Firstly, the partnership of the Dutch University Libraries and The Royal Library of the Netherlands (UKB) did an analysis, including a legal consultation, to determine what the added value and the business case would be. Secondly a proposal with principles and a project-based approach for implementation was drafted for the approval from the VSNU. This was followed by the adoption by NPOS. In 2018 the UKB and VSNU picked up the baton to work on the pilot and set out concrete outlines for Article 25fa, so it would be useful for researchers. This has been put to the test in the VSNU pilot project ‘You Share, We Take Care!’ in 2019 (openaccess.nl, n.d. b). The pilot was necessary to flesh out the definitions, implications and possibilities of Article 25fa. Principles and implementation guidelines had to be defined, which eventually were set at a six-month embargo period for either the version of record (VoR) with no distinction between disciplines. After gaining legal advice on the legal text, the conclusion was that there is legal ground for VoRs to be made open access. Finally, alignment between universities had to be secured in the event that publishers would challenge the principles as agreed on by the VSNU and researchers would receive takedown notices. It was expected that researchers needed to feel 100% comfortable with making use of this right.

For the pilot the following set of guiding principles were defined, being:

It is obvious that this vision and set of guiding principles does not always correspond with the guidelines of publishers. However, there was a need for clarification and unification on how to engage with researchers and gain their trust in making use of Article 25fa, how the workflow processes could be made as efficient as possible and not unimportantly also about the risks of receiving possible claims from publishers. By not immediately implementing the vision broadly but by organising a small but representative pilot phase, a testing ground was facilitated and as a result any impact of imposed adjustments was reduced.

One of the ways in which the institutions acted jointly was the agreement for a “double guarantee” scheme: participating authors are supported by their institution in legal cases and institutions share knowledge and possible legal costs if such cases arise. Collaborating this way also offered organisations the opportunity to investigate and learn how workflow processes could be efficiently set up and whether local guidelines should be (further) developed into an easily accessible manner for the benefit of the local research community. Another encouraging example of leadership endorsing the project was the joint statement by the rectors of all Dutch universities in which they announced they would use Article 25fa to share all their (older) academic articles open (openaccess.nl, 2019a).

A national project team provided full coordination and was responsible for overall planning and management, legal advice and communication support for all universities. Each university had its own smaller project team. During the pilot phase knowledge sharing between the national project team and the institutional teams was very important. At the end of the pilot phase, advice from the national project team was given to the NPOS stakeholders on the (re)calibration of the national principles and the way in which this could be widely implemented at both research organisations and funders within NPOS.

More than 600 researchers, from 13 research universities, participated and more than 2,800 publications were deposited through the institutional repositories during this pilot (February 2019 to August 2019). In addition to peer-reviewed articles (75%), this included conference proceedings and book chapters from edited collections. The top three publishers were Elsevier (28% of publications), Wiley (12%) and Springer/Nature (10%). Many participating researchers wanted to share both recent publications and older material. Researchers were overall positive about the extra opportunities to share work and the support from the university library. The major reason for researchers not to participate was uncertainty regarding the reactions of publishers and/or their co-authors and feelings of uncertainty with regard to their position as for example being a journal editor if they deviated from the publisher’s policy. In the course of the pilot interest from researchers grew substantially. During the pilot there had been several meetings with the Dutch Publishers Association (Mediafederatie) where concerns about the implementation of Article 25fa were expressed by publishers. In particular, questions were asked about the six-month period for the Humanities and Social Sciences disciplines and the inclusion of book chapters. These concerns have been addressed by the VSNU but did not lead to changes in the guiding principles and set goals. Until now, there have been no formal requests for take-down or legal claims from publishers regarding the sharing of publications (openaccess.nl, 2019b). There have been very few occasions where publishers have threatened individual researchers with take down requests, but these were effectively dealt with by libraries and researchers by pointing the respective (society) publishers to the author’s rights anchored in the Dutch Copyright Act.¹

The added value of Article 25fa as interpreted in the VSNU-pilot lies in: 1) providing a fall-back option in cases where other routes are not possible or less desirable for authors (e.g. reluctance in certain disciplines to share AAMs (Author Accepted Manuscripts) or embargoes of one year or longer); 2) facilitating open access for all short scholarly works, not just articles; and 3) facilitating retrospective open access. All three could support the advancement of open access in the Netherlands. Currently various institutions are considering how to effectively embed the principles of Article 25fa in their policy and daily practice. Whereas, for example Utrecht University has opted for a pragmatic, flexible model that can be scaled up easily when the need arises, Leiden University has set up an open access policy by which the principles of Article 25fa automatically apply to all short academic works affiliated with Leiden University, unless all Leiden authors decide to opt-out (Leiden University, 2020). We will go into more detail in the use-case section of this article.

By order of the government, the Copyright Act including Article 25fa was evaluated late 2019 (van Gompel et al., 2020). For Article 25fa it is stated that the pilot ‘You Share, We Take Care’ has shown that it can make a significant contribution to the ambition of making as much academic work as possible available as open access. It is also interesting that the authors of the evaluation report indicate that universities could mandate their employees to make use of the provision (van Gompel et al., 2020, p. 58). This is a support for the opt-out approach described above and can be used by legal departments within the institutions to help support the implementation of such an opt-out.

Article 25fa is making the universities less dependent on publishers in the goal to achieve 100% open access. Increasing on the one hand pressure on negotiations with publishers for sustainable R&P deals and on the other hand when reaching APC caps within existing contracts, this both creates an increasing need for the use of Article 25fa. And last but not least, it functions as a safety net for publications that don’t fall under a publishing agreement. In 2021 the VSNU published a feasibility study ‘Towards 100% open access for Dutch Research Publications’ (van der Graaf & Johnson, 2021) in which various recommendations are made to achieve the goal of 100% open access for all peer-reviewed research output – including articles, books and book chapters. One of the main take-aways is that a multi-track policy is needed. In addition to the recommendations for the gold (and diamond) route, Article 25fa is explicitly mentioned as a powerful tool to enhance the green route. However, it should be mentioned that not all publications made open under the Taverne conditions can count towards this 100%, given the fact that the national methodology of open access monitoring has its reference date in the first half of the year, looking back to the previous year. The dataset for monitoring articles in the previous year is downloaded from the CRIS in the first or early second quarter of the current year, at the latest. Hence, and because of the six-months embargo, articles which have been published in closed access in the months October till December won’t be counted as open access in the following year when opened using Article 25fa (VSNU, 2017).

Article 25fa (i.e. empowering the green route) can be positioned as a safety net if no (new) agreements can be made with publishers. Further upscaling may lead to more organisations, both within and outside the academic world applying Article 25fa.

Another benefit of the Article 25fa is making it easier to achieve retrospective open access for publications from previous years, even before 2015 when the Article 25fa was adopted. This is an important route to explore. Libraries and individuals are still paying for access to back issues of journals. Some institutions can only keep access to a (rolling) window of back volumes under their license. Retrospective open access is only sometimes provided by publishers for publications older than a few years. Article 25fa has proved to be a very strong tool to provide open access to older publications, because everything older than six months can be opened instantly. However, it deserves exploring whether this could be scaled up at an institutional level in terms of capacity to collect, describe and store older short works. Still, it would be without an open license.

After the pilot UUL continued the Article 25fa service, since it was already implemented as if it was a regular service. The UU made two major improvements after the pilot phase. The UU has incorporated Article 25fa (adding “Taverne”) in the standard PURE installation (CRIS – Current Research Information System) and DSpace (repository) workflow of the library. The repository staff checks the metadata of all research publications that have been registered in Pure and adds the full text if available and makes them open access available depending on publisher policies. The UU has added a branch to this pipeline, in which new publications by Taverne participants are captured and made open access following the (joint) principles of Article 25fa. The UU has also introduced an online registration form to replace the signing of a paper copy of the license agreement. It safeguards the authentication of UU researchers by using a verification email that is being sent to the institutional email of the researcher and requires verification before the participant is registered. It also generates a PDF-copy of the license agreement for both the researcher and the institution.

Similar copyright legislation (the right to share academic work), although differing in scope, are already in place or seriously considered in other EU-member states, like in Germany, Belgium and France (Sondervan, 2020). It is clear that there is a place for national legal arrangements to foster and advance open access. Most remarkable differences when comparing the other national legislation/amendments with the Dutch legislation are disciplinary specific embargoes (e.g. SSH versus STEM disciplines, the first usually having longer embargo periods) and the eligible version (author accepted manuscripts versus VoR). The question remains how to promote and scale the use of these amendments, but the Dutch implementation (e.g., a national project team, project teams at institutional level and an investment in support for both researchers and administrators) could be seen as a proof of concept. Perhaps there lies a role for the European Commission to investigate to what extent it is necessary or useful to align these national amendments in the near future. Indeed, in its recent communication on the new European Research Area it was announced that the European Commission will start an analysis of “authors’ rights to enable sharing of publicly funded peer-reviewed articles without restriction” (European Commission, 2020, p. 14).

The Dutch experiences can serve as an example, although it can also be concluded that just providing researchers with the legal right to share will not automatically lead to more papers being made open access. Researchers need support, guidance and reassurance. Libraries are well placed to provide them with that.