Thank you Martyn, this is very helpful. As an author, I have appreciated MDPI's flexibility with respect to licenses. I am sure that other publishers have similar situations where re-use of material and/or accommodating particular authors requires flexibility with respect to licensing.
This mixed licensing environment raises a number of questions, mostly technical ones. Fully answering the questions requires an understanding of who proposes to use these works, and how. Following are 2 questions that I hope will further understanding of the issues, one for MDPI and other publishers and one for everyone. 1. For MDPI and other publishers: based on the Jan. 31, 2019 DOAJ metadata, it appears that all or nearly all of MDPI journals have answered "yes" to "Machine-readable CC licensing information embedded or displayed in articles". Q: can you explain how embedding works when the CC license does not apply to all of the content in the article, as is the case when re-use of an item like an image requires permission and must be under All Rights Reserved terms? For example, do the elements that require separate licensing have separate metadata embedded licensing? Does the embedded metadata at the article level state the default license only or does it speak to the separately licensed material, in specific or general terms? 2. Everyone: who is using embedded licensing metadata (as opposed to displayed), and how? Are there hopes or expectations of how this metadata will be used in future for which there are no examples yet? Further discussion - answers or more questions - is encouraged. Dr. Heather Morrison Associate Professor, School of Information Studies, University of Ottawa Professeur Agrégé, École des Sciences de l'Information, Université d'Ottawa Principal Investigator, Sustaining the Knowledge Commons, a SSHRC Insight Project sustainingknowledgecommons.org heather.morri...@uottawa.ca https://uniweb.uottawa.ca/?lang=en#/members/706 [On research sabbatical July 1, 2019 - June 30, 2020] ________________________________ From: goal-boun...@eprints.org <goal-boun...@eprints.org> on behalf of Martyn Rittman <ritt...@mdpi.com> Sent: Wednesday, August 28, 2019 7:02 AM To: goal@eprints.org <goal@eprints.org> Subject: Re: [GOAL] Informed consent and open licensing: some questions for discussion Attention : courriel externe | external email Heather raises a good point here related to certain types of images. MDPI provides a sample consent form (you can access the link e.g. at https://www.mdpi.com/journal/ijms/instructions#ethics) in which we try to make clear the implications of publishing in open access, but when it comes to reuse there are clearly other rights that should be enforced for the protection of patients. I don't recall a case where this has been flagged as an issue, but we have had similar cases with images taken by someone other than the authors and numerous cases of previously published images where the authors needed permission to republish. Here, a more restrictive copyright (e.g. all rights reserved) can be applied to the image than to the rest of the text. I would suggest that this could provide a solution in most cases. Best regards, Martyn -- Martyn Rittman, Ph.D. Publishing Director, MDPI St. Alban-Anlage 66, 4052 Basel, Switzerland +41 61 683 77 35 ritt...@mdpi.com<mailto:ritt...@mdpi.com> www.mdpi.com<http://www.mdpi.com> On 27/08/2019 17:09, Heather Morrison wrote: > > The purpose of this post is to encourage sharing of knowledge and > ideas > > on the topic of modifying informed consent when working with > human > > subjects to accommodate open licensing. Questions can be found > at the end > > of the post. > > > Researchers who work with human subjects, as is common > > in disciplines > such as health sciences, education, and social sciences, > > are expected > to obtain informed consent from subjects prior to starting > > research > for ethical and legal reasons. > > > To obtain informed consent, > > researchers must explain what will happen > with the subject's information > > and material (if applicable) and the > potential consequences for the > > subject (beneficial and potential > harm). > > > Consent in the context of > > traditional publishing meant consent to > publish in one specific venue, > > typically under All Rights Reserved > copyright. Policies and procedures > > for informed consent developed in > this context will need to be modified > > in order for authors to publish > using open licenses that actively invite > > re-use (and sometimes > modification) through human and machine-readable > > licenses, in some > cases for commercial use. > > > To illustrate the > > difference: an educational researcher might wish to > obtain and use a > > photo of schoolchildren in a publication. In the > traditional context, > > this permission involved publication in one > venue (one journal or one > > book), with re-publication requiring > permission from the copyright owner > > (publisher and/or author). Until > recently, such material, while not > > forbidden to the general public, > would usually only be found in an > > academic library. This is still the > case with journals and books that are > > not yet open access. Open > access per se expands access to anyone with an > > internet connection, > but free access on the Internet is automatically > > covered by copyright > in all countries that are signatories to the Berne > > Convention. Open > licensing goes beyond expanding access to inviting > > re-use. In the > case of Creative Commons licensing, the invitation is > > extended via a > human readable form that is designed to facilitate easy > > understanding > of permitted uses, a machine readable form that can be used > > by > searchers to facilitate limiting searches to content by desired use, > > > and a legal license that most people are not likely to read. > > > For > > example, publication under a CC-BY license would include > traditional > > uses, and other beneficial uses such as re-use by another > researcher > > building on the work of the original. CC-BY would also > invite uses that > > could be harmful to the subjects, such as targeted > commercial social > > media advertising or use of a modified photo in a > video game (schoolkid > > becomes loser kid, perhaps target practice). > > > This does not mean that > > such uses would necessarily be legal, rather > that open licensing is an > > invitation that makes such uses more likely > to occur. The harmful uses > > described above are likely a violation of > moral rights under copyright, > > privacy and/or publicity rights. There > are potential legal remedies, but > > these can only be pursued after the > harm is done and discovered by a > > subject with the means and incentive > to pursue legal remedies. > > > The > > Chang v. Virgin Mobile case is an illustration of what can happen > with > > sensitive material and lack of understanding of the implications > of > > licensing. In brief, a photographer took a photo of a minor girl > (family > > friend) and posted it to Flickr under a CC-BY license. Virgin > Mobile > > interpreted the license as an invitation to use the girl's > photo in an ad > > campaign. The girl's family sued Creative Commons > (dropped this one) and > > Virgin Mobile. The case was eventually dropped > for jurisdictional reasons > > (girl in Texas, company in Australia). > Lawrence Lessig wrote about the > > case, arguing that Virgin's > interpretation of copyright was correct, but > > that the girl still has > privacy rights as minor. A bit more on this here: > > > > https://wiki.creativecommons.org/wiki/Chang_v._Virgin_Mobile > > > The > > Committee on Publication Ethics has published guidance for > journals with > > respect to one type of particularly sensitive material, > medical case > > reports. Excerpt of their General Principles on this > topic: > > * > > Publication consent forms should be required for any case report in > which > > an individual or a group of individuals can be identified. This > > > requirement also applies when a report involves deceased persons. > > > Examples of identifying information are descriptions of individual > case > > histories, photos, x-rays, or genetic pedigrees. A list of 23 > potential > > identifiers has been published in BioMed Central’s Trials. > * Journals > > should not themselves collect the signed consent forms, > because the > > receipt and storage of confidential patient information > could subject > > them to cumbersome security requirements and potential > legal liability > > under applicable privacy or patient information laws, > such as the Health > > Insurance Portability and Accountability Act of > 1996 in the USA. > > > > from: > > > > https://publicationethics.org/resources/guidelines/journals%E2%80%99-best-practices-ensuring-consent-publishing-medical-case-reports > > > > > > These principles are designed to protect journals and their > > publishers, and only speak to one particular type of sensitive material. > > For me, this raises some questions. If anyone on the list has answers or > > ideas, I would love to hear them, on or off-list. If you reply off-list and > > would prefer to be anonymous, please let me know. If warranted, I will > > summarize responses. > > > Questions: > > 1. COPE's guidance is for the education and protection of > > > journals. > Is anyone aware of efforts for the education and protection > > > of > authors and their institutions on the topic of informed consent for > > > > open licensing? 2. Do other publishers or organizations serving > > > > publishers have policies, guidance, sample forms, etc. to deal with > > > > informed consent and open licensing? 3. Have any research ethics > boards > > > (or similar bodies) revised their guidance to accommodate > informed > > > consent and publication under open licenses? 4. Is anyone > aware of > > > cases or analysis of potential implications of licensing for > re-use for > > > other types of material involving human subjects besides > case reports? > > > 5. Do you have any other ideas or insights on this or > closely related > > > topics that I haven't asked about? > > > Blog version: > > > > https://sustainingknowledgecommons.org/2019/08/27/informed-consent-in-the-context-of-open-licensing-some-questions-for-discussion/ > > > > > > best, > > > Dr. Heather Morrison > > Associate Professor, School of Information > > > Studies, University of > Ottawa > > Professeur Agrégé, École des Sciences > > > de l'Information, Université > d'Ottawa > > Principal Investigator, > > > Sustaining the Knowledge Commons, a SSHRC > Insight Project > > > > > sustainingknowledgecommons.org > > > > > heather.morri...@uottawa.ca<mailto:heather.morri...@uottawa.ca> > > > > > https://uniweb.uottawa.ca/?lang=en#/members/706 > > [On research > > > sabbatical July 1, 2019 - June 30, 2020] > > > > > > _______________________________________________ GOAL mailing list > > > > GOAL@eprints.org<mailto:GOAL@eprints.org> > > > > http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal -- Martyn Rittman, Ph.D. Publishing Director, MDPI St. Alban-Anlage 66, 4052 Basel, Switzerland +41 61 683 77 35 ritt...@mdpi.com<mailto:ritt...@mdpi.com> www.mdpi.com<http://www.mdpi.com>
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