Editorial: open access, copyright and licensing: basics for open access publishers.

Just published (February 2016) in the open access Journal of Orthopaedic Case Reports at the invitation of Editor-In-Chief Dr. Ashok Shyam: Editorial: open access, copyright and licensing: basics for open access publishers. Journal of Orthopaedic Case Reports 6:1 p. 1-2. DOI: 10.13107/jocr.2250-0685.360

This post is part of the Open Access and Creative Commons critique series. 

Author copyright in name only

The Elsevier website provides language illustrating clearly how author copyright can be virtually identical to a copyright transfer.

From the Elsevier Copyright page, under For Open Access Articles:

Authors sign an exclusive license agreement, where authors have copyright but license exclusive rights in their article to the publisher**. In this case authors have the right to:

  • Share their article in the same ways permitted to third parties under the relevant user license (together with Personal Use rights) so long as it contains a CrossMark logo, the end user license, and a DOI link to the version of record on ScienceDirect.
  • Retain patent, trademark and other intellectual property rights (including raw research data).
  • Proper attribution and credit for the published work.

**This includes the right for the publisher to make and authorize commercial use, please see the “Rights granted to Elsevier” tab for more details.

Comments

The copyright may be in the author’s name, but clearly the author has signed away all rights. The only rights that remain for the author are those “permitted to third parties”. The author has become a third party with respect to their own work.

Patent, trademark and other IP rights are not part of copyright. It is deceptive for Elsevier to post these here as if Elsevier had these rights to grant.

This post is part of the Creative Commons and Open Access Critique series.

mBio: a good model for language explaining what’s covered by noncommercial use

mBIO has excellent language on their website http://mbio.asm.org/site/misc/authors.xhtml
explaining what they mean to exclude and include by using a CC noncommercial license. This could be model for others so copied in full below. The first part is copied directly from the CC website, a good practice which avoid errors in interpretation that would be possible with paraphrasing.

ASM publishes mBio articles under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 Unported license. The author(s) retains copyright under this license. Others may adapt, reorganize, and build upon the published work for noncommercial purposes, as long as credit to the author and original article is given, and the new work, which includes the previously published content, is licensed under identical terms.
Attribution-Noncommercial-Share Alike

Noncommercial reuse is defined as use that is not intended for or directed toward commercial advantage. This would include the following:

  • Content requested by an academic or educational institution
  • Content requested by a not-for-profit publisher if not for resale
  • Content requested for use by the government
  • Content requested for a thesis or coursepack
  • Author request to use his/her own material

Individuals seeking to obtain permission for commercial reuse of mBio journal content may do so through the Rightslink web-based permissions and commercial reprint system. To use Rightslink, on the mBio website search for the journal article containing the content which you would like to reuse and then click on the “Reprints and Permissions” link that appears on the journal table of contents or within the article content box.

Commercial reuse applies if the content being requested will be distributed for a fee or by an organization legally recognized as a commercial entity (demonstrated, for example, by payment of taxes, incorporation, or support by advertising/corporate sponsorship). This includes:
  • Commercial/for-profit publishers
  • Companies or organizations representing or interfacing with a for-profit pharmaceutical organization (e.g., content to be reused to promote or advertise a pharmaceutical product)
  • Medical device companies
  • PR/Advertising/Medical communications agency/Media 

This post is part of the Creative Commons and Open Access critique series.

A case for strong fair use / fair dealing with restrictive licenses for reuse in scholarship

The types of works that many students and faculty would like to be able to include in scholarly works are not necessarily from other scholarly works. For example, scholars in my doctoral discipline of communication study a wide range of types of works including newspapers, television, films, cartoons, advertising, blogs and social media, and public relations materials. It is very useful for scholars to be able to include images and text from the primary source materials, either as illustration or for purposes of critique. Obtaining permission to use even small excerpts of such works is time-consuming at best. I argue that it would be in the best interests of scholarship to advocate for strong fair use / fair dealing exceptions for research and academic critique globally and accept that more restrictive licenses may be necessary to avoid the potential for re-use errors that could easily occur with blanket licenses allowing broad re-use. For example, while it makes sense to allow scholars to include small movie stills in an academic piece, it could be quite problematic for scholars to include such items in works that grant blanket commercial and re-use rights downstream.

This illustrates what I see as one of the problems with the one size fits all CC-BY license preferred by some open access advocates (which I consider to be a serious error): what I interpret as an implicit assumption that all of the works scholars are likely to want to re-use are other scholarly works. Rather than making assumptions, let’s do some research to find out what scholars and students would like to be able to re-use. Anecdotally, in my experience the most popular items for re-use are images from popular culture (especially characters from the Simpsons TV series), not scholarly works. Scholarly journals like to use photos to add interest and aesthetic value. If it is the case that the greatest interest in re-use for scholars involves works from popular culture / outside the academy, then ubiquitous CC-BY licenses for absolutely every scholarly article, book, and dataset in the whole world would not solve the primary re-use question for a majority of scholars.

This is not meant to suggest that advocacy for global fair use / fair dealing rights for academic research and critique is an easy task, rather to raise the question of whether this is an appropriate and useful goal for scholarly works.

This post is part of the Creative Commons and Open Access Critique series.

Creative Commons CC-BY confusions

This discussion on CC Mixter illustrates some common confusion about CC licenses, in this case CC-BY. The first commenter asks whether it is considered legal or ethical to take songs that have been licensed as CC-BY and compile them into an album to sell. These three commenters appear to agree that this is legal. The first commenter is not convinced that this is ethical. The second commenter suggests that while this might be legal, it would make a lot of artists mad as they likely did not understand the implications when licensing their work CC-BY. I bring up this piece of anecdotal evidence as this fits my own experience that people using CC-BY licenses do not necessarily understand the implications of doing this. I would also like to argue that the name “Creative Commons” is somewhat misleading as the cultural notion of a commons is more akin to a common resource or set of resources that is shared by a community in an equitable way, while the CC licenses facilitate exploitive as well as community use. 

CC Mixter discussion: from http://ccmixter.org/thread/2659

First post

So I was having a discussion with someone regarding the CC licensing model and we came up with a situation which seems to be a bit of an ethical dilemma and I wanted to get the opinions of some musicians that create CC content.

So, this is specifically regarding CC-BY licensed work. The situation we were considering is someone compiling a bunch of CC-BY songs into a single album (a mix CD I guess you’d say) and selling that album (assuming they attribute the original artists as required by the license of course).

Now, based on the CC-BY license I am fairly certain that this is totally legal as there are no restrictions on what you can do with the music. The question is, is this ethical?

Comment by CC Mixter discussion participants

Commenter 1:  “It is 100% ethical, because that is precisely what the license is for.

I strongly believe many people would be upset about it; but in most cases that would be because they didn’t understand the full implications of licensing their music as CC-BY in the first place (things like licenses being non revocable, for instance)”

Commenter 2: “Anytime I license something CC-BY, I assume that it will be used for profit by someone else. Sometimes I seek material that is CC-BY so I can add to it and possibly put it on an album… for personal profit”.

This post is part of the Open Access and Creative Commons critique series detailing my work-in-progress which is designed to explain important differences between open access per se and Creative Commons licenses which provide useful tools for open access but cannot be equated with open access.

Chang vs. Virgin Mobile

The Chang vs. Virgin Mobile case illustrates some of the complexities behind the CC-BY license. A picture of a minor girl was posted to flickr with a CC-BY 2.0 license, and it was picked up and used by Virgin Mobile in an advertising campaign, without asking the permission of the photographer. The family was not pleased with this and fought this in court, against Virgin Mobile on several different grounds including copyright, privacy and publicity rights, and against Creative Commons for failing to warn against this possibility. The plaintiffs ultimately dismissed the case.

From my perspective, this case raises some issues to consider before deciding that a particular creative commons license is optimal for scholarship.

  •  When people consider the use of a CC-BY license, the potential for negative and not just positive downstream uses should be taken into account. Not every potential downstream user is an academic with a substantial commitment to scholarly integrity. There are pros and cons to each one of the CC license elements. I argue that the best service to potential CC licensors to provide the best available advice about each of the CC licenses, including known pros and cons and informing people that there is no way of predicting in advance every potential kind of use of CC licensed work. Creative Commons comes close to providing good service, but in my opinion fails due to participation in the attempt to deprecate CC’s NC and ND license. For an example of this, go to the CC license chooser. If you choose not to allow derivatives and/or commercial use, you will be informed that “this is not a free culture license”, while licenses allowing derivatives and commercial use state “this is a free culture license”. 
  • Ethical and legal liabilities: this was a family photo licensed CC-BY by the family. The family objected to use of the photo in the ad on the basis of copyright, privacy and publicity rights. If the photo were from a research subject and licensed CC-BY by the researcher, not the subject, there is a strong possibility that the subject would have a case that the researcher’s CC-BY license violated a research ethics protocol of a university, research centre and/or funding agency. The bar for informed consent for research subjects is much higher than the bar for an organization like Creative Commons. If the researcher used a CC-BY license because their institution or funding agency required the use of this license, there could be legal liabilities for these bodies as well. I would like to emphasize that while there may be legal liabilities to consider, the ethical issues are more important. If you are using CC licenses on works that others have made substantive contributions to, such as allowing you to use their photos or stories, then you have an obligation to think carefully about the potential uses of the works and providing advice to potential research subjects that allows them to make truly informed decisions about how this work is licensed. 

Summary and conclusion

Creative Commons licenses is the not the simple solution to scholarly copyright that some of us would like to see. There are good reasons for scholars to hesitate to grant some of the rights CC makes available, including derivative and commercial re-use, including ethical and legal consideration. As an open access activist, I am concerned that the push by some in the open access movement for a CC-BY / CC-BY-SA default license for open access is more harmful than helpful to open access. Unleashing the potential for creation of derivatives and commercial use will unleash negative as well as positive benefits. When this happens, scholars and policy-makers who believe that they have been misled about the benefits and downsides of particular CC license elements are likely to be just as unhappy as the young woman and her family in this case were. The purpose of my Open Access and Creative Commons critique series is to try to alert my colleagues in the open access movement about these dangers to open access per se. 

The CC summary or this case can be found here.  The CC wiki page for court decisions is here.

The commerical overlords of scholarship rewrite copyright licenses to suit themselves

As just posted to the openscience list:

What can or cannot be done under CC-BY may quickly become a moot point – according to Elsevier Connect, “the International Association of Scientific, Technical & Medical Publishers (STM) is contemplating the release of a more specific user license designed for scholarly communication. This would likely:

  • Permit scholarly non-commercial use 
  • Prohibit the creation of derivative products 
  • Expressly permit text and data-mining for academic purposes and translation”

The International Association of Scientific, Technical & Medical Publishers (STM) has a Copyright & Legal Affairs Committee which aims: “To pursue, within the limits of the STM Association’s aims and objectives, the highest possible level of international protection of copyright works and of the services of publishers in making these works available”.

from: STM / An Introduction to Copyright & Legal Affairs / The Aims of the Copyright and Legal Affairs Committee
http://www.stm-assoc.org/copyright-legal-introduction/

Elsevier, Wiley, Springer, and Taylor & Francis all have multiple listings under STM Membership.

In other words, while the academics who do the work of scholarship, writing and editing struggle to understand the legal concepts and present solutions off the sides of our busy desks, the companies that have long been in the business of profiting off our work and our generosity have lots of $ to hire lawyers to change the legal landscape to suit their preferred priorities (profits for themselves / their shareholders).

best,


Dr. Heather Morrison
Assistant Professor
École des sciences de l’information / School of Information Studies
University of Ottawa

http://www.sis.uottawa.ca/faculty/hmorrison.html
Heather.Morrison@uottawa.ca

ALA Accreditation site visit scheduled for 30 Sept-1 Oct 2013 /
Visite du comité externe pour l’accréditation par l’ALA est prévu le 30
sept-1 oct 2013
http://www.sis.uottawa.ca/accreditation.html
http://www.esi.uottawa.ca/accreditation.html

This post is part of the Creative Commons and Open Access Critique series

The Elsevier “open access” / exclusive license to publish hybrid

Elsevier has come up with a twist on open access licensing that should give pause to advocates of equating open access with particular Creative Commons licenses such as CC-BY, that is, a version of what they call “open access” that involves an exclusive license to publish.

In Elsevier’s own words, from Elsevier Connect:

“for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. – See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf”

This post is part of the Creative Commons and Open Access critique series

for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. – See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf
for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. – See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf
for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. – See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf
for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. – See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf
for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. – See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf
for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. – See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf

Creative Commons and Open Access research: some next steps

Rosie Redfield has posted results of a survey on author perspectives of CC-BY licenses on RRResearch, along with her own comments. This is a useful addition to a question that is very much in need of serious critical research and analysis, a line of research that I am in the process of developing.  In order to make informed decisions about what kinds of uses to permit, encourage, forbid or discourage, authors and others with interests in this area (such as research funders) need to know all of the implications. Redfield’s research to date has shown that many authors that have agreed to CC-BY licenses did not realize some of the implications of this decision – for example, authors did not know that their CC-BY articles could be republished as book chapters by a commercial publisher for profit without their knowledge or permission.

Here is my overall perspective on what is needed in this line of research:

Analysis of what might actually be permitted (or forbidden) under CC licenses. With any legal matter, there is the question of what the writer of the law / license intended and how others might reasonably interpret the words. Specific areas that need attention include:

  • permission for re-enclosure for profit, whether accidental or purposive. CC licenses do not imply that works need to be free of charge. The licenses forbid adding DRM to a work, but they do not forbid paywalls before one gets to the work (this is probably impossible, given that most of us have to go through a paywall of some kind to access the internet per se).  From my perspective this is a signficant danger, one that could be a huge setback for the open access movement. For example, if commercial medical publishers moved to CC-BY open access then changed course and decided to release these works as toll access only (CC-BY does not preclude this), and then lobby to remove funding for PubMedCentral and other publicly owned open access archives, then it is feasible that massive amounts of works made OA via CC-BY could very quickly revert to toll access, with no recourse available to authors or their funders. This is the primary reason I argue against CC-BY as a default.
  • author moral rights are stronger under CC BY attribute than automatic copyright. What are the implications for scholarship? I argue that at minimum this is the opposite of the intention of BOAI.
  • What kinds of re-use of scholarly works would actually be desirable and useful for scholarship, and what are the conditions where this would make sense to the authors? Translation is one example – there are obvious advantages to scholarship to making this as easy as possible, but obviously dangers to authors’ reputations if poor translations are attributed to the author. There is probably some middle ground. For example, automated translation services are available even for many works not CC licensed for reuse. This does not appear to be contentious, perhaps because the translation services are not portraying the results as authorized versions.

This post is part of the Creative Commons and Open Access critique series

Academically appropriate comments are welcome – by which I mean, state who you are and where you are coming from. For example if you are affiliated with an organization that has a vested interest in or commitment to a particular CC license, this affiliation should be stated in your comment.

Attitudes and values regarding the dissemination of your research

Summary

This portion of the T&F OA survey supports arguments that scholars as a group do not support the Creative Commons – Attribution Only license (CC-BY), but rather when using CC licenses tend to prefer more restrictive licenses, with CC-Attribution-Noncommercial-NoDerivatives (CC-BY-NC-ND) being the most popular option. There was strong support for text and data mining. There was an interesting difference in reaction to pre-approving translations (largely positive) and adapations as a whole (largely negative), suggesting the possibility of a more nuanced approach such as ND with preapproval of translations outside the CC license per se. Attribution is taken as a given; further research into the question of attribution might be merited as attribution may not be advisable in the case of research data and the norms for attribution can vary, for example with scholarship and Wikipedia. This portion of the survey indicates support for Taylor and Francis traditional practices (Exclusive License to Publish and Copyright Transfer), which is not surprising considering the survey pool (scholars connected with T&F) and high probability of bias in these responses. 

Details

This is the third post in my Taylor and Francis Open Access Survey critique series covering p. 8 – 10 of the results of this survey, on Attitudes and values regarding the dissemination of your research and Licenses. Please see the main post above for overall critique of this survey. In brief, social science research intended to inform public policy should not be conducted by a commercial entity with a stake in the outcome (this is fox researches hen research), and the survey as a whole is significantly flawed methodologically. The following comments should be interpreted in the light of this overall critique.

Taylor & Francis questions are in bold

What are your attitudes and values regarding the dissemination of your research? p. 8 (14,533 respondents)


It is acceptable for … without my prior knowledge or permission, provided I receive credit as the original author.
Comment: this question assumes attribution as a given. For further research, it should be noted that there are reasons to question the assumption of attribution. For example, with data sharing public domain (not attribution) may be preferable, and some scholars are experimenting with contributing to Wikipedia, which uses attribution but in a different way (authors are anonymous).
The strongest support was for my work to be re-used for non-commercial gain, with 64% either agreeing or strongly agreeing. This was followed by others to use my work in text – or data-mining with 48% agreeing or strongly agreeing. Translations and including works in an anthology received only slightly less support. 
Respondents reacted negatively to others to use my work for commercial gain with 67% agreeing or strongly agreeing and others to adapt my work with 50% disagreeing or strongly disagreeing.
Licenses (p. 9) (13,143 respondents)

Please indicate in each case if you would be willing to sign the license when publishing your research (Response options: Yes, always; Only in certain circumstances; No, never).
Response options included a variety of Creative Commons licenses, with a significant omission: the Sharealike option, along with License to Publish and Copyright Transfer. The most popular response was Creative Commons – Attribution – Noncommercial – NoDerivatives CC-BY-NC-ND with 71% responding Yes, always.  
Exclusive License to Publish and Copyright Transfer were only slightly less popular. I am inclined to discount these responses because of the obvious strong likelihood of social desirability and acquiescence biases, that is, this is a T&F survey which is likely to elicit positive responses to T&F practices (see the main post in this series for detailed explanation and references); also the pool of respondents are obviously a group that continues to work with this traditional publisher (“Yes, always” actually defines the group), and respondents in favor of the publisher’s practices may have been more likely to respond. 
The Creative Commons – Attribution only license (CC-BY) received the lowest positive response, with 15% indicating “Yes, always”, 59% indicating “Only in certain circumstances” and 26% “No, never”.
License preferences (p. 10)  (12,882 responses)
Please choose your most preferred, and your second most preferred, of the above licences.
Please choose your least preferred of the above licences.
Responses show a similar pattern to the questions on the page above. The most popular option was CC-BY-NC-ND. CC-BY elicited a strong negative reaction.
The response bias discussed above should be taken into account in interpreting the apparent popularity of traditional Taylor & Francis practices (Exclusive License to Publish, Copyright Transfer). That is, the survey population consists of scholars who work with Taylor & Francis; scholars who favor T&F practices may have been more likely to respond to the survey; and of respondents, there is a strong likelihood of social desirability and acquiescent response biases. 
Discussion
This section of the survey supports the argument that many scholars do not support the Creative Commons – Attribution Only license (CC-BY), but rather when using CC licenses prefer more restrictive licenses, in this case with CC-BY-NC-ND being the top preference. Other evidence supporting this argument comes from Nature Publishing Group’s analysis of author choices for Scientific Reports, referenced from here, which offers a range of CC licenses and found that CC-BY is selected by only 5% of scholars.
This is important because many open access advocates equate open access with the CC-BY license. I argue that the similarity between CC-BY and the open access definition of the Budapest Open Access Initiative is superficial in nature, that CC-BY has both positive and negative implications for scholarship, and as a default has significant loopholes which would present an ongoing danger to open access. My work in this area can be found in my Open Access and Creative Commons critique series.  
The detailed questions about re-use are somewhat useful in indicating what kinds of re-use scholars are likely to be willing to grant. Noncommercial, text and data-mining, translations and including works in anthologies are all supported by many scholars. The difference between adaptions (negative reaction) and translations (positive reaction) is interesting, as this suggest that while scholars do not necessarily want to grant blanket rights for all kinds of derivatives, many would be okay with blanket permissions for translations. This suggests that a more nuanced approach might be worthwhile, for example perhaps NoDerivs with pre-approval of translations handled outside of the CC license per se.
The results of this survey also show that respondents to a T&F survey tend to respond favorably to T&F traditional practices. This is evidence of ongoing support for T&F, which may not be necessary given that authors and editorial boards continue to work with this publisher; beyond that, given the high probability of bias, this finding should be largely discounted.