The ND Map, the Museum Photograph and the Civil Servant Co-Author
An associate professor at a national research institute has an article accepted in a hybrid subscription journal. Her funder requires CC BY. Her co-author is a civil servant at a ministry whose legal team argues the manuscript is a work of the state and wants to retain rights. The article reproduces three third-party items: a map from a 2019 paper published under CC BY-NC-ND 4.0; a museum photograph licensed "for academic use only, no redistribution"; and a table the authors built themselves from public statistics. The journal's default licence is CC BY-NC-ND and it offers CC BY only on payment of a €3,200 APC. The institute has no open access fund, but the funder will reimburse APCs for compliant outputs. The accepted manuscript is already on a preprint server under CC BY 4.0. The publisher's contract asks the corresponding author to warrant that she holds all rights and to grant the publisher an exclusive licence.
1. Work through the three third-party items and state which can appear in a CC BY article, with your reasoning and the alternatives for those that cannot.
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The test is whether the article's CC BY licence can lawfully extend to the whole work, including commercial reuse and redistribution by anyone, without additional restrictions.
The map (CC BY-NC-ND 4.0). Not usable as-is. CC BY permits commercial use; the NC term forbids it, and the licence also prohibits additional restrictions on the material. Reproduction inside a CC BY article would purport to grant downstream users rights the original licence withholds. ND does not save it: the unaltered inclusion may not be a derivative, but the NC problem is decisive. Options: (a) redraw the map from the underlying public-domain or openly licensed data and credit the source, which creates a new figure the authors can license; (b) request written permission from the rights holder to relicense the figure under CC BY - rights holders can grant broader rights than their CC licence; (c) publish CC BY without the figure and link to the original.
The museum photograph ("academic use only, no redistribution"). Not usable. A permission limited to academic use is narrower than CC BY in both scope and audience; it gives no right to sublicense. Obtain written permission that expressly allows redistribution under CC BY, or substitute an image the museum has already released under an open licence, or drop it.
The author-built table from public statistics. Usable. Facts and data are generally not protected by copyright, and the table's selection and arrangement is the authors' own. Check the source statistics' terms for attribution requirements and credit them.
Practical point: record all permissions in writing and deposit them with the funder's compliance file.
2. What should be done about the ministry co-author's employer, and does the institute's rights-retention option solve the funder problem here?
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The employer claim. "Work of the state" is jurisdiction-specific. In some systems, works produced by government employees in the course of duty are excluded from copyright or vest in the state; in many others, the employee is the author and the employer holds rights only by contract, statute or implied licence. Do not accept the ministry legal team's assertion at face value: ask for the statutory basis in writing and for confirmation of whether the ministry claims authorship, copyright ownership, or merely a review right.
Practical routes: ask the ministry to sign the publisher agreement or a consent letter permitting CC BY; ask whether the co-author can be listed with a statement of government work; and check whether the funder's conditions allow an exception where a co-author's employer cannot grant the licence. Escalate to the funder's open access team early - funders generally prefer a documented negotiation to a non-compliant publication.
Rights retention. A prior-licence or rights-retention policy lets the author grant the funder and the public a CC BY licence to the accepted manuscript before any publisher agreement, and deposit it in a repository. That secures funder compliance for the manuscript, but it does not cure the third-party figure problem, and it does not bind a co-author's employer. It also does not make the version of record CC BY, so if the funder requires the VoR to be CC BY, retention is a partial fix.
Also note the publisher's exclusive-licence and warranty clause: an addendum or amendment is needed, because the author cannot warrant rights she does not hold in the map and photograph.
3. Decide what licence the article should carry and what the author should do about the €3,200 APC and the journal's CC BY-NC-ND default.
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The default licence is non-compliant. CC BY-NC-ND bars the commercial reuse and adaptation that most funders require, so accepting it is not an option if the grant conditions say CC BY. Publishing under it and relying on repository deposit would satisfy only a green-style mandate, not this one.
Sequence the decision:
- Remove or replace the incompatible figures first; the licence question cannot be settled while they remain.
- Confirm in writing that the funder will reimburse a hybrid APC. Many funders will not pay for hybrid articles outside a transformative agreement, and some will pay only for fully open access journals. Get the answer before committing.
- If reimbursement is confirmed and figures are cleared, pay the €3,200 and publish CC BY. Check whether the institute or a consortium has a discount or membership with the publisher.
- If reimbursement is refused, do not pay from personal or institute funds on the assumption it will be recovered. Choose instead: move the paper to a fully open access journal that offers CC BY at a cost the funder will meet, or publish with rights retention and deposit the accepted manuscript CC BY, accepting that the version of record stays closed and that this may not fully satisfy the funder.
Negotiate the contract. Strike or amend the exclusive licence and the warranty. Request that the preprint's CC BY 4.0 licence is acknowledged and not disturbed; the preprint is already openly licensed and that cannot be undone. Keep a written record of every exchange for the compliance file.