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

Wed Sep 4 21:59:41 UTC 2013

Fabiana Kubke wrote:

>
> anyone has a copy of such a contract they can share?
>

Elsevier's exclusive license contract (called "author agreement") is explained in details here:

http://www.elsevier.com/about/open-access/open-access-policies/author-agreement

It's written in a language easier to understand than the legal jargon often seen in copyright agreements.

Some excerpts:

"[...] There are two agreements [...] an author agreement and a user license."

"In order for us to do our job of publishing and disseminating your research article we need publishing rights."

"Elsevier is granted [...] the right to publish and disseminate the article under the author's choice of user license"

Like Fabiana, I was also surprised to see in Elsevier's explanations that "restrictions that are designed for third parties apply to authors".

Unfortunately, I couldn't find on Elsevier website the actual text of the license, but if it is correctly described in the web page, there seems to be an incoherence between these two statements:

(1) Elsevier is granted the rights to publish and distribute the article;

and

(2) Authors choosing the -ND restriction will have the same reuse rights as simple users, with only "additional scholarly rights to create certain derivative works".

As I understand it, (1) means that only the rights mentioned are granted, so the authors keep the full rights to make adaptations / derivatives (including for commercial purposes), and thus are not bound by the -ND and -SA restrictions (which apply to the users, not the rights holder), or by the limitations in the types of derivative works mentioned in (2), again because the corresponding rights have not been granted to Elsevier.

Unfortunately, it seems that even here lawyers are needed to sort things out :-(

Marc Couture

De : Fabiana Kubke [mailto:mf.kubke at gmail.com]
Envoyé : 4 septembre 2013 16:47
À : Couture Marc
Cc : open-science at lists.okfn.org
Objet : Re: [open-science] [Open-access] CC-BY

anyone has a copy of such a contract they can share?
Cheers
Fabiana

On Thu, Sep 5, 2013 at 5:58 AM, Couture Marc <marc.couture at teluq.ca<mailto:marc.couture at teluq.ca>> wrote:
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
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