Posted by: bluesyemre | February 18, 2021

Explaining the Rights Retention Strategy #LisaJanickeHinchliffe

Chess Pieces
Ornately carved chess pieces from the chess set that was the prize at an 1887 tournament between the cities of Aachen and Leipzig (Image courtesy of the Metropolitan Museum of Art)

The leadership of cOAlition S has the complex and unenviable task of stewarding a central set of policies that are unevenly adopted across the cOAlition membership and that at times interact in unexpected ways. Publishers, authors, librarians, and even the funders themselves struggle to articulate their interpretations of these policies and communicate clearly with other stakeholder groups. Over the past months, the policy documents related to Plan S have continued to grow in number as have the tools and resources for making sense of these documents. But, even these have not been enough. 

That representatives of the cOAlition have taken to adding a standard disclaimer when they speak that, “if there is any discrepancy between information presented at this presentation and the cOAlition S website, the website takes precedence” is evidence of the complexity. To be clear, I think this is a useful disclaimer because on more than one occasion such discrepancies have occurred and so it is important that all know which are the canonical texts. 

The Rights Retention Strategy is perhaps one of the most complicated pieces of the cOAlition’s policy regime. Unpacking each word — rights, retention, and strategy — is one approach to better understanding what this policy is and how it functions within the Plan S compliance framework overall. 

Rights and Retention

The “rights” under consideration here are those rights that an author has in their work as the author of the work. Those rights are typically referred to collectively as “copyright.” The copyright that an author holds can encompass two types of rights: economic rights and moral rights. Generally speaking, economic rights encompass the ability to authorize or prevent certain uses of the work and to be compensated for such use, subject to limitations and exceptions such as fair use or fair dealing. The original author of a work — or in some cases their employer — is the original copyright owner. The WIPO copyright portal is a useful resource for additional background information on copyright fundamentals. 

Many academic institutions have a tradition of treating at least some of their employees (e.g., faculty) as the copyright owners of works they create even if they could legally assert institutional ownership as an employer. As such, the Rights Retention Strategy (RSS) takes an all-encompassing approach. The RRS — like Plan S generally — applies to the author and/or their employer regardless of who owns the copyright given that both individuals and institutions have obligations to a funder’s grant policies. 

To “retain” something is to keep something one has or, to say it another way, to stay in possession of it. In the case of the RRS, then, an author (or their institution) is keeping their copyright, presumably rather than transferring it to the publisher or to some other entity. 

For simplicity, this essay uses “author” from this point forward to mean the copyright holder of a work, which may be the author or their employer, depending on the terms of the author’s employment. 

Strategy

So what of the last word — “strategy”? Strategy here refers not only to an approach to retaining rights but also an approach to exercising the retained rights in a particular way in order to be compliant with Plan S. That is to say, the RRS is a strategy for author compliance via the retained rights; it is not only a strategy for retaining rights. Let’s unpack that further. 

Plan S has three routes for author compliance, all of which depend on some copyright retention by the author. But, not all routes are available to all authors for all journals. Determining which of the routes are available entails analyzing the intersections of funder policies (which, it is important to note, may or may not themselves be in full alignment with Plan S), journal policies, and library-publisher contracts in force at an author’s institution. To say that this is complex is an understatement!

The RRS facilitates the second route: “subscription venues (repository route).” To use this route, an author complies with their funder’s Plan S mandate by depositing an author accepted manuscript (AAM) or the version of record (VOR) into a repository, with a CC-BY or other acceptable reuse license, with no embargo on availability. 

At first glance, it seems that this route should be straightforward; however, the challenge of this route is paying for it. It would be relatively easy to follow this route by paying an APC to publish in a hybrid subscription journal and then, even if it might feel a bit redundant, depositing a copy of the VOR. But, cOAlition S funders will not pay such an APC. While some authors may have co-authors with funding that can be used for such an APC, which would enable depositing the VOR, many authors will not have alternative funding for the APC. In such a case, absent the author deciding to pay the APC personally, what remains of the second compliance route is for the author to license the AAM with a CC-BY or other acceptable reuse license and then deposit the AAM with no embargo for reader access. But, here too the author will likely face a barrier as a publisher’s author agreement for a closed access VOR typically requires the author to agree to an embargo of at least 6-12 months. It is this barrier that the RRS seeks to overcome.

Specifically, the “strategy” in the RSS policy is for the funder to require authors to assert — at the time of manuscript submission — that the author has applied a CC-BY license to the eventual AAM. By ensuring that the author applies a CC-BY license to the AAM, the funder’s strategy preserves the AAM option in the “subscription venues (repository route)” as the pathway for author compliance. CC licenses are irrevocable so, by the author having applied a CC-BY to the AAM, anyone who has the CC-BY licensed AAM can disseminate it, even if the author might later choose to no longer disseminate the document with such a license. 

Elsewhere I have reflected that the RSS, like many other Plan S strategies, functions to “rehabilitate subscription journals into compliance” so that an author can still publish a closed article in a hybrid journal rather than the funder forcing the author to choose a fully open access journal for which their funder will pay an APC or an open access journal that does not charge APCs. It enables cOAlition S to assert that it is preserving author choice of publication venue; however, it is worth noting that this assertion does elide the fact that funders cannot mandate that publishers accept manuscripts with the RSS language. 

Implementation 

The Implementation Roadmap of cOAlition S Organisations provides the clearest look at the status of the RRS policy across the cOAlition. Specifically, of the 25 members of cOAlition S, 22 have reached their declared “launch date for implementing Plan S-aligned OA policy.” Of those, 13 have adopted the RRS, two have indicated that the RRS is “not applicable,” and seven have the status of “adoption to follow” for the RRS. 

Nonetheless, for those authors whose funders have not adopted the RRS policy, cOAlition leaders have correctly pointed out that an author need not be mandated to incorporate this language into their submission in order to do so. Any author can themselves choose to place such a notice in their manuscript at the time of submission. The ability to assert the CC-BY license comes from being the copyright owner of the work; it does not derive from being funded by a funder that requires the assertion. The funder mandate requires the assertion to be made; it does not make the assertion possible. 

Publisher Response

Publishers have made their opposition to the RRS quite clear. It is still unknown, however, whether their objections will be reflected in actions that reject manuscripts with the RRS language. Multiple publishers have told me off-the-record that they are likely to refer such manuscripts to their fully open access journals in what I have come to think of as a “route them, don’t reject them” response to the RRS. This is, of course, a response available only to those publishers that have both hybrid and fully open journals in a given disciplinary area, another way in which Plan S privileges publishers operating at scale or dominating in a particular field.  

While the cOAlition initially attempted to gather information on publisher response to the RRS in order to populate its Journal Checker Tool (JCT), “of the 153 letters sent, only 28 publishers (18%) responded with an “actionable” response. Most publishers did not respond, and of those who did, many did not provide an answer which could be incorporated into the JCT.” Instead the JCT, which presents itself as a tool that “enables researchers to quickly identify journals or platforms that provide routes to compliance with Plan S,” does not indicate whether a publisher will accept manuscripts with the RRS language but rather if an author’s funder has adopted the RRS. Specifically, the cOAlition’s documentation explains that “the JCT is not asserting that the publisher policy supports the RRS. Rather, it indicates that the RRS allows researchers to self-archive the AAM with a zero-month embargo and a CC BY licence.” In other words, the author, who presumably wants to know what a journal’s policy is with respect to the RRS, cannot rely on the JCT to tell them this.

The cOAlition has said that it will update the JCT to reflect publisher policy rather than funder policy related to the RRS “if a publisher notifies cOAlition S that manuscripts which include the Rights Retention language will be rejected at submission.” In such cases, the cOAlition has also informed publishers, the JCT will then also no longer show any options for compliance route three: “transition of subscription venues (transformative arrangements).” This would be, I think, hugely demoralizing to librarians and publishers who have spent an immense amount of time and effort in the past year or two negotiating such contracts and especially for those librarians who have had to find additional financial resources to fund those agreements. 

It is perhaps unsurprising then that “no publisher has indicated that they will systematically reject submissions because the submission includes the RRS language,” particularly since many publishers, especially the largest publishers, likely have in their portfolio both fully open access journals for which the RRS is already accommodated by the author agreement as well as subscription journals where it is not. And, for any given subscription journal, there are likely multiple versions of the author agreement (e.g., a variant to accommodate authors who are US federal employees) and so making a uniform statement about even a single journal may be difficult or even impossible. 

The complexity here may be such that only a bespoke review of circumstances will clarify options for a particular author of a particular manuscript seeking to publish in a particular journal. The JCT itself is not fully reliable on journal policy, including the reality that there are journals that do accept manuscripts with the terms stated in the RRS but, because the author’s funder has not adopted the RRS, the JCT would not inform the author of this fact. 

And, while publishers are trying to assist authors with funder mandates, they too can be challenged by the policy complexities of Plan S. As an example, a look back through the archived versions of the Springer Nature author guide for Plan S compliance illustrates multiple attempts to address the RRS and create clarity for authors. However, it seems the publisher eventually gave up altogether as the current version omits any mention of the RRS. Others, such as the American Chemical Society, forthrightly state in their Plan S information documents that “For authors selecting the subscription publication route, our standard self-archiving policies apply, including embargo periods.” 

All of which leads me to conclude that publishers as a whole may not be systematically rejecting submissions with the RRS language but, with some notable exceptions, they are also not committing to systemically accepting them

Another option I anticipate some publishers will be pursuing is to accept manuscripts with the RRS but then contractually limit depositing or other dissemination through the author agreement. Licensing a work CC-BY does not obligate one to disseminate it immediately. So, an author could license the AAM with a CC-BY via the RSS and still sign an author agreement promising to delay dissemination of it. Of course, an author agreeing to an embargo would be out of compliance with their funder’s mandate and not actually following route two; however, by the time that is discovered in a reporting and compliance audit process, the typical 6-12 month embargo will likely be near its end or have already ended and the work deposited, obscuring that there was non-compliance. 

In conclusion, I would observe that the chess game continues. Ultimately, we may all be waiting on the next moves … which, to break my metaphor, will come as new players enter the game … those authors, who are — as of January 1 — subject to Plan S. Soon we will turn our attention to questions of author compliance with funder mandates rather than only looking at publisher policy responses. 

Lisa Janicke Hinchliffe

Lisa Janicke Hinchliffe

@LISALIBRARIAN

Lisa Janicke Hinchliffe is Professor/Coordinator for Information Literacy Services and Instruction in the University Library and affiliate faculty in the School of Information Sciences at the University of Illinois at Urbana-Champaign. lisahinchliffe.com


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