The digital era has profoundly reshaped scholarly communication, presenting both unprecedented opportunities and significant legal challenges. While technology allows for the widest public engagement, the dissemination of knowledge often remains limited or in the hands of a few private entities. In most cases, researchers who lack contractual retention of their rights will sign contracts that transfer all their rights to the publisher. From that point, they lose control over their work unless they find ways to regain these rights. One way to do this is through the Secondary Publication Right (SPR), which is the author’s right to republish in OA and communicate to the public their scientific works, typically of publicly funded research, previously published in a non-OA venue. As such, SPR becomes a vital mechanism for restoring the authors’ autonomy, directly addressing the tension between the growing global praise for open access (OA) and the endurance of traditional publishing’s models. OA is seen as a terrific opportunity for researchers to spread knowledge at unprecedented speed and increase society’s wider participation in cultural life. In contrast, traditional publishing models, with their rigid market dynamics, are aimed at rewarding rightsholders but feature visible contractual asymmetries that put researchers’ freedoms at stake, an imbalance that the SPR aims to redress.

Contractual vs legislative strategies to hold the author’s rights

SPR facilitates greater availability of research that is supported through public funds. Crucially, it also empowers scientific authors to regain their autonomy and academic freedom, thus enabling the public to benefit from the knowledge they contributed to advance. Indeed, as one may contend, SPR is not the sole means in the hands of the author. Another strategy for achieving OA via the Green route (author’s self-archiving) is a contractual one. This involves authors retaining their rights through publishing agreements or amendments, a key part of initiatives like Plan S, the OA publishing initiative supported by the international consortium cOAlition S, which mandates that publicly funded scientific publications be published in OA-compliant journals or platforms. However, this approach is limited by the author’s typically weak bargaining power and the close link between publishing and academic career progression. Contractual agreements are therefore insufficient to correct this power imbalance. Also, publishers often strongly oppose it, fearing a significant disruption to their business models. Additionally, the bargaining imbalance is further intensified by the pressure to publish in specific outlets driven by research evaluation metrics.

Some concerns about SPR in action

Furthermore, arguments in support of SPR may face at least two main objections, especially from publishers. First, some could allege that SPR undermines copyright and traditional academic publishing. Second, some could deny that SPR is a matter for constitutional law, but rather of contract law. However, both objections are elusive. The former misunderstands SPR, which does not eradicate copyright, but it creates a non-waivable, legal right for authors to self-archive their work. Publishers remain the initial publisher of record and a key player for quality control and peer review. SPR, therefore, is not inconsistent with the structure and logic of the publishing industry, just as OA and toll access can coexist. Concerning the latter objection, while a copyright transfer is a contractual act, the underlying rights at stake are constitutional. When a publicly funded institution or researcher signs a copyright transfer agreement that curtails academic freedom or the public’s right to information, that raises strong constitutional concerns. The secondary publication right thus requires a legislative intervention that cements essentially constitutional rights to ensure that contractual arrangements cannot be used to undermine fundamental rights and interests.

The promise of SPR across Europe: How Germany led the way

The SPR is one of the promising legal measures to strike a fair balance in scientific research, allowing researchers to regain their freedoms and rebalancing the bargaining powers in the publishing industry. Several European countries have already pursued this approach. In 2013, Germany was the first country to do so, granting authors of publicly funded research the non-waivable right to make their accepted manuscripts available 12 months after initial publication for non-commercial purposes. It also posed very stringent requisites, such as a minimum percentage of public funding, certain types of versions only, applicable embargos, and non-commercial purposes precincts, granting authors of publicly funded research the non-waivable right to make their accepted manuscripts publicly available 12 months after initial publication for non-commercial purposes. However, it also established very stringent requirements, such as a minimum percentage of public funding, specific versions of manuscripts, applicable embargo periods, and non-commercial use restrictions. The German model later influenced other countries, which adopted it with both similarities and variations: the Netherlands (2015) applied the right to all short scientific publications, even if only partially publicly funded; Austria (2015) imposed further limitations regarding the author’s status; France (2016) emphasised the primacy of public interest over private contracts; Belgium (2018) highlighted the retroactive application to prevent the right from being undermined by past or future agreements; Bulgaria’s (2023) legislation chose not to require any embargo period; and Slovenia’s (2025) took a bold step by resolving to apply the SPR to all research results, also without an embargo.

Scholarly communication and fundamental rights at stake

The debate about SPR, and more broadly OA, has often been confined to discussions on copyright law and academic policy. However, as scholarly and political discourse increasingly reveals, it goes beyond theoretical concerns. Whereas research is funded publicly, for example by university personnel, or through public research funds involving private companies, the resulting knowledge may be often locked behind paywalls, accessible only to those with institutional subscriptions or the means to pay. This creates a de facto knowledge monopoly, controlled by a handful of for-profit entities, which elevates the issue from a matter of intellectual property to one of public interest. It is no longer merely a matter of intellectual property or educational procedures, but a constitutional concern involving fundamental rights that ought to be protected against the encroachment of pure commercial interests. As such, the emerging legal principle of SPR is not even just a policy tool for OA or a technical fix for a flawed publishing model. It is rather a crucial legislative measure to reassert academic freedom, freedom of expression, and the public’s right to information. This is a perspective that is now being debated at the highest levels of European governance.

A call for reform: The EU’s challenge to balancing rights

Above all, the current publishing setting undermines the efforts to create a favourable and balanced environment for scientific research in the EU, which implies addressing the obstacles and challenges to access and reusability of publicly funded research. To tackle the distortions of the current ecosystem of scientific communication, especially within the framework of the European Research Area strategy, there have been growing calls in academic circles for legislative reform to make the framework “fit for research” that is based on a fundamental rights approach. The debate mostly focuses on striking a delicate balance among different fundamental rights, all equally protected by the Charter of Fundamental Rights of the European Union. These include the right to property (art. 17.2), the freedom of expression and information (art. 11.1), and the freedom of the arts and science (art. 13).

The right next step: Introducing an EU-wide SPR

Existing national legislative actions have been a fair response to the legal barriers and structural deficiencies of the system. They represent a deliberate effort by Member States to recalibrate the balance between private property rights and the public good. Nevertheless, variation among Member States creates legal uncertainty and challenges to invoking SPR for OA across borders. To align more closely with OA goals, an EU-wide SPR provision is utterly needed, possibly with the fewest restrictions (e.g., in terms of type and version of work, embargo period and manner of use). As demanded by many, harmonisation can help to overcome national differences. It is a huge opportunity to strengthen the impact of EU research, especially increasing researchers’ awareness and easing cross-border collaboration.

The constitutional upholding of SPR legislation

Even more, the legislative SPR models emerging across Europe are not just policy choices; they are constitutional affirmations. Their mandatory, non-waivable, and, in some cases, retroactive nature underscores that private contracts cannot override fundamental rights. They also provide a robust example of a state actively intervening to restore a constitutional balance that has been lost. National SPR models reassert the state’s role in protecting fundamental rights against private encroachment. In this vein, the potentials of an EU-wide SPR as a firm and binding solution to shield the author’s and the public’s freedoms are countless. It can strengthen the principle that, while publishers have a legitimate commercial interest, this should not outweigh others’ fundamental rights. SPR ensures scholars can fulfil their academic duty to disseminate knowledge for the public good without unwarranted commercial interference. On the contrary, when publicly funded research is hidden behind paywalls, it undermines the public’s right to information, which is essential for any informed and democratic society, especially since the public has already paid for it.

A final note on the power of SPR to restore the balance

The current state of scientific publishing is at odds with the original intent of copyright law. The resulting power imbalance is not a simple market outcome; it’s a direct challenge to the constitutional imperative to protect academic freedom and ensure public access to knowledge. In this context, SPR emerges as a crucial counterforce to the commodification of knowledge and a key mechanism for achieving the alignment of European research with the principles of open science, ensuring that the findings of publicly funded research are made available for the benefit of all. By granting scientific authors a non-waivable right to republish their work, the law can strengthen the authors’ ability to disseminate their work, becoming a formidable shield for academic freedom. Likewise, by reinforcing the public’s right to access this knowledge and, as a result, establishing a new virtuous cycle for scholarly communication.