[GOAL] Is the GOAL of open access free re-use for promotional purposes?

[Heather Morrison]

On 2015-04-29, at 4:23 PM, Peter Murray-Rust <pm286 at cam.ac.uk<mailto:pm286 at cam.ac.uk>> wrote (excerpted for emphasis):

"CC-BY-NC actually grants the publisher an effective monopoly to charge for re-use rights. You can verify this by looking at any CC-NC paper (e.g. from Elsevier), following "Rights and Permissions" (to RightsLink) and then asking (say) for permission to re-use the paper in a book, or for course books...or for promotional material or whatever".

Question: does the GOAL of open access include making works freely available for use in promotional material? I argue that this kind of re-use is highly problematic from legal and author moral rights perspectives.

Larry Lessig writes about a lawsuit involving a CC-BY work, a photographer and Virgin Mobile:
http://www.lessig.org/2007/09/on-the-texas-suit-against-virg/

In brief, the photographer took a picture of a young girl and uploaded the picture to flickr under a CC-BY license. Virgin Mobile liked the picture and used it in an advertising campaign, with attribution to the photographer thus fulfilling the attribution element. The girl and her family were most unhappy with the situation and sued both Creative Commons (the photographer argued that he did not understand the implications of granting commercial rights) and Virgin Mobile. Although both lawsuits were eventually dropped, there are relevant lessons here. As Lessig points out, a noncommercial license would have been a better fit and would almost certainly have avoided this situation. Funders and institutions that are requiring or strongly encouraging open access might want to consider potential similar scenarios where the photographer is a researcher and they publish the photo under a CC-BY license, not through voluntary choice as in this case, but rather because they were required to do so. In a case like this, the funder or institution could be among the parties sued.

Also, if the researcher did not get explicit consent from the person photographed to allow commercial use and derivatives of their picture, the consequences could include an unintended violation of an implicit or explicit ethical agreement between researcher and subject.  I argue that it is generally unethical to release such works under CC-BY licenses.

Both authors and journals may have reasonable objections to others using their work for promotional purposes. CC licenses do allow the licensor to ask that downstream users remove the attribution, but some might think allowing use without attribution is even worse.

My argument is that rather than pushing for blanket re-use rights, we should have a more nuanced conversation that asks whether there are some re-use rights that most would agree to and others, like promotional use, that are problematic.

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<mailto:Heather.Morrison at uottawa.ca>


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