University Policies for Rights Retention and Secondary Publishing Rights in the Netherlands

Navigating the complex landscape of Rights Retention (RR) and Secondary Publishing Rights (SPR) policies in the Netherlands is a task undertaken by Knowledge Rights 21 (KR21), an advocate for academic freedom and access to knowledge. In this exploration, we delve into the policies governing the public universities of the Netherlands and shed light on the different paths they have taken concerning the retention of rights and the promotion of secondary publishing. We aim to give international readers a brief overview of the universities’ policies on RR and SPR in the Netherlands.

Maarten Zeinstra, the national coordinator for KR21 in the Netherlands, conducted a survey to compile the existing policies of these institutions. The findings on the public universities, presented in a spreadsheet, offer insights into the state of RR and SPR adoption across the academic landscape.

While the Netherlands has implemented forms of both RR and SPR policies, the survey shows uncertainties and complications. This article provides some insight into these complexities, providing readers with an overview of the current state of affairs, challenges faced, and potential avenues for harmonisation given the current legal opportunities.

The survey shows that the state of RR is diffuse. Only three universities actively communicate to their employees that the copyright on their academic productions belongs to the university. On SPR, we see an equally divided landscape. While all universities offer secondary publication in line with the SPR clauses of the copyright act, only half oblige their employees to do so.

State of Rights Retention

Rights retention is a strategic mechanism for universities to facilitate access to the knowledge generated within their institutions. By retaining copyright over works created by scholars, universities can provide immediate open access without imposing embargoes. However, the landscape in the Netherlands is complex, mainly due to different interpretations of a copyright provision on so-called employers’ copyright (Article 7 of the Netherlands Copyright Act). This provision designates authorship and, consequently, copyright, to the employer for works produced under their direction. For some, this encompasses academic creations.

“If the work performed in the service of another consists of the production of certain literary, scientific or artistic works, then, unless otherwise agreed between the parties, the creator of those works is considered to be the person in whose service the works are manufactured.” (our translation of article 7 Netherlands Copyright Act)

This is complicated by the collective bargaining agreement between universities and their academic staff. Within the main agreement, employees commit to cooperating with the university’s request to assign intellectual property created during their employment back to the institution. 

“the employee, […], transfers these rights in whole or in part to the employer upon request, in order to enable the employer to use them within a period to be determined in the context of the fulfilment of his statutory duties to make.” (our translation of article 1.22.1 of the universities Collective bargaining agreement)

Finally, despite these formal structures, the common practice shows that academics, often independently, negotiate contracts with publishers, frequently signing away copyright on their academic creations to these publishers.

Over the past decades, the Association of Netherlands Universities (UNL) has researched ways to harmonise perspectives on rights retention among its members. The latest report in 2024, however, reveals little progress in achieving such harmonisation. Luckily, there is optimism for alignment in policies related to educational materials created by employees, opening the way for broad uniform adoption of open educational resources.

Examining the communicated policies reveals a complex picture. While three universities explicitly communicate to their academic community that the copyright of their academic productions rests with the university, another one asserts its claim based on the collective agreement. The remaining eleven universities create an assumption that the academic is the rights holder by communicating how to interact with publishers on their information pages. This leaves the question of rights ownership ambiguous when academics sign contracts with publishers.

Legend:

  • green house: universities that actively communicate that they hold the rights
  • yellow tick: universities that create the assumption that the academic is the rightsholder
  • red question mark: universities that do not publicly communicate a policy

Embedding this complexity in a geographical context (see map above) emphasises the different approaches among universities. The goal of rights retention is to rectify the power imbalance between academics, universities, and publishers. A unified policy across Dutch universities would clarify positions and streamline dialogues with academic publishers. The pursuit of this harmonisation aligns with the overarching objective: optimising access to publicly-funded knowledge universally and at no cost.

Netherlands SPR state of play

KR21 takes a stance on the crucial role of Secondary Publishing Rights (SPR), a perspective outlined in detail in our paper. The Netherlands is one of the pioneers in legislating SPR, implementing what is commonly known as the ‘Taverne amendment‘ nearly a decade ago, named after the parliamentarian who proposed this right for academics to publish their short scientific papers again, even after their rights have been assigned to the publisher.

In the Netherlands, SPR is a moral right for academics. It is non-waivable and protected from contractual overrides, ensuring that creators of short scientific works that are funded, even partially, by Dutch public funds can freely share their work with the public after a reasonable period from its initial publication. The right applies to all types of publications (e.g. preprint, AAM, etc.).

“The creator of a short scientific work for which the research has been fully or partially funded with Dutch public funds has the right to make that work available to the public free of charge after a reasonable period after its first publication, provided that the source of the first disclosure is clearly stated.” (our translation of article 25fa Netherlands Copyright Act)

Universities in the Netherlands have adopted a unified stance on the duration of this “reasonable period,” which they interpret as six months post-initial publication. To protect academics from potential resistance by publishers, universities collaboratively launched the ‘You Share, We Take Care‘ campaign. Under this initiative, all member universities collectively bear the legal fees incurred by any challenged university. This proactive strategy has effectively averted conflicts with publishers since its inception.

SPR is an individual right vested in the author rather than the rights holder or the university. This means that authors typically delegate this right to the university library, which undertakes the actual secondary publication in designated library repositories. This delegation manifests in two primary models: an opt-in system where academics actively ask the university library to enact this right, or an opt-out policy where the university mandates secondary publication and academics retain the option to opt-out.

A divide among Dutch universities is evident concerning these SPR policies, with approximately half adopting an opt-in approach and the remainder enforcing an opt-out system. This geographical distribution is visually represented in the accompanying map.

UPDATE – 22 March ’24: Since writing this article some institutions have moved from opt-in to an opt-out policy. The map below reflects the current situation.

Legend:

  • green check box: universities with an opt-out policy
  • yellow tick: universities that do not publish their policy
  • red cross: universities with an opt-in policy

While the existing legislation provides a reasonable foundation, there is room for improvement in future iterations. A noteworthy benchmark is the more contemporary SPR implementation in Bulgaria, elaborated upon by KR21’s national coordinator in her insightful article. This international perspective shows evolving practices and offers valuable insights for potential enhancements to the Netherlands’ SPR framework.

See more KR21 resources on RR and SPR:


19 March 2024