Overview

Open Access, which is described in detail in the article about Open Science, gives rise to some copyright issues.

First, a scientist who publishes an article in a journal may risk violating the copyright of the journal if he or she publishes the article online as Open Access without prior agreement with the journal.

Second, the question is to what extent Open Access policies that require researchers to publish under Open Access are compatible with researchers’ copyright to their own work.

An important question in this context is whether Open Access policies should solely cover the researchers’ articles, or whether in some cases it should also include their books.

If you make material available online as Open Access, it may be a good idea to do so by means of Creative Commons licences.

Open Access and copyright

Researcher and publisher relationship

Researchers usually hold the copyright to their own books and articles. See more in the article Who owns the research?

When a researcher publishes an article with a publisher, he or she usually grants the publisher the exclusive legal right to publish the article. In copyright terminology, you would say that the researcher transfers parts of his or her copyright to the publisher. As a result, the researcher is not allowed to publish the same article anywhere else, and the journal, in accordance with the copyright it has been assigned by the researcher, will be able to take action against anyone who may intend to publish the article.

The journal will often send the researcher an agreement which expressly states that the journal will obtain exclusive legal rights to the work, but even if not expressly agreed, this will usually apply anyway. You can read more about transfer of copyright in Morten Rosenmeier’s guide on copyright, Ophavsret for begyndere – en bog til ikke-jurister, chapter 7.

Many scientific journals submit the articles they accept to peer review. This means that the journal, before accepting the article, will ask one or more independent experts to comment on it and propose amendments, if necessary.

There are various ways to provide Open Access.

One way is that the researcher simply publishes an article in a journal which is available online free of charge.

Another way is to publish an article in a journal while at the same time placing a copy of it in the university’s repository, which is a database designed for storing the research of the employees. This will normally constitute an infringement of the exclusive right to the article which the researcher grants the journal when entering into an agreement on publishing the article. Consequently, this kind of Open Access usually requires that the agreement which the researcher enters into with the journal allows him or her to publish a copy as Open Access as well. See the proposed wording of such an agreement at www.ubva.dk under “Model agreements”.

Some journals do not accept this, while others allow so-called “Green Open Access”, which means that the researcher publishes an online copy of the preliminary, non-peer reviewed version of the article. Finally, some journals charge a fee for allowing Open Access publication of the peer-reviewed version which has been published in the journal. This is called “Gold Open Access”.

Do Open Access policies violate researchers’ copyright?

Researchers usually hold the copyright to their own books and articles. See more under “Who owns the research?” One could therefore ask to what extent it is compatible with the copyright of researchers if a research institution adopts Open Access policies in which the research of its employees must be published online as Open Access?

This question was addressed in 2010 in a parliamentary question to the Danish Minister of Higher Education and Science (question #220 U2010-11, 1st meeting).

The Minister’s reply to Parliament:

“Researchers at universities and institutions of higher education hold the copyright to their own production, including articles. Copyright entails that researchers must grant permission for making copies of their articles or making them available to the general public by dissemination, display and performance, including publishing them online. A recommendation to others on how to execute their copyright does not constitute copyright infringement.

Open Access policies which involve educational institutions storing parts of the researchers’ work in their own repositories and the like may constitute a copyright infringement. It would therefore be expedient to solve any copyright issues that may arise in connection with the implementation of Open Access at Danish Universities and other institutions of higher education by entering into collective agreements.

The interests of academics in relation to copyright issues are handled by the Committee for the Protection of Scientific and Scholarly Work (UBVA), which is a standing committee under the Danish Confederation of Professional Associations (Akademikerne). The UBVA has been represented in the Open Access Committee and supports the introduction of Open Access for scientific articles at Danish universities and other institutions of higher education. The UBVA recommends that copyright issues be settled via local agreements at the individual institutions. The UBVA, in consultation with the Danish Confederation of Professional Associations, can offer guidance to scientists and researchers on the most appropriate wording of the agreements.”

The point of view of the Ministry:

• Adopting Open Access policies that “recommend” researchers to make their research available as Open Access does not constitute copyright infringement, and correctly so. Copyright is a right that entitles the creator to prohibit others from making copies of or publishing his or her work, etc. Telling others that you think they should publish their work online for free is not, legally speaking, copyright infringement. Those who make the recommendation are in no way making copies of the work or publishing it without permission. Some institutions have adopted softer policies in which researchers are “urged” to “as far as possible” publish their work as Open Access. Such policies clearly do not infringe on the copyright of researchers.
• However, if an educational institution adopts an Open Access policy which requires its employees to save a copy of their work on a repository which is run by the institution, this is an entirely different matter. Under copyright law, making work available online constitutes copying and publication, and under section 2 of the Danish Copyright Act, the exclusive right to do so belongs to the author. If an educational institution specifically orders a researcher to place a copy of his or her articles in the institution’s repository, the institution is making a copy and publishing it without the author’s permission. Such use is subject to agreement with the researcher as this interferes with his or her rights as the copyright holder. The agreement may take the form of a collective agreement between the educational institution and the researcher’s trade union.

By contrast, the UBVA does not find that it constitutes copyright infringement for an educational institution to require its employees to publish work as Open Access if such publication is not required to take place at the institution’s own repository. Under the Copyright Act the author has the exclusive right to make copies of the author’s work and publish it, for example by making it available online. This right is violated if someone else makes copies of the work or publishes it online without the author’s permission, but to require an author to publish work in a specific way does not in itself constitute copyright infringement. This is not a case of doing something that is the exclusive right of the author without his or her permission.

However, although these kinds of Open Access policies do not entail copyright infringement in relation to the researchers, they may entail a considerable alteration in the researchers’ terms and conditions of employment. Such an alteration requires an agreement with the researchers. It is a principle in Danish employment law that any significant changes to terms of employment must be subject to agreement with the employees.

Agreement with employees on Open Access

Open Access policies which involve a requirement towards employees will therefore require prior agreement with the employees. The most appropriate way to do this would be via local agreements between the management and the researchers employed at the individual institutions.

Contact the UBVA for further guidance.

Open Access and books

The Open Access movement has so far concentrated on articles written by employees, with only slight focus on books. Although recommendation no. 8 of the Open Access report states that “Danish scientific publishers and societies should prepare a draft on conversion to Open Access for scientific monographs”, the primary focus has been on articles.

From the researchers’ perspective there is a major difference between Open Access for articles and books. Researchers who write articles typically have an interest in acquiring as many readers as possible. Therefore many, and probably most, researchers are open and positive towards the idea of making articles available as Open Access.

This is not always the case when it comes to books. It usually takes much longer to write a book than to write an article. Many researchers may therefore wish to publish a book via a publishing house, and perhaps also in a printed version. This will not typically be possible if the book is also to be made available online in a free edition.

Moreover, many researchers generate an income from their books, including their textbooks, and receive royalties and payments from CopyDan (in Denmark) when someone copies the work for teaching purposes, etc. For some researchers, this can amount to considerable sums. Consequently, Open Access for books is to a large extent in opposition to the financial interests of researchers, and could undermine the incentive for the future production of textbooks in Danish.

Open Access and the bibliometric research indicators

The bibliometric research indicator is a model that rewards universities financially if their researchers are published in the most recognised journals within the scientific fields. The better and more recognised the journals in which they are published, the more money the universities get. See more at www.fivu.dk.

A wide range of recognised journals are opposed to authors making available in Open Access articles that the journals have published. Some journals charge a fee for allowing this (Gold Open Access), while others only allow researchers to upload the preliminary, non-peer-reviewed version as Open Access (Green Open Access). Other journals are totally opposed to Open Access in any shape or form.

This naturally tends to undermine the Open Access project overall. On the one hand, there is a wish for researchers to publish their articles online, while on the other hand they are rewarded for publishing in journals that are trying to oppose this.

The prevailing ideological library concept is that Open Access and bibliometric research indicators can co-exist; however, in practice many university researchers find themselves under very tangible pressure to publish in journals that do not permit Open Access and never will.

What is Creative Commons?

There are various ways of making a work available online free of charge. One way is to attach a statement to the work you are publishing outlining the rights that you are waiving. The UBVA website states for example that you are free to use UBVA material as long as you remember to give credit to the UBVA and to contact the UBVA if you wish to use the material in a commercial context.

However, not everyone has the time to write such statements. That is why “Creative Commons” exists. The concept is that you give people the right to use the work you have created by means of small, standardised pictograms. Instead of writing “I give people the right to use my material provided that they mention my name in the material and do not try to use it commercially” you can publish the material online accompanied by special pictograms which are known to mean just that.

For researchers who wish to make their work available as Open Access, Create Commons licences may be one way of doing this.

You can read more about Creative Commons at www.creativecommons.org. See also Morten Rosenmeier’s guide to copyright,  Ophavsret for begyndere – en bog til ikke-jurister, chapter 7(J) and “Creative Commons and Open Access” at www.undervislovligt.dk.