Thursday, May 31, 2012

Are strict CC-BY publishers shooting themselves in the foot?

This post asks whether open access publishers that practice strict adherence to the Creative Commons-Attribution license (CC-BY) are actually shooting themselves in the foot, that is, leaving plenty of room for competitors who will be able to use their works with no requirement to reciprocate. Note that it is not the competitors who are binding CC-BY publishers - they are voluntarily doing this to themselves! CC-BY publishers can easily avoid this situation, simply by adopting a flexible approach to licensing.

How can this be?

Let's compare CC-BY with what I would consider to be an enlightened approach to licensing for an open access publisher: the decision about licensing is left to the author, with the full range of creative commons license options made available, and provision made for sub-licensing portions of a work. An author can choose to publish a work with the CC option that I would consider optimal for ensuring open access not only for now, but into the future:  CC-Attribution-Noncommercial-Sharealike (CC-BY-NC-SA). The author using this license can use CC-BY material, and even material with a different restrictive CC license, such as CC-BY-NoDerivatives (CC-BY-ND), as long as the material with the different license is marked with the appropriate CC license.

This flexible approach, leaving the choice with the author, supports one of the main philosophical arguments for open access: author's rights. With respect to choice of license, author's rights means that the author gets to choose, not the publisher. A publisher that forces a CC-BY choice is no more in support of authors' rights than a publisher that requires full transfer of copyright. Engaging authors in thinking about these choices is, from my perspective, an essential step towards articulating the commons - a discussion that we as an emerging global society need to have amongst ourselves.

A journal or book publisher using the flexible approach I recommend is free to publish material that a strict CC-BY publisher would not be able to publish - including the works that are published CC-BY.

To take another example: a publisher that uses CC-BY-NC as a default can publish whatever they like from the repertoire of a CC-BY publisher, but a strict CC-BY publisher will refuse to touch any work that is licensed CC-BY-NC. I predict that the more flexible approach will give new open access publishers (or traditional publishers transitioning to open access likely to consider more limited licenses) a competitive advantage over the strict CC-BY approach.

There is nothing to stop a CC-BY publisher from adopting a more flexible approach, with CC-BY as the default license, but permitting authors to use a different license if they prefer, and allowing for differential licenses for elements included in a CC-BY piece.

As a bit of context:  Some of the early commercial and open access publishers, such as BioMedCentral and Hindawi, as well as the not-for-profit Public Library of Science, seem pretty strict about use of the Creative Commons-Attribution (CC-BY) license. For some people, this is the legal expression of the most open definition of open access from the Budapest Open Access Initiative. Klaus Graf expresses this point eloquently in the Journal of Librarianship and Scholarly Communication, with Sandy Thatcher expressing the counterpoint, the good reasons for considering more limited licenses. My own perspective is that CC-BY, while superficially appearing to be the expression of the most open form of open access, actually contains loopholes which make CC-BY a weak license for strong open access. For details of this argument, see the second chapter of my draft thesis  - search for open access and creative commons. This post adds to and expands this argument, by suggesting that CC-BY publishers may be putting themselves at a competitive disadvantage. If your library or institution is supporting CC-BY publishers' article processing fees - I hope that you are storing the articles in your IR for preservation purposes, just in case...

12 comments:

  1. Jan Velterop12:02 AM

    "Author's rights one of the main philosophical arguments for open access"? Not at all. The main philosophical argument is the efficiency and effectiveness of the global scientific information flow in order to better support the speed and progress of scientific knowledge discovery.

    Starting from the viewpoint that authors' rights are the main thing for open access leads to misguided positions and to utterly unclear and chaotic access and reuse rights that severely undermine modern science and the progress of scientific knowledge exchange.

    In any other domain authors' rights may well be the most important issue; in science it is not.

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  2. Heather, there is a deep and disturbing logical flaw pervading this entire piece. You assume that the choice of license should be governed by what is best for publishers. This is absurd. The entire open access movement has been about NOT doing what is best for publishers, but rather doing what is best for science and the public. And there can be little doubt that their interests are best served by the use of licenses that enable the widest distribution and reuse of content.

    Indeed, there is a simple solution to the competitive issue you raise, whereby publishers that use CC-BY-NC gain an advantage over publishers that use CC-BY. The scientific community should - as I have long argued - simply require that ALL papers be published with CC-BY. There. Problem solved.

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    1. Michael, here is what I provide as my primary example of a good model: "an enlightened approach to licensing for an open access publisher: the decision about licensing is left to the author".

      I am not sure how this can be interpreted as my assuming that "the choice of license should be governed by what is best for publishers". Care to explain?

      On a separate topic, I was wondering whether it would be appropriate to characterize PLoS' position on CC-BY as "rigid", and decided not to do so as I am not absolutely sure. But does the shoe fit? Does PLoS absolutely forbid the publishing of any work which is not fully CC-BY licensed?

      As for CC-BY solves all problems: on twitter this morning, Peter Murray-Rust was pointing out that Springer / BMC took an image from his CC-BY article and published it NC. This is just one illustration of the problem that I am trying to raise, which is that CC-BY can easily turn into NC and even toll access downstream, and not necessarily even far downstream.

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    2. Jan Velterop12:32 AM

      From the CC-BY licence (v. 3.0): "You may not offer or impose any terms on the Work that restrict the terms of this License"

      CC-BY, in other words, cannot "easily turn into NC".

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    3. Jan, if this were the case, then CC-BY licensed works could not be used in Wikipedia, because Wikipedia uses CC-BY-SA, which is imposing an additional restriction. I understand that one of the arguments of CC-BY is so that works can be reused in Wikipedia without asking the author's permission.

      As a scholar-author, who favors libre OA, I do not want to give blanket permission for my works to be included in Wikipedia, even though I love Wikipedia and have done editing of Wikipedia. We don't know whether every scholar wants to have their work reused in this way. It seems highly likely that some portion would object to having their scholarly work mercilessly edited.

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  3. The main philosophical arguments for open access is not "author's rights". It's everyone's rights. I don't want to prioritise one author over generations of reusers, any more than I want to prioritise a publisher.

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  4. I agree with Michael Eisen. NC means that there cannot be an exchange between commercial publishers. They are isolated and can only re-use the own contributions. Most scholars creating images or diagrams who appreciate re-use would be surprised that the most prestigious journals i.e. from commercial publishers cannot re-use their images/diagrams.

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    1. Thanks for your comment KG. I'd like to point out that if an author publishes a work as CC-BY then a commercial publisher can take it and include it in a commercial work, even one that is not freely available at all. They cannot insert DRM into your work legally - but this does not apply to a paywall before anyone gets to your work. The re-user has no obligation to sell their work at a price that you or your institution can afford.

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  5. Author's rights: Mike, I agree that OA is about everyone's rights, not JUST the author's. However, author's rights retention is at the very least one of the key strategies of the open access movement. For examples of this strategy in action, see the SPARC Author's Rights brochure from the SPARC Author's Resources page, at: http://www.arl.org/sparc/author/ or Kevin Smith and David Hansen's Copyright and Authors' Rights: a Briefing Paper, developed for the OASIS initiative, at: http://digitalcommons.bepress.com/repository-research/53/

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  6. Thanks, Heather, for bringing back the author into this debate! Exactly, what I thought was missing when arguing for CC-BY. With CC-BY the author gives away all rights as before when signing copyright transfer agreements with publishers.

    The other point about reusing images is equally important (and usually neglected). We at Living Reviews are publishing OA review articles, which heavily rely on reuse of previously published figures (mostly non-CC licensed). Receiving permission from Springer et al. for our open access journals is already hard enough and won't be easier with if we adopted CC-BY for our articles.

    A last issue that was mentioned, e.g. in the Graf-Thatcher paper, is business models for OA publishers. Especially, POD experiments with monographs could really suffer from an 'only CC-BY is good OA' attitude.

    So, I think that while CC-BY may be ideal for original research papers with original figures, it can't cover all possible models of Open Access publications, such as monographs, review papers, etc. Many advocates for strict CC-BY are really throwing out the baby with the water...

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  7. You state that an author using the CC-BY-NC-SA license can use "material with a different restrictive CC license, such as CC-BY-NoDerivatives (CC-BY-ND), as long as the material with the different license is marked with the appropriate CC license."

    However, your assertion is incorrect or at least misleading with respect to collaboration and derivatives rather than just isolated compilations. No CC BY-NC-SA adaptation can be relicensed CC BY-ND nor reverse nor some combined license. SA and ND are strictly incompatible within the same work.

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  8. Alex, many works contain material that have different license terms. This has been the case with print. When you include material that is under someone else's copyright, you have to license that part in the original terms.

    This will even be true with CC-BY works included in other CC-BY works. When the work is produced by a third party, the attribution will ALWAYS be different, and when the work of the third party was produced under a slightly different CC-BY license (different version, different country), it is the terms of the original CC-BY that prevail.

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