Walking in quicksand – keeping up with copyright agreements

As any repository manager will tell you, one of the biggest headaches for providing open access to research materials is complying with publisher agreements.

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Most publishers will allow some form of an article published in their journals to be made open access. There is a very useful site that helps people work out what the conditions are for a given journal or publisher, called Sherpa RoMEO*.

In many institutions the responsibility for copyright checking is taken by the repository manager (rather than requiring the author to do it), and usually the workflow includes some or all of:

  • Checking Sherpa RoMEO for local journals
  • Consulting (and adding to) an internal database
  • Looking at the journal/conference/publisher webpages
  • Locating and consulting at the Copyright Transfer Agreement the author signed
  • Contacting the publisher directly for permission if the OA position is not able to be determined using any of these resources.

One problem repository managers face is that publishers sometimes change their position on open access. Often there is no public announcement from the publisher; especially when the change imposes more restrictions on ‘green’ open access. This is where the blogosphere and discussion lists (such as the CAIRSS List in Australia) are invaluable in keeping practitioners on top of new issues in the area.

Some recent cases where publishers set more restrictions on ‘green’ open access include Springer and IEEE.

[*SHERPA stands for Securing a Hybrid Environment for Research Preservation and Access, and RoMEO stands for Rights Metadata for Open archiving.]

IEEE

The Institute for Electrical and Electronics Engineers (IEEE) is the biggest organisation for these fields. They run many high status conferences and publish the proceedings. Because in this field traditionally authors have been expected to provide camera-ready copy for conference proceedings, it has long been accepted practice for authors to make copies of their work available on their own webpages or in repositories. And until December 2010 IEEE sanctioned that (as long as the repository attached a specific notice).

Then on 1 January 2011 IEEE changed the rules and said people could no longer put up the Published Version. They were still allowed to put up the Submitted Version (preprint) or the Accepted Version (postprint). The policy is on the IEEE website here. While this still allows IEEE works to be made available in compliance with the recent Australian mandates, a recent blog  argues that the re-use restrictions on the Accepted Version of IEEE publications imposed by IEEE means that the works are not open access in compliance with many overseas mandate requirements.

Springer

Springer also recently changed their rules. They were previously a fully ‘green’ publisher which meant authors were allowed to make their Accepted Versions available immediately on publication. But this has recently changed.

According to their Self-Archiving Policy: “Authors may self-archive the author’s accepted manuscript of their articles on their own websites. Authors may also deposit this version of the article in any repository, provided it is only made publicly available 12 months after official publication or later. …”

So now there is a 12 month embargo on making the Accepted Version available. It would seem that Springer have altered their position in response to the introduction of the RCUK mandate.

Indeed many other publishers have made announcements in response to that mandate. These range in form across videos from BioMed Central to announcements such as from Oxford University Press to a blog post from SAGE.

There is some argument in discussion lists that the new Springer position is contradictory – that institutional webpages are effectively the author’s website, given the way many repositories are embedded with the staff pages for institutions. This simply indicates the complexity of these agreements and how challenging the interpretation of them can be even for people whose work centres in this area.

And this opens up a new, emerging issue.

Separate publisher agreements

So far this blog has been talking about publisher agreements with authors. But some publisher’s agreements state that if authors are publishing research that results from a funder that has an open access mandate, there are different rules. Two very prominent ones have been Elsevier and Wiley. Generally these different rules require a ‘separate agreement’ between the funder and the publisher. There is more information about separate agreements here.

Follow these links to see the arrangements Wiley and Elsevier have made to manage the RCUK mandate.

Emerald

Emerald is another publisher which has recently changed its position on open access, in this case only for deposits which are mandated. For these publications Emerald have recently adopted a 24 month embargo. The text on their site says: “if a mandate is in place but funding is not available to pay an APC [article processing charge], you may deposit the post-print of your article into a subject or institutional repository and your funder’s research catalogue 24 months after official publication”.

Emerald say they are prepared to “work in partnership” to “establish Open Access agreements that support mutual interests”. One such agreement is with the International Federation of Library Associations and Institutions (IFLA) which permits the deposit of an Accepted Version (post print) with only a nine month embargo.

So if an author publishes through Emerald they are subject to one of three possible copyright agreements depending on whether they are researching using funds that have a mandate associated with the funds and whether they are publishing in an IFLA journal.

Library agreements?

To add to the confusion, it appears there is a third form of agreement relating to copyright permissions beyond the copyright transfer agreement the author has signed and any separate agreement that may be in place as a result of a mandate.

It seems that publishers are now approaching libraries directly over the issue of access to publications. That is, they are seeking to sign an agreement directly with the library.

According to discussions online, it seems that there are two types of clauses attached to institutional license agreements – either a new clause in existing contracts at renewal time, or a separate agreement that serves as an addendum to the contract in between renewals. It is unclear whether these agreements would override the copyright transfer agreement the author signed. Having two agreements adds to the confusion and begs the question: which one is binding?

I am not privvy to what is potentially being agreed to in these new clauses. It is almost a moot point. The issue is that if institutions sign these agreements then the waters are further muddied.

Repository managers then potentially have three processes they have to check:

  1. The author’s copyright transfer agreement – using the workflows mentioned above
  2. They need to know if a particular work is the result of a mandate, and if so determine if it is published with a publisher that requires a separate agreement, and establish whether an agreement is in place
  3. They might also need to be on top of the license agreements or extra clauses their library has with individual publishers.

It is complicated and time consuming.

Implications

These changing rules have a potentially profound effect on the rate of the uptake of repositories in some institutions. Repository structures and associated workflows vary dramatically. In some cases the institution maintains one repository for both open access materials and reporting publication databases, others have separate repositories for different purposes.

And there can be big variations in the way publications are recruited for the repository.

In the majority of cases there is an allocated repository manager who takes responsibility for checking copyright compliance of deposited items. But some institutions expect their researchers to do this and to indicate that they have done so when they deposit their papers to the repository. This adds a level of almost insurmountable complexity to what some have argued is a simple matter of a ‘few keystrokes’.

While researchers *should* be aware of the conditions of the copyright transfer agreement they have signed with their publisher, in reality many are not. Often they do not even have a copy of what they have signed. While this oversight can be managed through the use of Sherpa RoMEO (if the researcher is, indeed aware of the service), it is unrealistic to expect an individual researcher to also:

  • know whether their institutional library has signed an external agreement,
  • know whether their work is the result of funding that has a mandate associated with it, and
  • know whether their publisher has a special agreement in relation to that mandate.

These changing copyright arrangements mean that the process of making research openly accessible through a repository is becoming less and less able to be undertaken by individuals. By necessity, repository deposit is becoming solely the responsibility of the institution.

Dr Danny Kingsley
Executive Officer
Australian Open Access Support Group

13 thoughts on “Walking in quicksand – keeping up with copyright agreements

  1. I suggest to make it less complicated and confusing by being less cautious. Assume faculty and students who submit to the repository know what they are doing. You can even have them click through a statement of that kind. If there is a problem submission, let publishers point it out to you. If they submit sufficient proof, you can remove the offending item from your repository.

    To avoid all problems, enact a mandate that cannot be signed away. I.e. faculty and students must submit all published works into the repository, and this institutional mandate has priority over any private agreements with publishers.

  2. All of this crap is why it’s often more practical for authors just to shove their papers up their own web-sites, release them into torrents, and so on. I do feel for you repository managers: its must be appalling to spend so much of your time wrestling with publishers. But what a fatuous waste of all of our time.

  3. Some people might say that the burden of proof is on the publishers, and we should just get our work out there, not concerning ourselves overly with the details of copyright agreements. For example, how likely is it that one would have a problem if one submitted the postprint to arXiv.org, and gave them an irrevocable licence to distribute, and only then signed the copyright transfer agreement? How likely is it that a version with 1 character difference from the postprint, archived greenly, would run into legal problems? 2 characters?

  4. What would happen if an article was posted to a repository without meeting the copyright requirements? Do we get to spend time in bright orange overalls?

    • Hi Rowena, I have heard of instances where researchers who have posted the final published versions into subject based repositories – like SSRN – have been contacted by the publisher asking the author to remove the item. I have not heard of anyone being approached who has had the wrong version of work available in an institutional repository. That doesn’t mean it hasn’t happened, but they are probably much more difficult to monitor simply because IRs are not centralised. And often institutional repositories have some sort of intermediary like a repository manager who is checking the copyright position. Danny

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