[GOAL] Re: Is $99 per article realistic and compatible with profits - or too high a price?

Mon Jan 28 20:29:10 GMT 2013

 > Anyone who buys Springer (hence BMC) has no obligations at all to 
continue to provide the BMC articles on an open access basis.

In legal sense that's true, but in practice this is impossible, because 
Springer+BMC would totally destroy their credibility as an OA publisher 
which they've built over 10 years, and would lose immediately 90% of new 
submissions. I don't think they are a suicide - neither Springer nor any 
company who buys Springer for huge amount of money.

And even if they are a suicide, no legal terms can stop any company from 
dying, so even if BMC had promised in the license agreement that their 
papers would always stay open (i.e., the copies on BMC website), there 
is always a risk that the publisher gets bankrupt, the website goes down 
and nobody can access the papers again..... if not via PMC. So no 
changes in licensing terms could mitigate the risk of loosing access to 
once-accessible papers. But independent archives can indeed solve the 
problem.

 > If there is no reason to sell CC-BY papers, then why are people 
advocating for CC-BY? The point of advocating for CC-BY over CC-BY-NC is 
precisely to allow commercial use.

"Commercial use" is a broad and vague term. For example, displaying a 
paper on a website together with advertisements - is this commercial use 
or not? I think most people hope for add-on services to flourish on top 
of CC-BY literature, they rather don't expect the papers to be directly 
re-sold.

Best regards
Marcin

On 01/28/2013 07:41 PM, Heather Morrison wrote:
> hi Marcin,
>
> On 2013-01-28, at 3:43 AM, Marcin Wojnarski wrote:
>
>> Thanks, Heather, for this explanation.
>> Yes, I agree that OA archiving shall be an important part of the system, no matter what specific OA license is being used, for the preservation of scholarship independently of the fate or misdoings of a given publisher.
>>
>> As to the dangers of commercial exploitation of CC-BY articles: can you point to a specific case of an article that was exploited in this way, causing harm to the authors?
> What I am pointing to is primarily a future potential danger to open access; the extent of the danger is proportionate to the use of the CC-BY license. That's one of the reasons why advocating for CC-BY as a default is problematic for open access.
>
> As an example of what might happen: BioMedCentral, the world's largest open access publisher, was sold to Springer a few years ago. Recently, we heard rumours that Springer is up for sale. This would be not too surprisinng - if Springer were sold, this would be the fourth time in less than a decade.
>
> Anyone who buys Springer (hence BMC) has no obligations at all to continue to provide the BMC articles on an open access basis. They can pursue whatever business model they please. The articles published in BMC will remain open access, however this is because of the work of PubMedCentral and institutional repositories, and BMC's good practices of actively cooperating with repositories.
>
> In other words, broad-based OA success using CC-BY, without careful planning including ensuring that works are deposited in repositories, could very easily revert to toll access in very little time.
>
>> You're right that re-selling of CC-BY papers is legally possible, but it seems unlikely to me. "Selling" is not as easy as it sounds - in order to sell, there must be somebody who wants to buy. Why would anyone want to pay for a paper which is elsewhere available for free?
> If there is no reason to sell CC-BY papers, then why are people advocating for CC-BY? The point of advocating for CC-BY over CC-BY-NC is precisely to allow commercial use. Commercial use in the context of copyright (CC licenses are about copyright) means selling the works per se.
>
> If people wish to spur ideas in the commercial sector by making papers freely available, then any license will do as long as the works are free-to-read. Even articles with All Rights Reserved do not restrict ideas of the ideas included in the articles. "Intellectual property" in the area of ideas is covered by patent law, not copyright.
>
> If a CC-BY work is readily available and easy to find, you are right that there is likely not a huge market for this. My point is that publishers who use CC-BY have no obligation to provide free access or to continue to provide the work under the CC-BY license.
>
> One important point about CC-BY is that the license for a particular work cannot be revoked. This is correct. If I post a work on my website that is licensed CC-BY and you download it to your hard drive, I can never revoke the CC-BY license on that copy that is on your hard drive. However, I can remove the CC-BY licensed copy from my website, and either not make the work available at all (perhaps I abandoned my website), or replace the CC-BY copy with another one that is All Rights Reserved.
>
> In other words, if a work is licensed CC-BY and you have taken steps to ensure that you will have ongoing access under this license, such as making a copy, you have ongoing access and a license that cannot be revoked. However, if we are relying on the possibility that individuals might have downloaded a copy of a particular article to their hard drive, then someone who did not make such a copy basically has to guess somehow that someone, somewhere, has made a copy while the article was CC-BY licensed, then figure out who and make a request for a copy. This request could be denied, by the way. If I have the only copy of someone else's work available for sharing under the CC-BY license, I can give it away for free - or I can choose to sell it, under a more restricted license, if I want.  CC-BY does grant commercial rights to any third party, after all; and the lack of restrictions inherent in CC-BY means that others can place more restrictions on the work downstream. If we don't want this to happen, we should use Sharealike (SA).
>
> best,
>
> Heather Morrison
> The Imaginary Journal of Poetic Economics
> http://poeticeconomics.blogspot.com
>
>
>> Best,
>> Marcin
>>
>>
>> On 01/27/2013 12:18 AM, Heather Morrison wrote:
>>> hi Marcin,
>>>
>>> On 26-Jan-13, at 9:09 AM, Marcin Wojnarski wrote:
>>>
>>>> Heather,
>>>> I'm curious about your final note that CC-BY is not advisable for humanities. Why is it so? What's so different in HSS publications compared to, say, biology or mathematics where CC-BY is a "gold standard"? What other license is most recommended in humanities? Thanks.
>>> Thank you for raising the question, Marcin. I do not agree that CC-BY is, or ought to be, a gold standard for publication in any discipline. While CC-BY superficially appears to be the embodiment of the BOAI definition of open access, a careful reading of the legal code (recommended, it's not that long) illustrates that they are not the same. For example, none of the CC licenses are specific to open access in the sense of "free of charge". CC-BY is a weak and problematic license for open access. It is a means by which a licensor can waive certain rights under copyright which places no obligation at all on the licensor. I can post a CC-BY work today - behind a paywall, if I like - then tomorrow take it down and replace it with the same work except All Rights Reserved. This is one of the reasons why I consider it unwise to pursue open access publishing without open access archiving. That is, if all of the articles published as open access are archived in repositories (preferably more than one), this is a much more sustainable open access scenario than open access publishing on its own.
>>>
>>> Because of the weakness of CC-BY, I do not recommend this license for journals or authors. If a few journals use this approach this is much less problematic than if it becomes a standard. For example, if all of the works in PubMedCentral were CC-BY, then a commercial company could copy the entire database in order to sell it (behind a paywall if they like, as CC-BY does not prohibit this) and then lobby the U.S. government to eliminate funding for the public version produced by the NIH. Currently, the fact that the NIH policy only covers public access (fair use), not CC-BY, means that there is no incentive for a company to do this. If in the future the works in PMC are covered by different licenses it will be more difficult to duplicate the whole than it would be if most or all of the works were CC-BY. If all of the articles in PMC are in different PMC international archives, then ongoing OA is more secure. Similarly, if all of the articles in PMC are also available through the author's institutional repositories, then even a commercial PMC takeover assuming all works are CC-BY could be countered effectively through this other source.
>>>
>>> In addition to the dangers of CC-BY as a default for open access, for many disciplines there are other reasons why CC-BY can be problematic. CC-BY is sometimes incompatible with research ethics. This is likely not a concern for mathematics, but will be a major concern in some areas of social sciences and humanities. For example, Sage publishes two journals in the areas of action research / participatory action research. In this type of research, the researcher acts as a facilitator and consultant; the actual research leadership as well as most of the content is provided by the participants. With this kind of research, it is not ethical for the researcher to give away rights to use the results for commercial purposes to any 3rd party with no requirement to seek permission. This is what CC-BY does. Those who advocate for CC-BY like to point to the positive potential for scholarship, but we need to keep in mind that CC-BY allows a commercial company to do things like take photos from scholarly articles and put them in image databases to sell for commercial purposes to whoever will pay the price. It is good to see that OASPA is now recognizing this issue by indicating that not all elements of a CC-BY article need be CC-BY (see the latest GOAL post by OASPA on this). Note that I am not convinced that it is ethical to give the results of this kind of research to a commercial company to sell for their own profit, regardless of the license used; this is contrary to the spirit of this whole type of research.
>>>
>>> In many areas of the social sciences and humanities, precise expression is important to the author. This may be a very different situation from biology and mathematics. When words are changed in a derivative, this can impact both the meaning and the author's reputation if a derivative is cited. CC-BY allows for derivatives and requires attribution - which means that an author could be incorrectly cited for a derivative work. The possibility of inaccuracy in derivatives and subsequent citation of derivatives is an element that biologists and mathematicians might want to consider before adopting CC-BY as a standard.
>>>
>>> Finally, it is premature to say that CC-BY is considered a standard by any discipline. Most publishing in virtually every field is still toll access. Most OA journals don't use CC licenses at all, and those that do don't necessarily use CC-BY. It is true that a few large publishers use CC-BY and advocate for this as a standard. However, I argue that size does not define the best approach. It is highly likely that the number of scholars at a small journal that does not use CC-BY represents the same number of scholars giving serious thought to licensing questions as were involved at the larger publishers.
>>>
>>> For more detail please see my blogpost, "a simple definition for open access: a proposal to open the discussion". I argue that part of the problem is actually the BOAI definition, and it might be better to abandon this in favour of Suber's brief definition: "Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions"
>>> http://poeticeconomics.blogspot.ca/2013/01/a-simple-definition-for-open-access_8.html
>>>
>>> best,
>>>
>>> Heather Morrison
>>> The Imaginary Journal of Poetic Economics
>>> http://poeticeconomics.blogspot.com≠
>>>
>> -- 
>> Marcin Wojnarski, Founder and CEO, TunedIT
>> http://tunedit.org
>> http://www.facebook.com/TunedIT
>> http://twitter.com/TunedIT
>> http://www.linkedin.com/in/marcinwojnarski
>>
>> TunedIT - Online Laboratory for Intelligent Algorithms
>>
>

-- 
Marcin Wojnarski, Founder and CEO, TunedIT
http://tunedit.org
http://www.facebook.com/TunedIT
http://twitter.com/TunedIT
http://www.linkedin.com/in/marcinwojnarski

TunedIT - Online Laboratory for Intelligent Algorithms