January 3, 2019 by joshbolick
UPDATE 3/1/3019: T&F accepted our striking this entire section from our content agreement. So can you, at least in principle.
Academic libraries acquire journals (and other kinds of content) on behalf of users by negotiating the purchase of a content license. These are complex legal documents that set the terms and conditions under which users may access and use the licensed content. Rather than subscribing to this title and that title, we frequently license access to large packages of journals through so-called “big deals”. In the process of initially evaluating a new Taylor & Francis institutional content license, the following language regarding institutional repositories was brought to my attention. For clarity, “Licensee” = institution; in my case, KU Libraries. Detailed breakdown follows.
13. INSTITUTIONAL REPOSITORIES
13.1 Publisher hereby acknowledges that the Licensee may wish to post in an Institutional Repository:
(a) the version of record of any articles in the Licensed Materials published under an Open Access licence (each a “Gold OA Article”); and
(b) the revised text version of an author’s accepted manuscript or ‘postprint’ (i.e. the article in the form accepted for publication in a Publisher journal following the process of peer review) of any articles in the Licensed Materials not published under an Open Access licence (each a “Non-Gold OA Article”).
13.2 Publisher hereby grants Licensee permission to do the acts set out in clause 13.1 above during the term of this Agreement, provided that:
13.2.1 Licensee or any other person may not make any Gold OA Articles or Non-Gold OA Articles available for commercial sale; and
13.2.2 in respect of Non-Gold OA Articles only:
(a) the final Publisher PDF version of the article must not be used; and
(b) an embargo of 12 months is applied after first publication (be it in online or print) of any Non-Gold OA Article in STM (science, technology and medicine) subjects and the behavioural sciences, and of 18 months after first publication for SSH (social science, arts and humanities) journal articles; and
13.2.3 any amendments or deletions or warnings relating to any article issued or published by the Publisher are included; and
13.2.4 Licensee has where necessary also obtained the prior consent of any author or person holding a copyright interest in any article Licensee wishes to include in such Institutional Repository; and
13.2.6 the following acknowledgement is included in respect of any Non-Gold OA Articles:
“This is an Author’s Accepted Manuscript of an article published in [include the complete citation information for the final version of the article as published in the [JOURNAL TITLE] [date of publication] [copyright Taylor & Francis], available online at: http://www.tandfonline.com/%5BArticle DOI].”
13.3 Licensee acknowledges that the provisions of this Clause 13 relate solely to articles in journals published by the Publisher and are without prejudice to any rights granted or retained by an author and/or the Publisher in any author or contributor agreement between these parties (an “Author Agreement”) and that in the event of conflict or dispute between this Agreement and any Author Agreement, the provisions of any such Author Agreement shall take precedence.
13.4 Full details of the Publisher’s scholarly sharing policies are available at: http://authorservices.taylorandfrancis.com/sharing-your-work/.
These terms gave me pause for a number of reasons, the most significant of which is how this language would interact with other related contractual agreements, namely the KU Faculty Open Access Policy and publication contracts signed by KU authors.
As depicted in the figure above, there are three direct stakeholders (T&F, KU, and KU-based authors publishing in T&F journals) with 3 relevant relationships. The KU OA Policy is an agreement between KU faculty authors and KU; the content license (which contains this section on IRs quoted above) is between KU and T&F; a publication contract is between T&F and KU authors. The rights to deposit/host KU faculty-authored articles per the T&F IR language above pertain to rights typically retained by authors in their publication contract. What are rights granted to authors via publication contracts (which are negotiable and out of library or institutional control) doing in a content license agreement between publisher and institution? Is it in scope? More on this below.
Section 13.2.1 states that Licensee or anyone else (which we can’t control) can’t commercially sell any articles (Gold OA or Non-Gold OA). On the one hand this is fine. It’s explicitly forbidden by the OA Policy and we don’t do that anyway. Not the business we’re in. However, per the sharing policies link provided at the end of the IR section of the content agreement (the blockquote), authors who choose to publish Gold can choose a CC-BY license (among others). Well, CC-BY licenses permit commercial uses, and per CC section 2.a.5.B, “No downstream restrictions. You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material.” We’re still not going to sell a CC-BY article, but this is a contradiction and a limitation they can’t enforce, so it should be clarified. Thanks to Shannon Kipphut-Smith for bringing this to my attention!
Section 13.2.2 concerns version (“final Publisher PDF version…must not be used”) and embargoes (12 months for STM titles, 18 months for SSH titles), but the KU OA Policy and license granted therein is mute on both of these things. We tend to deposit author accepted manuscripts (AAM) per the Harvard OA Project’s Good practices for university open access policies, but since the OA Policy is silent on version, I wouldn’t want to make this commitment on behalf of authors. Same for embargoes. The OA Policy makes no mention of embargoes, so the choice to honor a publisher embargo (or not) is entirely up to the faculty author. If they want to honor the embargo, we do; if they want it circulating openly immediately, we do so. Their work, their OA Policy, their choice. Since rights granted by OA policies survive later transfer of rights, the rights granted by the OA Policy stand even when they conflict with the publisher agreement (especially then). 13.2.2 attempts to limit our ability to exercise the rights granted via the prior license of the faculty OA policy. Agreeing to limitations on the behalf of faculty when they have adopted a policy that doesn’t impose these restrictions strikes me as deeply problematic and a betrayal of our mission to support them.
Section 13.2.3 commits us to including “any amendments or deletions or warnings related to any article issued or published” but we simply have no way of tracking this (not to mention staffing issues and workflows), placing us in a position of vulnerability due to circumstances outside of our control or awareness.
Section 13.2.4 requires “where necessary” that we, the Licensee, obtain consent from “any author or person holding a copyright interest” to deposit KU-affiliated articles in the IR. This is unnecessary, onerous, and at odds with another clause, 13.3 (which is discussed in more detail below). Unnecessary because rights granted in the publication agreement (remember, between the author and publisher) typically extend to all authors equally, such that when we deposit on a KU-author’s behalf into KU ScholarWorks (KU’s IR) under the terms of the publication agreement, explicit permission from all authors is extraneous. Every author of a given article enjoys the rights granted to all authors of that article via the publication agreement. They don’t need to be of one mind in order to exercise those rights individually. If we agreed to this clause we might limit that right on behalf of KU faculty, forcing agreement among all authors, which is fraught for a lot of reasons (logistics and power differentials chief among them). Further, what to make of “where necessary”? If we conclude, as I have above, that “where necessary” is never, this whole clause is moot and therefore empty and unnecessary. It’s onerous because it commits the Licensee (KU) to seeking this permission. The only realistic way we can do this is through our author (in which case, see above). It’s contradictory with another part of the content license, Section 13.3 (discussed in more depth below), which gives precedence to author agreements, so this license undermines itself (where have I seen that before?). The most generous interpretation I can conceive is that this contradiction creates unnecessary confusion and lack of clarity. If T&F wants to create a requirement for all authors to explicitly agree to any author posting in their IR, they should do it in their agreements with authors, not with institutional licenses (and I would strongly encourage authors to fight it).
I read section 13.3 as saying the publication agreement (between author and publisher) trumps the institutional license (between publisher and institution) if/when there is disagreement between them. 13.3 acknowledges the existence of the publication agreement, but not the OA policy license. We see a tiny minority of signed author agreements so technically we have no idea what terms they actually agreed to (since publication agreements are negotiable). In isolation 13.3 isn’t necessarily a problem; it further codifies the rights granted to authors via publication contracts into the content agreement, which as I’ve discussed above isn’t necessary, so why include it? But 13.3 isn’t isolated; there’s additional unacknowledged context: the OA policy between faculty and the institution. If this language limits the rights faculty invoked by adopting an OA Policy re: version and embargoes, then agreeing to the license as presently constructed doesn’t align with our mission to support our authors.
Fundamentally, content licenses between KU Libraries and a publisher are about providing access to licensed content to KU students, faculty, and staff. Fine. This IR section of the T&F content license isn’t about that; it’s about them determining how we can support our institutional authors who publish in T&F journals. Since our IR is an institutional service for our authors, I don’t see why a publisher should have any voice in determining how we provide that service so long as we’re operating within the law. If KU didn’t have an open access policy then the impact would be negligible in the short term (notwithstanding the above critiques of 13.2.3, 13.2.4, and 13.3). I say in the short term because it might limit the ability of an institutional library to support a future OA policy should their faculty ever adopt and seek to implement one. Given the sustained growth of OA policies, that seems likely if this section becomes standard. This section seems directly intended to undermine Harvard-style (rights retention) institutional open access policies and tie institutions to author agreements (that the institution doesn’t sign) by codifying rights granted in those agreements in an institutional agreement. Content licenses arguably have nothing to do with how we support our faculty authors, so this has no place in a content license, IMO. Of course, that’s being challenged in the UC read and publish proposal to Elsevier, and there are isolated incidents of elite institutional libraries getting better deals for their faculty authors through these agreements. I wouldn’t presume to limit that kind of experimentation. However, anecdotally, I’ve heard of several attempts to add language to content agreements that would advance author rights, by requiring the publisher to provide accepted manuscripts for all institutionally-authored articles published in their journals, for example, which were categorically rejected by the publisher representatives. Why then should we not categorically reject their attempts to play the other side of that card, even if they weren’t problematic as I’ve described? If the only institutions who are able to successfully achieve better deals for their authors via content agreements are elite, where does that leave the rest of us? For our part, we have struck this whole IR section from our draft agreement and are waiting on a T&F reaction.
Notes: Thanks to Ada Emmett and Shannon Kipphut-Smith for their comments on a draft of this post. Beyond commenting on this particular section of the institutional content license, I’m not involved in the negotiation. Comments and feedback are welcome, particularly if you’re seeing the same or similar language in your agreements. -Josh B.