Workshop on Copyright in the context of Archiving and Preservation of Open Access Books

On 7th March 2023, work package 7 (archiving and preservation) of the COPIM project held a workshop investigating copyright questions in relation to archiving and preserving open access monographs. The workshop brought together members of the COPIM project, copyright experts, preservation experts, librarians, and open access publishers. In total, 21 specialists in various fields attended. The attendees were chosen both for their specialisms and expert knowledge as well as to ensure a range of perspectives.

The workshop was convened to answer five key, high-level questions:

1. What are the copyright implications (if any) that repositories would need to be aware of if they joined the Thoth Archiving Network?

2. What are the responsibilities of authors, publishers, and archiving platforms regarding copyright?

3. Are there specific copyright considerations for open access books which don’t exist for closed access books?

4. Are there good and best practices already existing which we could learn from and use as case studies?

5. What impact does the risk appetite of publishers, organisations, or entities have as regards copyright?

The main elements of the workshop were a brief introduction by members of the COPIM project, two breakout rooms (one focused on “Third Party Content and Fair Use” and one on “Risk Appetite and Reuse Permissions”), and general feedback and discussion sessions.

The breakout rooms and discussions highlighted how subjective any discussion on copyright can be. In addition, it was agreed that it was an important conversation to be having due to the changing open access policy picture in the UK and beyond. For example from 1st January 2024, UKRI funded monographs, book chapters, and edited collections will need to be open access within 12 months of publication, either as the version of record or the author accepted manuscript being available within 12 months of the publication date.

Due to the focus of the COPIM project on smaller open access publishers, the focus of the discussions were on these types of books i.e. published open access with a creative commons licence. This focus helped to answer a number of the questions we had raised at the start of the workshop.

Answering the high-level questions:

#1 What are the copyright implications (if any) that repositories would need to be aware of if they joined the Thoth Archiving Network?

So long as the relevant permissions have been obtained by the author for the original publication there should be no additional need for the repository (or any other archiving platform) to conduct further checks. This is similar to how the current archiving of open access journal articles is conducted by university repositories. Delegates mentioned that this would be different if the repository was acting as the original publisher of the material (for example, when depositing e-theses in university repositories).

It was highlighted, however, that the original publication should be clear if any third party content was being made available under a different licence (or through fair use exceptions) and that this information should be included in both the original file and the file archived in the archiving platform. This is essential in order to rebut any takedown notices (especially if the original publisher or author are no longer contactable).

#2 What are the responsibilities of authors, publishers, and archiving platforms regarding copyright?

The work flow for the permissions and archival submission of the final published work (which was the focus of this workshop) should be as follows:

• author obtains any necessary permissions from copyright owners;

• publisher and author identify (and explicitly include annotations in the publication denoting) any material made available through fair use exceptions; publisher includes copyright notices, additional licences, and fair use exceptions in the original published file, ideally in human and machine readable formats;

• copyright notices, additional licences, and fair use exceptions in the original published file should be included in the archived version of the file.

If the above workflow is followed then the lines of responsibility are clear and none of these ultimately rest with the archiving platform, as all copyright matters should have been handled in the arrangements between the author(s) and original publisher. This is different to closed access and/or print books which are subsequently archived because in this second scenario, permission may not have been obtained for use of third party material in an open access publications as part of the permissions granted for the original (closed access) publication. As a number of archives are closed access this does bear considering for closed access/paywalled material. In this regard, there are actually fewer considerations for an archiving platform if the work is originally published under an open access licence.

#3 Are there specific copyright considerations for the archiving of open access books which don’t exist for paywalled books?

As noted in the second question, the workshop highlighted that there were probably fewer considerations when archiving open access books so long as the original author and publisher had followed good practice.

#4 Are there good and best practices already existing which we could learn from and use as case studies?

Yes there are. One of the publishers involved in the call stated that they make clear on their publications, through image captions etc., which content is under different licences or made available through exceptions. It was suggested that further best practice could include embedding this information in the metadata of this content as well as in the caption. However, for smaller presses this may be additional work which they would not be able to take on. It should be noted for further consideration though by presses looking to improve their processes.

#5 What impact does the risk appetite of publishers, organisations, or entities have as regards copyright?

Risk needs to be considered on a case-by-case basis. With copyright there is not a one size fits all answer to risk. No organisation represented at the workshop did formal risk analyses or risk assessments. Appetite could be set by a number of conditions: size of the organisation, expertise of staff, ethos of the organisation, availability of a legal team, previous experience. It was also mentioned that individuals might have a different risk appetite than organisations. The main conclusion from the workshop, however, is that education is important. This should be to: authors, publishers, archive platforms. Fear and/or myths about copyright prevail amongst many communities and if these can be removed then the empowering nature of fair use exceptions etc. can become the dominant narrative and reverse the conversation. This education is important because a publisher may not support an author when relying on fair use exceptions or an author may not realise what permissions they need to secure in order to publish an open access monograph.

General conclusions

The outcome of the workshop was positive for the COPIM project team. No major barriers to the Thoth Archiving Network were highlighted. In fact, some potential concerns were allayed through discussions with the copyright experts.

As with other areas of preservation work education was highlighted as an important area and work has started in this area (see for example, the Jisc OA mythbusting webinar on copyright (https://youtu.be/fRJip_T5VE4) or the OAPEN OA books toolkit (https://oabooks-toolkit.org/glossary/article/11626119-copyright). This is not only about educating authors and publishers on the various exceptions which could help them, but also to ensure that the necessary permissions for open access publishing are obtained (where necessary) from copyright holders. Related to this, it was also discussed that many authors do not understand the implications of the various clauses in open access licences (such as the Creative Commons suite of licences).