[GOAL] Call for applications - International Open Access Advisory Group

Thu Sep 12 20:11:59 BST 2019

Thank you, this is helpful Peter. Confirmation or refutation by CCC and/or its publisher members would move this discussion further.

One point of correction: re "CC NC and CC ND licences are treated as effectively controlled by the publisher".

Creative Commons licenses are a means for copyright owners to waive some of their rights under copyright. The owner of the copyright is the Licensor. With respect to scholarly works that involve author(s) and publisher(s), "who owns the copyright" is a much more complex question than one might think. Copyright can belong exclusively either to the author or the publisher, but sharing of rights through a contract or license is much more common. Even if the publisher owns copyright outright, the author still retains moral rights.

The Elsevier approach, while not necessarily a good practice, is a model of transparency. The Elsevier Journal Author Rights webpage states: "For open access articles...

Authors sign an exclusive license agreement, where authors have copyright but license exclusive rights in their article to the publisher**. In this case authors have the right to:...Share their article in the same ways permitted to third parties under the relevant user license". from:

https://www.elsevier.com/about/policies/copyright (as of September 12, 2019).

This is in effect a copyright transfer from author to publisher with copyright in the name of the author (what I call nominal copyright) but all rights transferred to Elsevier. In traditional subscription-based publishing the trend for some time has been to shift from copyright transfer to license to publish. License to publish can involve a variety of rights sharing and in some cases leaves the author with less rights than a copyright transfer agreement that recognizes some author rights.

This means that Elsevier owns the copyright of its OA articles and is the Licensor. This is important, because the copyright owner has no obligation to continue to make a work available, either at all or under a particular license. If an open access publisher has a tough time make ends meet, it is their right to shift their business model to hybrid or toll access and/or to sell their publishing operation to another organization that has no commitment to open access.

As an example of copyright change post-CC licensing , one of my scholarly blogs, The Imaginary Journal of Poetic Economics, was licensed under a CC license for a few years, but today it is All Rights Reserved copyright. If anyone made use of their rights under CC while the license was available I cannot retract those rights. If they did not retain proof of the license and their use at that particular point in time, it is not hard to imagine differences of opinion arising about who did what when, and possibly litigation. Fortunately for my readers, I have little inclination to consider litigation, but others might.

In the case of other publishers (besides Elsevier), even if the default license is CC and the information on the publisher's website states that copyright belongs to the author, in order to know the actual legal status of the article it is necessary to know the legal contract between the author and the publisher, whether this is explicit (a contract is signed and retained by both parties) or implicit (unwritten understanding, a situation that could lead to complications in future if the two parties do not actually share the same understanding).

Based on my review of publishers' websites, I would describe current practices of open access publishers with respect to copyright as unclear at best. This is why I appreciate Elsevier's clarity on the topic.

If authors or funders are paying for works to be published under open licenses I recommend retaining proof of the agreement for open licensing and placing a copy of the work in an open access archive. The reason for the latter is because there can never be any guarantee that a given journal or its publisher will continue publishing at all, and changes to the open access status of a work downstream, whether accidental or deliberate, are possible.

With respect to open access policy, I recommend bottom-up faculty permissions policy following the Harvard model, in which faculty members grant to the university a non-exclusive right to disseminate their work through the repository unless a waiver is specifically requested. One loophole needs correction, as the Harvard policy states dissemination "but not for a profit" (which leaves the door open for charging for cost-recovery). This should state: "free of charge". Funding agencies could follow a similar approach. This guarantees that publishers would not have exclusive copyright, as authors would not have exclusive rights to grant.

This and other approaches to green self-archiving policy are sufficient to create change in publishing. The development and growth of open access publishing predates funder policies with preference for open access publishing.

Peter may be correct about publisher misuse of NC and ND; evidence to prove this point would be useful.  If this is happening, I agree in principle that this is a problem, but differ in my analysis. To me, the problem is not the license but the granting of exclusive rights to publishers (with or without nominal copyright for the author). There are good reasons for researchers to avoid granting blanket downstream rights for commercial use and derivatives, such as protecting the rights of human subjects and third party works. Avoiding open licensing altogether may be preferable to using more restrictive licenses, at least this is my perspective with respect to my own work, having given such matters a great deal of thought.

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]

________________________________
From: goal-bounces at eprints.org <goal-bounces at eprints.org> on behalf of Peter Murray-Rust <pm286 at cam.ac.uk>
Sent: Thursday, September 12, 2019 2:13 PM
To: Global Open Access List (Successor of AmSci) <goal at eprints.org>
Subject: Re: [GOAL] Call for applications - International Open Access Advisory Group

Attention : courriel externe | external email
A few more points about CCC.
* it is totally unregulated by external bodies.
* it takes 15% of income so it has an incentive to generate as much income as possible
* it is a total monopoly - there is no other org that manages rights
* all the income goes to the publisher (and CCC). None to authors
* the restrictions on re-use are everywhere. Many publishers use CCC to charge the actual authors for reusing their own work in books, teaching etc.
* it is massively unjust to the Global South
* CC NC and CC ND licences are treated as effectively controlled by the publisher. NC does NOT prevent the publisher contracting with the author so the publisher has the sole right to charge for re-use. This mechanism prevents competitors charging. NC and ND are a means of enforcing

The process is legal. I have my own views on the morality and ethics of monopolistic charges which restrict re-use so lecturers and authors and libraries are frightened to use the scholarly literature. And I remain to be convinced that the Advisory Board is anything other than marketing.
But if you approve of the Robber-baron model of philanthropy - grow massively rich by monopolistic rent-seeking and then become philanthropic you may have a different view.

--
"I always retain copyright in my papers, and nothing in any contract I sign with any publisher will override that fact. You should do the same".

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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