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

Thu Sep 5 00:29:26 UTC 2013

Response from lawyer #1

"You retain copyright, but that just gives you the right to be properly
attributed and get credit, i.e. you retain the moral rights.  But what you
can do with the work is the same as any other user under the CC licence,
which means that you cannot publish and distribute that work, beyond the
scholarly rights to create certain derivative works."

So, it looks like in the Elsevier model you pay for the CC-licence, and
then give up all author's rights to only retain "users rights" (and the
standard authors rights for scholarly use). Apparently one also gives up
the right to distribute the work even under CC-BY  (and by extension it
would seem this is a right that users also wouldn't have) and I think that
is a big right to give up.

This seems like nonsense to me - my human readable version of this is "pay
me to get a cc-licence and then give me back most of your author rights for
free."  Going in my list of "not worth your money" OA journals I think.

On Thu, Sep 5, 2013 at 11:30 AM, Heather Morrison <
Heather.Morrison at uottawa.ca> wrote:

>  In recent years many traditional subscription publishers have moved from
> copyright transfer to "license to publish". These ostensibly leave
> copyright with the author, but a careful reading indicates that many are in
> effect no different from full copyright transfer, and some leave less
> rights with the author.
>
>  Copyright is not an all-or-nothing affair, but rather a complex set of
> rights that is often divided in different ways, and sub-elements need not
> be exclusive. For example, even with the full copyright transfer, in most
> countries the author retains full moral rights, indeed cannot waive these
> rights even if they want to.
>
>  best,
>
>  Heather Morrison
>
>
>  On 2013-09-04, at 7:00 PM, Fabiana Kubke <mf.kubke at gmail.com> wrote:
>
>  That is what is sounds to me, Luke - For example Nature Publishing Group
> when you publish with them, authors retain the copyright but provide NPG
> with exclusive rights through a publish to licence agreement (in lieu of
> copyright transfer). To my unlawyered eyes what Elsevier are doing is not
> too different.
>  Cheers
> Fabiana
>
>
> On Thu, Sep 5, 2013 at 10:04 AM, Luke Winslow <lawinslow at wisc.edu> wrote:
>
>> Wow, that is interesting. I am curious how I, as the author holding
>> copyright over my article, could be bound by an outside agreement. I guess
>> it might be like a non-disclosure agreement. I could write something down,
>> which I reasonably hold copyright on and still be bound by a separate
>> agreement stating I *can't* do certain things with my writing. Right? Am I
>> interpreting this situation correctly?
>>
>> Clearly, the choice of open access license is extremely important.
>> Knowing what I know now, I would be extremely inclined to never use
>> anything other than CC-BY.
>>
>> -Luke
>>
>>
>> On 2013-09-04 4:25 PM, Fabiana Kubke wrote:
>>
>> 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 |
>> http://buildingblogsofscience.wordpress.com |
>> http://sciblogs.co.nz/building-blogs-of-science |
>> http://popscinz.wordpress.com | http://talkingteaching.wordpress.com
>>
>>
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>>
>>   --
>> Limnology and Marine Science
>> University of Wisconsin - Madison
>>
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>>
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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 |
> http://buildingblogsofscience.wordpress.com |
> http://sciblogs.co.nz/building-blogs-of-science |
> http://popscinz.wordpress.com | http://talkingteaching.wordpress.com
>  _______________________________________________
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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 |
http://buildingblogsofscience.wordpress.com |
http://sciblogs.co.nz/building-blogs-of-science |
http://popscinz.wordpress.com | http://talkingteaching.wordpress.com
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