Current State of Rights Retention in the United States

SPARC Japan Seminar 2023

Current State of Rights Retention
in the United States
Jennifer Beamer（The Claremont Colleges）

Abstract
This presentation provides an overview of the current and future state of rights retention in the United States.
Rights retention refers to the ability of individuals and entities to retain ownership and control over various
rights, including intellectual property, digital data, and personal privacy. It highlights the importance ofrights retention in the past and looking to the future. An understanding of the current state of rights retention is necessary to prepare for the 2022 OSTP Memorandum.

Jennifer Beamer
Jennifer is a Fulbright Researcher at the NII for 2023 - 2024 and advocates for open access and infrastructure. She completed a doctoral dissertation on how SPARC NA and JP
organizations support open access infrastructure. She is a SPARC NA Steering Committee
member and Past Chair of the Statewide California Electronic Library Consortium (SCELC)
Scholar Communications Committee and the SCELC IR Subcommittee. Presenter for the Association of College and Research Libraries (ACRL) Scholarly Communication Roadshow. An
alumnus of the SPARC Open Education Program 2019-2020 and OpenCon 2014 and 2016. Doctorate in Communications and Information Science and a Master of Library Science from theUniversity of Hawaii at Manoa. Jennifer’s career as a Librarian has been committed toresearching and advocating for policy that would help faculty participate in Open Accessin alternative ways.

I would like to thank SPARC Japan for inviting
me to participate in this important panel and conversation on licensing rights.

Why Retention is So Important
In the complex landscape of open access policies,

I have been invitedfunders increasingly demand immediate open ac-to telling the current state of rights retention in thecess to their funded research, while universities

United States, and I am looking forward to dis-strive to ensure compliance without unnecessary

cussing what is currently going on in the U.S. andcosts.

what lies ahead in light of the 2022 Nelson the Of-

es as a powerful tool.

fice of Science and Technology Polic (OSTP) Memo-publish their work openly in subscription-based

randum.

journals

Within this context, rights retention emerg-without

It permits researchers toincurring

articleprocessing

charges (APC), a suggestion that resonates withNational Institute of Informatics

SPARC Japan Seminar 2023 Nov. 28, 2023

1Current State of Rights Retention in the United States
no-questions basis.

budget-conscious universities.

In the years that followed theNevertheless, this approach is seen as a poten-Harvard open access policy, commercial publishers

tial threat to the established business models of

successfully devised a number of business models

publishers.

Thus, rights retention becomes a tug-that allowed gold open access to flourish andof-war between funders and publishers, with re-stemmed the tide of rights retention policy adoption.

searchers often caught in the middle of this ongoing

Then, we have Plan S, the policy framework

struggle.

The comments that I have presented

developed by a coalition of research funders that

here show the importance of this struggle in solving

came into effect in 2021.

Plan S is also being prac-many global challenges with the sharing of re-ticed by institutions and individual authors mostly

search, and many U.S. librarians and researchersin Europe, but having a direct effect on the United

agree to them.

States.

Unlike the Harvard approach, whichmakes open access the default but allows for excep-Rights Retention Strategy at Harvard and Plan S

tions for subscription access, the rights retention

What has rights retention looked like in thestrategy of cOAlition S sits within a complex list ofUnited States in the recent past and present? In

requirements for which the endpoint must be im-response to this struggle of authors’ rights in the

mediately CC BY open access.

U.S., many institutions started to adopted and areThis strategy allows researchers to publish CC

still using the Harvard approach as a way to retain

BY open access in a repository without paying a fee,authors’ rights.

Harvard faculty voted to give thewhich is why it has received renewed attention in

university non-exclusive rights to their future jour-Europe, where many cOAlition S funders are based.

nal articles, and Harvard University granted theSome funders provide text that must be included insame rights back to their faculty.

the submitted manuscript to inform the publisher

As of 2022, there

are 81 open-access declared policies based on rights
retention in the United States, most of which areof the intention of rights retention.
Of course, there are many other ways that webeing adopted and emulating the Harvard ap-are using in the U.S.

There are too many to coverproach.

in this short presentation.

These include author

The Harvard policy approach still exists andnegotiations, author addendums, creation of insti-requires researchers to grant a non-exclusive, ir-tutional intellectual property, policies, compliancerevocable, paid-up worldwide license to exercise all

policies, and a mix of the Harvard approach andrights under copyright relating to each of his or herPlan S.

scholarly articles in any medium, and to authorize

Suber's excellent “Methods of Rights Retention.”

To learn more, I suggest reading Peterothers to do the same, provided that the articles are
not sold for a profit.

Authors can then provide a

copy of each accepted article for distribution in a
repository under these conditions.

Federal Rights Retention
Rights retention has also been encouraged byCrucially, aU.S. institutions, academic institutions, when awaiver is available for any publication that the re-researcher wishes to publish in a hybrid journal.

searcher does not wish to make open access on aFor example, subscription journals that make indi-

National Institute of Informatics

SPARC Japan Seminar 2023 Nov. 28, 2023

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Current State of Rights Retention in the United Statesvidual articles open access through APC or gold,a really great tool that was created in the early

but when the researcher does not have the funding

years of open access for government-funded re-to do so.

searchers. In general, this addendum is used dur-Under longstanding policy, federal agencies

ing negotiations with publishers. This tool became

already receive a license to any copyrighted work

very important for any author wanting to havecreated within federal funds that authorize thetheir work openly licensed.
However, the issue is that using a tool like thisagency to make broad use of the work for federal
purposes and authorize others to do so.

This fed-puts all the responsibility on the researcher.

Look-eral license empowers the agency to extensively

ing into the future, we can learn from the practices

utilize the work for federal purposes and grant oth-

we know now about how researchers, institutions,ers the same.

agencies, and how publishers will assert theirThis federal policy likely confers thenecessary authority to mandate the provision ofrights earlier on in the process.

publicly accessible copies of scholarly publications.

If we want to encourage researchers to assert

Some universities have gone further by adding

their rights, then we need to assist them in doingthese policies in their intellectual property policies,

this, and we need to somehow build into our poli-assigning copyright ownership in scholarly works tocies, our agency requirements that we need fullindividual creators rather than the university.

reuse rights to allow the full utility of scientific

Many of these university copyright or intellectual

articles, for example, in text and data mining andproperty (IP) policies already include provisions

AI.

that allow for adherence to the licensing require-and that includes data.

ment by altering the default distribution of rights.

articles in a public repository is essential.

This is typically achieved through universities spec-policies need to be built in at the point of creation ofifying that the ownership of all rights in the work

the scholarship, rather than the author having toproduced under a grant or through the declaration

assert their rights after the fact.

of the university will retain the requisite portion ofhave full reuse rights.

We also must need the rights to go beyond,
Just the ability to post
TheseOutputs need torights to fulfill grant or contract obligations.
I think it is easier to understand when you read

SPARC North America’s Guidance

what those IP policies are, so I have provided two of

Recognizing the difficulty for individual authors

them at the University of Texas and Stanford Uni-

to assert their own rights in agreements with pub-versity.

You can also see the type of form that youlishers, SPARC North America worked with several

need to fill out to adhere to policies and licensing atlegal experts in the U.S., including Creative Com-the University of Wisconsin.

mons and the Authors Alliance, to develop guidance
for federal agencies in light of the 2022 OSTP
Memorandum (Compliance Steps to Ensure Public

What Needed for Future
Now, it is time to look Back to the Future,
which is one of my favorite movies.

You might befamiliar with the SPARC Author Addendum.

National Institute of Informatics

It isAccess with Reuse Rights: https://sparcopen.org/wpcontent/uploads/2023/08/Public-Access-with-ReuseRights.pdf).

As mentioned previously, the U.S. has

SPARC Japan Seminar 2023 Nov. 28, 2023

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Current State of Rights Retention in the United Statesa federal purpose license, which means the gov-

are and will be addressed as U.S. federal agencies

ernment reserves a royalty-free, non-exclusive, andcontinue to ask for and receive public responses toirrevocable right to reproduce, publish, or otherwise

their plans.

use outputs of federally funded research for federal
purposes, and to authorize others to do so.

SPARC North America has been providing public comments to the federal agencies as their plans

This document created by SPARC North Ameri-for the 2022 OSTP Memorandum are released, andca offers recommendations to ensure that publicly

you can read those plans and comments on theirfunded scholarly publications comply with copy-website

right law and with the 2022 OSTP Memorandum’s

ostp-policy-guidance/).

requirement for accessibility to the American public

on ensuring that policies are updated to guarantee

and scientific community. It suggests using policy

equity in both the publishing and access to the rec-and contract language to ensure grantees makeord of science, particularly for traditionally under-peer-reviewed

scholarly

served communities and early-career researchers.

without delay.

Federal agencies already possess

One example of these comments is in SPARC’s

those licenses, and those can be leveraged for thatpublic comments on page 3. (https://sparcopen.org/wp-purpose.

content/uploads/2023/08/SPARC-NASA-RFI-

publications

accessible(https://sparcopen.org/our-work/2022-updatedMany of the comments focus

This document further advises agencies to ob-Comment.pdf). In this NASA comment, they recom-

tain additional copyright licenses from grantees tomend NASA to explicitly emphasize the availability

solidify those public access rights with the specifics

of compliance options that do not present financialof those licenses tailored to the agency’s access ob-barriers.

ligations.

The contract language grants the agen-added open access fees in circumstances if they arecy these additional licenses at the moment of publi-

unnecessary for compliance, SPARC North America

cation, safeguarding them against conflicts withalso recommend that NASA should clarify any

author agreements.

charges from publishers are publication charges,

The document also recom-Since authors may be encouraged to pay

mends including information about the licenses

not compliance charges.

It is critical that authors

with publicly accessible scholarly publications, ide-

do not conflate compliance with article processing

ally through a standardized template attached bycharges.

By visiting theWe also see recommendation for institutional

link in this guidance, you can access all the sugges-

repositories run by libraries and other researchtions for a template and with various agencies, in-institutions that do not charge authors or rarelystitutions, and future repositories.

charge authors to deposit articles or manuscripts.

the author or repository manager.

These kinds of recommendations ensure we will

Public Comments to Federal Agencies

build a better future of rights retention.

It is important to note that the document does
not cover all aspects of the 2022 OSTP Memorandum, such as mandatory repository deposit or
metadata requirements.

However, these aspects

National Institute of Informatics

ClosingThanks for listening as I touched upon the current and future state of U.S. rights retention.

SPARC Japan Seminar 2023 Nov. 28, 2023

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Current State of Rights Retention in the United States
While I cannot speak on behalf of all the U.S., mypersonal feeling is that there is extensive public
engagement with stakeholders across the research
publication ecosystem, and this has made it a veryexciting time.

It is my hope that conversations

between academic publishers, for-profit and not-forprofit organizations, libraries and universities,
scholarly societies, and members of the generalpublic can lead to a more equitable system of scholarly communication that permits the immediatesharing of accepted articles.

National Institute of Informatics

SPARC Japan Seminar 2023 Nov. 28, 2023

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