Ceased and transferred publications and archiving: best practices and room for improvement

In the process of gathering APC data this spring, I noticed some good and some problematic practices with respect to journals that have ceased or transferred publisher.

There is no reason to be concerned about OA journals that do not last forever. Some scholarly journals publish continuously for an extended period of time, decades or even centuries. Others publish for a while and then stop. This is normal. A journal that is published largely due to the work of one or two editors may cease to publish when the editor(s) retire. Research fields evolve; not every specialized journal is needed as a publication venue in perpetuity. Journals transfer from one publisher to another for a variety of reasons. Now that there are over 11,000 fully open access journals (as listed in DOAJ), and some open access journals and publishers have been publishing for years or even decades, it is not surprising that some open access journals have ceased to publish new material.

The purpose of this post is to highlight some good practices when journals cease, some situations to avoid, and room for improvement in current practice. In brief, my advice is that when you cease to publish a journal, it is a good practice to continue to list the journal on your website, continue to provide access to content (archived on your website or another such as CLOCKSS, a LOCKKS network, or other archiving services such as national libraries that may be available to you), and link the reader interested in the journal to where the content can be found.

This is an area where even the best practices to date leave some room for improvement. CLOCKSS archiving is a great example of state-of-the-art but CLOCKSS’ statements and practice indicate some common misunderstandings about copyright and Creative Commons licenses. In brief, author copyright and CC licenses and journal-level CC licensing are not compatible. Third parties such as CLOCKSS should not add CC licenses as these are waivers of copyright. CC licenses may be useful tools for archives, however archiving requires archives; the licenses on their own are not sufficient for this purpose.

I have presented some solutions and suggestions to move forward below, and peer review and further suggestions are welcome.

Details and examples

Dove Medical Press is a model of good practice in this respect. For example, if you click on the title link for Dove’s Clinical Oncology in Adolescents and Young Adults a pop-up springs up with the following information:

“Clinical Oncology in Adolescents and Young Adults ceased publishing in January 2017. All new submissions can be made to Adolescent Health, Medicine and Therapeutics. All articles that have been published in Clinical Oncology in Adolescents and Young Adults will continue to be available on the Dove Press site, and will be securely archived with CLOCKSS”.

Because the content is still available via Dove’s website, the journal is not included on the CLOCKSS’ list of triggered content. This is because CLOCKKS releases archived content when it is no longer available from the publisher’s own website.

CLOCKSS Creative Commons licensing statement and practice critique

One critique for CLOCKSS: – from the home page:  “CLOCKSS is for the entire world’s benefit. Content no longer available from any publisher (“triggered content”) is available for free. CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever”.

This reflects some common misperceptions with respect to Creative Commons licenses. As stated on the Creative Commons “share your work” website:  [your emphasis added] “Use Creative Commons tools to help share your work. Our free, easy-to-use copyright licenses provide a simple, standardized way to give you permission to share and use your creative work— on conditions of your choice“.

The CLOCKSS statement  “CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever” is problematic for two reasons.
1. This does not actually reflect CLOCKSS’ practice. The Creative Commons statements associated with triggered content indicate publisher rather than CLOCKSS’ CC licenses. For example, the license statement for the Journal of Pharmacy Teaching on the CLOCKSS website states: “The JournalPharmacyTeaching content is copyright Taylor and Francis and licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License”.

2. This would be even more problematic if it did reflect CLOCKSS’ practice. This is because CLOCKSS is not an author or publisher of the scholarly journals and articles included in CLOCKSS. Creative Commons provides a means for copyright owners to indicate willingness to share their work. When a third party such as CLOCKSS uses CC licenses, they are explicitly or implicitly claiming copyright it order to waive their rights under copyright. This reflects an expansion rather than limitation of copyright that may lead to the opposite of what is intended. For example, if one third party is a copyright owner that wishes to claim copyright in order to grant broad-based downstream rights, another third party could use the copyright claim to support their right to claim copyright in order to lock down others’ works. A third party that is a copyright owner providing free access today could use this copyright claim in future as a rationale for toll access. This could come into play if in future toll access seems more desirable from a business perspective.

The CLOCKSS practice of publisher-level copyright (see 1. above) is problematic because Creative Commons first release of CC licenses was in December 2002. Scholarly journal publishing predates 2002 (the first scholarly journals were published in 1665), and not every journal uses CC licenses even today. Retroactive journal-level CC licensing would require re-licensing of every article that was published prior to the journal’s first use of CC licensing.

For example, the copyright statements of volume 1 dated 1990 on the PDFs of the CLOCKSS-triggered Journal of Pharmacy Teaching read: “Journal of Pharmacy Teaching, Vol. l(1)1990 (C) 1990 by The Haworth Press, Inc. All rights reserved”. This suggests that all authors in this journal at this point in time assigned full copyright to The Haworth Press, although actual practice was probably more complex. For example, if any authors were working for the U.S. federal government at the time, their work would have been public domain by U.S. government policy. Any portions of third party works included would likely have had separate copyright. Even assuming the simplest scenario, all authors had and transferred all rights under copyright to Haworth Press, the authors would retain moral rights, hence it would be necessary to contact all of the authors to obtain their permission to re-license the works under Creative Commons licenses.

The idea of journal-level CC licensing is at odds with the idea of author copyright. This confusion is common. For example, the website of the Open Access Scholarly Publisher’s Association Licensing FAQ states: “one of the criteria for membership is that a publisher must use a liberal license that encourages the reuse and distribution of content” and later “Instead of transferring rights exclusively to publishers (the approach usually followed in subscription publishing), authors grant a non-exclusive license to the publisher to distribute the work, and all users and readers are granted rights to reuse the work”. If copyright and CC licenses really do belong to the authors, then journal-level Creative Commons license statements are incorrect.

Even more room for improvement

The above, while leaving some room for improvement, appears to reflect best practices at the present time. Other approaches leave even more room for improvement. For example, in 2016 Sage acquired open access publisher Libertas Academica. The titles that Sage has continued can now be found on the Sage website. The Libertas Academica titles that Sage no longer publishes can be found as trigged content on the CLOCKSS website. However, the original Libertas Academica website no longer exists and there is no indication of where to find these titles from the Sage website.
Titles that were formerly published by BioMedCentral are simply no longer listed on the BMC list of journals. For example, if you would like to know where to find Gigascience, formerly published by BMC, you can find information at the site of the current publisher, Oxford. A note on the SpringerLink page indicates that BMC maintains an archive of content on its website. However, if you look for Gigascience on the BMC journal list, it simply is not listed. It would be an improvement to follow the practice of Dove and include the title, link to the archived content, and provide a link to the current publisher.

Solutions? Some suggestions

If journals and publishers were encouraged to return copyright to the authors when a journal is no longer published, or a book is no longer being actively marketed (in addition to using their existing rights to archive and make works freely available), then authors, if they chose to do so, could release new versions of their works. For example, a work currently available in PDF could be re-released in XML to facilitate text and data-mining, or perhaps updated versions, and authors could, if desired, release new versions with more liberal licenses than journal-level licenses that must of necessity fit the lowest common denominator (the author least willing or able to share).

Education, among the existing open access community, and beyond is needed. First, we need to understand the perhaps unavoidable micro level nature of at least some elements of copyright under conditions of re-use of material. For example, if a CC-BY licensed image by one photographer or artist is included in a scholarly article written by a different person that is also CC-BY licensed, the moral rights, including attribution, are different for the copyright holder of the image and that of the author of the article. In academia, attribution and moral rights are essential to our careers.

The intersection of plagiarism and copyright is different in academia. If one musical composer copies another’s work, copyright law is likely the go-to remedy. If a student presents someone else’s work as their own, academic procedures for dealing with plagiarism will apply, regardless of the copyright status of the work. For example, the musician using a public domain work need not worry about copyright but the student using a public domain work without attribution is guilty of plagiarism and likely to face serious consequences. Evolving norms for other types of creators (amateur or professional photographers, video game developers) may not work for academia.

For CLOCKSS, a statement that all triggered content is made freely available to the public, and that additional rights may be available for some works, with advice to look at the work in question to understand re-use rights, would be an improvement.

Your comments and suggestions? 

This is an area where even today’s best practices are wanting, and the solutions / suggestions listed above are intended as an invitation to open a conversation on potential emerging practices that may take some time to fully figure out. Peer review and suggestions are welcome, via the comments section or e-mail. If you are using e-mail, please let me know if I may transfer the content to this post and if so whether you would like to be attributed or not.

This post is cross-posted to the Sustaining the Knowledge Commons research blog and forms part of the Creative Commons and Open Access Critique series. Comments and suggestions are welcome on either blog.

Ceased and transferred publications and archiving: best practices and room for improvement

In the process of gathering APC data this spring, I noticed some good and some problematic practices with respect to journals that have ceased or transferred publisher.

There is no reason to be concerned about OA journals that do not last forever. Some scholarly journals publish continuously for an extended period of time, decades or even centuries. Others publish for a while and then stop. This is normal. A journal that is published largely due to the work of one or two editors may cease to publish when the editor(s) retire. Research fields evolve; not every specialized journal is needed as a publication venue in perpetuity. Journals transfer from one publisher to another for a variety of reasons. Now that there are over 11,000 fully open access journals (as listed in DOAJ), and some open access journals and publishers have been publishing for years or even decades, it is not surprising that some open access journals have ceased to publish new material.

The purpose of this post is to highlight some good practices when journals cease, some situations to avoid, and room for improvement in current practice. In brief, my advice is that when you cease to publish a journal, it is a good practice to continue to list the journal on your website, continue to provide access to content (archived on your website or another such as CLOCKSS, a LOCKKS network, or other archiving services such as national libraries that may be available to you), and link the reader interested in the journal to where the content can be found.

This is an area where even the best practices to date leave some room for improvement. CLOCKSS archiving is a great example of state-of-the-art but CLOCKSS’ statements and practice indicate some common misunderstandings about copyright and Creative Commons licenses. In brief, author copyright and CC licenses and journal-level CC licensing are not compatible. Third parties such as CLOCKSS should not add CC licenses as these are waivers of copyright. CC licenses may be useful tools for archives, however archiving requires archives; the licenses on their own are not sufficient for this purpose.

I have presented some solutions and suggestions to move forward below, and peer review and further suggestions are welcome.

Details and examples

Dove Medical Press is a model of good practice in this respect. For example, if you click on the title link for Dove’s Clinical Oncology in Adolescents and Young Adults a pop-up springs up with the following information:

“Clinical Oncology in Adolescents and Young Adults ceased publishing in January 2017. All new submissions can be made to Adolescent Health, Medicine and Therapeutics. All articles that have been published in Clinical Oncology in Adolescents and Young Adults will continue to be available on the Dove Press site, and will be securely archived with CLOCKSS”.

Because the content is still available via Dove’s website, the journal is not included on the CLOCKSS’ list of triggered content. This is because CLOCKKS releases archived content when it is no longer available from the publisher’s own website.

CLOCKSS Creative Commons licensing statement and practice critique

One critique for CLOCKSS: – from the home page:  “CLOCKSS is for the entire world’s benefit. Content no longer available from any publisher (“triggered content”) is available for free. CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever”.

This reflects some common misperceptions with respect to Creative Commons licenses. As stated on the Creative Commons “share your work” website:  [your emphasis added] “Use Creative Commons tools to help share your work. Our free, easy-to-use copyright licenses provide a simple, standardized way to give you permission to share and use your creative work— on conditions of your choice“.

The CLOCKSS statement  “CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever” is problematic for two reasons.
1. This does not actually reflect CLOCKSS’ practice. The Creative Commons statements associated with triggered content indicate publisher rather than CLOCKSS’ CC licenses. For example, the license statement for the Journal of Pharmacy Teaching on the CLOCKSS website states: “The JournalPharmacyTeaching content is copyright Taylor and Francis and licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License”.

2. This would be even more problematic if it did reflect CLOCKSS’ practice. This is because CLOCKSS is not an author or publisher of the scholarly journals and articles included in CLOCKSS. Creative Commons provides a means for copyright owners to indicate willingness to share their work. When a third party such as CLOCKSS uses CC licenses, they are explicitly or implicitly claiming copyright it order to waive their rights under copyright. This reflects an expansion rather than limitation of copyright that may lead to the opposite of what is intended. For example, if one third party is a copyright owner that wishes to claim copyright in order to grant broad-based downstream rights, another third party could use the copyright claim to support their right to claim copyright in order to lock down others’ works. A third party that is a copyright owner providing free access today could use this copyright claim in future as a rationale for toll access. This could come into play if in future toll access seems more desirable from a business perspective.

The CLOCKSS practice of publisher-level copyright (see 1. above) is problematic because Creative Commons first release of CC licenses was in December 2002. Scholarly journal publishing predates 2002 (the first scholarly journals were published in 1665), and not every journal uses CC licenses even today. Retroactive journal-level CC licensing would require re-licensing of every article that was published prior to the journal’s first use of CC licensing.

For example, the copyright statements of volume 1 dated 1990 on the PDFs of the CLOCKSS-triggered Journal of Pharmacy Teaching read: “Journal of Pharmacy Teaching, Vol. l(1)1990 (C) 1990 by The Haworth Press, Inc. All rights reserved”. This suggests that all authors in this journal at this point in time assigned full copyright to The Haworth Press, although actual practice was probably more complex. For example, if any authors were working for the U.S. federal government at the time, their work would have been public domain by U.S. government policy. Any portions of third party works included would likely have had separate copyright. Even assuming the simplest scenario, all authors had and transferred all rights under copyright to Haworth Press, the authors would retain moral rights, hence it would be necessary to contact all of the authors to obtain their permission to re-license the works under Creative Commons licenses.

The idea of journal-level CC licensing is at odds with the idea of author copyright. This confusion is common. For example, the website of the Open Access Scholarly Publisher’s Association Licensing FAQ states: “one of the criteria for membership is that a publisher must use a liberal license that encourages the reuse and distribution of content” and later “Instead of transferring rights exclusively to publishers (the approach usually followed in subscription publishing), authors grant a non-exclusive license to the publisher to distribute the work, and all users and readers are granted rights to reuse the work”. If copyright and CC licenses really do belong to the authors, then journal-level Creative Commons license statements are incorrect.

Even more room for improvement

The above, while leaving some room for improvement, appears to reflect best practices at the present time. Other approaches leave even more room for improvement. For example, in 2016 Sage acquired open access publisher Libertas Academica. The titles that Sage has continued can now be found on the Sage website. The Libertas Academica titles that Sage no longer publishes can be found as trigged content on the CLOCKSS website. However, the original Libertas Academica website no longer exists and there is no indication of where to find these titles from the Sage website.
Titles that were formerly published by BioMedCentral are simply no longer listed on the BMC list of journals. For example, if you would like to know where to find Gigascience, formerly published by BMC, you can find information at the site of the current publisher, Oxford. A note on the SpringerLink page indicates that BMC maintains an archive of content on its website. However, if you look for Gigascience on the BMC journal list, it simply is not listed. It would be an improvement to follow the practice of Dove and include the title, link to the archived content, and provide a link to the current publisher.

Solutions? Some suggestions

If journals and publishers were encouraged to return copyright to the authors when a journal is no longer published, or a book is no longer being actively marketed (in addition to using their existing rights to archive and make works freely available), then authors, if they chose to do so, could release new versions of their works. For example, a work currently available in PDF could be re-released in XML to facilitate text and data-mining, or perhaps updated versions, and authors could, if desired, release new versions with more liberal licenses than journal-level licenses that must of necessity fit the lowest common denominator (the author least willing or able to share).

Education, among the existing open access community, and beyond is needed. First, we need to understand the perhaps unavoidable micro level nature of at least some elements of copyright under conditions of re-use of material. For example, if a CC-BY licensed image by one photographer or artist is included in a scholarly article written by a different person that is also CC-BY licensed, the moral rights, including attribution, are different for the copyright holder of the image and that of the author of the article. In academia, attribution and moral rights are essential to our careers.

The intersection of plagiarism and copyright is different in academia. If one musical composer copies another’s work, copyright law is likely the go-to remedy. If a student presents someone else’s work as their own, academic procedures for dealing with plagiarism will apply, regardless of the copyright status of the work. For example, the musician using a public domain work need not worry about copyright but the student using a public domain work without attribution is guilty of plagiarism and likely to face serious consequences. Evolving norms for other types of creators (amateur or professional photographers, video game developers) may not work for academia.

For CLOCKSS, a statement that all triggered content is made freely available to the public, and that additional rights may be available for some works, with advice to look at the work in question to understand re-use rights, would be an improvement.

Your comments and suggestions? 

This is an area where even today’s best practices are wanting, and the solutions / suggestions listed above are intended as an invitation to open a conversation on potential emerging practices that may take some time to fully figure out. Peer review and suggestions are welcome, via the comments section or e-mail. If you are using e-mail, please let me know if I may transfer the content to this post and if so whether you would like to be attributed or not.

This post is cross-posted to the Sustaining the Knowledge Commons research blog and forms part of the Creative Commons and Open Access Critique series. Comments and suggestions are welcome on either blog.

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. 

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.

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.

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.