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

[Emanuil Tolev]

Hi Heather,

You are completely correct in saying that something like the RightsLink
mess is not legally preventable if everything is licensed CC-BY en-masse.

But then there are 3 issues of practical importance that merit
consideration:

1/ Can we enforce our legal rights even if we chose a different license for
our scholarly works?
In short, I believe that the answer to this is "no". You're not going to
sue RightsLink on your own, because you have things which are actually
worthwhile to focus on, such as the actual work which underlies the outputs
you produce.

A group of people might be able to do it. But this requires significant
time to be sunk into organisation and even persuading others to back you.
Again, this is a problem of resources in practice.

What actually prevents businesses from doing what RightsLink is doing is
the immense reputation damage which this will cause. If they are a new
company (start-up size) in the scholarly or more narrowly, the OA sector,
they may be destroyed completely! Nobody with enough knowledge about Open
Access would invest time or money in such a high-risk, low-profit
enterprise.
Also, as this paragraph implies, I do think that RightsLink will either be
fixed or go down, once the costs of running what's almost a scam outgrow
the profit.

2/ What else did we just prevent?
We've tread on this topic enough in this tread. We don't know what
downstream restrictions might prevent, regardless of whether they're NC, ND
or even SA-style (or any other type). I don't really think that scholars
can enumerate the sensible ways (commercial and otherwise) in which their
work can be used, or that they would care to try. Research to do, papers to
write, etc.

3/ Does it matter that things like RightsLink can sell Open Access
materials for exorbitant sums of money?

No, not at all. If we, as a community of people interested in the progress
of scholarship, dislike what RightsLink are doing we shouldn't *just* point
a finger and condemn them (though that's also not bad). We should come up
with an equally good way of distributing OA articles!

* * *

We have to ask "why are they able to do this?", not "how can we stop them
from doing this?". Well, why are they able to do this? They have a big
audience. They have thousands of scholars checking pages on which
RightsLink is promoted every DAY. Money has been poured into the software
development, hosting and integration of that service with a variety of
systems that really large publishers hold. As a consequence, they can do
whatever they like!

But distributing OA articles and making them discoverable costs money and
time + big publishing houses may be quite unhelpful. Presumably RightsLink
requires quite a bit of metadata to operate. I don't think they'll hand
this over to the OA community (just yet) - yet they are doing exactly that
with RightsLink. So if we want to build this better alternative to
RightsLink, we may need even MORE resources than them, because the
publishers will be unhelpful.

Where should those resources come from? We could charge readers directly ..
for OA content .. which would be doing the same as RightsLink.
Hmmm. Not very appealing.

We could also think about taking a gradual approach:
1/ Think about what such a system will involve.
2/ Think about current sources of data and papers (Open University CORE
system, institutional repositories and lists of such repositories, the
DOAJ...).
3/ Build proof of concept tools which perform small parts of the work. E.g.
http://howopenisit.org/ is kinda like RightsLink in the sense that it tries
to tell you what the license of an article is, except that PLoS funded the
initial development and the hosting and now it's free to use, though it has
severe problems with identifying article licenses. It's getting improved
next month.

We will also need some more parts, like a catalogue, a dissemination
mechanism, a cheap hosting mechanism and quite a few other bits.

But who is going to pay for this? Not the readers. So our best bet are
organisations interested in OA. The various foundations (Mozilla has strong
open science involvement now), publishers who would like their content
distributed to more scholars for less money than it'd take them to do it,
others I haven't thought of. Maybe even universities (maybe ones that don't
have an institutional repository and don't want one right now).

So there we go, we have a commercial project which builds, maintains and
expands clean and well-made mechanisms for distributing Open Access
content. It deals with nothing but metadata and openly licensed PDF-s.

Now, I know you're not arguing for CC-BY-NC specifically. However, anything
that is not on CC-BY's level of openness ("freedom given to downstream
users") is going to create UNexpected difficulties. NC will make it legally
bad, SA may create legal compatibility problems with simple -BY articles.
If you imagine yourself as the creator of this service, you've already got
a really difficult job ahead of you. You don't want any more difficulties
than absolutely necessary! And we as a community don't *want* to place
unneeded burden on this hypothetical service builder & maintainer.

I can't speak for the OA community, but I think this kind of scenario is
closer to what Mark was going for than "let's make another RightsLink".

Business is a way to solve practical problems, how "well" a business
behaves will *ultimately* depend on the values of its creators.
Doing business with OA content is just a way of solving the severe
difficulties the OA movement has in expanding its influence and bringing
tangible benefits to society, it's not "bad" per se. The question is - is
the business bound to the profits of an established publisher, or is it
free to prioritise the needs of scholars and the public above all else?

But maybe those ideas are worthless. Maybe I'm just not imaginative +
experienced enough to be able to envisage good solutions. If that is the
case, I'd still rather that all scholarly content was licensed in a way
which did not prevent somebody better than me from having a go.

Greetings,
Emanuil


On 24 January 2014 14:35, Heather Morrison <Heather.Morrison at uottawa.ca>wrote:

>  For the purposes of full understanding of the implications of the CC-BY:
> I argue that RightsLink is perfectly within its legal rights to sell CC-BY
> licensed articles whether revenues are shared with the publisher or simply
> kept by RightsLink. This is a commercial use of the work, hence
> pre-authorized through the use of the CC-BY license. CC-BY does not impose
> an obligation on a downstream user to direct customers to free versions,
> merely a negative obligation to not actively prevent use of free versions.
> Further I argue that while there are many grey areas where there is no
> consensus on what constitutes commercial use, the RightsLink example -
> selling CC-BY articles for a profit - is a clearcut, straightforward,
> obvious commercial use. That is, if you don't want people to take your work
> and sell it for a profit, don't use CC-BY.
>
>  Note that this is not an argument for NC. No CC license requires "free
> of charge". An argument could be made that RightsLink could provide NC
> licensed articles, charging for their own service but not royalties for the
> article per se unless by arrangement with a copyright holder. Similarly if
> you print out an NC article you likely are paying for the paper and
> printing; this is not a commercial use of the article itself.
>
>  best,
>
>  Heather Morrison
>
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