[GOAL] Elsevier's interpretation of CC BY-NC-ND

Sun Jun 18 19:19:07 BST 2017

This is an interesting discussion that for me raises some questions that I do not think are entirely addressed by any CC license that merit further analysis and research. This post will focus on just one issue, ad revenue.

Key points that I argue:

granting blanket downstream advertising rights has nothing to do with re-use for advancing knowledge

while many authors may be comfortable with some use of their works for advertising purposes, such as services they choose to participate in, it does not follow that all authors, if they fully understood the implications, would want to grant rights to use their works for advertising purposes to anyone

protecting ad revenue may be needed not just by Elsevier, but also small not-for-profit journals. In future such journals might need protection from large companies like Elsevier. If smalls give away their work as CC-BY, bigger companies can take their work and compete with them for ad revenue

Is it clear whether internet services that involve advertising are necessarily using  copyright? I suspect not.

Details:

Permitting downstream re-use to facilitate further knowledge creation is considered by many to be essential to open access. However, it is not clear to me that granting blanket downstream commercial rights is always in the best interests either of advancing knowledge or of open access.

The question of advertising is a good issue to discuss. It seems reasonable to assume that authors who have placed their works in services like academia.edu have agreed to how these services use advertising. But does this mean that all authors would find any use of their work by anyone for advertising purposes acceptable? This seems unlikely. CC licences make it possible for downstream users to stop attributing the original; that this is in the license suggests to me that this has come up in practice. Most authors do not have the time or skills to track and evaluate downstream use; I think with education on this most would choose not to grant blanket downstream rights to advertisers.

Many OA activists will have little sympathy for Elsevier protecting their ad revenue, but what about small not-for-profit journals that need this revenue? If they release their work as CC-BY, Elsevier would be able to distribute it and compete with the original journal for ad revenue, quite possibly successfully due to their larger reach.

Another legal issue to consider is whether all advertising that involves copyright material necessarily invokes copyright. For example, when Google sells advertising are they selling the copyright in works that are displayed or are they selling their search services to users and/or placement priority to businesses?

Best,

Heather Morrison
-------- Original message --------
From: "Mann, Paige" <Paige_Mann at redlands.edu>
Date: 2017-06-18 1:31 PM (GMT-05:00)
To: goal at eprints.org
Subject: Re: [GOAL] Elsevier's interpretation of CC BY-NC-ND

Hi Bernhardt,

My understanding is that compliance with the NC restriction is (1) not clearly defined and (2) does more than restrict someone from profiting from sharing a file on a commercial platform.

>From http://openaccess.ox.ac.uk/2013/06/13/cc-by-what-does-it-mean-for-scholarly-articles-3/:
"When choosing a CC BY-NC licence you might think that you only prevent use within the for-profit sector. This is not entirely true: you may actually prevent use within the public and non-profit sectors as well (Friesen 2013, p. 83). For example, CC BY-NC prohibits someone from using a figure or table from your paper on any website (even a scholarly blog) that carries advertisements. Since the definition of non-commercial is ambiguous, the CC BY-NC licence can therefore lead to confusion."

Perhaps Elsevier is trying to clear up some of that confusion through a policy that may be more restrictive than what is legally permissible.

Paige

Paige Mann
Scholarly Communications Librarian
Armacost Library
University of Redlands

Date: Sun, 18 Jun 2017 11:24:36 +0000
From: "Mittermaier, Bernhard" <b.mittermaier at fz-juelich.de<mailto:b.mittermaier at fz-juelich.de>>
Subject: [GOAL] Elsevier's interpretation of CC BY-NC-ND
To: "goal at eprints.org<mailto:goal at eprints.org>" <goal at eprints.org<mailto:goal at eprints.org>>
Message-ID:
   <C5CDAEC3C8D961468B33625DBD6896B76B56FFA5 at MBX2010-E01.ad.fz-juelich.de<mailto:C5CDAEC3C8D961468B33625DBD6896B76B56FFA5 at MBX2010-E01.ad.fz-juelich.de>>

Content-Type: text/plain; charset="iso-8859-1"

Dear colleagues,

on sharing in file-sharing networks, Creatice Commons explain:

?Can I share CC-licensed material on file-sharing networks?

Yes. All CC licenses allow redistribution of the unmodified material by any
means, including distribution via file-sharing networks. Note that
file-trading is expressly considered to be noncommercial for purposes of
compliance with the NC licenses. Barter of NC-licensed material for other
items of value is not permitted.?

https://creativecommons.org/faq/#can-i-share-cc-licensed-material-on-file-sh
aring-networks

The ?Elsevier Sharing Rules? say

?CC-BY-NC-ND licensed articles may be shared on non-commercial platforms
only.?

http://help.sciencedirect.com/flare/sdhelp_Left.htm#CSHID=password.htm|Start
Topic=Content%2Fsharing_pubs.htm|SkinName=svs_SD

and again in the table at the bottom of that webpage: ?Public posting on
commercial platforms (e.g., www.researchgate.net<http://www.researchgate.net>, www.academia.edu<http://www.academia.edu>
<http://www.academia.edu> )? :not allowed

I?ve been asking Alicia Wise, on what grounds why Elsevier takes that
position. She replied:

?Both ResearchGate & academia.edu<http://academia.edu> use content commercially to sell
advertising & services around the content they disseminate? and ?Both
ResearchGate &  <https://t.co/IQgdiiCF1s> academia.edu<http://academia.edu> are problems in
Germany as they go beyond private use to make NC content publicly available?
( <https://twitter.com/wisealic/status/874284792275140609>
https://twitter.com/wisealic/status/874284792275140609 and
https://twitter.com/wisealic/status/874284916644696066 )

My interpretation of the CC licence is that sharing of CC BY-NC-ND article
by commercial platforms is OK as long as they don?t sell the articles (which
they don?t do).

But apart from that - what authors are doing is IMHO definitely not
prohibited because they have no commercial gain whatsoever.

What do you think?

Kind regards

Bernhard

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