[open-science] The role of open licensing in open science

[Jonathan Gray]

An interesting blog post from Michael Nielsen!

J.

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# The role of open licensing in open science
# http://michaelnielsen.org/blog/?p=540

The open science movement encourages scientists to make scientific
information freely available online, so other scientists may reuse and
build upon that information. Open science has many striking
similarities to the open culture movement, developed by people like
Lawrence Lessig and Richard Stallman. Both movements share the idea
that powerful creative forces are unleashed when creative artifacts
are freely shared in a creative commons, enabling other people to
build upon and extend those artifacts. The artifact in question might
be a set of text documents, like Wikipedia; it might be open source
software, like Linux; or open scientific data, like the data from the
Sloan Digital Sky Survey, used by services such as Galaxy Zoo. In each
case, open information sharing enables creative acts not conceived by
the originators of the information content.

The advocates of open culture have developed a set of open content
licenses, essentially a legal framework, based on copyright law, which
strongly encourages and in some cases forces the open sharing of
information. This open licensing strategy has been very successful in
strengthening the creative commons, and so moving open culture
forward.

When talking to some open science advocates, I hear a great deal of
interest and enthusiasm for open licenses for science. This enthusiasm
seems prompted in part by the success of open licenses in promoting
open culture. I think this is great - with a few minor caveats, I'm a
proponent of open licenses for science - but the focus on open
licenses sometimes bothers me. It seems to me that while open licenses
are important for open science, they are by no means as critical as
they are to open culture; open access is just the beginning of open
science, not the end. This post discusses to what extent open licenses
can be expected to play a role in open scientific culture.
Open licenses and open culture

Let me review the ideas behind the licensing used in the open culture
movement. If you're familiar with the open culture movement, you'll
have heard this all before; if you haven't, hopefully it's a useful
introduction. In any case, it's worth getting all this fixed in our
heads before addressing the connection to open science.

The obvious thing for advocates of open culture to do is to get to
work building a healthy public domain: writing software, producing
movies, writing books and so on, releasing all that material into the
public domain, and encouraging others to build upon those works. They
could then use a moral suasion argument to encourage others to
contribute back to the public domain.

The problem is that many people and organizations don't find this kind
of moral suasion very compelling. Companies take products from the
public domain, build upon them, and then, for perfectly understandable
reasons, fiercely protect the intellectual property they produce.
Disney was happy to make use of the old tale of Cinderella, but they
take a distinctly dim view of people taking their Cinderella movie and
remixing it.

People like Richard Stallman and Lawrence Lessig figured out how to
add legal teeth to the moral suasion argument. Instead of relying on
goodwill to get people to contribute back to the creative commons,
they invented a new type of licensing that compels people to
contribute back. There's now a whole bunch of such open licenses - the
various varieties of the GNU Public License (GPL), Creative Commons
licenses, and many others - with various technical differences between
them. But there's a basic idea of viral licensing that's common to
many (though not all) of the open licenses. This is the idea that
anyone who extends a product released under such a license must
release the extension under the same terms. Using such an open license
is thus a lot like putting material into the public domain, in that
both result in content being available in the creative commons, but
the viral open licenses differ from the public domain in compelling
people to contribute back into the creative commons.

The consequences of this compulsion are interesting. In the early days
of open licensing, the creative commons grew slowly. As the amount of
content with an open license grew, though, things began to change.
This has been most obvious in software development, which was where
viral open licenses first took hold. Over time it became more tempting
for software developers to start development with an existing open
source product. Why develop a new product from scratch, when you can
start with an existing codebase? This means that you can't use the
most obvious business model - limit distribution to executable files,
and charge for them - but many profitable open source companies have
shown that alternate business models are possible. The result is that
as time has gone on, even the most resolutely closed source companies
(e.g., Microsoft) have found it difficult to avoid infection by open
source. The result has been a gradually accelerating expansion of the
creative commons, an expansion that has enabled extraordinary
creativity.
Open licenses and open science

I'm not sure what role licensing will play in open science, but I do
think there are some clear signs that it's not going to be as central
a role as it's played in open culture.

The first reason for thinking this is that a massive experiment in
open licensing has already been tried within science. By law, works
produced by US Federal Government employees are, with some caveats,
automatically put into the public domain. Every time I've signed a
"Copyright Transfer" agreement with an academic journal, there's
always been in the fine print a clause exclusing US Government
employees from having to transfer copyright. You can't give away what
you don't own.

This policy has greatly enriched the creative commons. And it's led to
enormous innovation - for example, I've seen quite a few mapping
services that build upon US Government data, presumably simply because
that data is in the public domain. But in the scientific realm I don't
get the impression that this is doing all that much to promote the
growth of the same culture of mass collaboration as open licenses are
enabling.

(A similar discussion can be had about open access journals. The
discucssion there is more complex, though, because (a) many of the
journals have only been open access for a few years, and (b) the way
work is licensed varies a lot from journal to journal. That's why I've
focused on the US Government.)

The second reason for questioning the centrality of open licenses is
the observation that the main barriers to remixing and extension of
scientific content aren't legal barriers. They are, instead, cultural
barriers. If someone copies my work, as a scientist, I don't sue them.
If I were to do that, it's in any case doubtful that the courts would
do more than slap the violator on the wrist - it's not as though
they'll directly make money. Instead, there's a strong cultural
prohibition against such copying, expressed through widely-held
community norms about plagiarism and acceptable forms of attribution.
If someone copies my work, the right way to deal with it is to inform
their colleagues, their superiors, and so on - in short, to deal with
it by cultural rather than legal means.

That's not to say there isn't a legal issue here. But it's a legal
issue for publishers, not individual scientists. Many journal
publishers have business models which are vulnerable to systematic
large-scale attempts to duplicate their content. Someone could, for
example, set up a "Pirate Bay" for scientific journal articles, making
the world's scientific articles freely available. That's something
those journals have to worry about, for legitimate short-term business
reasons, and copyright law provides them with some form of protection
and redress.

My own opinion is that over the long run, it's likely that the
publishers will move to open access business models, and that will be
a good thing for open science. I might be wrong about that; I can
imagine a world in which that doesn't happen, yet certain varieties of
open science still flourish. Regardless of what you think about the
future of journals, the larger point is that the legal issues around
openness are only a small part of a much larger set of issues, issues
which are mostly cultural. The key to moving to a more open scientific
system is changing scientist's hearts and minds about the value and
desirability of more openly sharing information, not reforming the
legal rights under which they publish content.

So, what's the right approach to licensing? John Wilbanks has argued,
persuasively in my opinion, that data should be held in the public
domain. I've sometimes wondered if this argument shouldn't be extended
beyond data, to all forms of scientific content, including papers,
provided (and this is a big "provided") the publisher's business
interests can be met in way that adequately serves all parties. After
all, if the scientific community is primarily a reputation economy,
built around cultural norms, then why not simply remove the
complication of copyright from the fray?

Now, I should say that this is speculation on my part, and my thinking
is incomplete on this set of issues. I'm most interested to hear what
others have to say! I'm especially interested in efforts to craft open
research licenses, like the license Victoria Stodden has been
developing. But I must admit that it's not yet clear to me why,
exactly, we need such licenses, or what interests they serve.
Further reading

I'm writing a book about "The Future of Science"; this post is part of
a series where I try out ideas from the book in an open forum. A
summary of many of the themes in the book is available in this essay.
If you'd like to be notified when the book is available, please send a
blank email to the.future.of.science at gmail.com with the subject
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