[GOAL] How much of the content in open repositories is able to meet the definition of open access?

Tue Jan 24 16:08:45 GMT 2017

hi Peter,

On 2017-01-24, at 10:10 AM, Peter Murray-Rust <pm286 at cam.ac.uk<mailto:pm286 at cam.ac.uk>>
 wrote:

On Tue, Jan 24, 2017 at 2:10 PM, Heather Morrison <Heather.Morrison at uottawa.ca<mailto:Heather.Morrison at uottawa.ca>> wrote:
Another critique that may be more relevant to this argument: I challenge PMR's contention that it is necessary to limit this kind of research to works that are licensed CC-BY. If you gather data from a great many different tables and analyze it, what you will be publishing is your own work.

This is no different from doing a great deal of reading and thinking and writing a new work that draws on this knowledge, with appropriate citations to the works that you have read.

Copyright is only invoked if you want to actually copy an original table for inclusion in a publication. If you are drawing on data from thousands of tables it is not clear how often this will happen. If what you want to copy is an insubstantial amount this would be covered under fair dealing. If the work is free-to-read, whether All Rights Reserved or under an open license, you can point readers to the original. At worst, this is a minor inconvenience.

This is completely wrong. The problem is that this is a legal issue and copyright law, by default, covers all aspects of copying. Copying material into a machine for the purpose of mining involves copyright. Whether it seems reasonable or fair is irrelevant. If you carry out mining then you should be prepared to answer in court.

"This is completely wrong" is a rather broad statement. Can you explain how my statement "if the work is free to read…you can point readers to the original". Are you arguing that it is illegal to point people to a free-to-read work?

As Marc Couture noted on the GOAL list yesterday, with respect to internet search engine's mining and reproduction of portions of work, Google has won a lawsuit:
http://mailman.ecs.soton.ac.uk/pipermail/goal/2017-January/004340.html

>From the Wikipedia entry: "Field v. Google, Inc., 412 F.Supp. 2d 1106 (D. Nev. 2006)<https://en.wikisource.org/wiki/Field_v._Google,_Inc.> is a case where Google Inc.<https://en.wikipedia.org/wiki/Google_Inc.> successfully defended a lawsuit for copyright infringement<https://en.wikipedia.org/wiki/Copyright_infringement>. Field argued that Google infringed his exclusive right to reproduce his copyrighted works when it "cached<https://en.wikipedia.org/wiki/Web_cache>" his website and made a copy of it available on its search engine. Google raised multiple defenses: fair use<https://en.wikipedia.org/wiki/Fair_use>, implied license<https://en.wikipedia.org/wiki/Implied_license>, estoppel<https://en.wikipedia.org/wiki/Estoppel>, and Digital Millennium Copyright Act<https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act> safe harbor protection. The court granted Google's motion for summary judgment<https://en.wikipedia.org/wiki/Summary_judgment> and denied Field's motion for summary judgment."

I myself am not familiar with this case. Is the Wikipedia entry wrong?

The problem is compounded by:
* it is jurisdiction-dependent. Fair-use only exists in certain domains. It is not the same as fair dealing which is generally weaker. What is permissible in the US may not be in UK and vice versa.

Agreed. I argue that universal strong fair use / fair dealing is something we need to fight for, not something to take for granted.

* It is extremely complex. Guessing the law will not be useful.

I am aware. I teach and publish in the area of information policy and participate in government consultations.

* Much of the law has not been tested in court. "Non-commercial" is not what you or I would like it to mean. It is what a court finds when I or others are summoned before it.

I do not argue that "non-commercial" has a specific meaning. Your argument (if I understand correctly) is that non-commercial is overly broad and by not granting commercial rights we may be restricting uses that one might actually like to permit. I agree with this analysis, just not the solution. That is, I am comfortable with some vagueness in the terminology and consider it more important not to grant blanket commercial rights. In other words, I think we agree on the facts, just not what to do about them.

I have been involved in this for over 4 years in the UK and in Europe (Parliament and Commission). There is no consensus on what should be allowed and what will ultimately be decided by the Commission and Member States. I have taken legal opinion on some of this and consulted with other experts and the answers are often unclear.

The legality of Text and Data Mining is formally unrelated to whether the miner publishes the results or not.

If you prefer to limit your research to works that are CC-BY licensed, it is your right to make this choice. Many other researchers, myself included, work with a wide range of data and do not choose to limit what we gather to works that are licensed CC-BY. One example from my own research: if a publisher has a table listing APCs, I screen scrape the table, pop the data into a spreadsheet, and work with it.

The primary issue for Text and data Mining is automated analysis of many tables. This is an inconsistency in the law that we are trying to get legislators to change.

I think you mean UK law? FYI, I think that publisher's DRM (sometimes international sometimes artifactual) is a factor that is not addressed by licensing. For those of us in countries with digital locks in copyright law (US and Canada), the lock trumps the permission.

Do you have metrics for this. Because this is incompatible with the licence and should be challenged - as I frequently do.

I don't have metrics and do not plan to gather such,  but I encourage all to look at the Public Library of Science Terms and Conditions page (spoiler alert - except for their articles, they are not CC-BY): https://www.plos.org/terms-of-use

I often use PLOS in my classes as an interesting example of a contrast between an extreme approach to openness with respect to content with a very protection / proprietary approach to software, logo, etc.

If I am understanding your approach to analysis correctly, I gather that if I open this page, conduct a search for a particular term such as "open access", copy and paste a snippet to include in an article or blogpost (with appropriate citation), this is illegal. Am I reading your analysis correct? If so, I disagree, I argue that this is covered under fair dealing in Canada and researchers everywhere should have these rights if they do at present.

https://www.plos.org/terms-of-use
If I limited myself to data sources that are CC-BY I could not do this kind of research.

I agree that this is limiting and that is why it would be useful for scientific material to be licensed CC BY.

In summary this is a complex legal question and the answers have to be based on law not guesswork.

There are legal questions, but I argue that it is also important to understand the material, what people are trying to do with it, the potential risks and benefits and how to weigh them. Only lawyers have the right to actually practice law , but everyone has the right (if not a duty) to participate in democratic discussions leading to the development and changing of laws.

best,

Heather Morrison

--
Peter Murray-Rust
Reader Emeritus in Molecular Informatics
Unilever Centre, Dept. Of Chemistry
University of Cambridge
CB2 1EW, UK
+44-1223-763069
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