors selected CC-BY-NC-ND with Wiley and 69% with Taylor and Francis.  

Source: Elsevier (Society of Investigative Dermatology)

Thus by contractual sleight of hand, despite years of discussions and actions around open access, journal publishers are acquiring rights for themselves while denying anything other than the most basic, passive form of access to those who fund the research – namely the public.

This creates a hidden revenue model and retains the strong strangle-hold that STM publishers continue to have over the distribution of knowledge, underlining the risk that they represent a systemic threat to scientific progress. This is consistent with their constant blocking of copyright reform in areas that would otherwise benefit researchers, students and their institutions. e.g. TDM, AI, use of content for teaching etc. 

Furthermore, the actions of publishers here chill innovation, given that the businesses whose creation and growth are one of the key targets for publicly funded research are still beholden to whatever licence terms the publisher chooses, even though funders have used taxpayer money in order to ensure that anyone can use the research. In sum, despite two decades of open access, and often expensive gold open access at that, public goods are still being privatised by the exercise of intellectual property law.

Legislative Solutions to Contractual Sleight of Hand by Predatory Publishers

The open access movement has been built on a strong focus on promoting grassroots bottom-up community engagement, as a means of driving greater levels of informed negotiation with publishers (for example in the context of LTPs). However, this task clearly becomes much easier when authors and institutions are starting from a point of clear legislative protection of their rights. 

Indeed, accepting that it may not be realistic to expect all authors always to read or understand the contracts they are offered and so not sign away important rights, introducing legislation which solves this problem, at least as regards publicly funded research, is the obvious solution. It can in particular offer a way of levelling the playing field, bringing notable benefits to smaller institutions and early career researchers who might otherwise be particularly disadvantaged.

Indeed more and more countries in Europe are stepping in to ensure that taxpayer-funded research remains accessible to all, the most recent being Bulgaria

Their newly passed author rights retention provision-cum-secondary publishing right clearly states that an author may make their work available in a freely accessible repository. Moreover, crucially it states that (Art.60 CNRA):

 (3) Any arrangement which prevents or restricts what is provided for … shall be null and void.

(A huge thanks to our national coordinator in Bulgaria for pushing for this!)

Moreover, there are no time restrictions, so the author can make the article publicly available in an institutional repository as soon as it has been published elsewhere.

This is why Knowledge Rights 21 has promoted the need for a “secondary publishing right” or more precisely a secondary publishing obligation backed up by protection against contractual override, drawing on the examples of Bulgaria and a number of other countries (Austria, Belgium, France, Germany). Through this, we can combat contractual sleight of hand, and rectify unwitting contractual mistakes.

A final, but relevant issue requiring attention, is around how to ensure that the retention of rights translates into open access publications. While the type of laws mentioned above, or complementary rights retention laws as we see in Slovenia and Bulgaria, are growing in number, other than the law in Spain none require republication and none immediately.1 Thus even if the author has retained all their rights or has the right to republish, access to publicly funded research is left to the decision (or lack of proactive decision) of an individual. Cutting edge research may therefore languish for months if not longer, undiscoverable by citizens or innovators..

This is unacceptable given the billions of taxpayer euros invested in research across Europe each year. This is why it is important to talk as much about a secondary publishing obligation as a right, a point that we will continue to make in our advocacy.

In conclusion, Knowledge Rights 21 urges national legislatures and the European Union to create secondary publishing laws which both guarantee and oblige access, immediately, regardless of the contract that publishers may pressure researchers to sign. Through this, they can deliver on the commitments set out in the 2023 European Council conclusions on Scholarly Publishing.

This is easily done as we see in Bulgaria and other countries laws which lead the way on protecting authors from the sorts of contractual problems that can arise between authors and publishers typified by the Licence to Publish Agreements.

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For further reading and examples of contractual language see here

  1. Spain: Art. 17. Act 14/2011, 1 June 2011 (as amended), on Science, Technology and Innovation (LCTI): “2. Research personnel in the public sector or whose research activity is mainly financed with public funds and who choose to disseminate their research results in scientific publications, must deposit a copy of the final version accepted for publication and the data associated with them in institutional or thematic open access repositories, simultaneously with the date of publication.” (our emphasis added) ↩︎

12 February 2024