[Open-access] Fwd: legal advice on the Creative Commons Attribution Licence (CC BY) re: Open Access

Tue Mar 5 15:30:35 UTC 2013

Both Prof. Peter Mandler & Prof. Lionel Bently have kindly given me their
permission to forward their reply to this public mailing list.

See below for the message in full. I think members of this list may well
find it interesting...

---------- Forwarded message ----------
From: Prof P. Mandler <pm297 at cam.ac.uk>
Date: 3 March 2013 16:32
Subject: Re: legal advice on the Creative Commons Attribution Licence (CC
BY) re: Open Access
To: Ross Mounce <ross.mounce at okfn.org>
Cc: "Prof. L. Bently" <lb329 at cam.ac.uk>

Ross - I have of course seen CC's statement. I have to say that I don't
view CC as a neutral party. In this statement at least they are acting not
as a provider of multiple licenses to users but as an advocate for one
particular license, and their stance takes for granted the *assumption*
that the more reuse of all kinds the better, whatever the nature of the
work. Furthermore they are intervening in the debate to the extent that
they support the funders' proposals at a time when they are still under
intense scrutiny and, in HEFCE's case, consultation. Note that HEFCE has
deliberately removed reference to particular CCBY licenses precisely
because they are aware that their relevance is still very much up for
discussion.

Since very many - by some accounts most - users of CC licenses opt for CCBY
NC ND, there is clearly a powerful user-driven argument for that form of
license. There are many good reasons why humanities scholars consider that
derivative use and other OA issues require careful handling, which were
rehearsed at the forum you attended (and in dozens of submissions to the
two Parliamentary enquiries - please read those!), but none of which was
really addressed by our critics, who tend to fall back on telling us of the
successful experiments that scientists have made in this area. Our point is
that we want to make our own experiments with OA for research that takes a
very different form than STEM research.

We are *not* on the whole against text-mining (which we consider perfectly
reasonable resource discovery), but we *are* against reuse which confuses
our words with the reuser's words, in forms that we describe as plagiarism
to our students. There is a standard academic way of using other people's
work - it's called quotation, and it is already available to reusers under
standard copyright terms through fair use provision. 'Derivative use' under
CCBY does *not* clearly require this level of distinction between the
original work and the adaptation, despite what CC says in its evidence to
the Lords Committee. I quote from Professor Lionel Bently, an IP expert at
Cambridge and also the RHS legal adviser:

I think you have identified a gap between what the licence says and how

> the CC Organisers interpret it. The CC=BY (intenational states) the
>> licensee has the right :
>>
>> "b.to create and Reproduce Adaptations provided that any such
>> Adaptation, including any translation in any medium, takes reasonable
>> steps to clearly label, demarcate or otherwise identify that changes
>> were made to the original Work."
>>
>> That seems to support the CC claim. But the example in the licence seems
>> to suggest a less exacting standard. Clause 3(b) continues:
>>
>> "For example, a translation could be marked 'The original work was
>> translated from English to Spanish,' or a modification could indicate
>> 'The original work has been modified.'"
>>
>> The latter does not seem to me to be what I would have expected a clear
>> demarcation to involve. So to my mind the licence is ambiguous, and I
>> would not expect licensees to appreciate that more is required (if
>> indeed it is). Looking around for other indications as to the conditions
>> with which a licensee must comply, it is worth noting that the 'human
>> readable' version of the code (lawyers not being 'human' to CC) merely
>> indicates that the user may create derivatives and says *nothing* about
>> specifying all changes. Moreover, the UK version
>> (http://creativecommons.org/**licenses/by/2.0/uk/legalcode<http://creativecommons.org/licenses/by/2.0/uk/legalcode>)
>> of the CC-BY
>> contains no such requirement (merely reserving the right of integrity in
>> the 1988 Act).
>>
>> Given this, there is nothing more 'correct' about their interpretation of
>> the licence than yours.
>>
>
In other words, CCBY asks the reuser to indicate *that* the work has been
adapted but not precisely *how*. It appears to be enough to say, X is a
translation of Y, or A is an adaptation of B, without indicating how, to
what extent, and in what precise ways adapted. For long works (which we do
write) comparison with the 'original' text is very difficult - believe me,
I have to do this all the time in trying to detect plagiarism amongst
students - and in the case of translations it is often impossible.

As the forms of words that we use are something more than just 'data', we
do want their integrity to be respected by reusers and at present we think
the CCBY NC ND license is the way to do it. We would be open to writing a
new license, of course. We will be holding a discussion with Wellcome and
other interested parties soon to discuss what kind of license can best
achieve OA while respecting the distinctive features of humanities
research. I would hope that, with the public interest served by free and
universal dissemination of the original, it should be possible to preserve
some protections for the intellectual property of the author, especially as
scientists are accorded patent protection (which no public funder seems to
have tried to impede as yet).

In the meantime, the humanities scholar in me remains very conscious that
debates of this kind are rarely a matter of 'fact' vs. 'misinformation',
which is the language that you and your colleagues were using at the forum,
but rather of different interests, different interpretations, and often
different outcomes. I am, as they say, relaxed about that. I think you
should be too.

Peter

Peter Mandler
President, Royal Historical Society

On Mar 1 2013, Ross Mounce wrote:

 Hi Peter,
>
>
> You said some very interesting things about the Creative Commons
> Attribution Licence <http://creativecommons.org/**licenses/by/3.0/<http://creativecommons.org/licenses/by/3.0/>>
> today at
>
> the UK 'Historians & Open Access' colloquim. I was wondering if you could
> share with us a copy of that legal advice on this matter you had acquired?
>
> In return, I thought I'd point you to the advice put out by Creative
> Commons themselves recently on this matter:
> http://wiki.creativecommons.**org/BIS_committee_UK_OA_Policy<http://wiki.creativecommons.org/BIS_committee_UK_OA_Policy>
>
>
> It would be interesting to further hear your thoughts on this matter.
>
> Best,
>
>
> Ross
>
> -
> Open Knowledge Foundation
> Community Coordinator, Open Science
> http://okfn.org/
>
>

-- 
-- 
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Ross Mounce
PhD Student & Open Knowledge Foundation Panton Fellow
Fossils, Phylogeny and Macroevolution Research Group
University of Bath, 4 South Building, Lab 1.07
http://about.me/rossmounce
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