Bernhard Mittermaier wrote: > My interpretation of the CC licence is that sharing of CC BY-NC-ND article by commercial platforms is OK as long as they don’t sell the articles (which they don’t do). > Despite the large amount of discussion around the notion of “non-commercial”, and the meaning of the terms defining the NC condition of CC licenses, it remains difficult to determine if a specific use is commercial or not. As explained in the CC site (https://wiki.creativecommons.org/wiki/NonCommercial_interpretation), the key is not “the category or class of reuser”, but the “primary purpose” of the reuse. In the case of ResearchGate, for instance, a researcher’s primary purpose is not “intended for or directed towards commercial advantage or monetary compensation”, but ResearchGate’s primary purpose certainly is. But who is the reuser here? The researchers who post their files, or RG who hosts them, making much effort to help researchers uploading them (sending multiple emails pointing to one’s own articles and inviting to upload them)? The same CC page concludes: “the context and purpose of the use is relevant when making the determination, but no class of reuser is per se permitted or excluded from using an NC-licensed work”. This doesn’t clarify much the issue. > But apart from that - what authors are doing is IMHO definitely not prohibited because they have no commercial gain whatsoever. > There’s another issue here: the publishing agreement signed by the authors explicitly forbids posting on repositories (except on arXiv and RePEC) before the end of the embargo, and on commercial repositories forever (there is a definition of “commercial”, not so clear IMHO, in Elsevier’s Sharing FAQ https://www.elsevier.com/about/our-business/policies/sharing/policy-faq). However, according to the policy, embargoed postprints must carry a CC licence. It allows anybody to post it anywhere for a non-commercial purpose, so that institutional and subject-based repositories are OK, but RG or Academia may not be. By anybody, I mean anybody except the authors, because they are bound by the publishing agreement, unless some legal subtlety makes the clauses of the CC licence (that applies to all, authors included) take precedence over those of the publishing agreement. Frankly, I don’t know how, from a legal point of view, is treated such a case, where someone is subject to conflicting contracts (the publishing agreement and the CC licence). In any event, there’s a way to circumvent the embargo, as has been pointed out: repository staff could legally post any CC BY-NC-ND manuscript they get or find, because obviously they are not bound by the publishing agreement. I had envisioned this when Elsevier changed their policy 2 years ago, and discussed the issue privately with some colleagues, but I had concluded that it wouldn’t constitute an efficient and/or viable strategy, as it breaks the usual self-archiving workflow and relies in coordinated actions involving researchers (for instance, putting their postprints on their websites instead of on the IR, or sending copies to third parties, or even to repository staff, hoping (but not asking) that they will end up being posted by someone else than themselves. One thing which could work though, is repository staff switching to open access postprints researchers have posted in restricted (or closed) access, complying with their publishing agreement. This also require that researchers post their manuscripts well before the end of the embargo, and that repository staff (or the legal counsel of their institution) don’t hesitate at the slightest risk of infringement (though I don’t see any here, but one never really knows on complex legal matters). The bottom line, as has been suggested, is that if this strategy did work (meaning become significant), Elsevier would soon change its policy, as they did before. My own conclusion two years ago was to not pursue this line of action, and simply let researchers decide what to do. I never hesitated to point out that when faced with a convoluted, fuzzy and ambiguous policy, one should just do what they want: publishers have a duty to adopt clear, coherent and easily understandable guidelines, adapted to their intended audience. One last point, of a more general scope: when I recently made a roundup of the “big-five” self-archiving policies, I wondered why three of them (Elsevier, Springer and Taylor & Francis) have embargoes for posting on IRs, but not for posting on personal websites. Part of the answer is surely that almost all researchers have access to an IR, but not all have personal websites. But what struck me is that this allow them to be Green according to Sherpa-ROMEO, which makes no distinction as to allowed platforms: if there’s a way for researchers to post immediately, you are Green. I find this quite unfortunate, because these publishers can boast their “Green” status to prove that they are not against OA, while not being compliant with many funders mandates requiring deposit in a repository. This is the case mainly in Social Sciences and Humanities, where embargoes often exceed one year. Marc Couture
_______________________________________________ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
