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Open access and rights retention

How does the rights retention mechanism work?

Our rights retention mechanism has two components:

  1. Automatically licensing the University to disseminate your work. SHU authors–staff or student–automatically licence the university to disseminate the Author Accepted Manuscripts of their scholarly papers under the CC BY licence, through our Research Publications and Copyright Policy.

  2. Giving the publisher notice that such a prior licence to SHU exists. You as an author must do this by including the Rights Retention Statement in all your submissions. The university also has separately notified the most popular publishers before the Policy came into force.

This means that if a publisher accepts to publish your paper, they do so in the full knowledge that a prior licence to your Author Accepted Manuscript exists. This prior licence then takes precedence over any subsequent assignments or licences of copyright in the Author Accepted Manuscript, and your Author Accepted Manuscript can therefore be disseminated via our repository from the day of first publication under the Creative Commons Attribution licence without breaking copyright law.

Should I add the Rights Retention Statement to papers I submit before the 15th of October 2022?

No. The policy does not apply retropectively, only to papers you submit from the 15th of October onwards. Only from the 15th of October will SHU authors automatically licence the university to disseminate their Author Accepted Manuscripts via the repository from the day of first publication under the Creative Commons Attribution licence.

Why was rights retention introduced?

Immediate Open Access aligns with the University’s ambitions for Open Research: we have a statement that articulates well our position and strong support for open research.

Immediate Open Access also chimes with our vision to become the world’s leading applied university, as it helps us to share our research beyond academia with the people and organisations that we work with as an applied university. Making open access immediate, rather than after a delay, can play a role in increasing the reach and impact of our research.

Importantly, immediate Open Access via rights retention has direct benefits for authors:

  1. Authors achieve immediate and wide dissemination without restrictions
  2. They retain more rights over their own work
  3. They also retain the freedom to publish where they see fit
  4. Whilst automatically complying with all external open access requirements

How will my publisher respond? Won’t including the Rights Retention Statement limit my opportunities to publish?

No. It is extremely unlikely that a publisher will reject to publish your submission, because of the inclusion of the Rights Retention Statement.

Of course, publishers are free to refuse to publish manuscripts with rights retention. But as soon as they accept such a manuscript for publication, in the knowledge that the author has given a prior licence to the university, the prior licence to SHU takes precedence over any subsequent licence in copyright law, and you can make your manuscript available from the repository from the day of first publication under the Creative Commons Attribution licence without breaking copyright law.

All indications are that the risk of submissions being rejected because of rights retention is extremely low, and Your Library is working actively to minimise this risk even further.

1. It is not in the publisher's interest

Over time, the publisher would risk to refuse a range of quality research outputs, whilst those research outputs have found other venues at rival publishing houses.

2. Experience from SHU and other universities

Since the policy came into force on the 15th of October 2022, no submissions were rejected because of rights retention. Other universities have had similar experiences. In the UK, the universities of Edinburgh and Cambridge have been operating a rights retention policy since the beginning of 2022. In October 2022 they shared their experience. It transpired that, according to Cambridge, just two (2) papers were rejected because of the Statement, in both cases by smaller American learned societies: the Seismological Society of America and the American Society of Hematology. As a result, the authors decided to submit their work to different journals so that they could retain rights over their accepted manuscript.

However, in just three (3) cases, publishers have challenged SHU submissions with the rights retention statement, asking for the statement to be removed, either because they argued it was not necessary or that there was an alternative paid-for route to achieve open access. 

Other UK universities have reported this publisher response as well. Cambridge reported that there was a group of publishers that asked for the Statement to be removed. When these publishers were asked by journalists about this removal request, Elsevier and Springer Nature answered that they only assess manuscripts on editorial merit, and that they will not reject manuscripts on the grounds of the inclusion of the Statement.

When asked to remove the Statement or otherwise challenged by your journal/publisher, please get in touch with the Library research Support team. In most cases, authors can remove the statement and still enjoy the benefits of rights retention. Removing the Statement from the submission does not remove the prior licence authors automatically give to the University. The 50 most popular publishers have been notified of the existence of this prior licence in advance of the policy coming into force -- the Pro Vice Chancellor for Research and Innovation, Rory Duncan, has written to publishers to notify them of the prior licence and that whether authors include the Statement in their submissions, or not, has no effect on the existence of this prior licence. As a consequence, if the publisher has been notified by professor Duncan, authors can remove the Statement when asked, and they can still make the accepted manuscript downloadable from the repository from the day of publication under the CC BY licence, without breaking copyright law. You can check whether your publisher has been notified here.

For the sake of transparency, the cases in which SHU submissions were challenged are listed and described in the following table. In each completed case, after intervention from Library Services, the accepted manuscript was made available from the repository, SHURA, from the day of publication under the Creative Commons Attribution (CC BY) licence without further challenge from the publisher, and without making a payment. 

It is important to note that none of these challenges constituted a rejection, that all other SHU submissions with the rights retention statement to these publishers have not been questioned, and that after intervention from Library Services, the publisher ultimately accepted the dissemination of the paper via immediate open access from the repository.
 

Date Publisher Description of the challenge Outcome after intervention from Library Services
March 2023 Springer Nature Redirection to a paid-for option The paper was published. The Accepted Manuscript was made available from SHURA from the day of publication under the CC BY licence, without further challenge, and without payment
June 2023 Springer Nature Removal of the Statement The paper was published. Rights Retention was not applied to the Accepted Manuscript, but the item was made available from the repository according to the publisher's usual requirements with a delay of 6 months under the publisher's bespoke licence. Springer Nature argued this because the paper was not a research paper.
July 2023 ACM Removal of the Statement The paper was published. The Accepted Manuscript was made available from SHURA from the day of publication under the CC BY licence, without further challenge

 

3. Agreements with publishers

Secondly, SHU has agreements in place with an increasing number of publishers which are negotiated by Jisc on behalf of UK Universities. These agreements often include stipulations that those publishers will not reject submissions with rights retention. Jisc continues to negotiate such agreements. It is  expected that more of these agreements will come in place soon. All new agreements that Jisc negotiates will contain the stipulation that rights retention should be acceptable to the publisher.

These agreements go by the name of read-and-publish, or transformative agreements. They currently exist for larger publishers such as Elsevier, SAGE, Taylor & Francis, and Wiley.

4. Publishers have been notified and did not object

Thirdly, we have written to our most popular publishers to announce we are implementing rights retention, and so far we’ve received no negative responses. Our intent is that, if we receive a negative response, we will work with the publisher in question so that SHU authors will not be prejudiced against when submitting their work.

Similarly, we are asking all authors to get in touch with the Library immediately if they run into any issues when including the Statement, so that the Library can sort the problem out for you. This also means Your Library will have a complete picture of all issues that arise, so that they can intervene appropriately and proactively to avoid them in the future.

5. You can opt out if necessary

Fourthly, if your chosen publisher will not consider your submission because of the prior licence given to SHU, and you feel you cannot publish your paper in another journal, you can opt out of the Sheffield Hallam policy. Opting out means that:

  1. you can apply a different licence than CC BY
  2. introduce a delay (an ‘embargo’) in making your paper open access via the institutional repository

It also means that you can apply the publisher's usual open access policy.

Therefore, opting out should allow you to publish with your publisher of first choice. Please note that if you have a grant from a funder that requires immediate Open Access, such as UK Research and Innovation (UKRI), the Wellcome Trust, the National Institute for Health and Care Research (NIHR) or the European Research Council (ERC), then your publisher may be preventing you from complying with your funder’s requirements.
Please refer to the checklist for guidance on opting out.

6. Our policy gives you more freedom to publish where you see fit

Finally, the ability to opt out means that the freedom to publish where you wish is not constrained by our policy. On the contrary, the SHU Rights Retention mechanism increases your choice of publication venue, especially if your work is funded by a research funder that requires immediate open access, such as those who form the international consortium of research funders, cOAlition S, which includes UK Research and Innovation (UKRI) and the European Research Council (ERC), and funders that align with cOAlition S principles, such as the Wellcome Trust, and the National Institute for Health and Care Research (NIHR). It is also expected that one of the requirements for submission to the next Research Excellence Framework (REF) is immediate open access but details have not yet been released.

The SHU policy guarantees that authors retain the freedom to publish in a journal of their choice, whilst complying with all known external requirements including for the next REF. This is not always possible without the SHU policy, since authors would then not be able to publish in subscription-based journals without a compliant self-archiving policy that allows for immediate open access, or in hybrid journals that are not compliant with cOAlition S requirements for hybrid journals or that are simply too costly to publish in—e.g. the open-access fee for publishing in Nature-branded journals is EUR 9,500!

What do I do if I run into an issue?

We want this to be as easy for you as possible and we certainly do not expect you to negotiate with publishers. Please remember that your Library Research Support team is just an email or a phone call away. If you run into any issues whatsoever, you should contact Library Research Support immediately and they will help you resolve it.

How do I get agreement from my co-authors?

From the experience from Edinburgh and Cambridge, who implemented a Rights Retention policy before us, it appears that co-authors will usually agree. Once more universities adopt a Rights Retention policy, co-authors from those institutions will very likely agree. This is expected to  happen over the next few months and years, especially once new open access requirements for the next Research Excellence Framework (REF)  have been published.

Your Library provides an email template you can use to inform your co-authors, and an information page for co-authors that explains what you want from them and why. Guidance on obtaining agreement from your co-authors is included in the checklist

It makes sense to keep this as easy and light-weight as possible, e.g. especially in larger collaborations it would make perfect sense to achieve agreement via the corresponding author rather than contacting all co-authors separately. 

What is a Creative Commons Attribution (CC BY) licence, and why should I choose it?

A Creative Commons Attribution (CC BY) licence allows re-users to distribute, remix, adapt, and build upon the material in any medium or format, so long as attribution is given to the creator. In practice this means that a reader can include a figure, table or photograph from your article in their own work (e.g. a paper or teaching materials that they will release online) without having to obtain any additional permission, for any purpose.

If you were to distribute your paper without a licence instead– ‘all rights reserved’–a reader would not be able to do anything without the copyright owner’s explicit permission unless it is ‘fair dealing’ under copyright law (e.g.  limited use of copyrighted material for certain fixed purposes such as ‘criticism and review’).

Other Creative Commons licences are more restrictive. They include licences that prohibit derivative works (No Derivatives ND) and that prevent commercial use (Non Commercial NC). A good example is the CC BY-NC-ND licence that some publishers use for Gold Open Access papers.

A CC BY licence is our preferred licence because it is the most liberal licence that still ensures that re-users give credit to you as the creator, without unnecessarily restricting what they can do. It is also the licence that most research funders require you to choose–it is for example part of the cOALition S requirements. In other words, choosing a CC BY licence ensures you will comply with external requirements.

Do I have to include the statement when I submit to a fully open access journal?

Yes. You should include the statement in all submissions to journals and conference proceedings. The purpose of the statement is to inform the publisher and journal editors of the license over the accepted manuscript you have already given to the University. All publishers should be made aware of this. Adding the statement to all your submissions ensures that your publisher will always be aware of the prior licence given to the university when they make a decision on your submission.

Additionally, when publishing in an open access journal, we are asking you to:

  • always choose a CC BY license if available
  • always deposit the accepted manuscript into Elements on acceptance (not the publisher's PDF on publication)

What happens if I forget to include the Rights Retention Statement?

For the rights retention mechanism to work, it is essential that the publisher has been given notice that the author has given a prior licence to SHU. This is achieved by including the Rights Retention Statement at the point of submission. Additionally, the university has also notified the most popular publishers before the policy came into force on the 15th of October 2022.

Therefore, If you forgot to include the Rights Retention Statement but you publish with a publisher that we have notified before the policy came into force, then the publisher has been given notice that a prior licence exists and you can act as if you had included the Rights Retention Statement.

In other cases, you could try to have the Statement included before acceptance. Ask the library research support team if you are unsure.

Can I sign the publishing agreement?

As you are entering into the publishing agreement in your own name (not in the name of the University), it is ultimately up to you whether you sign it or not. We can, however, confirm that the Sheffield Hallam rights retention approach is legal in UK copyright law. This is because the publisher should already have prior notice of the open access permission you have granted to the University. (You should have included the Rights Retention Statement in your submission, and the University has formally notified 60 publishers in a formal letter signed by the PVCR, Rory Duncan – both of these mechanisms give the publisher notice. See more on this below.) In this way, the publisher is asking you to assign copyright in the publishing agreement, with the knowledge that you have already granted open access to the University, via the SHU Open Access Policy. In this way, the publisher is accepting the assignment of copyright in the publishing agreement, subject to the open access rights you have already granted to the University. Assigning rights to the publisher (by signing the publishing agreement), does not change the Open Access you have already granted to the University under the Open Access Policy.   

Tort of procuring a breach of contract

If you as an author, sign a publishing agreement which does not allow for rights retention, then the publisher is guilty of the so-called 'tort of procuring a breach of contract'. This means that the publishing agreement is asking you to do something that contradicts the Open Access Policy, but because the publishers are aware that you have already granted access to the University under the Open Access Policy, the publishers are in the wrong.  

Indeed, Lynette Owen, Clark's Publishing Agreements: A Book of Precedents, 11th edition, Bloomsbury, 2022, an authoritative legal resource for the publishing industry, describes rights retention as a 'carve out' that publishers need to take into account. It says:

It is now usual for individuals to be bound by the obligation to deposit an Open Access copy of their works in the employer, funded or institutional repository [...] regardless of subsequent formal and/or commercial publishing arrangements, or open access dissemination under Open Access or other means. Therefore, publishers need to be mindful that the 'exclusive' license they may be obtaining from an academic author for a gold Open Access work (or indeed any other work) may be affected by this type of pre-existing 'carve out'.

Giving Notice to Publishers
When we formally gave publishers notice via a letter signed by the PVCR, Rory Duncan, of the prior license SHU authors are giving to the University under the new Open Access Policy, we asked publishers not to give you such a contract to sign, highlighting that if they did so it would be a ‘tort of procuring a breach of contract'. You will find a list of those publishers below.

In deciding whether you want to sign the publishing agreement with those publishers who received the letter mentioned above, you can therefore rest assured that the  rights retention granted to the University is not nulled by choosing to do so.

Where the publisher did not receive the letter mentioned above, if you cannot progress a submission without signing a contract that gives an exclusive licence to the publisher and therefore leaves no scope for the retention of your rights over the accepted manuscript, then we recommend that you add a note to your submission stating that you have already given the University the right to disseminate the author accepted manuscript under the CC BY license according to our Open Access Policy so that the publisher has clear written notice that the rights have already been granted to the University. 

Which publishers have been notified via a formal letter signed by the PVC Research & Innovation?

Academic Conferences International 
AIP Publishing LLC
American Chemical Society
American Psychological Association
American Society for Microbiology
Association for Computing Machinery
BMJ
British Academy of Management
Cambridge University Press & Assessment
Class Publishing
Cognizant Communication Corporation
Cold Spring Harbor Laboratory Press
Copernicus GmbH
De Gruyter
EDP Sciences
Elsevier Limited
Emerald Publishing Limited
Future Medicine Ltd
Human Kinetics Journals
IEEE
Inderscience Publishers
Informa PLC
Intellect
IOP Publishing
IOS Press
Jane Austen Society of North America
JMIR Publications
John Benjamins publishing
John Wiley & Sons, Inc.
Journal of Educational Innovation Partnership and Change
Mark Allan Group
MSOR
Oxford University Press
Policy Press and Bristol University Press
Royal Society of Chemistry
SAGE Publications Ltd
Springer Nature
Taylor & Francis Group
The Institution of Engineering and Technology
Thomson Reuters (Professional UK) Limited
Wolters Kluwer N.V.
MDPI
Biomed Central

Which other universities have also introduced a rights retention policy?

As of June 2023, the following institutions have an institutional rights retention policy, including SHU:

Aberdeen
Arctic University (Norway)
Bergen (Norway)
Birkbeck, University of London
Cambridge
Durham
Edinburgh
King's College
Lancaster
Leeds
Liverpool
Manchester
Newcastle
Oslo (Norway)
Oxford
St. Andrew's
Sheffield  
York

An up to date list of UK institutions with an institutional rights retention poiicy can be found here.