Hi all, Éric wonders if Google infringes copyright (or violates the licence) when displaying CC BY-NC papers in its search results pages.
As these pages only contain basic bibliographical data, very short excerpts and hyperlinks, I would think that this "use" falls either outside of copyright protection or under the fair use/dealing exception. Add to that the fact that copyright owners can "ask" Google (through metadata in the header of a page) not to be indexed. That's indeed one the reasons even Google's cache, which doesn't reproduce small excerpts but the entirety of the indexed page, was deemed non-infringing in a 2006 US case. Fair use was another. For the legally inclined: see https://en.wikipedia.org/wiki/Field_v._Google,_Inc. or https://en.wikisource.org/wiki/Field_v._Google,_Inc for the actual decision. Marc Couture De : goal-boun...@eprints.org [mailto:goal-boun...@eprints.org] De la part de Éric Archambault Envoyé : 23 janvier 2017 11:14 À : Global Open Access List (Successor of AmSci) Objet : Re: [GOAL] How much of the content in open repositories is able to meet the definition of open access? Marc has a good point on the NC character. Does intermediation counts? For example, Google presents millions of papers on its search results pages and these papers contribute as fodder to Google's $2.18 million net after taxes profit per hour (the vast majority of these profits are from advertising obviously). Is this a commercial use? Éric From: goal-boun...@eprints.org<mailto:goal-boun...@eprints.org> [mailto:goal-boun...@eprints.org] On Behalf Of Couture Marc Sent: January 23, 2017 10:46 AM To: Global Open Access List (Successor of AmSci) <goal@eprints.org<mailto:goal@eprints.org>> Subject: Re: [GOAL] How much of the content in open repositories is able to meet the definition of open access? Stephen Downes wrote : "From the perspective of a person wishing to access content, a work that is CC-by, but which requires payment to access, is not free at all" I find this interpretation a bit extreme, considering that: - The CC BY work for which payment is required must be attributed, and this attribution normally includes (at least in the case of online distribution) a link to the original source https://wiki.creativecommons.org/wiki/Best_practices_for_attribution . - The first person, or institution paying the access fee can then freely (in all senses) distribute the work online. Not considering fraudulent activities (e.g. not mentioning the license, which violates the terms of the licence), which could be done for any version of the CC license, one could certainly find cases (best practices not followed; print copies) where one would have to do a little work to find the original work (nothing more though than a Google search with the title). In any event, I wouldn't describe such a work as being "not free at all". On the other hand, the problem with the -NC condition is that the definition of non-commercial is quite vague, so that one can easily imagine uses that authors wishing to impede profit-seeking uses would also prevent others they wouldn't object to. Stephen mentions educational uses, but many of them could well be considered commercial (for instance, in private institutions, or even public ones, if students pay documentation fees). Recent lawsuits, in Germany and in the US, illustrate the problem. - Germany: "non-commercial" equates "private use only" (2014 decision appealed, still waiting for the outcome) http://merlin.obs.coe.int/article.php?id=14679 - US: Public school disctrict subcontracting reproduction and distribution of print copies to private firm (2016 case yet to be heard) https://www.techdirt.com/articles/20160902/00165835421/creative-commons-wants-to-step-into-lawsuit-over-definition-noncommercial-cc-license.shtml Marc Couture De : goal-boun...@eprints.org<mailto:goal-boun...@eprints.org> [mailto:goal-boun...@eprints.org] De la part de Downes, Stephen Envoyé : 23 janvier 2017 09:46 À : Global Open Access List (Successor of AmSci) Objet : Re: [GOAL] How much of the content in open repositories is able to meet the definition of open access? > Some open access advocates do equate OA with the CC-BY license, but not all > of us. My perspective is that pushing for ubiquitous CC-BY is a major > strategic error for the OA movement. I also have been arguing that CC-by-NC ought to be considered equally acceptable. Open access licenses prior to Creative Commons sought typically to prevent commercial appropriation of openly published work. From the perspective of a person wishing to access content, a work that is CC-by, but which requires payment to access, is not free at all, in either sense. This is especially important in the context of open educational resources. ---------------------------------------------------------------------------------------------------------------- Stephen Downes National Research Council Canada | Conseil national de recherches Canada 1200 rue Montreal Road 349 M-50, Ottawa, Ontario K1A 0R6 Tel.: (613) 993 0288 Mobile: (613) 292 1789 stephen.dow...@nrc-cnrc.gc.ca<mailto:stephen.dow...@nrc-cnrc.gc.ca> ~ http://www.downes.ca<http://www.downes.ca/> From: goal-boun...@eprints.org<mailto:goal-boun...@eprints.org> [mailto:goal-boun...@eprints.org] On Behalf Of Heather Morrison Sent: January-23-17 8:19 AM To: Global Open Access List (Successor of AmSci) Subject: Re: [GOAL] How much of the content in open repositories is able to meet the definition of open access? Some open access advocates do equate OA with the CC-BY license, but not all of us. My perspective is that pushing for ubiquitous CC-BY is a major strategic error for the OA movement. Key arguments: Granting blanket downstream commercial re-use rights allows for downstream toll access whether or a one-off or broad-based scale. Examples (broad-based at end):...
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