Open Access, which is described in detail in this 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 comprise the researchers’ articles, or whether in some cases it should also include their books.
When you make material available online as Open Access, it may be 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 legal exclusive right to publish the article. In copyright terminology you would say that the researcher transfers parts of his copyright to the publisher. As a result, the researcher is not allowed to publish the same article anywhere else. And the journal will, in accordance with the copyright it has been assigned by the researcher, be able to take action against anyone who might intend to publish the article.
The journal will often send the reseacher an agreement which expressly states that the journal will get a legal exclusive right to it. But although 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, gets one or more independent experts to comment on it and propose amendments, if necessary.
There are different 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 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. Others allow a so-called “Green Open Access”. This means that the researcher publishes an online copy of the preliminary, non-peer reviewed version 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”. So the question remains: to what extent is it compatible with the copyright of researchers if a research institution adopts Open Access policies where 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 the 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 that dictate the educational institutions to store parts of the researchers’ work in own repositories and the like might 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 related to copyright issues are handled by the Committee for the Protection of Scientific Work (UBVA), which is a standing committee under the Danish Confederation of Professional Associations (Akademikerne). The UBVA was 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, will 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 “urge” researchers to make their research available as Open Access does not constitute copyright infringement. Rightly so. Copyright is a right that entitles the creator to prohibit others from making copies of and publishing his or her work, etc. But telling others that you think they should publish work online for free is legally speaking not copyright infringement. The ones making the recommendation are in no way making copies of the work or publishing it without permission. At some institutions they have adopted more soft policies where researchers are “urged” to “as far as possible” to publish their work as Open Access. So be sure, these kinds of policies do not infringe on the researchers’ copyright.
- If an educational institution adopts an Open Access policy which orders the employees to save a copy of their work on a repository which is run by the institution, it is an entirely different matter. Under copyright law, making work available online constitutes copying and publication. Under section 2 of the Danish Copyright Act, the exclusive right to do so belongs to the author. And if an educational institution specifically orders a researcher to place a copy of his/her articles in the institution’s repository, the institution is making a copy and presenting it without the author’s permission. Such use is subject to agreement with the researcher as this interferes with his/her rights as copyright holder. The agreement may take the form of a collective agreement between the educational institution and the researcher’s trade union.
In contrast, UBVA does not find that it constitutes copyright infringement when an educational institution orders its employees to publish work as Open Access as long as publication is not required to take place on the institution’s own repository. Under the Copyright Act the author has the exclusive right to make copies of the work and publish it, among other things by making it available online. This right is violated if you make copies of the work or publish it online without the author’s permission. But to order an author to publish work him/herself in a specific way does not constitute copyright infringement. This is not a case of doing anything which he/she has the exclusive right to do, without his/her permission.
But even though these kinds of Open Access policies do not entail copyright infringement in relation to the researchers, it may entail a considerable change in the researchers’ terms and conditions of employment. Such a change requires an agreement with the researchers. It a principle in Danish employment law that any significant changes in the terms of employment are subject to agreement with the employees.
Agreement with employees on Open Access
So the fact is that Open Access policies which involve an order to the employees require prior agreement with the employees. The most appropriate way would be local agreements between the management and the researchers employed at the individual institutions.
Contact UBVA for further guidance.
Open Access and books
So far the Open Access movement has concentrated on the articles of the employees whereas focus on Open Access on books has been very slight. Although recommendation #8 of the Open Access report states that “Danish science publishers and societies prepare 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 getting as many readers as possible. Therefore many, and probably most, researchers are open and positive to 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 time to write a book than to write an article. As a researcher you may often want to publish the book via a publishing house, maybe also in a printed version. This will typically not be possible if the book is going to be available online for free as well.
Moreover, many researchers generate an income from their books, including their text books. They receive royalties and money from Copydan when someone copies the work for teaching purposes etc. For some researchers this may be considerable sums. As a result, Open Access for books is to a great extent against the financial interests of the researchers. Consequently Open Access for books might undermine the incentive for future production of textbooks in Danish.
Open Access and the bibliometric research indicators
The bibliometric research indicator is a model which rewards universities financially if their researchers are published in the most recognised journals within the scientific fields. The better and more recognised the journals they are published in, the more money the universities get. See more at www.fivu.dk
A wide range of recognised journals are opposed to authors’ making the articles, which the journals have published, available online. Some journals charge a fee for allowing it (Gold Open Access). Others only allow the researchers to upload the preliminary, non-peer reviewed version as Open Access (Green Open Access). Others are totally opposed to Open Access in any shape or form.
Naturally this helps undermine the big Open Access project. On the one hand you would like the researchers to publish their articles online. On the other hand you reward them for publishing in journals who are trying to oppose it.
Neverthelss, the prevailing library ideology purports that Open Access and bibliometric research indicators can co-exist.
However, in practice many university researchers find that they are under a very tangible pressure to publish in journals that do not permit Open Access and never will allow it.
What is Creative Commons?
There are different ways of making work available online for free. One way is to attach a text to the work you are publishing which outlines the rights you waiver. For example UBVA’s website states that you are free to use the material of UBVA as long as you remember to give reference to UBVA and to contact UBVA if you want to use the material in a commercial context.
But not everyone can be bothered to write such things down during their busy day. That is why there is a system such as “Creative Commons”. 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 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 make work available as Open Access, Create Commons licences may be one way of doing it.
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.