[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses

[Heather Morrison]

On 2015-04-29, at 8:43 AM, David Prosser wrote:

> It is unlikely that many authors have contracts with publishers requiring a particular license even at the time of publication.

When an author submits a paper to a journal they often get a selection of licenses to choose from. Surely that’s part of the contract to publish?

Comments:

This is an excellent question, David, thanks for asking. My response in brief is that this is not as clear and simple as it might seem. Some things to consider:

As your question suggests, in the absence of a formal contract there is likely an implied contract. However, both the nature and the legal status of such an implied contract is far from clear. 

If the author chooses the license but the publisher publishes the work, who is the Licensor in Creative Commons terms? If the author retains full copyright and is the Licensor, then the original publisher's use of the work is as Licensee. First Monday has the best example of real author copyright and license choice that I know of - the question of license is entirely up to the author, not from a selection but whatever the author wants to do. Following is the First Monday Open Access Policy:

"First Monday is one of the first openly accessible peer review journals solely on the Internet, about the Internet. All of First Monday's current and archival content is available freely to anyone with Internet connectivity. Authors retain the rights to their work published in First Monday and may freely make their papers available as they see fit. Contributors to First Monday are encouraged to dedicate their work to the public domain or to select a Creative Commons license. Further details can be found at http://firstmonday.org/about/submissions#copyrightNotice"

As an author and scholar in this area, this is my preference as the best example of author rights and a rare example of a journal that invites scholars to really think about the question of copyright and licensing. 

It is not clear that full author copyright makes sense in the context of scholarly publishing. For example, in the case of noncommercial licensing, it is not only downstream users but also the original publisher that would not have blanket commercial rights. Legally, the original publisher would need a separate agreement with the author to use the works for commercial purposes. 

As for attribution, if publishers want and expect to be attributed as first publisher (and many authors want this association which is a stamp of approval of their work), then the attribution element cannot belong exclusively to the author. This may be an implicit expectation, or there may be communication between author and publisher about attribution, i.e. a separate communication. There may be a click-through agreement that touches on this matter, which in effect would likely form part of the implicit contract.

An argument can be made that even with author full copyright and license choice and no other communication, there must be an implicit license to publish, for which there would be substantial precedence in the traditions of scholarly publishing. This would suggest that at minimum the author is sub-licensing some rights to the publisher. An implicit contract leaves the question of which rights are actually transferred unclear. 

If the journal has a default licensing policy, I think an argument can be made that the journal, not the author, is the licensor, even if the author retains copyright. If a funding agency or institution either requires or strongly encourages the use of a particular license, in terms of legal liability I think a solid argument can be made that the institution with this policy is responsible. I would describe the current situation as a large-scale real world experiment. Policies requiring particular licenses draw in people who have not chosen to participate in this experiment. A researcher who is an open access advocate and chooses voluntarily to publish in a journal that uses the CC-BY license can reasonably be expected to take responsibility for this choice. However, if a researcher selects a CC-BY license because their funder or institution directs them to do so, and there is a problem (e.g. third party work is included for which commercial downstream rights cannot be granted), I think the researcher would have a good case for passing on responsibility to the funder or institution with the CC-BY policy. 

If authors retain full copyright and are the sole Licensors, this does not address the potential for downstream enclosure of works licensed as CC-BY. The original publisher just becomes one of the downstream users that can decide to start selling access to works licensed CC-BY.

best,

Heather Morrison
Creative Commons and Open Access Critique
http://poeticeconomics.blogspot.ca/2012/10/critique-of-cc-by-series.html