Editor’s Note: Today’s post is by Shaun Khoo, based on a forthcoming article in Insights. Shaun is a postdoctoral fellow at the Université de Montréal where he studies the neuroscience of addiction. He is the founder of Episteme Health Inc., a non-profit association that aims to provide free open access neuroscience publishing.
The Plan S Rights Retention Strategy (RRS) just sounds too good to be true. Anyone, whether mandated by their funder or not, can add a sentence or two to their article asserting a Creative Commons Attribution license (CC BY) that will allow them to treat the Author Accepted Manuscript (AAM) version of their paper as openly licensed. In cOAlition S’s framing, this “magic text” effectively transforms whatever version is accepted by the publisher into an openly licensed work, evading paywalls and embargoes alike, and providing free open access to articles while preserving authors’ “freedom to publish in their journal of choice”. Sadly, the way real life and real laws work, if it sounds too good to be true, it often is.
Magic words or empty assertion?
cOAlition S says that the RRS works through two mechanisms: prior license and prior obligation. If funders or employers want a prior license to an academic’s work, their legal teams will add terms to their funding or employment contracts to create that license. But when authors only have an obligation or desire for immediate open access, RRS language sounds like an empty assertion based on a fundamental misunderstanding of how licensing works.
A Creative Commons license is an agreement between Licensor and Licensee, not something applied by mere assertion. If I, as someone without a Plan S funder (for now), use RRS language and say, “I have applied a CC BY public copyright license to any AAM version arising from this submission”, this is sadly not a notice about an actual prior license. At best, all I have made is an offer to license. The recipient of my submission needs to agree to accept my paper under the terms of the CC BY license, as the license itself states, “By exercising Licensed Rights (defined below), You accept and agree to be bound by the terms and conditions of this Creative Commons Attribution 4.0 International Public License…”
There is no obligation for publishers to accept the license. For example, a recent acceptance letter from a Springer Nature journal explicitly rejects RRS language:
“For authors selecting the subscription publication route our standard licensing terms will need to be accepted, including our self-archiving policies. Those standard licensing terms will supersede any other terms that the author or any third party may assert apply to any version of the manuscript.”
If I proceed to sign a separate contract with the publisher, they will receive my copyright unencumbered by any prior license and I will have placed myself in a legal quandary, having made conflicting commitments to my funder and my publisher. Even the American Association for the Advancement of Science, which has been lauded for its acceptance of the RRS, does not accept or require RRS language. Instead, self-archiving rights are licensed back to cOAlition S-funded authors in their license to publish.
The bait-and-switch of the RRS
The RRS is not a dream open access solution, but a bait-and-switch. The bait is cOAlition S’s suggestion that the RRS gives authors “freedom to submit manuscripts for publication to their journal of choice, including subscription journals, whilst remaining fully compliant with Plan S”. According to cOAlition S, not only can I publish in those journals, but I can also self-archive immediately with a CC BY license “irrespective of restrictions or embargo periods imposed by publishers”.
When it comes time to publish, however, I find the “bait” of unlimited options switched for a set of stricter obligations. Instead of finding myself armed with magic words that override publisher restrictions, I end up with an obligation to my funder that requires me not to sign a contract with any publisher that doesn’t allow embargo-free self-archiving with a CC BY license. As cOAlition S officials have said elsewhere, “authors should therefore not specifically agree to an embargo period, presented by a publisher because if they do, they will be in breach of their grant conditions.” Being prevented from signing contracts that contravene cOAlition S requirements is very different from being able to do what I want “irrespective” of publisher policies. If I carelessly believe what cOAlition S says on its website and don’t read the fine print from both my funder and my publisher, I could find myself facing penalties or legal action from either my funder or my publisher.
Increasing legal risk
If I breach my publisher’s restrictions I can also expose myself, my institution, and end users of my manuscript to legal threats. While publishers have tended not to follow through on these threats due to bad public relations, this is a business decision that could change in future. In the worst case, where I have neglected to include both a grant number and a license assertion in accordance with the RRS, my institutional repository would have to comply with a takedown notice. Fortunately for me and my institution, cOAlition S says that they would “help resist a take-down notice” so long as a grant number from a Plan S funder is mentioned. However, even in this best case scenario, it is unclear how much help cOAlition S would provide or whether RRS language would hold up in court.
Another possibility, at least in theory, is that end users who rely on the CC BY license will be targeted. A CC BY license comes with no warranty. There is no legal defense fund or promise of help from cOAlition S for end users. Therefore, if it turns out that you are using something under an invalid license, the copyright holder can sue you and you’ll be on your own. While examples of publishers suing end users of RRS manuscripts have yet to emerge, publishers have previously sued ResearchGate for hosting papers uploaded by academics. In 2013, a document services company was found liable to Elsevier, Wiley and the American Chemical Society as an “innocent infringer” because they copied over 2,500 works at the direction of a third party without knowing they were copyrighted. A few high-profile cases along these lines might be all it takes to undermine public trust in the licenses asserted on accepted manuscripts, undermining one of the purported benefits of the RRS.
The RRS is not simple or easy
The RRS may appear simple but it is actually the most difficult open access approach ever proposed. No other approach has ever encouraged authors to disregard publisher policy in favor of an untested copyright and licensing strategy. The idea that mere assertion is enough to apply a license that legal scholars (and the license itself) tell us requires both offer and acceptance sounds more like a legal urban legend than a serious proposal from a consortium of research funders. Authors in particular should not believe cOAlition S marketing for the RRS – we will need to pay even closer attention to funder requirements and publisher policies as conflicts are more likely under Plan S’s stricter obligations. This rather mundane reality reminds us that if we want to change academic publishing it will take hard work. Magic words just aren’t going to cut it.
9 Thoughts on "Guest Post — Why the Plan S Rights Retention Strategy Probably Won’t Work"
An open licence benefits the end user. Researchers should look for journals and publishers willing to negotiate the publisher agreement using an Author Addendum. SPARC provide an Author Addendum template, along with a brochure on how to use the Addendum to negotiate author rights https://sparcopen.org/our-work/author-rights/#background. Ideally researchers should retain copyright of their article for future research opportunities and just give publishers the right to publish and promote the article in their journal.
The SPARC Author Addendum has been around for a long time and has not seen a lot of success. In 2017, SPARC ran an evaluation of the addendum which showed low awareness and reported that publishers sometimes reject the addendum: https://sparceurope.org/evaluating-usage-sparc-author-addendum/. They never released the full results as far as I know.
I agree with your ideal situation, but unfortunately that’s not what we have right now.
Thanks for this critical article which clearly expresses the concern (stress?) of many researchers and research advisors! I wonder whether funders such as the European Commission will support researchers who, to be compliant to plan S, will nevertheless place their postprint under a CC-BY license and get in conflict with the publisher. Believe it or not, a lot of researchers do not so much care about the impact factor but about the reach and review quality of a journal. Not choosing for a (Gold) OA publisher is not always a matter of “being stuck to the impact factor”!
Thanks for reading! I have a feeling that the level of help that cOAlition S is offering is limited to advice, encouragement and lobbying. They seem to know that the RRS is unenforceable, so I doubt that they would provide much in the way of legal support or indemnity. As they acknowledge in their “open letter to researchers”, if a researcher signs an agreement with a publisher that includes restrictions (i.e. embargo) on the AAM, they will be “in a position where they either have to breach their funder’s grant conditions (by embargoing their AAM) and risk not being eligible for future funding; or breach their publishing agreement (by not embargoing their AAM) and subsequently risk the publisher taking action against them.”
They try to downplay it by calling it “encouraging authors to breach their funder’s grant conditions”, but it sounds more to me like a requirement that we agree to when we sign (or click) our publishing agreements.
There’s a lot to think about here, but on the copyright front I did want to point out one thing: while it’s true that dropping ‘magic words’ about a future intent to offer CC licenses to the public into a footnote doesn’t create a prior license on its own, it would be fairly simple to remedy that. For example, the funder could take the license as part of its contract with the researcher, or the researcher could deposit the manuscript in a repository, where the deposit agreement with the repository would include a license to make the work available (and to do so subject to a specific CC license, perhaps). In both of those cases you’d have offer and acceptance and an enforceable prior license, at least under US law. The author would be in the same position as authors who rely on Harvard-style institutional OA policies, which have never been litigated, but have quietly worked to populate repositories at hundreds of institutions with thousands of AAMs over more than a decade.
This is one of the strangest things about the RRS. They have said that it is based on the Harvard RRS, but a Harvard-style RRS is backed by contractual terms between an institution and its employees.
It’s something I alluded to when I wrote, “If funders or employers want a prior license to an academic’s work, their legal teams will add terms to their funding or employment contracts to create that license.” This approach seems much more sensible to me. I don’t think a Creative Commons license alone is the right instrument for doing this.