An Update on the Problems Presented by the Secondary Publication Right

Scholarly publishing is a complex and diverse ecosystem, encompassing a multiplicity of publishers, business models, and disciplines. At their core, these organizations are united by the common purpose of advancing trusted research. Realizing this purpose requires strong collaboration among researchers, universities, funders, technologists, and others; the integrity of the scientific record is a complicated and shared responsibility across them all. Scientific publishers have accelerated open access (OA) to their publications as a route to increase the societal and scientific impact of research. In 2024, 40% of all the 3.9M global journal articles, reviews, and conference papers published were published as an immediately available and freely accessible Version of Record (Gold OA). Hundreds of thousands more articles are available via repositories or publisher platforms immediately or after a delay (Green and Bronze Open Access). In Europe, the rate of OA is higher still compared with the global average (around 62%).

Despite this remarkable progress, there are some calls to override the current system that enables publishing and access under copyright and licensing regimes by introducing a “secondary publication right” (SPR). The European Commission commissioned a Report published in 2022 that has described the concept of SPR as “a right for the author of a scientific publication to make it available online for free following a given embargo period.” A minority of European jurisdictions have included an SPR of varying scope and intensity.

Challenges for the concept of a secondary publication right

While SPR advocates have championed adoption of SPR as a vehicle to broader dissemination and even authorial empowerment, the term “secondary publication right” is unfortunately misleading since the SPR, when made mandatory (for example, via the introduction of Secondary Publication Obligations or funder-imposed Open Access mandates), ultimately restricts an author’s freedoms and compels actions that directly conflict with authors’ exclusive rights under copyright law. A mandated SPR can, for example, have the effect of obliging the author to upload a version of their manuscript – one that does not benefit from peer review, editing, or contextualizing metadata – to a repository, thereby making it a suboptimal version of the work which is vulnerable to use (reproduction, derivation, communication) by any commercial or third party.

The SPR can also have the practical effect of complicating an author’s position in relation to potential publishers. Publication is based on a contractual relationship between publishers and authors, and publishers remain free to decide under what conditions they publish scholarly works. However, under SPR, scientific authors would no longer be in an unencumbered position to assign copyright or provide an exclusive license to publish their works to any journal they think would be best placed to showcase their research, but rather need to take it upon themselves to understand whether the agreement offered by the journal is aligned with the relevant SPR. These attributes detract from an author’s unhampered deliberation regarding whether, where, and how to share their research with the world.

Recent decisions on overreaching legislation

At the end of April, the German Federal Constitutional Court decided that a mandatory SPR provision (or Secondary Publication Obligation), that forced authors to exercise their SPR, embedded in a regional (‘Land’) Act governing higher education institutions was void. The Court reasoned that the now-voided provision constituted a limitation or exception on the affected authors’ copyright. The now-defunct provision authorized institutions of higher education to adopt bylaws that, for their academic staff, would convert the author’s right of secondary publication under German Copyright Law into a publication obligation as part of fulfilling their employment contracts. The goal of the provision would have a direct effect on authors’ rights, a fact the Court decided “argue(d) in favor of its classification as a copyright law,” which is exclusively reserved for federal legislation. This is an important decision that shines a light on the continued significance of the exclusive rights harmonized under EU law. It underscores that separate legislative efforts made under other headings (e.g., those governing higher education institutions) must still comply with existing copyright law, pushing the question of a mandatory SPRs back to the executive branch for consideration as a copyright provision. 

The German decision had a similar practical effect as a case brought to an administrative tribunal in Nantes, France, in 2024, regarding a mandatory implementation of Article L. 533-4 of France’s Research Code – the French version of SPR. Nantes University, in the wake of a lawsuit filed by one of its professors, abandoned the obligation it had introduced requiring researchers to deposit their works in repositories and amended its open science action plan; the administrative court then dismissed the case. While the German decision addressed an improper provincial mandate, the French case addressed a recanted institutional mandate;  both cases concern the intersection between a mandatory SPR and an author’s exclusive right.

Any potential EU intervention on SPR requires careful consideration

The timing of the German decision is important as the European Commission is actively considering the viability and utility of doing further work on an EU-wide SPR. The evidence base for this is limited, as a recent European Commission study shows. It found “national SPR provisions rarely show measurable, system-wide causal effects on OA outcomes once broader market/policy dynamics are accounted for.” (p. 242). Meanwhile, the report showed – consistent with STM data – that Open Access (OA) levels in Europe are higher than in other regions, and that growth has been sustained over time, driven primarily by immediate Open Access to the Version of Record (Gold OA) and by Transformative Agreements, rather than by self-archiving of subscription-based articles. These findings suggest that self-archiving functions mainly as a backstop – useful when other routes to access are unavailable, including in line with publishing policies – rather than as a primary driver of OA uptake.

Against this evidence base, and aside from a narrow objective of harmonizing existing national regimes, it is not clear why the Commission would pursue an EU-wide measure that has not demonstrated system-level effectiveness. If such a measure were designed to have material impact, it could disrupt the mechanisms that have been shown to work (notably Gold OA and Transformative Agreements). The 2022 European Commission study addressing this issue also raises difficult questions of compatibility with international copyright law, the EU acquis, and copyright and fundamental-rights safeguards for both authors and publishers. While recommending that an EU-wide SPR be adopted, the study notes that, in examining the option to introduce an EU-wide SPR, “the EU legislator should be aware of its limitations. It can only be used to enable OA via self-archiving.” It further notes that “the three-step test does mean that the SPR is unlikely to be able to allow use of the Version of Record, avoidance of an embargo or inclusion of third-party content.”

There are several other problems with SPR more generally, including that it does not foster open research since it maintains dependence on a Green Open Access subscription model. In other words, because Gold OA models directly fund immediate access to the Version of Record, any SPR model would be superfluous. SPR therefore presumes an OA model that does not provide such funding and continues to propel business models that depend on subscriptions or other avenues of funding. The SPR also stymies trusted research by promoting a suboptimal version of the research (Green OA assumes a draft version of the work will be posted to a repository), which is not peer reviewed, enriched, or updated over time, and undermining support for the publishing systems that enable the trusted scientific record.

Additionally, as content is extensively scraped and used without discretion or permission by artificial intelligence, secondary publication rights will only contribute to an acceleration of AI slop and dilution of authors’ ability to control their output because the SPR puts forward what are essentially draft papers as opposed to verified and finalized papers. Fundamentally, SPR has the potential to be a restriction on authors’ rights at a time when those rights are already threatened. As the recent German Constitutional court case illustrates, (along with the French example before it), the SPR, at the very least, must be considered in the broader framework of existing copyright treaties and legislation.

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