Problem: Publishers often require copyright to be transferred as part of the academic publishing process. However, this typically only applies to the final version of the work (i.e., the Version of Record). The versions of research most commonly discussed within academic publishing are: (1) Submitted Version – also known as a Preprint, (2) Author Accepted Manuscript (AAM) – this is the post peer review version, and (3) Version of Record (VOR) – this is the post peer review and typeset version. Once they have influenced the manuscript in some way, be it through peer review, typesetting or editing, publishers often claim rights on the text and tables, figures, and supplementary materials. This results in cases where researchers can be required to request permission from the publisher to reuse their own work and in some cases, forced to pay to reuse their own work. Further, many of the larger publishers have updated their policies on this (see below):
Example 1 - Elsevier:
In all cases, any rights the author grants to Elsevier apply only to the published article. Elsevier does not require, nor ever request, rights to the underlying research itself. Authors (and institutions or employers) will continue to retain patent, trademark and other intellectual property rights relating to the research, as well as the right to use their research data freely and without restriction.
Others, such as Springer, state: “We believe that authors should retain copyright of their research manuscripts and receive clear credit for their work” and that “The vast majority of Springer Nature journals do not require authors to transfer the copyright of their published contributions. In most cases, authors will sign a subscription licence agreement, granting Springer Nature an exclusive licence to publish the article.”
However, they do note:
For a small number of content types (for example review articles in selected journals) and for a small number of Springer Nature’s society-owned journals, authors transfer copyright. By signing the Copyright Transfer Statement authors still retain substantial rights, such as self-archiving.
Springer also highlight that you cannot create an app based on the original work, should you share your work under CC-BY-ND with them or through their subscription model. It is worth noting that, original work does not mean the first version of the work. It in fact means the published version (i.e., VoR). A preprint is not a publication. It has not gone through the steps to be considered a publication. Making something publicly available and controlling how it is used (i.e., sharing a preprint with a license) is not the same as publishing the work (i.e., peer review, type setting, and importantly, including within a published journal etc.).
Proposed solutions: Where gold open access routes are not possible, instruct authors to preprint their research (either in all cases or specifically if they wish to retain rights to reuse the work).
This creates a version of the work that is assigned a license before engagement with the publisher and retained by the authors.
Copyright law is version specific and the Version of Record (i.e., the post peer review version) may still be transferred if needed to meet academic publishing requirements.
Applying copyright to the VoR does not retroactively strip copyright from earlier versions.
The journal has influenced the VoR through editing, typesetting, and arranging peer review and copyright of this version is a legitimate request. None of the changes a journal editor or peer reviewers suggest, however, typically influence the core instrument/measure/programme created as part of the research, as doing so would typically require the researcher to redo the study with the revised instrument/measure/programme.
Some publishers have policies where they won’t publish work that has been preprinted. However, this is very rare and all the large publishers (e.g., Elsevier, Springer, Wiley etc.) permit preprinting – some have done so for multiple decades.
Where a small, typically society run, publisher does not allow preprinting, the authors will need to decide whether they are willing to submit their work there and transfer copyright. They should be advised against publishing in such journals.
Outcome: If for whatever reason, copyright needs to be transferred to a journal that does not support open access, uploading a version of your first full draft (or even just the instruments/measures/programmes on) and attaching a non-commercial use license on a site like the Open Science Framework, would go some way in both meeting your open access requirements (in this case Green Open Access) if based in Europe, whilst retaining rights to use the work for commercial purposes in the future. Whilst there remains a handful of journals that do not permit preprints and require copyright transfer, these are very much in a tiny minority. You can look up what is permitted by the target journal before submitting (here: https://openpolicyfinder.jisc.ac.uk) and are advised against submitting to journals that do not permit preprints and require the transfer of copyright unless absolutely necessary.