[Open-access] [open-science] Open Science Anthology published

[Cameron Neylon]

Hi All

I¹ve been watching the conversation but standing back, mainly because we¹ve
gone around the NC/BY loop many times but I wanted to explain for Pierre of
why many of us are concerned about share-alike provisions and why this
matters particularly in research.

First some philosophical background. The Open Knowledge Foundation work on
definitions of open focusses on the issue of non-exclusion. That is, what
the Open Definition means by ³open² is that anyone is free to use the work,
and specifically that there are no restrictions on ³fields of use². This
builds on earlier work with the Open Source Definition where again,
non-commercial restrictions were rejected because of they way they exclude
certain users. FWIW I agree with this philosophical grounding but disagree
with how it is interpreted in the Open Definition itself (more on that
below).

The question of ³virality² is two-fold. On one side there is the community
signalling an expectation that those that use a piece of work from the
commons, should contribute back to the commons. This is a community
principle, and arguably an ethical one. The genius of Richard Stallman was
to realise that you could use a legal tool, a license based on copyright, to
require that derivative work be contributed back. It has to be said this
worked very well in creating the world of Free and Open Source Software that
we have today. Indeed it worked so well that we now muddle the community
principle of contributing back with the legal tool itself.

One of the reasons that the tool, the GPL worked so well in software is
because you generally use code to make more code. And the distribution of
code is a natural consequence of making it. But even here its got messy and
the confusions around Affero GPL and LGPL illustrates. What if I just use
the library but don¹t modify it? What if I build a web service on GPL code?
Is ³on the web² distributing? The complexities and the disagreements
illustrate the problem of using a legal instrument as the method of
community signalling.

Now research is more complex for a couple of reasons. First its (obviously)
not just articles, its also data, code, materials, and many other things,
many of which get combined together to create new data, code articles,
materials etc. If we use GPL-like or CC BY-SA licensing we can end up in bad
places such as: I use a CC BY-SA article to build a data set and a code
base. If I distribute these I am legally obliged to use a license which is
inappropriate for the object created (e.g. CC BY-SA license for code). And
yes I know there are ways to get around this in specific cases but its
special pleading which doesn¹t scale. Viral licenses can force people to
distribute under licenses that actually give them less protection because of
the nature of thing being distributed, what jurisdiction its being
distributed from etc etc. (e.g. CC BY-SA for data distributed from the US is
problematic in my opinion, others argue that its more problematic in the EU
because people don¹t realise the CC licenses involve waiving sui generic
database rights).

So issue one is the interchange of objects which can lead to being forced to
use a ³wrong² license. But there¹s a much bigger issue which is around the
other obligations and rights associated with research objects. Let¹s imagine
you¹re involved in a clinical trial and you want to utilise some data which
is CC BY-SA (or ODBL-SA or GPL) to help normalise patient data. The
normalised identifiable patient data will be distributed to your consortium.
Your consortium has obviously signed a non-disclosure agreement relating to
this private data. You are also bound by ethical principles to not
distribute data in such a way that might make it leak out. Yet if you use
virally licensed data then you are obliged to use a license which gives
downstream receivers the right to redistribute. You are required to not bake
appropriate legal protections into the licensing regime of the data to
protect patient identities.

If we return to the original point ­ Open is about non-exclusion ­ this
means in practice that viral licenses can exclude the use of specific works
for specific purposes. This is particularly true of medical research but is
very common across research (an ecology community using ODBL-SA licensed
mapping data to assist with tracking a highly endangered species for
instance) where ethical and community standards require some measure of
protection or secrecy.

The bottom line is that the very power that makes viral licensing attractive
can have serious and unexpected side effects when they combine with other
obligations. These other obligations; legal, contractual, regulatory,
ethical, are common in research, and they are particularly common as we
transform and combine research objects from one thing to another. Data, used
by code, to generate an ontology, which supports a standard, which makes
papers more useful.

The Science Commons group and community spent a long time looking at this in
the middle part of the last decade but the conclusion they came to (and they
started honestly wanting to support viral approaches) was that its best to
keep the legal tools as simple as possible and build community standards and
expectations (and if necessary means of censure and punishment) to ensure
the point that I think we all share, the expectation, or at least hope, that
those who use the commons will contribute back to it.

The refs are a bit out of date now but there¹s still lots of good material
at:

http://sciencecommons.org/
<http://sciencecommons.org/projects/publishing/open-access-data-protocol/>
http://sciencecommons.org/projects/publishing
http://sciencecommons.org/projects/publishing/open-access-data-protocol/

Hope that helps

Cheers

Cameron


From:  Mike Taylor <mike at indexdata.com>
Date:  Friday, 24 January 2014 12:11
To:  Pierre-Carl Langlais <pierrecarl.langlais at gmail.com>
Cc:  "open-access at lists.okfn.org" <open-access at lists.okfn.org>
Subject:  Re: [Open-access] [open-science] Open Science Anthology published

> On 23 January 2014 14:39, Pierre-Carl Langlais
> <pierrecarl.langlais at gmail.com> wrote:
>>  I'm still a little annoyed to see that the debate focuses heavily
>>  on CC-BY v. CC-NC. Both of theses licenses are quite unclear and do not
>>  create an effective legal security for reuse. CC-BY sounds as an uncomplete
>>  viral license.
> 
> Just as a point of information (and taking no position for the moment
> on which of the various licences is to be preferred): CC By is not a
> viral licence. That term has a specific meaning --see
> https://en.wikipedia.org/wiki/Viral_license -- that downstream works
> must use the same licence: something that CC By explicitly does not
> require. CC By-SA is viral, and so is the GNU GPL.
> 
> For more, see
> http://svpow.com/2013/02/08/what-is-a-viral-licence/
> 
> -- Mike.
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