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

Fri Mar 8 16:37:26 UTC 2013

Thanks for the heads up, Ross. We sent along the response below to Professor
Mandler and Professor Bently, and told them we'd also share it on this
list. We'd like to better understand their concerns, and wanted to provide
some clarifications from the CC perspective.

Best,
timothy

1. As a general matter, as Professor Mandler notes, CC does assume that
permitting liberal reuse of copyrighted works is better than prohibiting
it. One reason for permitting liberal reuse would be to facilitate
unforeseen new uses – for instance, text and data mining – to the extent
such actions are prohibited by copyright law in the first place. In
addition, it's likely the case that teachers who use parts of scholarly
articles and monographs in classes addressed to students of different ages
and educational level need to tailor them to the needs of their students.
That often means excerpting, translating and, to some extent, paraphrasing
them. We perfectly understand that it would be ideal to have only the most
sensitive and experienced translator attempt a translation of a work that
has both literary and intellectual merit, but before that happens, in a
class where the mother tongue of half the students is Spanish, if the
teacher isn’t allowed to make a translation, she won’t use the work. Thus,
the need for licenses that allow for creating adaptations.

2. CC does not suggest that any license can substitute for academic
standards of attribution and courtesy – and copyright law is no substitute
either. Our licenses require that attribution be made as specified by the
licensor, together with a general notice that the original has been
changed, if it has. Different fields have different practices about how
uses made of the works of others are described and sources credited, and
those usages are not preempted by CC licenses. Neither a license nor the
reservation of all rights provided by copyright law protects against
misstatement or misrepresentation of scholarly works. Professor Mandler
says that the standard way of using other people’s work is by quotation,
limited to the length permitted by the fair use/fair dealing provision of
the copyright law. This is, however, often inadequate to an extensive
consideration of the work, so authors resort to writing their own gloss on
it – with no constraints of length or correctness.

3. Professor Mandler makes a most fascinating suggestion about
experimenting with OA for research in the humanities and social sciences.
Some data should be available already – for instance, the journal
Humanities, like other MDPI journals, publishes its contents under a CC BY
license; Digital Humanities Quarterly uses CC BY-NC-ND; and Studia
Humaniora Tartuensia provides only access, with no license at all.

4. Finally, to the extent licensing requires that licensees indicate that
the original work has been changed, we're curious to hear feedback from you
all on how adaptations should be noted. In the most recent draft of the CC
4.0 license (http://mirrors.creativecommons.org/drafts/by_4.0d3.html), it
is handled in this way:

*"indicate if You have modified the Licensed Material and if so supply a
URI or hyperlink to the Licensed Material in unmodified form if reasonably
practicable;"*

Is this a viable solution? If not, what would be better? Note that this
conversation is currently up for public consultation, so we're really
looking for comments on it:
http://lists.ibiblio.org/pipermail/cc-licenses/2013-February/007333.html

On Tue, Mar 5, 2013 at 7:30 AM, Ross Mounce <ross.mounce at gmail.com> wrote:

> 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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