Read your open access publishing agreements, or: how you might accidentally give Elsevier or Wiley the exclusive right to profit from your OA article

Posted June 5, 2023

Reading publishing agreements–even for short academic articles–can be extremely time consuming. For many academic publishers, you’ll find an array of information about your rights and obligations as an author, often spread across multiple websites and guides, in addition to the publishing contract itself. It’s tempting to just assume that these terms are standard and reasonable.  For open access publications, I’ve unfortunately found this attitude to be especially prevalent because authors tend to think that by publishing on an OA basis, the only contract terms that really matter are those of the Creative Commons license they choose for their article.

That can be a dangerous strategy.  Elsevier and Wiley OA publishing agreements, which have long-standing issues along these lines as noted here, here, here, and here, highlight the problem really well.

Those publishing agreements do provide what many authors want in OA publishing–free online access and broad reuse rights to users. But, if authors select the wrong option, they are also giving away their own residual rights while granting Elsevier or Wiley the exclusive right to commercially exploit their work. That includes the right for those publishers to exclude the author herself from making or authorizing even the most basic of commercial uses, such as posting the article to a for-profit repository like Researchgate or even SSRN. This is not a result I think most authors intend, but it’s hard to spot the problem unless you read these publication agreements carefully. 

Let’s dig into the agreements to understand what’s going on. 

CC License Restrictions and Some Thoughts on Why Authors Choose Them

First, a quick primer on open access licensing (you can read a longer introduction and overview of open access in our dedicated guide on the topic). Just about every major academic publisher now offers some option to make your scholarly article available open access. I won’t get into the debate about what exactly constitutes “open access.” I think its sufficient to say that for most authors, “open access” means at minimum free online access to the work combined with some grant of permissive reuse rights to readers. While there are some exceptions, Creative Commons licenses have emerged as the defacto default legal infrastructure through which those reuse rights are granted.  

Creative Commons licenses give rightsholders a number of options to exercise control over their work even while freely distributing it. The most common and basic CC license, CC-BY, does so by allowing basically all types of reuse (copying, commercial distribution, creation of derivative works) on the condition that the reuser appropriately attribute the original work. Creative Commons also has other licenses that limit downstream reuse in a few ways. Two of the most common for scholarly works are CC-BY-NC, and CC-BY-NC-ND, which respectively limit reuse to non-commercial uses (non-commercial or “NC”) and limit reuses to disallow distribution of derivative works (no derivatives or “ND”). Creative Commons also offers a CC-BY-ND license, which permits commercial uses but not the distribution of derivative works, but this is a less popular option. OpenAlex (an awesome research tool from OurResearch) indicates that there  are some 5.5+ million scholarly works (mostly articles and similar) published under CC-BY-NC and CC-BY-NC-ND licenses. 

In my experience, authors select these more restrictive licenses for a few reasons. Typically, authors will select a non-derivatives (ND) license because they’re concerned about some downstream user modifying their work and creating a new work that misrepresents the original or that is just of poor quality (think of a bad translation). For those authors, they want a say in how their work is built upon to create new derivatives. I’ve found this to be especially important to authors of controversial works that could be recast or adapted in ways that don’t include appropriate context. 

For authors selecting the non-commericial (NC) license restriction, the reasons are more varied, but I typically hear authors express concern about others profiting without their consent, especially from those who are attuned to the problems of large corporate interests who may seek to republish their work for a profit without the author’s input. 

The Elsevier and Wiley OA Publishing Agreements

I have never had an author say that they selected a CC-BY-NC or CC-BY-NC-ND license because they wanted to be sure that only their large, multinational commercial publisher could profit from their article, to the exclusion of everyone else including the author herself. Yet, if you read these agreements closely, that’s exactly what some publishers’ agreements do. 

Let’s start with Elsevier. It’s agreement is at least somewhat upfront about what’s going on. Elsevier’s sample CC-BY-NC publishing agreement states in the first paragraph that the author grants Elsevier “an exclusive publishing and distribution license in the manuscript identified above . . . in print, electronic and all other media (whether now known or later developed), in any form, in all languages, throughout the world, for the full term of copyright, and the right to license others to do the same[.]”

The key word in that license grant is the word “exclusive,” which means that Elsevier has the right to exclude everyone else (including the author) from using the article, except as agreed through the CC-BY-NC-ND license. In case there was any doubt, Elsevier makes clear on the same page that “I understand that the license of publishing rights I have granted to the Journal gives the Journal the exclusive right to make or sub-license commercial use.” The agreement does include a narrow carve out for authors to engage in some narrow categories of reuse that may go beyond the CC-BY-NC-ND license (e.g., lengthen the article to book form), but they are a far cry from the rights the author would otherwise have had he or she retained copyright and granted Elsvier a simple non-exclusive license to publish the article. 

The Wiley journal agreement ultimately accomplishes a similar result, though in my opinion it is a bit more misleading. First, authors will find Wiley’s OA sample publishing agreements through a page that advertises “Retain copyright with a Creative Commons license.” It states, innocently, that “with Creative Commons licenses, the author retains copyright and the public is allowed to reuse the content. You grant Wiley a license to publish the article and to identify as the original publisher.” 

If you read the sample Wiley agreements for publishing under a CC-BY-NC or CC-BY-NC-ND license, you will in fact find that the agreements do in fact provide that “The Contributor . . . retains all proprietary rights, such as copyright and patent rights in any process, procedure or article of manufacture described in the Contribution.” 

This sounds great! The problem comes if you keep reading the rest of the agreement. Later in the agreement, you will find that while the author “retains copyright,” that copyright is reduced to a shell of itself. You’ll see that Wiley (which actually refers to itself as the “Owner,” to set the tone) has the author agree to grant “to the Owner [Wiley], during the full term of the Contributor’s copyright and any extensions or renewals, an exclusive license of all rights of copyright in and to the Contribution that the Contributor does not grant under the CC-BY-NC-ND license.” So, if the author’s intent is to retain control over commercial reuse or derivative works, think again. 

Like Elsevier, Wiley does grant back some slivers of those rights to authors. For example, the right to make a translation as long as you only post it to your personal website, or the right to reuse the article in a collection published by a scholarly society (but, it definitely can’t be in any work with outside commercial sponsorship; Wiley seems particularly concerned with volumes sponsored by pharmaceutical companies, which they specifically target in the agreement). 

A few tips for reading your OA publishing agreement 

  1. Read (and negotiate) your publishing agreement! Clearly, reading your agreements is important. For OA agreements, you should specifically look for language that either transfers copyright to the publisher or language that grants the publisher a broad exclusive license. If it does contain such a grant or license, think about what rights you might need that go beyond the rights granted to the general public under the CC license that you chose. The best publishing agreements are simple and straightforward, granting the publisher a license to publish and otherwise leaving all rights with the author. There are lots of good examples–e.g., this is one of my favorites, from Emory and the University of Michigan for long-form scholarship. And for more tips on understanding and negotiating your publishing agreement, check out our dedicated guide on the topic. 
  1. Don’t buy the website sales pitch. If there is a conflict between what the publisher says on its website and what the contract says, the contract will absolutely control. Be careful about any assurances that exist outside the four corners of your contract. More than once I’ve found authors ask editors via email about reuses that go beyond the agreement. Typically, editors are happy to assure authors that they can do reasonable things with their own articles, but unfortunately, the standard publishing agreements are far less reasonable than most editors. Where the editors’ assurance and publishing agreements conflict, once again the terms of the publishing agreement will prevail. 
  1. Watch for contract language about retaining rights. Don’t be fooled into thinking that you’ll retain significant rights in your work by the sleight of hand that says you “retain copyright,” or that you will have “copyright in your name.” If a publisher is obtaining a license of exclusive rights from you, that means the publisher can exclude you and everyone else from making use of those rights unless the agreement contains an explicit grant back of rights to engage in those activities. This is actually very common in non-OA publishing agreements, but as the Elsevier and Wiley agreements illustrate, you need to watch out for it in OA publishing agreements as well.