[open-science] [SCHOLCOMM] Re: [sparc-oaforum] Re: Re: Libre open access, copyright, patent law, and other intellectual property matters

Fri Mar 23 16:19:36 UTC 2012

You should read the whole text:

"You may Distribute or Publicly Perform the Work only under the terms
of this License. You must include a copy of, or the Uniform Resource
Identifier (URI) for, this License with every copy of the Work You
Distribute or Publicly Perform. You may not offer or impose any terms
on the Work that restrict the terms of this License or the ability of
the recipient of the Work to exercise the rights granted to that
recipient under the terms of the License. You may not sublicense the
Work. You must keep intact all notices that refer to this License and
to the disclaimer of warranties with every copy of the Work You
Distribute or Publicly Perform. When You Distribute or Publicly
Perform the Work, You may not impose any effective technological
measures on the Work that restrict the ability of a recipient of the
Work from You to exercise the rights granted to that recipient under
the terms of the License. This Section 4(a) applies to the Work as
incorporated in a Collection, but this does not require the Collection
apart from the Work itself to be made subject to the terms of this
License. If You create a Collection, upon notice from any Licensor You
must, to the extent practicable, remove from the Collection any credit
as required by Section 4(b), as requested. If You create an
Adaptation, upon notice from any Licensor You must, to the extent
practicable, remove from the Adaptation any credit as required by
Section 4(b), as requested."

I cannot see that this legitimates a paywalled use. It's absolutely
not helpful to distribute misunderstandings of CC.

Klaus Graf

2012/3/23 Heather Morrison <hgmorris at sfu.ca>:
> hi Klaus,
>
> Many thanks for your comments and all of your work for OA.
>
> Regarding this phrase from CC-BY you quote below:
>
> "When You Distribute or Publicly Perform the Work, You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License."
>
> My reading of this phrase in relation to paywalling CC-BY articles is that a paywall is a technological protection measure (TPM) that the user encounters BEFORE they get to the work. This phrase applies to the recipient of the Work - it only comes into effect if TPMs are added to the actual copy that the recipient receives.
>
> best,
>
> Heather Morrison
>
> On 2012-03-23, at 8:50 AM, Klaus Graf wrote:
>
>> May I again point to:
>>
>> http://archiv.twoday.net/stories/64979561/
>>
>> I think it is a very stupid argument that some misuse is discrediting
>> use. Is the existence of so called "predatory OA publisher's"
>> discrediting OA?
>>
>> It's illegal to hide CC-BY contributions behind a pawywall. See the
>> legal code of CC-BY: "When You Distribute or Publicly Perform the
>> Work, You may not impose any effective technological measures on the
>> Work that restrict the ability of a recipient of the Work from You to
>> exercise the rights granted to that recipient under the terms of the
>> License."
>>
>> If it's illegal the author can fight against it - in and outside the courts.
>>
>> Who has ever said that CC misuses are'nt possible?
>>
>> It remains a "remote possibility".
>>
>> Klaus Graf
>>
>>
>> 2012/3/23 Heather Morrison <hgmorris at sfu.ca>:
>>> hi Daniel,
>>>
>>> Many thanks for your comments.
>>>
>>> Regarding the "remote possibility of something being republished in dubious places", may I draw your attention to this post Peter Suber forward to SOAF? This is from an author expressing concern about her BMC article apparently being re-sold, along with many others, behind a paywall by a company called Newsrx:
>>> https://groups.google.com/a/arl.org/group/sparc-oaforum/browse_thread/thread/fc977cabd0d59bcc
>>>
>>> The scholarly journal publishing industry is currently worth approximately $8 - $10 billion annually. When an industry with this kind of revenue begins to get shaken up, new profit-seekers are very likely to be attracted. Beall's list of predatory open access publishers, I argue, show us the tip of the iceberg of what we might see over the next few years:
>>> http://metadata.posterous.com/83235355
>>>
>>> The reason I argue that this trend is likely to increase in the near future is because currently most of the $8 - $10 billion is still tied up paying for the big deals of the major commercial publishers. The more successful open access and subsequent competition in the scholarly publishing industry becomes, the more new entrants will be attracted. Some of these will be awesome and an improvement over what we have now - others will deserve to be on Beall's list.
>>>
>>> best,
>>>
>>> Heather Morrison
>>>
>>>
>>> On 2012-03-23, at 7:18 AM, Daniel Mietchen wrote:
>>>
>>>> I don't think that the remote possibility of something being
>>>> republished in dubious places is a justification for imposing any
>>>> restriction in addition to attribution.
>>>>
>>>> Suppose your article from a CC BY journal is republished by some of
>>>> the predators. In that case, they have to obey the licensing
>>>> requirements and clearly identify the source and the license of the
>>>> source, in which case it would be clearly visible that that is just a
>>>> copy, and nobody would suspect you of taking the light road of
>>>> publishing your research there.
>>>>
>>>> If they do not meet the requirements of the license, that would be a
>>>> copyright violation. Adding restrictions to the licensing of the
>>>> source would not change any of that and just add complexity.
>>>>
>>>> Daniel
>>>>
>>>> On Thu, Mar 22, 2012 at 12:29 AM, Heather Morrison <hgmorris at sfu.ca> wrote:
>>>>> Sandy raises an interesting point. There can be good reasons for scholars to want to have a say in where our work is re-published. Most of us probably would not want to see our work re-published in some of the journals listed in Beall's list of predatory open-access publishers: http://metadata.posterous.com/83235355
>>>>>
>>>>> Re-publishing a work in a venue that the author finds objectionable likely violates the author's moral rights (depending on whether your country recognizes moral rights - mine does). The perspective of the author and that of the re-publisher may be different on this matter. This situation could make for an interesting legal case.
>>>>>
>>>>> best,
>>>>>
>>>>> Heather Morrison
>>>>>
>>>>> On 2012-03-21, at 3:17 PM, Sandy Thatcher wrote:
>>>>>
>>>>>> Another possibility, which the CC-BY license does not protect against, is the republication of an article in a commercial anthology whose publisher may be using it for purposes, ideological or otherwise, that the author finds objectionable. As long as the article is properly attributed to its author, the author would have no legal grounds for preventing its use in such a context. This may be less of a concern to scientists (though some areas of science, like climate science, can be both very controversial and highly ideological), but it would be of great concern to authors of articles in the humanities and social sciences.
>>>>>>
>>>>>> Sandy Thatcher
>>>>>>
>>>>>>
>>>>>> At 7:21 PM -0700 3/20/12, Heather Morrison wrote:
>>>>>>> Klaus,
>>>>>>>
>>>>>>> Many thanks for your comments and the pointer to your blogpost. Here is an excerpt which I comment on below:
>>>>>>>
>>>>>>> Klaus Graf, 2008:
>>>>>>> "There are scholars and scientists outside the U.S. under more rigid copyright regimes without Fair Use.
>>>>>>> Let's have a closer look on the German Copyright law:
>>>>>>> http://www.gesetze-im-internet.de/urhg/__53.html
>>>>>>>
>>>>>>> It is allowed to make copies for scholarly use if and only if
>>>>>>> (i) there are good reasons
>>>>>>> and
>>>>>>> (ii) there is no commercial goal ("keinen gewerblichen Zwecken dient").
>>>>>>>
>>>>>>> Your conclusion:
>>>>>>> There is a simple solution (I will repeat it because it is important like a mantra):
>>>>>>>
>>>>>>> * MAKE ALL RESEARCH RESULTS CC-BY
>>>>>>> * MAKE ALL RESEARCH RESULTS CC-BY
>>>>>>> * MAKE ALL RESEARCH RESULTS CC-BY
>>>>>>>
>>>>>>> Comments: if German copyright law puts German researchers and businesses at a relative disadvantage compared with other countries, the solution is for Germans to change German copyright law. It is not appropriate to ask every scholar in the world to give away their work for commercial purposes to correct this problem. I argue that CC-BY, much as on the surface it appears to match exactly the BBB definition of open access, is actually a weak license likely to create problems for OA downstream.
>>>>>>>
>>>>>>> My comments on this topic, from my response to the RCUK new draft open access policy:
>>>>>>>
>>>>>>> Kudos to RCUK for adopting a leadership position on libre open access.  However, I would recommend against specifying the Creative Commons CC-BY license. While many open access advocates understandably see CC-BY as the expression of the BOAI definition of open access, my considered opinion is that CC-BY is a weak license for libre OA which fails to protect OA downstream and will not accomplish the Budapest vision of open access,. My perspective is that the best license for libre open access is Creative Commons - Attribution - Noncommercial - Sharealike (CC-BY-NC-SA), as this protects OA downstream (recognizing that the current CC NC definition is problematic, and noting that commercial rights should be retained by authors, not publishers). As one example of where open access might need such protection, because CC-BY allows for resale of open access materials: if all of PubMedCentral were CC-BY, a commercial company could copy the whole thing, perhaps add some value, and sell their version of PMC. They could not legally stop PMC from providing free access. However, I very much doubt that CC-BY could prevent such a company from lobbying to remove funding for the public version. If this sounds ludicrous and unconscionable, may I present as evidence that just such a scenario is realistic: 1) the efforts a few years ago by the American Chemical Society to prevent the U.S. government from providing PubChem on the grounds that this was competition with a private entity; 2) the Research Works Act, and 3) the current anti-FRPAA lobbying in the U.S., which, similarly to the Research Works Act, claims that published research funded by the public is "private research works" which should belong solely to the publisher.
>>>>>>>
>>>>>>> Another reason for avoiding CC-BY is that while the contributions of funders are very important, so are the contributions of scholar authors. Many scholars do not wish to see others who have contributed nothing to a scholarly work sell their work and pocket the money; I certainly don't. For example, Peter Suber recently posted this note to the SPARC Open Access Forum which expresses the distress of an author who published CC-BY in a BMC journal and then found a bogus publisher selling her article for $3. https://groups.google.com/a/arl.org/group/sparc-oaforum/browse_thread/thread/fc977cabd0d59bcc#. The more work that is published CC-BY, the more I believe we can expect  to see this kind of scam, and this risks turning researchers off OA. Also, when faculty members develop their own open access policies (e.g. Harvard, MIT), they insist that articles not be sold for a profit. Links to these and other institutional repositories are available through the Registry of Open Access Material Archiving Policies (ROARMAP) at http://roarmap.eprints.org/.
>>>>>>>
>>>>>>> To illustrate how CC-BY does not necessarily result in the Budapest open access initative's vision of "sharing of the poor with the rich and the rich with the poor": those who give away their work for commercial purposes may not be able to afford the results. For example, if a scholar from a poorer area gives away their medical articles as CC-BY, images and other elements from these articles could be used to develop point-of-care tools that could be sold at prices that the health care professionals serving the scholar and their families could not afford. That is, despite the best of intentions, CC-BY could easily result in a one-way sharing of the poor with the rich. This is one of the reasons why I strongly recommend that the developing world avoid CC-BY.
>>>>>>>
>>>>>>> I cover this topic in more depth in the third chapter of my draft thesis - from the link below, search for open access and creative commons:
>>>>>>> http://pages.cmns.sfu.ca/heather-morrison/chapter-3-open-access-as-solution-to-the-enclosure-of-knowledge/
>>>>>>>
>>>>>>> My full response to RCUK can be found here:
>>>>>>> http://poeticeconomics.blogspot.ca/2012/03/research-councils-uk-draft-new-open.html
>>>>>>>
>>>>>>> best,
>>>>>>>
>>>>>>> Heather Morrison
>>>>>>> The Imaginary Journal of Poetic Economics
>>>>>>> http://poeticeconomics.blogspot.com
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> On 20-Mar-12, at 5:34 PM, Klaus Graf wrote:
>>>>>>>
>>>>>>>> I have written on this topic in 2008:
>>>>>>>>
>>>>>>>> http://archiv.twoday.net/stories/4851871/
>>>>>>>>
>>>>>>>> OA is a global movement and it isn't helpful to call European laws "odd".
>>>>>>>>
>>>>>>>> Klaus Graf
>>>>>>>>
>>>>>>>> 2012/3/20 Heather Morrison <hgmorris at sfu.ca>:
>>>>>>>>> A post on libre open access, copyright, patent law, and other intellectual
>>>>>>>>> property matters. In brief, I argue that text and data mining materials on
>>>>>>>>> the open web does not require special permissions. This has implications for
>>>>>>>>> understanding what needs to happen to make libre open access a reality.
>>>>>>>>> http://poeticeconomics.blogspot.ca/2012/03/copyright-for-expression-of-ideas.html
>>>>>>>>>
>>>>>>>>> Comments welcome.
>>>>>>
>>>>>>
>>>>>> --
>>>>>> Sanford G. Thatcher
>>>>>> 8201 Edgewater Drive
>>>>>> Frisco, TX  75034-5514
>>>>>> e-mail: sandy.thatcher at alumni.princeton.edu
>>>>>> Phone: (214) 705-1939
>>>>>> Facebook: http://www.facebook.com/sanford.thatcher
>>>>>>
>>>>>> "If a book is worth reading, it is worth buying."-John Ruskin (1865)
>>>>>>
>>>>>> "The reason why so few good books are written is that so few people who can write know anything."-Walter Bagehot (1853)
>>>>>>
>>>>>
>>>>>
>>>>> --
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