[GOAL] The ambiguity of CC-BY, data and attribtution

[Heather Morrison]

Was Re: OASPA's ironic demonstration of the inadequacy of CC-BY for data mining

On 2013-03-12, at 4:28 PM, Hans Pfeiffenberger wrote:

[snip]

My overall point is that one cannot assume that what seems appropriate or sensible will be seen as legal or unproblematic by lawyers. And nobody can justify building an infrastructure or even a common practise on shaky ground. So a simple, unambigous and (hopefully) internationally identical legal environment is indispensable for research and information infrastructures. One of the outstanding features of CC is that it is providing such an environment for text - except for the NC clause, which is wide open for doubt about its meaning.

Comment

The Creative Commons licenses (all of them) are very useful tools for scholarship and open access. However, there is no CC license that provides a "simple, unambigous and identical legal environment". 

For example, the CC-BY inclined RCUK policy says: 

3.1. (i) "Search for and re-use the content of published papers both manually and using automated tools (such as those for text and data mining) provided that any such re-use is subject to full and proper attribution"…
from: http://www.rcuk.ac.uk/documents/documents/RCUKOpenAccessPolicyandRevisedguidance.pdf

While Hans' message says: "Indeed, facts are not copyrightable - at least in Germany ;-)) - and thus a CC-License (except perhaps CC0) or any other license based on copyright (or German Urheberrecht) would be mostly pointless. (For a comparison of the situation in some jurisdictions, see http://www.knowledge-exchange.info/Default.aspx?ID=461; there seems be be a "risk" that some data might be copyrightable under UK or Danish law.)".

Here we see two interpretations: a CC-BY license places an obligation for "full and proper attribution" versus a CC-License for data and text mining results "would be mostly pointless".

This is not clear and unambiguous. Rather this lack of clarify is just one indication that it would be wise to conduct some thorough analysis to determine whether the strong moral rights associated with CC-BY (which likely go beyond the moral rights of automatic copyright or "all rights reserved" in many jurisdictions) can insert barriers to re-use of works, before considering a recommendation of any particular CC license as a default for OA.

best,

Heather Morrison, PhD
The Imaginary Journal of Poetic Economics
http://poeticeconomics.blogspot.com