Misleading Claims about the Secondary Publication Right

In her recent post, Molly Stech of STM, the international association of scientific publishers, discusses Problems Presented by the Secondary Publication Right. According to its website, “STM advances trusted research”, but this post does not live up to this laudable goal. In fact, none of the “problems” the post identifies are caused by the secondary publication right.

Having first described the success of open access publication in Europe (in its gold, bronze and green variants), the author claims that SPRs would “override” this system. Nothing is further from the truth: the non-profit repositories, websites and archives that currently offer unfettered access to vast amounts of publicly funded scientific research can do so not despite but because of SPRs. Note that SPRs are currently recognized under the national laws of seven Member States: Germany, France, Austria, Belgium, Netherlands, Bulgaria and Slovenia – and the number is growing.

Unlike the licensing schemes that STM prefers, which allow open access only in return for very substantial up-front “article processing charges” (APCs), SPRs facilitate open access at no cost to scientific authors, their universities or institutes, and taxpaying citizens.

Molly Stech goes on to claim that the term Secondary Publication Right is actually misleading because “when made mandatory (for example, via the introduction of Secondary Publication Obligations or funder-imposed Open Access mandates”), the SPR “ultimately restricts an author’s freedoms and compels actions that directly conflict with authors’ exclusive rights under copyright law”.

Let us unpack this. What she is saying here is: the SPR is not a right but an obligation, because some research funders (such as the European Union) prescribe open access publication. That sounds like saying: copyright is not a right but an obligation, because some publishers (indeed, most members of STM) require authors to immediately surrender their copyrights, or else they cannot publish in the journal of their choice.

In other words, this is nonsense. The SPR is very much a right that allows – but in no way compels – scientific authors to post their articles on non-profit repositories or websites. Like any other prerogative under copyright law, authors are free to exercise this right. Since most, if not all, scientific authors wish to share their publications as broadly as possible with the world, SPRs are widely exercised in practice.

Those authors that are reluctant to invoke their SPRs are mostly deterred by publishing contracts that say that reposting is not allowed. In her post, Molly Stech similarly suggests that scientists would somehow need to ascertain that secondary publication is permitted under the publishing contract. But national laws providing for SPRs are perfectly clear: the scientist’s right to repost his or her article cannot be overridden by contract.

The remainder of the post blows more smoke by presenting two court cases that do not concern the legality of SPRs. The recent decision of the German Federal Constitutional Court that she mentions merely states that a German “Land” (state) is not competent to impose an open access obligation upon institutions of higher education, because this would amount to an exception to copyright – which is a matter of federal law. In its decision the Constitutional Court aptly describes the SPR as “an inalienable right [of scientific authors] to secondary publication without obligating them to exercise such right”. Note that the SPR has been a – successful – feature of German copyright law since 2013 and that it is unchallenged before the Constitutional Court.

The other decision Molly Stech brings into play also concerns a compulsory open access policy. In response to a professor’s complaints that his novels and other literary works would fall victim to the policy, the University of Nantes amended it. Again, this case is not about the SPR. In fact, the Nantes court’s decision has no substance at all; it merely states that after the university policy was amended, the case need not be decided.

If STM has issues with funder-imposed open access obligations, perhaps it should address those directly – instead of making misleading claims about the SPR.

Suggesting that the secondary publication right somehow restricts the rights of scientific authors turns the world on its head. Like the mandatory rules on author’s contracts that were harmonized by the 2019 CDSM Directive, the SPR is a legislative response to the abusive practice of non-negotiated publishing agreements that require authors to sign away their rights in return for journal publication – and very little else. The SPR empowers scientific authors to regain their autonomy and academic freedom, by enabling them to repost their works online, thereby allowing the general public to benefit from publicly funded research.

Considering the constant growth of EU public research funding and given that seven Members States representing nearly half of the EU population have already enacted SPRs, it is high time for harmonization.

Photo by Andre William on Unsplash