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

[Graham Triggs]

On 29/04/2015 14:09:40, David Prosser <david.prosser at rluk.ac.uk> 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?
Agreed - if you are given the choice of a thing, and pay for a thing, then your contract is for that thing.
Even for fully OA journals, where there is no selection of a licence, then the OA licence that is presented is part of the "offering" for which you are (likely) paying for.
If a specific licence is cited as part of the offering, and there are no terms and conditions that allow for it to be varied without the author's permission, then there are no legal grounds for changing the licence (without explicit permission from the author).
On 29 Apr 2015, at 12:52, Heather Morrison <>> wrote:

The potential for downstream enclosure posed by CC-BY is not a problem of licenses of individual works, but rather the attraction of large masses of works for profit-taking if CC-BY succeeds as default.
But who is going to pay for it? Certainly not academic libraries, who would know that the CC-BY version exists, and make it available to users.
And the downstream enclosure couldn't legally obscure the existence of the CC-BY version - they have to acknowledge it in accordance with the licence terms.
A downstream commercial user could compete with Elsevier. Since they don't need to bother paying a cent to contribute to the original production costs, downstream commercial users are at a relatively advantage compared to the original publisher when it comes to added value services.
The downstream commercial user also won't be paid a cent for providing those production costs - that will have gone to Elsevier in the form of APCs.
They will largely be competing against Elsevier over something that is "free" - the distribution to end users.
Elsevier wouldn't be making much money - if any - from the distribution. There might be some advertising attached, and so consideration of that revenue. But in the main, a downstream commercial user trying to sell a distribution wouldn't be taking significant revenue from Elsevier - they would just be reducing their costs.
If this threatens Elsevier revenue streams (eg competition for Science Direct search services as opposed to content, Scopus), it would make business sense for Elsevier to change the license for CC-BY works to more limited terms, or to revert to toll access and use differential pricing to discourage commercial use.
These are all straw man arguments. We aren't in a hypothetical world of not having used CC-BY licences. They have existed and been used in publishing for over 10 years.
Look at the growth in publications of BioMed Central (and Springer). And the profits they have attracted.
Look at the growth of PLoS, and their avoidance of losing money.
10 years of evidence that publishing CC-BY is not incompatible with commercial publishing.
That doesn't mean certain revenue streams may be threatened, and some publishers are certainly not actively encouraging a fully CC-BY world. But the practical and legal realities of Elsevier doing what you suggest is inconceivable.
Regards,
Graham
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