[open-science] [Open-access] CC-BY - correction

[Couture Marc]

In my answer to Luke Winslow (see complet post below), I wrote:

>
> there could be a contradiction here, because the normal definition
> of an exclusive license is that no other license covering the same
> rights can be granted to another party
>

I checked the terms of Elsevier exclusive license, and it seems there is in fact no such contradiction, because Elsevier is first granted all the rights (by way of the exclusive license with the author), and then is the one who applies the CC license (letting the author decide which version).

Normally, it's the copyright owner who applies a CC license to a work, but a licensee having been granted all the rights is the one who is intitled to do it (and the author has lost any control in this regard).

This again illustrates that copyright ownership may mean next to nothing when a publisher asks for an exclusive license, instead of copyright transfer.

Marc Couture

-----Message d'origine-----
De : open-science-bounces at lists.okfn.org [mailto:open-science-bounces at lists.okfn.org] De la part de Couture Marc
Envoyé : 4 septembre 2013 13:59
À : open-science at lists.okfn.org
Objet : Re: [open-science] [Open-access] CC-BY

Luke Winslow wrote:

>
> Can you really grant "exclusive license covering all publishing and 
> distribution rights" to a third party on something released under 
> creative commons?
>

Good question. I'd say that this license (between the author and the publisher) applies in practice only to the rights the author doesn't grant the users according to the CC-license chosen. So, the right to authorize commercial uses, if the -NC condition is used, and the right to make adaptations (derivative works), is the -ND condition is used.

But I agree that there could be a contradiction here, because the normal definition of an exclusive license is that no other license covering the same rights can be granted to another party. But I'm not able to go farther into the legal intricacies of such a case.

For a CC-BY license, however, all use rights are granted to all. There is thus no need for a license between the author and the publisher, as no permission need be asked to the right holder (or the licensee) for any use. As far as I can tell (I checked just a few) OA journals using CC-BY don't use author-publisher licenses.

Marc Couture

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