Publishing under the UKRI open access policy: copyright and Creative Commons licences

Defining copyright

In UK law, copyright is a form of intellectual property that protects original creative and intellectual works – most relevantly for this guide, this can include things such as articles and books, photographs, drawings, tables and diagrams, musical scores, scripts and screenplays, and films. Copyright applies to the work itself – that is, the work’s expression – and not the ideas or concepts the work includes, or draws on.

Copyright does not need to be registered or asserted (for example, by writing ‘© My Name 2023’ on the work), although including your details on a work is useful for other reasons. In practice, copyright:

• Gives the copyright owner the exclusive right to perform certain acts with their work (such as copying and making available online). These can be relevant to who may access the work and how that person may use it, and are sometimes referred to as the ‘economic’ rights of copyright
• Protects against people performing one of these exclusive acts with a substantial part of the work unless they have permission from the copyright owner or an exception applies
• Can last for up to 70 years after the death of the creator(s) – copyright duration varies depending on the type of work and the geographic location

UK law also recognises moral rights of authorship. These are separate to the economic rights of copyright and are granted to the author (for example: creator) of literary, dramatic, artistic and musical works and copyright films. Moral rights cannot be assigned or licensed, although they can be waived. This means that one person (the author) may hold the moral rights in a work while another (the copyright owner) owns the copyright.

Joint authorship

If the work was created by the collaboration of two or more authors, where the contribution of each author is not distinct from the others, then it is a ‘work of joint authorship’.

To illustrate, if you and I write a book chapter together and our sections are indistinguishable from the other, for the purposes of copyright law we will be joint authors.

If you and I each write separate chapters for an edited collection, we will each be sole authors of our contribution.

The starting point is that each joint author will own a share of the copyright in the work – this does not need to be equal, but can reflect the contribution of that author.

In the UK, where a work is owned jointly, one owner cannot exercise their rights without the agreement of all other owners. This means that it is necessary to seek the agreement of your collaborators to apply a CC licence to your jointly-authored work. If there is no agreement, then this may limit the re-use and impact of the work created.

Employees

In UK law, the starting point is that if the creator of a work is an employee and the work was produced as a part of their role, the employer owns copyright. However, Research Performing Organisations (RPOs), including universities, often adjust this rule by allowing researchers to retain sole copyright in their works.

To determine which rules apply to you, you should consult your contract of employment and any relevant intellectual property policies produced by your employer. You should also be aware that projects undertaken with external partners often contain bespoke intellectual property clauses that can differ from your employer’s usual approach. You should therefore also review the position for those projects.

A growing number of Research Performing Organisations are supporting their researchers to retain rights by adopting Institutional Rights Retention Policies (IRRPs). These typically covers research articles and conference papers (although some institutions are considering these policies for other research outputs) and confirm that members of staff own the copyright in these works.

Institutional Rights Retention Policies generally cover all members of the institution, not just those with research funding awards. Staff then grant a licence to their institution to make the Author Accepted Manuscript (AAM) available via the institution’s repository under a CC licence.

This automatic grant of licence ensures that research findings can be made open access at the earliest opportunity and provides authors and institutions with other publication choices.

For example, if a transitional open access agreement with a publisher (which permits an author to publish their version of record, also known as the final published version, open access in a collection of journal titles) does not cover the title where the author wishes to publish, an Author Accepted Manuscript can still be made open access in compliance with funders’ policies. An author might also have preference for their Author Accepted Manuscript to be made open access.

Defining Creative Commons licence

Rights and licensing can be complex, both for end users (to understand how a work may lawfully be used) and for rights holders (when communicating to others how they may use their works).

Creative Commons (CC) licences provide a simple and standardised set of licences in which rights are granted in advance, and which can be adopted by rights holders to enable others to use and build on their works without losing copyright ownership. CC licences are the cornerstone of open access as they provide the mechanism for authors to share their works in ways that allow the creation of new knowledge and for users to know exactly how they can use works.

Authors may have used third-party content from other copyright holders in their work, for example, when quoting from other works, or in photographs, images or other supporting content. This raises questions in relation to:

• The legal basis under which that content is included
• How to attribute that content
• How to clarify to end users downstream the terms under which the third-party content is included and can be reused - you cannot apply a CC licence to third-party content without explicit permission from the copyright owner

For more information on third-party copyright, see UKRI’s guide to managing third-party copyright for research publications.

Creative commons licences and moral rights

The first aspect of moral rights - the right to be identified as the author - is an integral part of all CC licences. The Public Domain Mark or CC0 operates as a waiver and is not a licence but gives creators a way to waive all their copyright and related rights in their works to the fullest extent allowed by law, for example to a database you have compiled.

Attribution is a requirement for all six CC licences and failure to give correct attribution is a breach of any CC licence and would result in its termination. Reusers are prohibited from using attribution in any way that suggests the original creator endorses the views of the re-user.

CC licences include a clause b(1) which states:

Moral rights, such as the right of integrity, are not licensed under this Public Licence, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise.

Changes made to the original licensed works must be indicated by the reuser and a link back to the original must be provided. This allows users downstream to see what was modified and by whom. For details, see section 3.a of the Legal Code for CC BY 4.0 licences (this does not apply to ND licences, where derivative works may not be made).

The CC BY and the CC ‘No Derivatives’ (ND) licences both require an author to be identified, but the latter makes explicit that no derivatives can be made. Due to its restrictiveness, the use of the CC BY-ND licence is discouraged for scholarly publications. It prohibits any adaptation of the original work, which can include translations, arrangements, or transformations, as well as adding the work to a database, using it for text and data mining, or as part of a collected work, such as an edited volume.

In the case of peer-reviewed research articles, UKRI and other funders only permit the use of CC BY-ND by exception, whereas for longform outputs the application of ND or/and NC is permitted wherever that is the preference. UKRI’s licensing requirements do not apply to any third party in copyright materials that are subject to a more restrictive licence or on an ‘All Rights Reserved’ basis. For more guidance on third-party materials, please see UKRI’s guide to managing third-party copyright for research publications.

Each CC licence comes with an easy-to-understand one-page explanation of rights, with associated visual symbols and underpinned by a licence document written using appropriate legal language. Find out more about CC licenses.

Moral rights, such as the right of integrity, are not licensed under this Public Licence, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise.

Publishing a journal article in compliance with UKRI’s open access policy

There are two broad routes available for publishing research articles in compliance with UKRI’s open access policy:

• Route 1 (gold)
• Route 2 (green)

As above, you are required to make your work available under an open licence CC BY (unless covered by an exception).

There are several tools available to help researchers select appropriate open access publication routes:

• Think. Check. Submit. – helps researchers to understand how to identify trusted journals
• Sherpa – Jisc-provided tool which allows searching of publisher or journal details and OA policies
• Journal Checker Tool - a tool designed by cOAlition S, the international consortium of research funding and performing organisations, that shows which publication options are permitted by funder open access policies

What if my preferred publisher does not permit a CC BY licence?

Most of the journals that UK researchers publish articles in are covered by agreements that ensure compliance with all major UK funder policies. So in most cases, you will find a suitable policy-compliant publication venue using the tools mentioned above.

If a publisher does not agree to changes to their licence which enable you to comply with your funder’s open access requirements, you may need to choose an alternative publisher. If this is not a viable option, then you may be able to apply to your funder for an exception. For UKRI-funded researchers, the most restrictive licence that might be permitted by exception is CC BY-ND. Complete the no-derivatives licence exception form to apply for an exception to use CC BY-ND for a research article in-scope of the UKRI open access policy.

Alternatively, you can insist on your right to reuse your own work as you see fit rather than being constrained by the restrictions imposed by some publisher agreements. Rights retention gives researchers supported by a cOAlition S organisation the freedom to submit manuscripts for publication to their journal of choice, including subscription journals, whilst remaining fully compliant with funder policies. You must include a statement in the acknowledgments section of your article manuscript and in any cover letter or note when submitting your work. cOAlition S has produced a number of rights retention resources that are available to be used freely by institutional research support staff, as part of their support services for their researchers.

The UKRI OA policy for research articles advises the use of the following licensing statement to support Route 2 (green):

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 BY-ND) licence’ may be stated instead) to any author accepted manuscript version arising.

You might also use the Creative Commons Licence Chooser tool in order to embed the licence code within a webpage.

Please note that publishers do reserve the right to refuse your submission if you seek to retain your copyright but in practice this is unusual.

Including third-party content

When creating scholarly works, authors frequently quote from other works and incorporate other third-party content such as images, tables and diagrams. These materials are relevant to the communication of their research findings but using them involves considering the copyright status of that source work, and the rights of the original author and copyright owner.

Including brief and justifiable excerpts from the work of others is an accepted part of scholarly communication and is not harmful to the economic rights of copyright holders (although it should be noted that for works such as poetry and song lyrics, a much stronger culture of copyright clearance exists). This principle of ‘fair dealing’ protects researchers from accusations of copyright infringement.

If your work includes third-party content, then you can either make use of one of the permitted exceptions to copyright (listed below), or you must obtain permission from the copyright holder. It is likely that publishers will insist that you demonstrate that you have explicit permission from the copyright holder to use all third-party materials, and this permission must make clear what, where, when and how that content can be used, as well as any fees that have been paid.

Once copyright has expired, there are no copyright restrictions on the use of a work, but while material is ‘in copyright’ some uses are still allowed without the need to seek the permission of the copyright holder. These uses are set out by the Intellectual Property Office (IPO) in a specific set of ‘Permitted Acts’ in the UK (more commonly known as exceptions) and enable users to use content in a way that might otherwise infringe the rights of the owner. Exceptions are not the same as direct permissions, or licences, from owners.

Exceptions to copyright

The UK government provides a listing of exceptions to copyright but for scholarly publication purposes, the main exceptions to be aware of in the UK are those enabling fair dealing for the purpose of ‘Criticism or Review’ or ‘Quotation’ (see the Copyright Designs and Patents Act 1988 section 30 for more detail). These exceptions could apply if a researcher is:

• Commenting and discussing a piece of content that has been made available to the public
• Including an extract from a work that is necessary and appropriate to include within the new article
• Using extracts only long enough to evidence the point the researcher is making
• Using extracts accompanied by an acknowledgement as to the original owner/author (this could be an academic citation in line with the convention of the discipline)

These exceptions apply to both commercial and non-commercial uses of content. They cannot be overruled by a contract or licence document so will apply to all types of content that are publicly available.

Further information on exceptions to copyright is provided in UKRI’s guidance on managing third-party copyright.

Openly licensed material

Material released under a CC licence can safely be included according to the terms listed in the table above.

Material released under an Open Government Licence (OGL) will also permit the reuse of content without seeking permission. There is a simple set of terms and conditions under which information providers in the public sector allow the use and reuse of their information. Provided that you comply with the terms, you have permission to use information anywhere in the world. The Open Government Licence is an acceptable alternative to CC BY in UKRI’s open access policy.

Material in the ‘Public Domain’

When copyright expires, the work enters the ‘Public Domain’, meaning that copyright no longer applies and works can be reproduced, edited, updated, altered and even sold without permission from the original creator or owner.

Sometimes copyright works may be public domain in one country but not in another so care should be taken. It is also worth noting that while copyright for an original text may have expired, rights may remain in later edited/updated editions, or indeed in the typographic arrangement on a later re-print.

Seeking permission

UKRI’s guide to managing third-party copyright for research publications provides detailed guidance in relation to processes for obtaining permissions. In summary, these include the need to:

1. Establish who the copyright holder is – this will not necessarily be the author or creator. Some works will include a copyright statement which names the copyright holder (look for a copyright symbol: ©). Be aware that for some works, especially older ones, this notice may be out of date
2. Contact the copyright holder – if the copyright holder is the publisher, then there may be a ‘rights’ or ‘permissions’ link on the publisher website to an automated service which enables you to apply for a licence. If the author is the copyright holder, then it might be necessary to find out their contact details either via their agent, their organisation’s website or any social media profile that they might have. If you are seeking to reuse archival material, then the archivist responsible may be able to help you find contact details for the copyright holder. However, due to GDPR there may be restrictions on exactly what information they can provide
3. Seek informed and written consent to use the material by making it clear what, where, when and how that material will be used
4. Pay any fee involved

Once you have permission and have paid any fee involved, you must use the materials strictly in accordance with any terms and conditions attached to the licence you have been granted.

What if I can’t find out who owns the copyright?

If you can’t identify or locate the copyright owner, then it might be an ‘orphan work’. Once you have made all reasonable efforts to establish who owns the copyright (and can demonstrate this), you may be able to apply for an orphan works licence for UK-published materials. This can last up to 7 years but will then need to be renewed. There is more guidance on orphan works available from the Intellectual Property Office (IPO) and in UKRI’s guidance on managing third-party copyright.

Publishing a monograph, book chapter or edited collection

Some funder open access policies already apply to these types of outputs, and from 1 January 2024, the UKRI open access policy will also include longform outputs. The final version of record or the Author Accepted Manuscript must be free to view and download via an online publication platform, publisher’s website, or institutional or subject repository within a maximum of 12 months of publication.

It is still good practice to publish publicly-funded work open access, and there are an increasing number of publishers offering open access publication of monographs, book chapters or edited collections. Although some of these publishers will permit a CC BY or CC BY-ND licence, there will remain instances where an NC version of the licence is preferred by the publisher, or in some cases, by the author. Such licences protect book sale revenue.

If open access publication is not an option for you, then a traditional publisher contract is likely to offer either a ‘Transfer of Copyright Agreement’ or a ‘Licence to Publish’. The former transfers copyright ownership to the publisher, while the latter allows the author to retain copyright and hence control over what they can do with their own work.

An ‘Exclusive Licence to Publish’ can leave the author unable to self-deposit in their institutional repository or to use their own work in teaching, so if the publisher will not remove the ‘exclusivity’ condition when asked to, then you must at least ensure that the list of ‘rights reserved to the author’ include any rights you might need to exercise.

It is important to note that wherever a researcher chooses to publish their monograph, book chapter or edited collection, they will need to carefully check that they either have a licence to publish any third-party copyrighted material in their work or can safely make use of permitted exceptions.

Summary

Licensing is a valuable tool and copyright is a property(-style) right in ensuring that your research can be communicated openly, and reused effectively, as is required by the UKRI open access policy.

Although copyright and licensing can be complicated, the use of standard CC licences such as CC BY can simplify matters and enable your research to have greater reach and impact. When other researchers’ work is CC BY licensed it also enables you to incorporate and build on this work more easily. This benefits researchers and the global scholarly community as a whole.

If you have any questions about copyright or licensing in research communication, please contact support within your own institution, or there are sources of help and guidance listed on UKRI’s open access policy website. Further useful sources of information are listed below.