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

Fri Jan 24 20:44:17 UTC 2014

hi Emanuil,

Thank you for your kind words, and it is a good point that most people do not understand copyright (it is a contested concept, so I would argue that it is not possible to fully understand copyright - potential major changes to copyright law internationally are under discussion through the trans pacific partnership, for example.

It would be nice to make things simple for people, but not worth it if the simple solution opens up the potential for re-enclosure of the whole system as CC-BY does.  

Also please note that CC-BY is not as simple as people think. Scholars use CC-BY and are shocked when they see people selling their work, even though they have authorized this. 

Even attribution is not as simple as people think. A common argument I've heard for CC-BY is to permit blanket inclusion of CC-BY works into Wikipedia. The argument is that the CC-BY license is compatible with Wikipedia's CC-BY-SA. It is correct that the licenses are compatible, however the norm for attribution for scholarly works is to attribute the author, whereas with wikipedia the norm is to attribute Wikipedia; individual contributors are anonymous for all practical purposes.

CC-BY works invoke author moral rights. If you use rights under CC-BY that authors do not like, the author has legal recourse. It is probably not correct to state that authors always want attribution of their works. If you'd like to take my work and make a creative wordle with it, for example, I might like what you do with this (and value attribution), or dislike it and not want attribution, but not want to forbid the work as it might be very difficult to connect the derivative with the original.

When people advocate for CC-BY an example I do not see, which I would consider to be the most likely derivative in a CC-BY future, is the co-authored article, where one scholar releases an article and another decides to change it and re-publish, attributing the original author and adding their name. This to me is a paradigmatic example of a derivative, but not at all simple in practice.

Another complexity is that CC-BY works (any copyrighted work) can include third party material. Even in the simplest case (a CC-BY work included in another CC-BY work), there are two different cases for attribution. However many CC-BY works include elements of other works that are not CC-BY licensed (and not to do so would include a lot of works). There are also rights related to, but not the same as, copyright. For example, a photo in a CC-BY work may include other rights such as rights of the person(s) whose photos were taken. In addition to legal rights, with scholarly works there are also ethical considerations. If you think copyright is complicated, try reading a funding agency's ethical guidelines (the Canadian tricouncil's guidance document is about 174 pages, I believe). 

One example of how CC-BY can actually decrease rights is when people looking for simplicity use CC-BY licenses on works that are in the public domain. This is an assertion of copyright of works in the public domain. 

If we want changes in international copyright that would make all of our lives simpler (I do!) the two steps that I suggest would be difficult to achieve but have the greatest possible effect: eliminate automatic copyright (may have been a good idea with the Berne convention in 1886, but not today as a very great many works are created with copyright where the creator has no clue that this is the case) and shorten the term of copyright.

best,

Heather Morrison

On 2014-01-24, at 2:36 PM, Emanuil Tolev wrote:

> On Friday, 24 January 2014, Heather Morrison <Heather.Morrison at uottawa.ca> wrote:
> CC-BY makes the RightsLink type of service far more likely by explicitly permitting commercial uses.
> 
> As for this being a low-profit enterprise, note that scholarly publishing is a multi-billion dollar industry with some of the largest publishers bringing in 30-40% profit margins. 
>  
> Do companies pursuing profit necessarily care about the approval of scholars? Note that "e" in Elsevier has been translated as evil by many scholars and the librarians who pay the subscriptions for decades - this has had absolutely no impact on the bottom line.  The "cost of knowledge" Elsevier boycott got their attention a little (and a bit of change in the area of mathematics), but no impact on profits. Ultimately a corporation reports to its shareholders, not scholars or readers. All else being equal I'm sure they would prefer that we like them too, but when the two values are in conflict (scholar approval and maximum profit), they are legally required to prioritize profit. That's how publicly traded corporations work.
> 
> Indeed, which is why I don't think they're in a good position to be the caretakers of a good Open Access dissemination mechanism. I do think they should try to do better with regards to their own OA content, but can understand why this is proving difficult for them.
> 
> We may simple need to avoid the publicly traded model for the time being. I don't want to imply that this is the best model for the technical and social solutions that Open Access needs. It could be a non-profit too. Or a private company, if more suitable (then the values-of-the-creators idea would really hold true). But we don't know which approach is best. I would really rather keep options open than just kill any potential commercial innovation in this area.
> (A non-scholarly example: http://tosdr.org/about.html - they manage to do useful work and get funding. They don't say what kind of legal body they are and I suspect they may not have one, i.e. just loose collection of individuals. It doesn't have to be more complex than that, although a (private) LLC has some advantages in limiting personal liability.)
> 
> The fact that people could behave unethically or in a way which we don't like does not mean all of them will. I don't want to stand in the way of those who do try to have a wholesome approach for the best interests of scholars AND the public. And my point is that it doesn't matter that some *other* people will behave in a way with which we disagree. 
> 
> The fact they're anti-competitive doesn't mean we should kill any chance of competition in this field by endorsing -NC or any other downstream usage restriction and end up in a "no person, no problem"-style situation where we sit and congratulate each other on the successful prevention of some activity.
> 
> There is also the issue that commercial organisations *are* part of the public (indeed, much of our current society has been built on the back of commercial innovation). Open scholarship means open to use by the public, and that includes businesses - private, public, small, big, partnerships and sole traders. This seems to be the heart of the Open Definition principle of "does not discriminate against fields of endeavour".
> 
> It just isn't open otherwise - and not just theoretically. I do think that in practice -NC scholarship intentionally limits its beneficial impact on society.
> 
> "Businesses" includes even non-profits (who, albeit non-commercial on paper or with *ultimate* non-profit goals, obviously need to "conduct business" in their daily operations). Also I realise that non-profits may be affected differently by -NC, but I don't think they'll be immune to its chilling effects in practice.
> 
> One last thing - you have a more than excellent grasp of copyright, licensing and intellectual property. But not everybody does, including myself, and I feel that way even though I've spent about 8 years trying to understand copyright, licensing and intellectual property law (such as the patent system). Obviously this is not full-time, but rather I've always tried to take a proactive learning stance as far as practically reasonable in the course of my work.
> 
> I feel there is a rather large number of scholars and individual members of the public who are in a similar position. We need to know "I am allowed to do the thing I want to do by the author" without having to understand the precise definition of "commercial" or copyright law (i.e. licensing applies to the copy, not the intellectual property presented in the copy).
> I do not feel that it's worth sacrificing this clarity of indirect communication between millions of people (scholars and all kinds of consumers of their outputs) for the asserted ability to potentially stop somebody from selling scholarly outputs.
> 
> CC-BY does not need to prove its benefits. It has profoundly changed the way humans deal with the written word for the better, especially as far as reuse is concerned - and has eliminated the need for clarification and requesting permission from the author, saving an incalculable (literally) amount of effort. It has also been a band-aid for the copyright and IP systems due to simplifying the exchange of information so much that individuals don't have to know legal details in order to get on with their work. I cannot say the same for -NC, -SA, -ND or any other downstream restriction.
> 
> Greetings,
> Emanuil
> 
> best,
> 
> Heather Morrison
> 
> On 2014-01-24, at 1:04 PM, Emanuil Tolev wrote:
> 
> > 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 de