Blog post by Stephen Wyber
It is looking increasingly likely that a secondary publication right (SPR) will feature on the European Union’s legislative agenda in the coming years. Having been clearly called for by Member States in Council Conclusions in 2023, the European Commission has commissioned two significant pieces of research into SPRs and their impacts.
Central to the debate ahead is a distinction that often goes unstated: the difference between an obligation to publish open access and a right that makes doing so legally safe for researchers.
Furthermore, it has now called twice for stakeholder inputs, firstly in a consultation led by the Directorate General for Research, Technology and Innovation (DG RTD) in the second half of 2025, and now in one led by the Directorate General for Communications Networks, Content and Technology (DG CNECT), which is open until 25 June 2026.
Efforts to oppose this are also ramping up. Arguments center on claims about disruption to publishing business models and effects on smaller publishers, though this framing disregards the strong welcome for SPR from institutional publishers. Previous efforts to claim that Green OA (the form of OA most closely linked with SPRs) is in terminal decline were specifically called out and dismissed by a recent EU report.
There has been particular focus on a recent German Constitutional Court decision, which ruled against state-level policies mandating secondary publication in open access repositories. Despite opportunistic efforts (here and here) to claim that this was somehow about defending authors’ rights and freedoms, or a rejection of the concept of OA mandates (the Court’s judgement says nothing to this effect), the case is more about the challenges of working within a Federal system where laws about higher education and copyright are made at different levels. Crucially, the case was not about secondary publication rights, but rather obligations.
Right Versus Obligation: Why the Distinction Matters
This raises a critical distinction: the difference between a secondary publication obligation and a secondary publication right.
The ‘obligation’ is the rule that researchers have to publish their work in open access repositories, thereby contributing to easier and more equitable access to research outputs. As a recent economic report commissioned by the European Commission has underlined, such access is likely to enhance the quality and efficiency of European research, as well as favour knowledge valorisation and so Europe’s wider competitiveness. Such obligations–alongside broader Open Access mandates–are also associated with the principle of research ethics that there should be maximum dissemination of results to allow everyone to benefit from scientific progress, and advance research.
The ‘right’, on the other hand, is the clarification that the researcher (or their institution, depending on who owns the copyright) can enjoy protection in doing this, and can, for example, simply ignore efforts by some publishers to oblige them to surrender their rights, apply embargoes, or leave their works behind a paywall.
The situation in Germany now is one where state-level legislation (or university policies) cannot oblige OA publication, although this can remain a condition for receiving funding, where research funding organisations include this in grant agreements. There is, however, a right under Federal law, which means that researchers who are keen to see their work receive maximum dissemination are guaranteed the ability to do so.
Should the German Federal Government (like others have done before it) decide to introduce an OA obligation, then German researchers will at least know that they will not end up in a situation of being expected to make their work freely available, but without the necessary protections to do so.
This is not the case where there are obligations, but not rights, a situation that risks applying across the European Union if the upcoming European Research Area (ERA) Act includes a mandate to publish OA (likely without embargo, if this is consistent with previous Council Conclusions), but leaves progress towards an actual secondary publication right to subsequent legislation (for example, the possible upcoming Copyright Directive). In such a situation, researchers will face the same bind.
Two Paths, neither Good
In this situation, researchers have two paths open to them when publishers are unwilling to allow immediate access via a Repository. The first is simply to pay up. The commercial publishing sector has done very well from demanding Article Processing Charges (or ‘Transformative Agreements’ that bundle these with subscription costs), and sees them as a major growth area. It has also invented the ‘Article Development Charge’ (ADC) – a fee for permission to publish the author’s accepted manuscript in a repository. This situation is perhaps feasible for researchers and institutions with sufficient financial resources, but is less likely to work where this is not the case. As the Commission’s economic study underlined, more and more are finding themselves in the latter category.
The justification for an ADC does not hold up. The author in this case is not paying for the services involved in preparing an article to be published, but merely for permission to publish their own version. This is an opportunistic fee charged for permission to do what funder OA policies already require. It is simply wrong to put individual researchers in this position.
The second (the one applying to the latter category) is simply to ignore the OA mandate and allow the publisher to get what they want, at least for the duration of an embargo period. For researchers needing to demonstrate publication activity in order to maintain their position and advance in their careers, this is the depressing, if logical, choice: hoping that funders will be forgiving. However, this is hardly a comfortable situation in which to place researchers.
In short, a mandate without a right risks being a means of driving more public resources into the hands of private publishers, increased unfairness, and reduced effectiveness.
As decisions are being made on whether to include a Secondary Publication Right in the ERA Act, it should be clear that not doing so will be a disservice to the interests of researchers themselves, the taxpayers funding research, and Europe’s future competitiveness. If the ERA Act is to include an OA mandate (something that we would welcome), it must also include a fully fledged secondary publication right.
18 June 2026
