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Martin Paul Eve

Professor of Literature, Technology and Publishing at Birkbeck, University of London

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Further to my other post earlier this week, I have added the additional points to my response letter to the Plan S implementation guidelines. These centre around monographs (9), REF involvement in Plan S (10), infrastructural support (11), the “time of publication” (12), clarification of the term “quality” (13), compliance of existing software with repository requirements (14), publisher deposition (15), and the ability to pursue defamation suits for wrongful attribution and reputational damage with the waiver of moral rights under CC BY 4.0 (16). If number 16 could be resolved, the open licensing landscape would be much clearer. The full letter is now available.

Ninth, although I understand that monographs and book chapters have been deliberately postponed due to infrastructural, social, and technical challenges, I would welcome clearer guidance on when we might hear on this and what a potential timetable might look like. Books have a much longer lead time than journal articles and it is nearly certain that books are now going under contract that may not be out until 2025. Given this lead time, and given also, as above, that many do not engage unless a concrete deadline is set, it would be helpful to know this. Without such a deadline, there will be no impetus to proceed (despite the fact, also, that setting such a deadline will be accompanied by predictable and inevitable backlash).

Tenth, at present there is an ambiguity around United Kingdom Research and Innovation (UKRI)’s involvement in cOAlition S on which I would appreciate greater clarity. Research England, which manages the UK’s Research Excellence Framework (REF), is part of UKRI. As such, I would expect its future funded outputs (REF submissions) to be subject to Plan S conditions. However, the REF is also jointly owned by the funding organisations of the devolved administrations (HEFCW, SFC, DfE in Northern Ireland). This substantially complicates an understanding of the scale and scope of Plan S within the English funding context and Learned Societies are responding differently, based on their understanding, or otherwise, as to whether REF is involved in Plan S.

Eleventh, given that DOAJ, DOAR, and Sherpa/Romeo are mentioned in the implementation documents, I would appreciate clarity on whether cOAlition S intends to financially support these infrastructural initiatives. Without their ongoing permanence and financial stability/resourcing it is difficult to have faith in these as long-term usable platforms.

Twelfth, the wording of “at the time of publication” in clause 10.1 should be clarified. Having some tolerance here – to allow for, say, illness or researcher unawareness that a piece has actually been published – would be helpful. The three-month window specified by Research England in its green mandate (albeit, from acceptance) could be a helpful clarification.

Thirteenth, I would urge a more distinctive clarification in the document around the word “quality”. When referring to the publication venue, the “quality” in terms of “the quality of academic material” should not apply at the venue/journal level, as DORA and other declarations have stressed. I understood “quality”, here, to refer therefore to the soundness of the infrastructure, digital preservation etc. It would be helpful to clarify this phrase throughout.

Fourteenth, it would be helpful to know whether existing off-the-shelf repository solutions – eprints, PURE, etc. – are compliant with the requirements set out for repositories. Further, features such as “automatic manuscript ingest” should be clarified. How “automatic” should this be, for instance? Is manual oversight by a repository manager acceptable, or is the intention here that this be fully automated?

Fifteenth, for several reasons “Direct deposition of publications by the publisher into Plan S compliant author designated or centralised Open Access repositories” has been resisted for many years by funders. One of the core reasons here is that changes in researcher practices, behaviours, valorization, and understandings of open access have been deemed crucial. Another is that there is a justified fear around deposition infrastructure being controlled by third-party entities with differing sets of motivations and attitudes towards open access. As I understand it, this is why green policies such as the Research England REF mandate avoided such technological solutions (while also being supportive of open initiatives such as the Jisc Publication Router). I would just like to draw this potential area to your attention.

Sixteenth, I believe that greater clarity is required around the right to pursue defamation suits for wrongful attribution under the Creative Commons licenses specified in Plan S. Indeed, I would recommend that this clause be strengthened: “CC BY 4.0 demands that licensees indicate if changes are made when re-using licensed material, and this means that the CC BY-ND license should not be necessary for due protection of the rights of the author. For the protection of authors’ legal and moral rights to published material cOAlition S refers either to the respective Rules of Good Research Practices or to the Berne Convention for the Protection of Literary and Artistic Works.”

There are continuing arguments around misuse of work under CC BY licenses, particularly from the HSS disciplines. This mostly centres around the fact that although the license demands that it be clear that the work has been modified, it does not demand that re-users signal how it has been altered. The concerns here from historians, in particular, centre around political re-use of their material outside the academy by extreme political groups. They are concerned that their words will be altered and attributed to them, by, for example, neo-Nazi groups, with only a footnote specifying that the work has been changed, resulting in reputational damage and historical distortion.

Prominent libel suits, such as David Irving v Penguin Books and Deborah Lipstadt over Holocaust denial, indicate that there are consequential and important uses for public history that can result in problems that require recourse to legal remedy.

I believe that some of these fears could be laid to rest by commissioning and publication of solid legal advice on the extent to which defamation and libel suits remain viable with respect to work under the attribution clause of the CC BY 4.0 license. The license, for instance, requires that creators waive their moral rights in order for the rights granted by the license to be exercised. The license allows modification and requires attribution. It therefore makes sense that a modification must be attributed unless waived, albeit with modification noted (but there is no requirement to notify the author of modified attribution). It is possible, then, that reputational damage/defamation could ensue from such attribution but that an author would have waived the moral right to pursue such a claim (the right “to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation”). It is also possible, though, and this is my belief (although I am not a lawyer and could be wrong), that defamation rests separately from these matters of moral rights in many jurisdictions. The question might hinge, though, in a court case on whether the attribution was wrongful if it indicated that the text had been modified (“I hate Plan S” - Martin Eve, wording modified from original). If this were the case, though, the CC BY license might allow the attribution of anything to anyone, which seems unlikely to be held up in court.

Although I have previously been a major supporter of open licensing for scholarship and research – and still believe it has many, many beneficial effects (and openly license all of my own work) – clarifying this matter seems important. It could resolve many objections in HSS communities where it is felt that this is of real-world import.