As a strategic priority, the Executive Board has determined that open access publishing of scientific publications is in line with a culture of open science and falls under our social responsibility. As such, Radboud University acts in line with the open access policy of the Dutch government. One way to comply with this is by making short scientific works public via the Radboud Repository.
Pursuant to Article 25fa of the Dutch Copyright Act, the creator of short scientific works, the research for which has been fully or partially funded with Dutch public funds, has the right to make those works available free of charge after a reasonable period after their first publication, provided the source of the first disclosure is clearly stated.
To make it possible to exercise this right, the Universities of the Netherlands (UNL) conducted a successful pilot in 2019. Participating scientists gave permission to universities and UMCs to share short scientific works. During the evaluation of the pilot, the administrative process surrounding the granting of permission by researchers turned out to be inefficient. The administration surrounding contract signing necessary for this opt-in approach was time-consuming and labour-intensive, which made scaling up insufficiently possible.
The solution to this problem has been found in switching to a tacit licensing procedure with the option for researchers to exclude individual publications from this. This is also referred to as an opt-out method. According to this approach, the relevant short scientific works by Radboud researchers are made available on an open access basis six months after the first (online) publication in the Radboud Repository.
The university and Radboud university medical center have an interest in ensuring that the scientific output of its employees is easy to find. Moreover, it wants to make it possible for employees to fully exercise their right under article 25fa of the Copyright Act, also in the interest of good employment practices.
Dutch universities guarantee their researchers that in the event of a legal dispute regarding short scientific works that have been made available on an open access basis via this article of law, the university, as an employer, will bear all possible costs. It has been agreed at UNL level to jointly share this risk. Communications with the publisher and the practical side of the legal procedure will also be handled by the employer as much as possible. The scientist will of course be kept informed of the progress of the procedure.
- Radboud University endorses the importance of open access, following the policy of the Dutch government as set out in the letter from the State Secretary for Education, Culture and Science dated 15 November 2013;
- Article 25fa of the Dutch Copyright Act gives researchers the right to share short scientific works within a reasonable period ‘free of charge’;
- Radboud University therefore requires a tacit non-exclusive licence from its employees in connection with the above;
Additional provision of employment contract for academic staff
The following provision has been added to the employment contract of scientific staff of Radboud University:
The employee permits the employer to include any short scientific work written during the employee’s employment in the Radboud Repository. This permission applies to short scientific work within the meaning of Article 25fa of the Copyright Act and is made available in the Radboud Repository to everyone free of charge, in accordance with this article. Publication in the Radboud Repository takes place six months after the first publication. The employee can also always invoke Article 25fa of the Copyright Act himself or give someone else permission to do so. If the employee prefers not to have a certain publication included in the Radboud Repository, they can withdraw their permission for that publication by filing an opt-out request.
In December 2023, employees with a current employment contract are informed by letter about the established policy of Radboud University with regard to article 25fa of the Copyright Act.
2. Rights and obligations
Through the new article in the employment contract, the employee grants Radboud University a licence as employer. This licensing comes with the rights and obligations listed below:
- The employer assumes that the employee is the actual creator of the short scientific works made available on an open access basis in the Radboud Repository pursuant to Article 25fa Copyright Act (hereinafter also referred to as the works). The employer is not entitled to grant sub-licences.
- The licence applies to all short scientific works published during the employment relationship, regardless of whether the employee is the corresponding author, first author or co-author.
- In educational materials and commercial databases, only links to publications made public in this way are permitted. Copying the full text is not permitted. This is also laid down in a disclaimer that precedes the text of the publication. Any claims arising from such do not fall within the guarantee scheme of Dutch universities.
- Only publications for which a digital version is available can be made public according to this procedure. If no digital version is available, the employee can provide it themselves, after which it can still be included in the Radboud Repository.
- Employer and employee will immediately notify each other if they discover infringements of works in the Radboud Repository pursuant to article 25fa of the Dutch Copyright Act or if a third party lays claim to those works or claims that these works infringe its rights.
- The employer guarantees the employee that in the event of a claim from a publisher regarding works that have been made publicly available free of charge via the Radboud Repository on the basis of article 25fa of the Copyright Act, the employer will support the employee. The employer will provide legal assistance. The employer will reimburse any costs, penalty clauses or damages to be paid by the employee that are the result of making the works publicly available in the Radboud Repository in the context of Article 25fa of the General Administrative Law Act.
- The employer will not make the works publicly available until six months after the initial publication.
- The employer will at all times clearly state the source of the initial publication of the works.
This procedure applies to all Short Publications published after the date this procedure enters into force. The procedure is also retroactively valid for all Short Publications created before the date this procedure enters into force. For the time being, publications from before 2023 will be made public only on request on the basis of article 25fa of the Copyright Act.
 As emerges from the letter from the State Secretary for Education, Culture and Science dated 15 November 2013: Parliamentary Papers II 2013/14, 31288, no. 354.
 Parliamentary Papers II 2013/14, 31288, no. 354.
Appendix 1. Definitions
For the application of what has been determined in or pursuant to this procedure, the following definitions apply:
Open access: making scientific publications available without barriers, in particular making them freely accessible and available online free of charge.
Short Publication: scientific articles (with the ‘refereed’ classification in Metis-RIS research registration system), articles in conference proceedings, stand-alone chapters in edited books and annotations to a legal ruling.
First (online) publication: the date on which a publication is accessible online to the general public for the first time, Version of Record (VoR). That date may be earlier than the official publication date of a journal issue or special issue.
Employee: a researcher with an active employment contract with Radboud University on the date of publication.
Repository: the database of the Radboud University - the Radboud Repository - in which the research output of the university is published on an open access basis and/or stored, managed and preserved.
Employer: Radboud University.
Appendix 2. Background and Legal Framework
Article 25 fa of the Dutch Copyright Act reads as follows:
“The creator of short scientific works, the research for which has been fully or partially funded with Dutch public funds, has the right to make those works available to the public free of charge after a reasonable period after first publication, provided the source of the first disclosure is clearly stated.”
Article 25h of the Dutch Copyright Act reads as follows:
- The provisions of this chapter cannot be waived by the creator.
Regardless of the law governing the agreement, the provisions of this chapter apply if:
a. in the absence of a choice of law, the agreement would be governed by Dutch law, or;
b. the operating activities take place entirely or predominantly in the Netherlands.
Article 25fa of the Copyright Act is therefore mandatory law. Agreements that conflict with this article are null and void.
Article 1.8 of the Collective Agreement for Dutch Universities (CAO NU) reads:
- The employer is obliged to act and to refrain from acting in a way a proper employer should under similar circumstances.
- The employee is obliged to perform their duties to the best of their ability, to behave as a good employee and to act in accordance with the instructions given by or on behalf of the employer.
- In the performance of their duties and in their personal and concerted behaviour towards third parties, an employee is expected to act in the spirit of the goals of the university as much as possible.
Article 1.20 of the CAO NU reads:
- The employee is obliged to comply with provisions reasonably laid down by the employer with regard to patent rights, database rights, plant breeder’s rights, design rights, trademark rights and copyright, with due observance of the legal provisions.