UK Research and Innovation’s (UKRI) new open access policy came into force last month on 1 April 2022. Compliance with the new policy is a condition of UKRI funding.
We know that many of our higher-education clients are working hard to implement procedural and policy changes across grant application, faculty, and library services to accommodate the open access mandate.
UKRI has indicated that it will take a proportionate approach to enforcement in the early stages of the new policy but, we assume, monitoring and enforcement will become more rigorous as time passes. Implementing good compliance practices now is therefore highly recommended not only from a legal risk management perspective, but from a reputational one too - research institution stakeholders are likely to now expect strong open access policies and implementation thereof. The potential risk of non-compliance with publisher terms, which might be a consequence of implementing new open access policies and procedures in the early stages, should be managed and mitigated too.
The new policy follows the Government’s drive for taxpayer-funded research outputs to be made freely available to the taxpayer, as set out in the government’s 2020 Research and Development Roadmap. Other perceived benefits include increasing opportunities for researchers to access, use and build on publicly funded research outputs, improving the reach and impact of research findings and increasing research efficiency and quality through transparent and reproducible research practices. UKRI is now providing up to £46.7 million per year to support the implementation of the new policy and most of this funding will be provided to research organisations to support open access research articles using the block grant mechanism. We understand that grant terms and conditions will be issued to research organisations in their grant offer letters.
UKRI’s policy joins other funder open access policies such as Wellcome’s (in force from January 2021), CRUK (current version dated December 2021) and others.
The new policy builds on UKRI’s previous requirements for peer-reviewed research articles by:
- mandating immediate open access, rather than preferring it. Embargo periods are no longer tolerated; and
- introducing a new open access requirement for monographs, books chapters and edited collections from 2024.
The policy applies to UKRI-funded research outputs that require acknowledgement of UKRI or its Councils as a funder and, specifically:
- peer-reviewed research articles submitted from 1 April 2022 (including reviews and conference papers); and
- monographs, book chapters and edited collections published from 1 January 2024.
The new policy allows for two routes to open access for research articles:
- Route 1: publish the article open access in a journal or publishing platform which makes the Version of Record immediately open access via its website with a CC BY or other permitted licence.
- Route 2: publish the article in a subscription journal and deposit the Author’s Accepted Manuscript in an institutional or subject repository at the time of publication with a CC BY or other permitted licence. A publisher embargo period is not permitted.
Which Creative Commons licence?
The open access version of the article - but not third party materials included in it - must be shared with the public under a Creative Commons Attribution (CC BY) licence. The CC BY licence allows others to copy, share, use and build on the article (even commercially) provided that the author is credited. It is one of the more liberal Creative Commons licences.
A more restrictive Creative Commons No Derivatives (CC BY-ND) licence might be permitted by UKRI on an exceptions-only basis (a short form needs to be submitted for UKRI to consider this). The CC BY-ND licence allows others to copy and share the article provided that the author is credited. However, others cannot share modified or built-on versions of the article without the copyright owner’s permission - UKRI considers this to be a barrier to the reuse of research. For example, a CC BY-ND licence would prevent the following - the unauthorised dissemination of:
- a translated version of the article
- a modified figure or graph from the article
- educational resources made from adapting the article.
If the researcher intends to publish via Route 2, the publisher must be notified about the CC BY licensing position. The following statement must be included in the acknowledgement section of the manuscript and any submission cover letter:
For the purpose of open access, the author(s) has applied a Creative Commons Attribution (CC BY) licence [where permitted by UKRI, ‘Open Government Licence’ or ‘Creative Commons Attribution No-derivatives (CC BYND) licence’ may be stated instead] to any Author Accepted Manuscript version arising.
Data access statement
A data access statement must also be included in the article to inform readers about where the underlying research materials are available and how they can be accessed, including links if applicable. UKRI expects researchers and their institutions to maintain and manage their copyright and intellectual property ownership of data so that underlying research materials remain as open as possible, and as closed only as much as is necessary.
Rights retention schemes and section 90(4) notices
We aware that some higher-education institutions are adopting or considering adopting “rights retention schemes”. Such schemes are not required by UKRI. However, such schemes could in principle be useful to support the move to immediate open access.
The idea is that researchers grant their research institution a CC BY licence to their research articles in advance of committing to publisher terms. The research institution then has all necessary permissions to include the article in its institutional repository for Route 2 compliance.
The other potential benefit is that, by obtaining a CC BY licence early (it can be granted before the article has even been written), the institution can notify publishers under section 90(4) Copyright, Designs and Patents Act 1988, of its interest in the article thereby protecting the institution where, in breach of UKRI-funding terms, a researcher inadvertently assigns the copyright in the article to the publisher or grants the publisher an exclusive licence, thus preventing the article from being made available on an open access basis. Section 90(4) provides that:
A licence granted by a copyright owner is binding on every successor in title to his interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser.
A section 90(4) notice therefore puts the publisher on notice of the CC BY licence to the institution so that it is binding on the publisher. The section 90(4) notice could fail if it is not received by the publisher or if the notice, by referring generically to articles written by researchers of the institution, rather than specific named articles, is considered by a court to be too generic to count as genuine notice.
Our view is that these risks will gradually reduce, at least to a point, by the “safety in numbers” that will accrue as more and more research institutions turn to similar mechanisms in order to comply with funder requirements.
Checklist: research article publication
- Consider whether a rights retention scheme would be useful for your researchers and your institution in helping to manage the new open access mandate.
- Does the researcher’s preferred publication venue offer a compliant route to immediate open access? If not, consider speaking to the preferred publication venue about the situation or consider other compliant options. Note: Start thinking about this as early as possible in the research process to avoid disappointment if the researcher is targeting a specific publication venue.
- Make the article immediately open access either via a journal / publishing platform (Route 1) or a repository (Route 2).
- Ensure the open access version of the article is published with a CC-BY licence or other permitted licence.
- Researcher / author to include a licensing statement in their journal submission if intending to make the article open access via Route 2.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2022