Open your publications and preserve your rights: what solutions?

Written by CCSD

Is open access publishing a threat to researchers’ copyright? No. At least, not if the necessary steps are taken to ensure that the right to publish in open access is properly preserved.

Copyright consists of moral rights* and economic rights. The latter govern the exploitation of a work and, unlike moral rights, can be transferred to third parties (Légifrance). In the “traditional” pattern of scientific publication, i.e. through paid journals, authors transfer all their economic rights to a publisher for the exploitation and distribution of their publication (Ouvrir la science, 2020). By transferring his or her rights, the author no longer has free use of his or her publication. Consequently, when rights are transferred exclusively to a publisher, it is up to the publisher to decide whether a publication should be made openly accessible, or, where appropriate, for the author to explicitly request it if the publisher does not grant it outright (Ouvrir la science, 2020).

However, since 2016, the law for a digital republic allows authors “financed at least half by [public] funds, […] to make available free of charge in an open format, by digital means, […] the final version of their manuscripts accepted for publication”, even if a publishing contract has been signed (Légifrance). In fact, when researchers make their work freely available, the publisher cannot accuse them of exceeding their rights after they have respected an embargo of 6 to 12 months (Ouvrir la science, 2020).

So what are the options available to ensure the free and rapid dissemination of your work, while respecting the rights of both authors and publishers?

This 8th edition of the CCSD’s “Let’s Talk Open Science” webinars presents two complementary ways of ensuring that the right to open access publication is respected. Three experts on these issues spoke to a large audience of nearly 500 people, followed by a rich exchange:

  • Benoît PIER – CNRS Research Director at the Laboratory of Fluid Mechanics and Acoustics (LMFA, CNRS, École Centrale de Lyon, Université Claude-Bernard Lyon 1 and INSA de Lyon), CNRS-Ingénierie Open Science correspondent and co-editor of the guide Mettre en œuvre la stratégie de non-cession des droits sur les publications scientifiques (Ouvrir la science).
  • Cécile BEAUCHAMPS – Editor, Presses universitaires de Caen, member of the MÉDICI network
  • Daniel BATTESTI – Editor at MSH Dijon (UAR3516), member of the MÉDICI network

*Moral rights “allow in particular to require the person who publishes your work to designate you as the author of this work”. It is also “this right of authorship which requires the citation” of authors (Ouvrir la science, 2020).

The Rights Retention Strategy

Presentation by Benoît PIER

The law “pour une République numérique” (2016) protects researchers and gives them new rights. Article 30 authorizes them to make their publications openly accessible after an embargo period of 6 months for STM and 12 months for SHS, “even after having granted exclusive rights to a publisher”. This law is complemented by the two National Plans for Open Science (2018 and 2021) and cOAlition S, which aim to strengthen and facilitate the opening up of scientific work, supporting in particular the Rights Retention Strategy. In addition to promoting openness, the ANR has in particular made the open access publication of all funded projects mandatory as of 2022.

But how can all this be reconciled? What options are available to authors to avoid transferring all their rights to a publisher and to ensure that they can publish openly? The Rights Retention Strategy is one way for authors to do this.

How does it work?

The Rights Retention Strategy is a “tool for researchers to retain sufficient rights to their articles to make them immediately Open Access, regardless of the distribution model of the journal in which they are published” (Ouvrir la science). This strategy involves applying an open access license to one’s manuscript before submission. The use of such a license – CC-BY, for example – makes the author’s right to freely share his or her work, and in particular to deposit it in an open archive, inalienable.

How to implement the Rights Retention Strategy ?
  • Apply a free license to your manuscript as soon as it is submitted, i.e. before you assign your rights to the publisher, and with the agreement of all your co-authors. For a purely declarative approach, see How to apply a free license.
  • Inform the publisher that your manuscript is under a free license.
  • Place your manuscript in an open archive.

Since authors own the intellectual property of their work, they always have the option of applying a free license to their manuscripts. This guarantees free access to the author’s version, even if a rights transfer agreement is signed at a later date. The publisher retains the rights to the publisher’s version.

This approach falls within the legal framework and is recommended by the CNRS and the ANR, among others. The strategy of non-exclusive transfer of rights remains an option open to all and does not involve any additional costs (“APC” type).

The Open Science! guide explains how to proceed: Implementing the right retention strategy for scientific publications.

What do publishers think?

Of the few responses from publishers, few are in favor of this strategy. In some cases, they are even trying to steer authors towards a “hybrid” model, i.e. including the APC, if the author wants open access.

However, the strategy of non-exclusive licensing has already proved its worth, and there are many happy examples, especially with major publishers such as Elsevier and Springer. Although this is a relatively recent measure (2022) and difficult to quantify, some 300 articles are known to have successfully used this strategy, according to Benoît Pier, co-author of the guide “Mettre en œuvre la stratégie de non-cession des droits sur les publications scientifiques”. On the other hand, there are few cases in which publishers have actually challenged this right.

In case of doubt, or for further guidance, researchers are encouraged to contact the Open Science department of their funding agency or institution, the HAL officer in their laboratory, or their SCD.

The publishing contract, a tool for opening up science

Presentation by Daniel BATTESTI and Cécile BEAUCHAMPS
The Médici network

Authors are certainly not the only ones involved in opening up science, and many publishers are also part of this virtuous circle. This is the case of the Médici network, “a national professional network that brings together the community of public scientific publishing professionals”, a network for action, training and exchange to promote Open Science.

Article 132-8 of the French Intellectual Property Code stipulates that a work may be transferred on a non-exclusive basis. These provisions can be negotiated by the author or proposed by the publisher. The establishment of fair contracts between authors and publishers is therefore a complementary solution to the Rights Retention Strategy.

This is why the Médici network, with the support of the Committee for Open Science (CoSO), has been working since 2017 to develop recommendations and model contracts specific to public publishing, in line with the values promoted by open science. Three model contracts for journals and collective works have been published first, followed by three model contracts for monographs.

How to build contract models ?

The creation of contract models that can be generalized to all scientific disciplines is a complex exercise for Médici’s publishers, given the differences in publication and openness practices between STM and SHS. In the case of the latter, openness is often the responsibility of the publisher rather than the author, and vice versa in the case of STM.

These model contracts, which are interdisciplinary, flexible and open to negotiation, are enriched with comments to ensure a perfect understanding of the various terms and conditions involved. In fact, the Médici Network offers both support for publishers and a didactic document to inform authors and research support services of the various options available prior to negotiation.

Although the Médici Network’s model contracts do not lay down any policy on open science, they do offer options for open access publication, as well as precise definitions that take into account different disciplinary practices. As a preamble to these contracts, publishers are invited to indicate the distribution methods used and, in the case of distribution under a Creative Commons license, to request authorization from the author, clearly specifying the conditions of reuse. In this way, publishers, like authors, are becoming key players in Open Science.

By 2024, Médici estimates that 200 journals will be using its models, 75% of which will practice non-exclusive and/or time-limited exclusivity.

Additional Information

Do you want to know more about copyright and the correct use of open licenses? Join us for Parlons Science Ouverte #7: “Du bon usage des licences dans le cadre du dépôt dans HAL”, with Lionel Maurel, Deputy Scientific Director for Open Science, Scientific Publishing and Research Data at InSHS.

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