[GOAL] Re: CC-BY and open access question: who is the Licensor?

[Couture Marc]

Heather Morrison wrote :

>
If a blanket [CC BY] license is granted, a downstream user would have to be psychic to know what kinds of commercial uses or re-uses might be acceptable or offensive to the original author.
>

to which Graham Triggs replied:

>
To the extent that the terms are compatible with CC licencing, there is no reason that you can't make explicit reference to those terms alongside the licence declaration.
>

But consider the following in CC legal code (previously quoted in this discussion):


“You may not offer or impose any additional or different terms or conditions on [...] the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material.”



So, I believe that you couldn’t add alongside a CC BY licence a condition stating that certain commercial uses are forbidden. On the other hand, I suppose you could add to a CC licence with the -NC condition a statement that certain commercial uses are allowed, as this doesn’t restrict the licensed rights (on the contrary).



But, as I understand them, CC licenses are meant to be standard licenses, so as to avoid, when works are (re)used, the burden to interpret terms formulated by each author (or licensor). The only condition for which the licensor is invited to express preferences is Attribution. In my opinion, adding terms modifying the other conditions (-NC or -ND), even if it allows for more uses, would “go against the grain”, so to say.



Like many others (a majority among researchers, so it seems), I used those two restrictions (-NC and -ND) when I first applied CC licenses to my works, out of fear of (hypothetical) uses I wouldn’t have been happy to authorize in advance. But I became convinced at some point that the risk of useful and legitimate uses (many of which one can’t envision a priori) simply not occurring due to these restrictions far outweighs the risk of undesirable  uses CC BY may allow.



Marc Couture


De : goal-bounces at eprints.org [mailto:goal-bounces at eprints.org] De la part de Graham Triggs
Envoyé : 12 avril 2015 07:35
À : goal at eprints.org
Objet : [GOAL] Re: CC-BY and open access question: who is the Licensor?


On 11/04/2015 15:39:23, Heather Morrison <heather.morrison at uottawa.ca<mailto:heather.morrison at uottawa.ca>> wrote:
For example, you have clarified that with PLOS CC licenses, PLOS is the licensor.
That isn't what I said - I just agreed that your interpretation is probably correct.
Are you an academic, or an employee of a company seeking to profit from commercial use of academic works?
Unless otherwise stated, my postings here are personal opinions as a member of the public; from the point of view of public interest.
we need repositories with a long-term commitment to public access. The public access repository solution can work for everyone; it's what I recommend.
Very much agreed - whilst there are potential downsides to multiple copies, these are insignificant compared to the problems of relying on the continued operation of a sole custodian. OA publishing should not be an alternative to repositories, but there are distinct benefits over repositories being an alternative to OA publishing.
It is good advice for downstream users to retain evidence of the license terms permitting re-use. Note that this is tricker than one might think. For example, the article my group published earlier this year in MDPI's Publications is licensed CC-BY-NC-SA - but if you find this through DOAJ you'll first come across the DOAJ indication of a journal-level CC-BY license and then click through to the article which is incorrectly labelled as CC-BY.
You can't rely on journal metadata as a substitute for article metadata - especially where journals allow choice or have hybrid models. The importance of retaining evidence may depend on subject area and jurisdiction. If Wellcome pay (and therefore have a record of paying) the APC for a medical article, which is deposited by the publisher with a CC licence to PubMed Central, then it becomes very, very hard for a publisher to try to prove otherwise, and/or that some usage was not made under a CC licence but some alternative they have attached.
One such objection is academic freedom; if authors are restricted to publishing material that can be made available for blanket commercial use and re-use, this restricts what academics are able to publish.
As a citizen, that is an area I struggle with. If you take money for anything (e.g. grant to carry out research), then that money will reasonably come with certain restrictions / expectations - I don't believe anyone has the right to call foul about that.
However, there does need to be some common sense - I would not say that such restrictions should be applied to all research, as clearly that would make certain research impossible. There has to be some room to determine whether it is appropriate.
Some academics expressed concern that CC-BY would open up the possibility that their work would be sold or re-used in ways that they would not approve of.
So what of the public / funder that finds what they consider to be reasonable use of the research they have paid for restricted by the application of a certain licence by the academic (/publisher)?
But, it is fair to be concerned about the use of a piece of work, and your association to it. You see it quite clearly outside of science - for example, with the forthcoming UK Election, musicians get worried about their implied endorsement of a party because someone licences their song to be used on a party broadcast.
Bear in mind that CC does explicitly provide legal code for misuse as invalidating the licence agreement. That doesn't necessarily ease the issues of determining misuse and enforcing it, but it would likely cover many potential instances of contentious re-use for scientific material.
Refusing to use CC-BY because of the concerns of re-use does not actually protect you against uses that you personally don't approve of - it just means others aren't by default licenced to do so freely. If anyone has deep enough pockets, they can almost certainly purchase the rights they need for re-use directly off the publisher, without any specific approval by the author(s).
As evidence, I would note that the current CC-BY license gives licensors the authority to insist that downstream users do NOT use attribution. This suggests that CC received complaints from licensors whose works were used in ways that the licensor did not want to be associated with.
CC-BY is not purely a licence for scientific material. See concerns above about political use of creative works, and you can see why there are circumstances where individuals would not want to have attribution (for their creative materials).
The misuse of scientific material would usually be a more clear cut example of misrepresentation - e.g. selective quoting of research in order to support quackery - and would invoke the clause that invalidates the licence.
If a blanket license is granted, a downstream user would have to be psychic to know what kinds of commercial uses or re-uses might be acceptable or offensive to the original author. I am using author, not licensor, here on purpose; if an author publishes with PLOS as the licensor, it is important that the author's rights be respected even if PLOS is the licensor.
To the extent that the terms are compatible with CC licencing, there is no reason that you can't make explicit reference to those terms alongside the licence declaration. A downstream user does not have to be psychic, they just need to be informed that there are terms, and provided the ability to read them.
G
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