[Open-access] [open-science] Open Science Anthology published
pierrecarl.langlais at gmail.com
Fri Jan 24 13:05:45 UTC 2014
Thanks for this insightful explanation, that answers several of my
For one point, everything you say about CC-BY-SA goes also for CC-BY (in
a less clear way : the viral mechanism of the "no additional
restriction" specification remains unprecised).
The issue of data is in fact quite specific and Creative Commons are
perhaps not the best tool to deal with that. Data, per se, are part of
the informationnal public domain. They can never claim for any kind of
protection (though we may consider that any attempt of "protecting" the
individual data falls into the case of copyfraud). Most downstream
application that makes an inventive use of individual data are never
concerned with any kind of intellectual property (which includes CC
licences for that sake). The protection only goes for something quite
unclear: the substantial part of a database. The jurisprudence remains
quite fuzzy. In France, most attemps to reclaim protection of a database
have been rejected. In 1988, the Court of Cassation favored a database
company, against the leading French newspaper, le Monde as the use of
articles as data appeared "highly transformative". More recently, in
2005, another leading French newspaper, Ouest-France was dismissed in a
It's in french, but you can read the recommandations I adressed to the
French Intellectual Property Council with Lionel Maurel:
We argued in favor of clearly stating that data, per se, are part of the
informationnal public domain. Use of substantive part of data should be
clarified, through the creation of a « fair dealing ». I guess a lot of
work could be done in order to enhance this tricky legislation.
Le 24/01/14 13:43, Cameron Neylon a écrit :
> Hi All
> I've been watching the conversation but standing back, mainly because
> we've 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 "open" is that anyone is
> free to use the work, and specifically that there are no restrictions
> on "fields of use". 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 "virality" 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 don't modify it? What
> if I build a web service on GPL code? Is "on the web" 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 doesn't 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 don't 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 "wrong" license. But there's a much bigger issue which
> is around the other obligations and rights associated with research
> objects. Let's imagine you're 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 there's still lots of good
> material at:
> Hope that helps
> From: Mike Taylor <mike at indexdata.com <mailto:mike at indexdata.com>>
> Date: Friday, 24 January 2014 12:11
> To: Pierre-Carl Langlais <pierrecarl.langlais at gmail.com
> <mailto:pierrecarl.langlais at gmail.com>>
> Cc: "open-access at lists.okfn.org <mailto:open-access at lists.okfn.org>"
> <open-access at lists.okfn.org <mailto: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
> <mailto: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
> -- Mike.
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