New White Paper on Institutional Copyright Policies and Article Versions

Authors Alliance and SPARC are pleased to announce the publication of a new white paper addressing the legal uncertainties surrounding article versions and institutional copyright policies. 

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Under the 2022 OSTP Memo, federal grant-giving agencies must require that grant-funded peer-reviewed publications are made freely and immediately available in public repositories. Several agencies have already implemented public access policies in response to the 2022 OSTP Memo. 

Despite the clarity of the public access mandate, questions remain about how authors and institutions can comply within the existing framework of copyright law where traditional publishing agreements require authors to transfer copyright to publishers, and publishers refuse to allow immediate deposit in compliance with federal public access policies.

The paper addresses these concerns in several parts. It first explains how a valid prior written nonexclusive license—secured by an institution at the time of employing an author, or granted by an author before the manuscript is submitted for publication—survives any later copyright transfer to a publisher. 

The paper then walks through the different versions of a manuscript created during the publication process: the author’s original manuscript (AOM), the author’s accepted manuscript (AAM), and the version of record (VoR), and examines what types of contributions referees, editors, and journal staff make to each version.

A central finding of the paper is that most third-party contributions made during peer review and editorial production are uncopyrightable—they consist of ideas, facts, short phrases, or purely functional and mechanical elements that copyright law does not protect. 

For the narrow category of contributions that may be copyrightable, the paper explains that an implied license likely authorizes the sharing of author-incorporated third-party feedback, because referees contribute with the clear intent that their feedback be used to improve a manuscript for broad public dissemination.

The paper also notes that implied license likely does not extend to all journal-contributed copyrightable elements, such as a combination of typesetting and logos; institutions can consider depositing cleaned-up VoRs once journal contributions have been removed.

The paper concludes with a summary of action plans for institutions. 

While public access is achievable within the current system as the paper delineates, the effort required to navigate copyright and contractual barriers remains a significant burden for institutions and their authors. Federal agencies and research institutions should support alternative models that are community-driven and non-commercial, ensuring that the dissemination of knowledge is no longer subordinated to .

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This last white paper is part of a larger project to support legal pathways to open access. All papers and other supporting materials can be found on the project page. The previous first paper discusses the “Federal Purpose License” and how it supports federal public access policies under the 2022 OSTP Memo. The second paper addresses the concerns that the public access policies are not permissible government actions.  The third paper discusses whether scholarly works are work made for hire and makes recommendations for shaping institutional IP policies.