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

[Fabiana Kubke]

Sent querie to a couple of copyright lawyers - Will respond when I get
their answers back. But yes, I think that in the end once one signs that
exclusive licence to Elsevier (something authors can do since they own the
copyright) then that is it. It is also  odd in the reuse table
<http://www.elsevier.com/about/publishing-guidelines/policies/open-access-policies/oa-license-policy>that
only one of those "no" has an asterisk saying "excpet for the author"
which implies authors have none of the other rights that have a green tick
(despite being the owners of the copyright). So seems that restrictions
that are designed for third parties apply to authors - which to me sounds
like pure nonsense.


Cheers
Fabiana


On Thu, Sep 5, 2013 at 6:24 AM, Couture Marc <marc.couture at teluq.ca> wrote:

> 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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-- 
M Fabiana Kubke
Chair Advisory Panel Creative Commons Aotearoa New
Zealand<http://www.creativecommons.org.nz/>
Department of Anatomy | University of Auckland | New Zealand
(+64) 9 373-7599 Ext 86002 | (+64)9 923 6002 (direct) | Mobile: (+64) 210
437 121

Skype: superfabs | http://twitter.com/Kubke | http://identi.ca/kubke |
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