Looking for a Home for the Secondary Publication Right: Lessons from National Legal Frameworks

As the Commission moves towards deciding what will and will not be in the European Research Area (ERA) Act, one key question is whether it will include a Secondary Publication Right (SPR), or whether this will be left to subsequent copyright legislation. This blog explores what can be learned from the way SPRs are currently embedded in national legal frameworks.

The ERA Act, as the first ever piece of general, research-focused EU legislation, comes with the promise of delivering on the ‘fifth freedom’ – the freedom of movement of knowledge. Through this, as its name suggests, it aims to make a reality of the European Research Area, 25 years after the concept was first introduced.

Following over a year of discussion around what this might include in concrete terms, the overall shape of the proposal is coming into focus. The questionnaire published by the Commission in November gives a strong sense both of the chapters that might feature in the Act, and the range of options under each, from least to most ambitious.

One step that has been under discussion for longer than most is that of the introduction of an EU-level Secondary Publication Right (SPR). This refers to provisions that aim to ensure that publicly funded research can be uploaded to open access repositories, even if it is also published elsewhere. These are strongly associated with the drive to achieve the goal of opening up publicly funded research results.

Such provisions currently exist in a quarter of EU Member States – Austria, Belgium, Bulgaria, France, Germany, the Netherlands and Slovenia. However, these vary in terms of their scope and the conditions applied, with the most recent (Bulgaria and Slovenia) tending to take a more straightforward approach, free of embargoes and with more outputs from publicly funded research covered.

There has also been action at the EU level. The Research Council Conclusions of 23 May 2023 welcomed the introduction of such policies, and called on others to act to ensure immediate address to research (paragraph 12).

Exploration of a SPR was a key part of Policy Action 2 under the European Research Area Policy Agenda 2022-2024, whose outputs included Christina Angelopoulos’ analysis of the legal questions around such a right, and the extensive exploration led by PPMI Group, which included both exploration of the law (including the SPRs in place at the time – p61) and rich survey data on stakeholder perceptions and priorities. Long story short: the research community is overwhelmingly supportive.

Outside of the ERA context, Tsakonas et al extended the evidence base through a study that drew strongly on interviews with librarians and others in countries with SPRs to shed more light on their origins. Notably, this work includes analysis of the types of legislation used as the “carrier” for SPRs, an issue that has received relatively little attention in EU-level debates.

Location, Location, Location: The Importance of Legislative Placement

This question is worth exploring in more depth as there is a real risk that, despite extensive preparatory work under the ERA Policy Agenda and clear engagement by research ministers, action on SPRs will be deferred, leaving the issue to future copyright reform.

Experience indicates that the legislative process around copyright in the past has been uneven in its focus on the needs of the research sector (see previous blogs here and here). Furthermore, the risk is that any debate about copyright today will be entirely overtaken by artificial intelligence. From a policy perspective alone, this raises concerns about relying on copyright reform as the primary vehicle for introducing an SPR.

Looking beyond policy considerations, national experience offers valuable insights. Examining where SPRs are situated within domestic legal frameworks helps clarify how they are understood legally – and, in turn, informs the debate on their appropriate placement at EU level.

On Science Street: SPR as a Tool of Research and Science Policy

Of the seven SPRs currently in place, two sit completely outside of copyright law: those of France and Slovenia.

France incorporates the right into its Research Code (Article  L-533.4), under a chapter focused on the valorisation of research results. It sits alongside rules around the possibilities for public research institutions to form partnerships with private actors and the commercial exploitation of discoveries.

Slovenia places SPR at Article 41 of its Scientific Research and Innovation Act, in the chapter focused on Open Science and Open Access to scientific publications and research data. Other provisions in this part of the Act include rules around the application of privacy rules to research data, the development of regional data centres, funding for open access, and open access mandates.

In both cases, the logic is that SPR contributes to the goals of science policy, regulating how public research funding is used. Its placement reflects an understanding of SPR as a governance tool, rather than a modification of copyright’s core structure.

Down contracts lane: SPR within Copyright Law

Four SPRs are located within copyright legislation, but are framed as mechanisms regulating contracts between publicly-funded researchers (or institutions) and scholarly publishers.

Belgium introduces its SPR at Article XI.196 § 2/1 of its Economic Code. While Book XI, Title 5 deals with copyright, the provision itself falls within the section on publishing contracts, alongside rules on rights reversion and obligations on publishers to publish works within a reasonable period of time. In short, it is focused on the researcher.

Bulgaria similarly places its SPR in its Copyright and Related Rights Act, at Article 60. This Article falls within Section IV on contracts for publication in periodicals. Surrounding articles address authors’ rights in commissioned works and publishers’ obligations to return submitted manuscripts.

Germany’s SPR is in Article 38.4 of its Copyright Law, within a section addressing rights of use. Article 38 as a whole governs authors’ ability to reuse their contributions to collections, how far contracts can bind authors regarding future works, and how far those who buy or acquire rights can change titles or other similar elements.

The Netherlands’ Taverne Amendment introduced Article 25f to the copyright law. Its official name gives the game away, as it refers to the strengthening of the position of the author and the performing artist in agreements related to copyright and neighbouring rights (authors’ contract law). The provision is accordingly located within the chapter on contractual exploitation.

Across these examples, both the legislative placement and surrounding provisions point to a consistent understanding of SPRs as contractual safeguards between authors/institutions and publishers, rather than altering the substance of copyright. Crucially, they apply only to publicly funded researchers, not to authors generally.

Up rights alley: SPR as Author-Centred Safeguards

Austria offers a particularly explicit example of an author-centred approach.  Its SPR appears in Article 37a of the Copyright Act, within Section V on Reservations in Favour of the Author (contracts are addressed elsewhere). Other provisions in this section notably clarify translation rights, right reversion, and subsequent use of contributions to newspapers.

What is clearly missing across all seven national models is any treatment of SPRs as copyright exceptions. Such an interpretation would presuppose that publishers hold an original entitlement to research outputs, a premise that does not align with the legislative logic observed. Instead, SPRs consistently function as instruments for empowering authors/researchers. As a result, arguments invoking the three-step test appear largely misplaced in this context.

Choosing the Dream Legal Home for SPR: Implications for EU Law

SPRs remain a relatively new concept, and national experience is necessarily limited. Nevertheless, the seven existing models reveal no single “correct” legislative home. SPRs can be accommodated within both research legislation and copyright law, but where they appear in copyright statutes, they are never located in sections defining core rights or exceptions.

In terms of where they should sit, it is the case that copyright laws do typically include references to rules around contracts, and indeed on rights reversion and subsequent publishing.

However, these provisions consistently apply to a specific group of authors: publicly funded researchers, whose work is already subject to science and research policy frameworks. Where the aim is to simplify researchers’ obligations and to align rules governing the use of public research funding–including open access requirements–the case for locating SPRs in research legislation is therefore compelling.

After several years of political engagement, policy development and empirical research, further delay would risk undermining expectations within the research community. Deferring action to future copyright reform, where debates are likely to be dominated by AI-related concerns, would introduce additional uncertainty as to both timing and outcome.

National experience suggests that SPRs are best understood not as exceptions to copyright, but as instruments of research governance and author empowerment. This insight should inform decisions on their treatment within the ERA Act.

Photo by Anita Chong from Unsplash