[GOAL] Re: Elsevier OA license page: CC-BY-NC-ND includes text and data mining and reuse rights

Tue Dec 1 00:14:33 GMT 2015

Dear Heather,

This is a really interesting issue that you raise.
You point out that  Elsevier is requiring authors to grant an exclusive
publishing license for publishing CCBY.
see here
https://www.elsevier.com/__data/assets/pdf_file/0011/99668/Sample_-JPLA_CC-BY-4-0.pdf

I've discussed this here with Tom Cochrane and others and our feeling is
that by doing this Elsevier appears to be arguing, with the agreement
document, a separate sets of rights. While wanting exclusive control
through the “publishing” right, they are providing for a “scholarly
communication” right where CC-BY applies. This is a development of a recent
line of argument, and seems to be based on a proposition that “scholarly
communication” and “publishing” are different activities, that is different
to the extent that contradictory controls on powers of dissemination of the
same material can be applied. The legal logic of this is worth closer
scrutiny since it sets precedents that should not be unchallenged.

Best wishes
Ginny

Dr Virginia Barbour
Executive Officer, Australasian Open Access Support Group - AOASG
Brisbane, Australia
ORCID : 0000-0002-2358-2440

*web*: http://aoasg.org.au/
*email:* eo at aoasg.org.au
*twitter*: @openaccess_oz
*skype:* ginnybarbour

On Fri, Nov 13, 2015 at 1:08 AM, Heather Morrison <
Heather.Morrison at uottawa.ca> wrote:

> As of today, the interpretation of CC licenses on Elsevier's web page
> notes only two differences between CC-BY and CC-BY-NC-ND. The right to sell
> or re-use for commercial purposes is Yes for CC-BY and No for CC-BY-NC-ND.
> The right to translate is Yes for CC-BY and Yes - for private use only and
> not for distribution.
>
> Text and data mine, and Reuse portions or extracts from the article in
> other works, are both Yes for CC-BY-NC-ND.
>
> From:
>
> https://www.elsevier.com/about/company-information/policies/open-access-licenses
>
> Comments:
>
> This is an interesting and generally positive development from Elsevier.
> Note that this is not the full picture. The CC license terms and conditions
> are found in the Creative Commons legal code, unless Elsevier has another
> way of granting additional specific rights. Is this the case? Let's look at
> the Elsevier author sample author agreement for CC-BY. Excerpts:
>
> "License of publishing rights
>
> I hereby grant to the Journal an exclusive publishing and distribution
> license in the manuscript identified above and any tables, illustrations or
> other material submitted for publication as part of the manuscript (the
> “Article”) in all forms and media (whether now known
> or later developed), throughout the world, in all languages, for the full
> term of copyright, effective when the Article is accepted for publication.
> This license includes the right to enforce the rights granted by this
> license against third parties and to sublicense such rights.
>
> Under Scholarly Communication Rights: As the author of the Article, I
> understand that I shall have the same rights to reuse the Article as those
> allowed to third party users (and the Journal) of the Article under the
> CC-BY License.
>
> Under Use Rights: The publisher will apply the Creative Commons
> Attribution-4.0 International License (CC BY) to the Article where it
> publishes the Article in the journal on its online platforms on an Open
> Access basis"
>
> From:
>
> https://www.elsevier.com/__data/assets/pdf_file/0011/99668/Sample_-JPLA_CC-BY-4-0.pdf
>
> Comments and questions: this looks to me like a form of author nominal
> retention of copyright which is actually a full transfer of rights under
> copyright to the publisher. The author's downstream rights are as a third
> party. Although this might appear to be an author CC-BY license, I think a
> strong argument can be made that this is a publisher CC-BY license. There
> is nothing in either the CC license or the author agreement that commits
> the publisher to make the work freely available on an ongoing basis.
>
> If authors are using this approach to make their work open access, my
> advice is to make use of those third party rights to self-archive your work
> in both institutional and disciplinary repositories to maximize the
> probability that the work will remain open access.
>
> The Elsevier sample user license for CC-BY-NC-ND makes no commitment to
> provide downstream users with text and data mining or re-use rights:
>
> https://www.elsevier.com/__data/assets/pdf_file/0012/99669/Sample_-JPLA_CC-BY-NC-ND-4-0.pdf
>
> This is a learning curve for everyone, and this critique is intended to
> help note areas that still require work. My own perspective is that no
> special permission should be needed for text or data mining (this is just
> automated reading; if anyone has copyright laws prohibiting this, fix your
> copyright laws). It is not clear to me whether all CC licenses should
> necessarily grant permission for re-use of extracts. This can be
> problematic with respect to third party works and could have implications
> for author moral rights. It is important with any CC licenses for
> downstream re-users to understand that people can only grant licenses to
> their own works. Even in one of the simplest case scenarios, an extract of
> one CC-BY work included in another, the attribution requirement for the
> extract is different from the attribution for the downstream work per se.
>
> best,
>
> --
> Dr. Heather Morrison
> Assistant Professor
> École des sciences de l'information / School of Information Studies
> University of Ottawa
> Desmarais 111-02
> 613-562-5800 ext. 7634
> Sustaining the Knowledge Commons: Open Access Scholarship
> http://sustainingknowledgecommons.org/
> http://www.sis.uottawa.ca/faculty/hmorrison.html
> Heather.Morrison at uottawa.ca
>
>
>
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