[GOAL] Informed consent and open licensing: some questions for discussion

Wed Aug 28 12:02:42 BST 2019

Heather raises a good point here related to certain types of images. 
MDPI provides a sample consent form (you can access the link e.g. at 
https://www.mdpi.com/journal/ijms/instructions#ethics) in which we try 
to make clear the implications of publishing in open access, but when it 
comes to reuse there are clearly other rights that should be enforced 
for the protection of patients.

I don't recall a case where this has been flagged as an issue, but we 
have had similar cases with images taken by someone other than the 
authors and numerous cases of previously published images where the 
authors needed permission to republish. Here, a more restrictive 
copyright (e.g. all rights reserved) can be applied to the image than to 
the rest of the text. I would suggest that this could provide a solution 
in most cases.

Best regards,
Martyn

-- 
Martyn Rittman, Ph.D.
Publishing Director, MDPI
St. Alban-Anlage 66, 4052 Basel, Switzerland
+41 61 683 77 35
rittman at mdpi.com
www.mdpi.com

On 27/08/2019 17:09, Heather Morrison wrote:
>  > The purpose of this post is to encourage sharing of knowledge and > 
ideas on the topic of modifying informed consent when working with > 
human subjects to accommodate open licensing. Questions can be found > 
at the end of the post. > > > Researchers who work with human subjects, 
as is common in disciplines > such as health sciences, education, and 
social sciences, are expected > to obtain informed consent from subjects 
prior to starting research > for ethical and legal reasons. > > > To 
obtain informed consent, researchers must explain what will happen > 
with the subject's information and material (if applicable) and the > 
potential consequences for the subject (beneficial and potential > 
harm). > > > Consent in the context of traditional publishing meant 
consent to > publish in one specific venue, typically under All Rights 
Reserved > copyright. Policies and procedures for informed consent 
developed in > this context will need to be modified in order for 
authors to publish > using open licenses that actively invite re-use 
(and sometimes > modification) through human and machine-readable 
licenses, in some > cases for commercial use. > > > To illustrate the 
difference: an educational researcher might wish to > obtain and use a 
photo of schoolchildren in a publication. In the > traditional context, 
this permission involved publication in one > venue (one journal or one 
book), with re-publication requiring > permission from the copyright 
owner (publisher and/or author). Until > recently, such material, while 
not forbidden to the general public, > would usually only be found in an 
academic library. This is still the > case with journals and books that 
are not yet open access. Open > access per se expands access to anyone 
with an internet connection, > but free access on the Internet is 
automatically covered by copyright > in all countries that are 
signatories to the Berne Convention. Open > licensing goes beyond 
expanding access to inviting re-use. In the > case of Creative Commons 
licensing, the invitation is extended via a > human readable form that 
is designed to facilitate easy understanding > of permitted uses, a 
machine readable form that can be used by > searchers to facilitate 
limiting searches to content by desired use, > and a legal license that 
most people are not likely to read. > > > For example, publication under 
a CC-BY license would include > traditional uses, and other beneficial 
uses such as re-use by another > researcher building on the work of the 
original. CC-BY would also > invite uses that could be harmful to the 
subjects, such as targeted > commercial social media advertising or use 
of a modified photo in a > video game (schoolkid becomes loser kid, 
perhaps target practice). > > > This does not mean that such uses would 
necessarily be legal, rather > that open licensing is an invitation that 
makes such uses more likely > to occur. The harmful uses described above 
are likely a violation of > moral rights under copyright, privacy and/or 
publicity rights. There > are potential legal remedies, but these can 
only be pursued after the > harm is done and discovered by a subject 
with the means and incentive > to pursue legal remedies. > > > The Chang 
v. Virgin Mobile case is an illustration of what can happen > with 
sensitive material and lack of understanding of the implications > of 
licensing. In brief, a photographer took a photo of a minor girl > 
(family friend) and posted it to Flickr under a CC-BY license. Virgin > 
Mobile interpreted the license as an invitation to use the girl's > 
photo in an ad campaign. The girl's family sued Creative Commons > 
(dropped this one) and Virgin Mobile. The case was eventually dropped > 
for jurisdictional reasons (girl in Texas, company in Australia). > 
Lawrence Lessig wrote about the case, arguing that Virgin's > 
interpretation of copyright was correct, but that the girl still has > 
privacy rights as minor. A bit more on this here: > > 
https://wiki.creativecommons.org/wiki/Chang_v._Virgin_Mobile > > > The 
Committee on Publication Ethics has published guidance for > journals 
with respect to one type of particularly sensitive material, > medical 
case reports. Excerpt of their General Principles on this > topic: > > * 
Publication consent forms should be required for any case report in > 
which an individual or a group of individuals can be identified. This > 
requirement also applies when a report involves deceased persons. > 
Examples of identifying information are descriptions of individual > 
case histories, photos, x-rays, or genetic pedigrees. A list of 23 > 
potential identifiers has been published in BioMed Central’s Trials. > * 
Journals should not themselves collect the signed consent forms, > 
because the receipt and storage of confidential patient information > 
could subject them to cumbersome security requirements and potential > 
legal liability under applicable privacy or patient information laws, > 
such as the Health Insurance Portability and Accountability Act of > 
1996 in the USA. > > from: > > 
https://publicationethics.org/resources/guidelines/journals%E2%80%99-best-practices-ensuring-consent-publishing-medical-case-reports 
 > > > > These principles are designed to protect journals and their 
publishers, and only speak to one particular type of sensitive material. 
For me, this raises some questions. If anyone on the list has answers or 
ideas, I would love to hear them, on or off-list. If you reply off-list 
and would prefer to be anonymous, please let me know. If warranted, I 
will summarize responses.
>  > > Questions: > > 1. COPE's guidance is for the education and 
protection of journals. > Is anyone aware of efforts for the education 
and protection of > authors and their institutions on the topic of 
informed consent for > open licensing? 2. Do other publishers or 
organizations serving > publishers have policies, guidance, sample 
forms, etc. to deal with > informed consent and open licensing? 3. Have 
any research ethics > boards (or similar bodies) revised their guidance 
to accommodate > informed consent and publication under open licenses? 
4. Is anyone > aware of cases or analysis of potential implications of 
licensing for > re-use for other types of material involving human 
subjects besides > case reports? 5. Do you have any other ideas or 
insights on this or > closely related topics that I haven't asked about? 
 > > > Blog version: > 
https://sustainingknowledgecommons.org/2019/08/27/informed-consent-in-the-context-of-open-licensing-some-questions-for-discussion/ 
 > > > best,
>  > > Dr. Heather Morrison > > Associate Professor, School of Information 
Studies, University of > Ottawa > > Professeur Agrégé, École des 
Sciences de l'Information, Université > d'Ottawa > > Principal 
Investigator, Sustaining the Knowledge Commons, a SSHRC > Insight 
Project > > sustainingknowledgecommons.org > > 
Heather.Morrison at uottawa.ca > > 
https://uniweb.uottawa.ca/?lang=en#/members/706 > > [On research 
sabbatical July 1, 2019 - June 30, 2020] > > > 
_______________________________________________ GOAL mailing list > 
GOAL at eprints.org > http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
-- 
Martyn Rittman, Ph.D.
Publishing Director, MDPI
St. Alban-Anlage 66, 4052 Basel, Switzerland
+41 61 683 77 35
rittman at mdpi.com
www.mdpi.com

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