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

Jan Velterop velterop at gmail.com
Tue Jan 28 16:49:43 UTC 2014

Some comments interleaved.

Jan Velterop

On 28 Jan 2014, at 15:37, Heather Morrison <Heather.Morrison at uottawa.ca> wrote:

> This is intended to be a summary post - this is a good discussion but I'd rather it didn't get too repetitive and I respect that some of my colleagues will continue to remain firmly convinced that open access needs CC-BY regardless of what I say. 
> Many of these arguments made by these colleagues are exactly the same arguments that I have made as an open access advocate over the years: free access to everyone, minimal or no copyright restrictions, taxpayer access, OA is good for business as well as the public / social good. However, I remain firmly opposed to equating open access with the CC-BY license, because:
> 1.	The resemblance between CC-BY and the BOAI definition is superficial in nature.

Very different things. The BOAI is about open access to scientific, scholarly publications. CC-BY is a BOAI-compliant licence that attenuates the damaging power of copyright that is automatically foisted upon any utterance a scientist makes, particularly if written up.

> It is particularly important for open access advocates to be aware that CC licenses, including CC-BY, do not mean that works must be made available free of charge.

This is a very peculiar argument. The CC-BY licence exists to cover an open access, freely available work. It simply makes no sense to attach a CC-BY licence to a work you want to charge for. 
the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to:
reproduce and Share the Licensed Material, in whole or in part; and
produce, reproduce, and Share Adapted Material.
Just think of the practicalities if you should want to charge. You may even be able to do that once, but since you can't stop further free dissemination in any way, that would be fairly pointless.
> CC-BY policy has a huge, potentially systemic loophole: the possibility of re-enclosure.

How would you possibly do that? The licence is irrevocable. Have you heard of the genie and the bottle? Well, it's like that.

> What is given freely today with a CC-BY license could easily be available solely through sale from Elsevier or services like RightsLink down the road. 

They could charge what they want, but they won't be able to stop the material being available for free. 
> 2.	Attempting to force CC-BY through policy results in further loopholes, for example through creative twists on licensing such as the CC-BY / exclusive license to publish of Elsevier and the Royal Society.

Such exclusive licence to publish is needed for CC-BY-NC, as republishing can be seen as a commercial activity, which is forbidden without a special licence from the copyright holder, who is presumably the author. For a CC-BY licence, such a special licence is vapour and has the value and enforcability of a special licence that allows you to breath air. 
> 3.	There are downsides to permitting commercial re-use that could result in a backlash by researchers. The more that researchers equate OA with CC-BY, the greater the probability that the backlash will be against OA rather than against CC-BY. Recent concerns expressed by scholars about people selling works they have licensed CC-BY should be taken as a reason for caution.

The consequences of profit-spite should be on the researchers own head. Researchers publishing with NC clauses will just have a much greater risk of being ignored, and that risk will increase with the availability of more proper OA (BOAI-compliant, CC-BY).

> While there are many grey areas, people granting blanket commercial rights to their works should be aware (or made aware by publishers or funders requiring this license) that the most obvious commercial use of a copyrighted work is selling the work per se.
> 4.	After ten years of use of CC-BY licenses by a number of authors and publishers, there is as yet no clear example illustrating such a compelling use of derivatives as to require all scholars to grant derivative rights on a blanket basis.

How would you do proper meta-analyses without 'derivative' rights? How would you do any science without 'derivative' rights? 'Derivative' suffers from the same vagueness and ambiguity as does 'commercial', resulting in FUD which equates to the material being rendered practically useless for proper large-scale modern science. 
> 5.	There are valid scholarly reasons for hesitating to grant derivative rights, such as the potential for incorrect or harmful derivatives. This is a good reason for tolerance, to allow scholars to decide whether the risks of allowing derivatives justify potential benefits. 

Let's take a practical, and fairly oft occurring, example, and say that the 'derivative' is translation in another language. Let;s assume a minority language. Euskara, for the sake of the argument. Or Welsh. Or Frisian. Who decides if the 'derivative' is correct? Phantasmagoric, is the word, if I've correctly translated that from the Dutch 'hersenschimmig'. 
> 6.	The UK BIS committee examined this issue and suggested that more research is needed on the question of licensing.

An authority if there ever was one, of course.
> Conclusion: open access overlaps but does not exactly match Creative Commons licenses.

That's like saying the ocean and ships overlap but don't match.

> There are pro-open-access arguments and pro-scholarship arguments against attempting to force CC licenses as a default for open access.

Nobody is forcing CC licences. If anything is 'forced', it is open access. And proper, BOAI-compliant open access just happens to be best covered by a CC-BY or CC-Zero licence. Until an even better licence is formulated.

> I do not expect everyone, or even anyone, to agree with my perspective on this matter. What I am hoping is that as many open access advocates as possible will appreciate that there are diverse views on the topic within the OA community itself. It is possible to be an open access activist but opposed to attempts to force CC-BY as default for OA. 
> best,
> Heather Morrison
> The Imaginary Journal of Poetic Economics
> Creative Commons and Open Access Critique Series
> http://poeticeconomics.blogspot.ca/2012/10/critique-of-cc-by-series.html

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