[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
On 28 April 2015 at 22:45, Heather Morrison heather.morri...@uottawa.ca wrote: There is nothing in any of the CC licenses that requires that works be made available free of charge, either by the downstream user or by the original licensor. It is true that a CC license cannot be revoked, however the catch is you have to have a copy of the work and proof of the license under which you obtained the work. There is nothing to stop the original licensor from changing their mind, taking down the CC-BY copy and replacing it with a work under whatever terms they like (or not making the work available at all). In any licence that a work is distributed under, there is nothing compelling the distributor to continue to distribute the work in perpetuity under the same licence conditions. This argument is basically that while CC-BY may appear to be highly desirable and reflect the BOAI definition of OA (which I now reject as the source of the problem), it is a weak license full of loopholes that could be the downfall of open access. See my statement above. Licences attached to the distribution of a work just deal with how people that receive the work can make use of it. What the publisher / distributor can do has to be governed by the rights assigned to them by the author / copyright holder, and/or the contract that is in place between the author / copyright holder and the publisher / distributor. Even when a journal publishes an article as CC-BY; even when an author deposits a paper to a repository to be distributed as CC-BY, the author is not making the work available to the publisher or repository under a CC-BY licence. They are providing a limited set of rights and/or signing a contract with specific instruction that the distribution to end users must be made as CC-BY. You are trying to attach a problem to a particular licence, that could never, ever be prevented or solved by any licence that exists or could ever be invented in the future. Your concerns can only ever be addressed through the agreements an author makes with a publisher, not through the licence that is offered to end users. The only loophole in CC-BY is whether you accept that downstream users can make commercial use of the work - and if that is a genuine / serious problem -NC and -SA variants can prevent that. Regards, G ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
Graham makes some good points. Anyone who is sharing a work under any Creative Commons license, or any other type of license, has no obligation to keep the work available at all, or under the same license, in perpetuity. I can post a picture to flickr under whatever terms I choose, immediately change my mind and change the terms. If someone used the work in the seconds it was available under the initial terms, I cannot revoke the license. The potential for downstream enclosure posed by CC-BY is not a problem of licenses of individual works, but rather the attraction of large masses of works for profit-taking if CC-BY succeeds as default. Consider for example if there is success transitioning Elsevier's billion-a-year-in-profit, 40% profit margin, STM business to OA as CC-BY. If anyone can take the works published by Elsevier and sell them, these kinds of profits are likely to attract people and/or companies interested in making money. A downstream commercial user could compete with Elsevier. Since they don't need to bother paying a cent to contribute to the original production costs, downstream commercial users are at a relatively advantage compared to the original publisher when it comes to added value services. If this threatens Elsevier revenue streams (eg competition for Science Direct search services as opposed to content, Scopus), it would make business sense for Elsevier to change the license for CC-BY works to more limited terms, or to revert to toll access and use differential pricing to discourage commercial use. This is what shareholders expect (and have a legal right to expect) companies like Elsevier to do - prioritize the bottom line of profit. It is unlikely that many authors have contracts with publishers requiring a particular license even at the time of publication. Funder policies apply to grantees, not publishers. Even if there was an author/publisher license allowing only CC-BY in perpetuity, CC-BY does not prohibit toll access. This is not THE scenario, only one possible scenario. I use Elsevier as an example because many people on the list are familiar with how profitable the company is. A look at Beall's list may be useful to illustrate the wide range of players that can emerge when a business that earns profits for a few companies in the millions starts to open up for competition. Think about the people on Wall Street who sell things like hedge funds and derivatives. An open invitation to downstream commercial use is an open invitation to this sector, too. Elsevier is likely in a stronger position to out-manoeuvre downstream commercial competition than smaller publishers and journals. To appreciate the danger of re-enclosure it is important to think about the scholarly publishing system as a whole rather than individual works. best, Heather Morrison Creative Commons and Open Access Critique series: http://poeticeconomics.blogspot.ca/2012/10/critique-of-cc-by-series.html?m=1 On Apr 29, 2015, at 1:59 AM, Graham Triggs grahamtri...@gmail.commailto:grahamtri...@gmail.com wrote: On 28 April 2015 at 22:45, Heather Morrison heather.morri...@uottawa.camailto:heather.morri...@uottawa.ca wrote: There is nothing in any of the CC licenses that requires that works be made available free of charge, either by the downstream user or by the original licensor. It is true that a CC license cannot be revoked, however the catch is you have to have a copy of the work and proof of the license under which you obtained the work. There is nothing to stop the original licensor from changing their mind, taking down the CC-BY copy and replacing it with a work under whatever terms they like (or not making the work available at all). In any licence that a work is distributed under, there is nothing compelling the distributor to continue to distribute the work in perpetuity under the same licence conditions. This argument is basically that while CC-BY may appear to be highly desirable and reflect the BOAI definition of OA (which I now reject as the source of the problem), it is a weak license full of loopholes that could be the downfall of open access. See my statement above. Licences attached to the distribution of a work just deal with how people that receive the work can make use of it. What the publisher / distributor can do has to be governed by the rights assigned to them by the author / copyright holder, and/or the contract that is in place between the author / copyright holder and the publisher / distributor. Even when a journal publishes an article as CC-BY; even when an author deposits a paper to a repository to be distributed as CC-BY, the author is not making the work available to the publisher or repository under a CC-BY licence. They are providing a limited set of rights and/or signing a contract with specific instruction that the distribution to end users must be made as CC-BY. You are trying to attach a problem to a particular
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
It is unlikely that many authors have contracts with publishers requiring a particular license even at the time of publication. When an author submits a paper to a journal they often get a selection of licenses to choose from. Surely that’s part of the contract to publish? David On 29 Apr 2015, at 12:52, Heather Morrison heather.morri...@uottawa.camailto:heather.morri...@uottawa.ca wrote: Graham makes some good points. Anyone who is sharing a work under any Creative Commons license, or any other type of license, has no obligation to keep the work available at all, or under the same license, in perpetuity. I can post a picture to flickr under whatever terms I choose, immediately change my mind and change the terms. If someone used the work in the seconds it was available under the initial terms, I cannot revoke the license. The potential for downstream enclosure posed by CC-BY is not a problem of licenses of individual works, but rather the attraction of large masses of works for profit-taking if CC-BY succeeds as default. Consider for example if there is success transitioning Elsevier's billion-a-year-in-profit, 40% profit margin, STM business to OA as CC-BY. If anyone can take the works published by Elsevier and sell them, these kinds of profits are likely to attract people and/or companies interested in making money. A downstream commercial user could compete with Elsevier. Since they don't need to bother paying a cent to contribute to the original production costs, downstream commercial users are at a relatively advantage compared to the original publisher when it comes to added value services. If this threatens Elsevier revenue streams (eg competition for Science Direct search services as opposed to content, Scopus), it would make business sense for Elsevier to change the license for CC-BY works to more limited terms, or to revert to toll access and use differential pricing to discourage commercial use. This is what shareholders expect (and have a legal right to expect) companies like Elsevier to do - prioritize the bottom line of profit. It is unlikely that many authors have contracts with publishers requiring a particular license even at the time of publication. Funder policies apply to grantees, not publishers. Even if there was an author/publisher license allowing only CC-BY in perpetuity, CC-BY does not prohibit toll access. This is not THE scenario, only one possible scenario. I use Elsevier as an example because many people on the list are familiar with how profitable the company is. A look at Beall's list may be useful to illustrate the wide range of players that can emerge when a business that earns profits for a few companies in the millions starts to open up for competition. Think about the people on Wall Street who sell things like hedge funds and derivatives. An open invitation to downstream commercial use is an open invitation to this sector, too. Elsevier is likely in a stronger position to out-manoeuvre downstream commercial competition than smaller publishers and journals. To appreciate the danger of re-enclosure it is important to think about the scholarly publishing system as a whole rather than individual works. best, Heather Morrison Creative Commons and Open Access Critique series: http://poeticeconomics.blogspot.ca/2012/10/critique-of-cc-by-series.html?m=1 On Apr 29, 2015, at 1:59 AM, Graham Triggs grahamtri...@gmail.commailto:grahamtri...@gmail.com wrote: On 28 April 2015 at 22:45, Heather Morrison heather.morri...@uottawa.camailto:heather.morri...@uottawa.ca wrote: There is nothing in any of the CC licenses that requires that works be made available free of charge, either by the downstream user or by the original licensor. It is true that a CC license cannot be revoked, however the catch is you have to have a copy of the work and proof of the license under which you obtained the work. There is nothing to stop the original licensor from changing their mind, taking down the CC-BY copy and replacing it with a work under whatever terms they like (or not making the work available at all). In any licence that a work is distributed under, there is nothing compelling the distributor to continue to distribute the work in perpetuity under the same licence conditions. This argument is basically that while CC-BY may appear to be highly desirable and reflect the BOAI definition of OA (which I now reject as the source of the problem), it is a weak license full of loopholes that could be the downfall of open access. See my statement above. Licences attached to the distribution of a work just deal with how people that receive the work can make use of it. What the publisher / distributor can do has to be governed by the rights assigned to them by the author / copyright holder, and/or the contract that is in place between the author / copyright holder and the publisher / distributor. Even when a journal publishes an
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
On 2015-04-29, at 8:43 AM, David Prosser wrote: It is unlikely that many authors have contracts with publishers requiring a particular license even at the time of publication. When an author submits a paper to a journal they often get a selection of licenses to choose from. Surely that’s part of the contract to publish? Comments: This is an excellent question, David, thanks for asking. My response in brief is that this is not as clear and simple as it might seem. Some things to consider: As your question suggests, in the absence of a formal contract there is likely an implied contract. However, both the nature and the legal status of such an implied contract is far from clear. If the author chooses the license but the publisher publishes the work, who is the Licensor in Creative Commons terms? If the author retains full copyright and is the Licensor, then the original publisher's use of the work is as Licensee. First Monday has the best example of real author copyright and license choice that I know of - the question of license is entirely up to the author, not from a selection but whatever the author wants to do. Following is the First Monday Open Access Policy: First Monday is one of the first openly accessible peer review journals solely on the Internet, about the Internet. All of First Monday's current and archival content is available freely to anyone with Internet connectivity. Authors retain the rights to their work published in First Monday and may freely make their papers available as they see fit. Contributors to First Monday are encouraged to dedicate their work to the public domain or to select a Creative Commons license. Further details can be found at http://firstmonday.org/about/submissions#copyrightNotice; As an author and scholar in this area, this is my preference as the best example of author rights and a rare example of a journal that invites scholars to really think about the question of copyright and licensing. It is not clear that full author copyright makes sense in the context of scholarly publishing. For example, in the case of noncommercial licensing, it is not only downstream users but also the original publisher that would not have blanket commercial rights. Legally, the original publisher would need a separate agreement with the author to use the works for commercial purposes. As for attribution, if publishers want and expect to be attributed as first publisher (and many authors want this association which is a stamp of approval of their work), then the attribution element cannot belong exclusively to the author. This may be an implicit expectation, or there may be communication between author and publisher about attribution, i.e. a separate communication. There may be a click-through agreement that touches on this matter, which in effect would likely form part of the implicit contract. An argument can be made that even with author full copyright and license choice and no other communication, there must be an implicit license to publish, for which there would be substantial precedence in the traditions of scholarly publishing. This would suggest that at minimum the author is sub-licensing some rights to the publisher. An implicit contract leaves the question of which rights are actually transferred unclear. If the journal has a default licensing policy, I think an argument can be made that the journal, not the author, is the licensor, even if the author retains copyright. If a funding agency or institution either requires or strongly encourages the use of a particular license, in terms of legal liability I think a solid argument can be made that the institution with this policy is responsible. I would describe the current situation as a large-scale real world experiment. Policies requiring particular licenses draw in people who have not chosen to participate in this experiment. A researcher who is an open access advocate and chooses voluntarily to publish in a journal that uses the CC-BY license can reasonably be expected to take responsibility for this choice. However, if a researcher selects a CC-BY license because their funder or institution directs them to do so, and there is a problem (e.g. third party work is included for which commercial downstream rights cannot be granted), I think the researcher would have a good case for passing on responsibility to the funder or institution with the CC-BY policy. If authors retain full copyright and are the sole Licensors, this does not address the potential for downstream enclosure of works licensed as CC-BY. The original publisher just becomes one of the downstream users that can decide to start selling access to works licensed CC-BY. best, Heather Morrison Creative Commons and Open Access Critique http://poeticeconomics.blogspot.ca/2012/10/critique-of-cc-by-series.html ___ GOAL mailing list
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
On 29/04/2015 14:09:40, David Prosser david.pros...@rluk.ac.uk wrote: It is unlikely that many authors have contracts with publishers requiring a particular license even at the time of publication. When an author submits a paper to a journal they often get a selection of licenses to choose from. Surely that’s part of the contract to publish? Agreed - if you are given the choice of a thing, and pay for a thing, then your contract is for that thing. Even for fully OA journals, where there is no selection of a licence, then the OA licence that is presented is part of the offering for which you are (likely) paying for. If a specific licence is cited as part of the offering, and there are no terms and conditions that allow for it to be varied without the author's permission, then there are no legal grounds for changing the licence (without explicit permission from the author). On 29 Apr 2015, at 12:52, Heather Morrison wrote: The potential for downstream enclosure posed by CC-BY is not a problem of licenses of individual works, but rather the attraction of large masses of works for profit-taking if CC-BY succeeds as default. But who is going to pay for it? Certainly not academic libraries, who would know that the CC-BY version exists, and make it available to users. And the downstream enclosure couldn't legally obscure the existence of the CC-BY version - they have to acknowledge it in accordance with the licence terms. A downstream commercial user could compete with Elsevier. Since they don't need to bother paying a cent to contribute to the original production costs, downstream commercial users are at a relatively advantage compared to the original publisher when it comes to added value services. The downstream commercial user also won't be paid a cent for providing those production costs - that will have gone to Elsevier in the form of APCs. They will largely be competing against Elsevier over something that is free - the distribution to end users. Elsevier wouldn't be making much money - if any - from the distribution. There might be some advertising attached, and so consideration of that revenue. But in the main, a downstream commercial user trying to sell a distribution wouldn't be taking significant revenue from Elsevier - they would just be reducing their costs. If this threatens Elsevier revenue streams (eg competition for Science Direct search services as opposed to content, Scopus), it would make business sense for Elsevier to change the license for CC-BY works to more limited terms, or to revert to toll access and use differential pricing to discourage commercial use. These are all straw man arguments. We aren't in a hypothetical world of not having used CC-BY licences. They have existed and been used in publishing for over 10 years. Look at the growth in publications of BioMed Central (and Springer). And the profits they have attracted. Look at the growth of PLoS, and their avoidance of losing money. 10 years of evidence that publishing CC-BY is not incompatible with commercial publishing. That doesn't mean certain revenue streams may be threatened, and some publishers are certainly not actively encouraging a fully CC-BY world. But the practical and legal realities of Elsevier doing what you suggest is inconceivable. Regards, Graham___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
I agree with Graham. The likelihood of CC-BY being used against the community is effectively zero. The reverse is NOT true. CC-BY-NC actually grants the publisher an effective monopoly to charge for re-use rights. This is not hypothetical. Publishers are making millions out of papers which are licenced NC. You can verify this by looking at any CC-NC paper (e.g. from Elsevier), following Rights and Permissions (to RightsLink) and then asking (say) for permission to re-use the paper in a book, or for coursebooks, or for promotional material or whatever. Reasonable requests will vary between 10USD and 1 USD. The record amounts of rights paid to a publisher for a single paper is over a million USD (a pharmaceutical one). [My blog has many examples over the years]. My guess is that the publishers probably receive 10-100 million USD per year through re-use payments (and that's probably an underestimate). Note, of course, that none of this goes to author, or funder. So if an author choose to use NC they effectively donate many dollars worth to the publisher. Since I regard Heather's scenario as zero likelihood we are simply increasing publisher profits, disadvantaging teachers, authors of books, small businesses, large businesses, etc. I hope that everyone urging CC-NC realises this damage (which happens every day) and can justify the additional millions paid to the publishing industry which provide no benefit to anyone else. On Wed, Apr 29, 2015 at 5:26 PM, Graham Triggs grahamtri...@gmail.com wrote: On 29/04/2015 14:09:40, David Prosser david.pros...@rluk.ac.uk wrote: It is unlikely that many authors have contracts with publishers requiring a particular license even at the time of publication. When an author submits a paper to a journal they often get a selection of licenses to choose from. Surely that’s part of the contract to publish? Agreed - if you are given the choice of a thing, and pay for a thing, then your contract is for that thing. Even for fully OA journals, where there is no selection of a licence, then the OA licence that is presented is part of the offering for which you are (likely) paying for. If a specific licence is cited as part of the offering, and there are no terms and conditions that allow for it to be varied without the author's permission, then there are no legal grounds for changing the licence (without explicit permission from the author). On 29 Apr 2015, at 12:52, Heather Morrison wrote: The potential for downstream enclosure posed by CC-BY is not a problem of licenses of individual works, but rather the attraction of large masses of works for profit-taking if CC-BY succeeds as default. *But who is going to pay for it? Certainly not academic libraries, who would know that the CC-BY version exists, and make it available to users.* *And the downstream enclosure couldn't legally obscure the existence of the CC-BY version - they have to acknowledge it in accordance with the licence terms.* A downstream commercial user could compete with Elsevier. Since they don't need to bother paying a cent to contribute to the original production costs, downstream commercial users are at a relatively advantage compared to the original publisher when it comes to added value services. *The downstream commercial user also won't be paid a cent for providing those production costs - that will have gone to Elsevier in the form of APCs.* *They will largely be competing against Elsevier over something that is free - the distribution to end users.* *Elsevier wouldn't be making much money - if any - from the distribution. There might be some advertising attached, and so consideration of that revenue. But in the main, a downstream commercial user trying to sell a distribution wouldn't be taking significant revenue from Elsevier - they would just be reducing their costs.* If this threatens Elsevier revenue streams (eg competition for Science Direct search services as opposed to content, Scopus), it would make business sense for Elsevier to change the license for CC-BY works to more limited terms, or to revert to toll access and use differential pricing to discourage commercial use. *These are all straw man arguments. We aren't in a hypothetical world of not having used CC-BY licences. They have existed and been used in publishing for over 10 years.* *Look at the growth in publications of BioMed Central (and Springer). And the profits they have attracted.* *Look at the growth of PLoS, and their avoidance of losing money.* *10 years of evidence that publishing CC-BY is not incompatible with commercial publishing.* *That doesn't mean certain revenue streams may be threatened, and some publishers are certainly not actively encouraging a fully CC-BY world. But the practical and legal realities of Elsevier doing what you suggest is inconceivable.* *Regards,* *Graham* ___ GOAL mailing list
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
On Apr 26, 2015 2:08 PM, Heather Morrison heather.morri...@uottawa.ca wrote: There are arguments against CC-BY as a default that apply across all disciplines. The most important is the potential for downstream enclosure... A broad-based CC-BY success of the open access movement could easily and quickly revert to toll access on a massive scale in the future (short, medium or long term). I think I'm missing a key part of your argument. Can you explain how a CC-BY licensed work would revert to toll access? ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
There is nothing in any of the CC licenses that requires that works be made available free of charge, either by the downstream user or by the original licensor. It is true that a CC license cannot be revoked, however the catch is you have to have a copy of the work and proof of the license under which you obtained the work. There is nothing to stop the original licensor from changing their mind, taking down the CC-BY copy and replacing it with a work under whatever terms they like (or not making the work available at all). This argument is basically that while CC-BY may appear to be highly desirable and reflect the BOAI definition of OA (which I now reject as the source of the problem), it is a weak license full of loopholes that could be the downfall of open access. best, Heather On Apr 28, 2015, at 5:21 PM, William Gunn william.g...@gmail.commailto:william.g...@gmail.com wrote: On Apr 26, 2015 2:08 PM, Heather Morrison heather.morri...@uottawa.camailto:heather.morri...@uottawa.ca wrote: There are arguments against CC-BY as a default that apply across all disciplines. The most important is the potential for downstream enclosure... A broad-based CC-BY success of the open access movement could easily and quickly revert to toll access on a massive scale in the future (short, medium or long term). I think I'm missing a key part of your argument. Can you explain how a CC-BY licensed work would revert to toll access? ___ GOAL mailing list GOAL@eprints.orgmailto:GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
Dear Heather, Once more so clear, illustrated and straightforward. Many thanks for that. One size fits rarely all... in every aspects of life. It sure makes life more complicated than death, but... One remark: the large-mind and generous advocacy for CC-BY licenses by publishers is accompanied, in some cases, by an extra-fee if the authors want another license. I figure out that this is what we could call a fair-use of advocacy? Didier Le 25-04-2015 20:01, Heather Morrison a écrit : The types of works that many students and faculty would like to be able to include in scholarly works are not necessarily from other scholarly works. For example, scholars in my doctoral discipline of communication study a wide range of types of works including newspapers, television, films, cartoons, advertising, blogs and social media, and public relations materials. It is very useful for scholars to be able to include images and text from the primary source materials, either as illustration or for purposes of critique. Obtaining permission to use even small excerpts of such works is time-consuming at best. I argue that it would be in the best interests of scholarship to advocate for strong fair use / fair dealing exceptions for research and academic critique globally and accept that more restrictive licenses may be necessary to avoid the potential for re-use errors that could easily occur with blanket licenses allowing broad re-use. For example, while it makes sense to allow scholars to include small movie stills in an academic piece, it could be quite problematic for scholars to include such items in works that grant blanket commercial and re-use rights downstream. This illustrates what I see as one of the problems with the one size fits all CC-BY license preferred by some open access advocates (which I consider to be a serious error): what I interpret as an implicit assumption that all of the works scholars are likely to want to re-use are other scholarly works. Rather than making assumptions, let's do some research to find out what scholars and students would like to be able to re-use. Anecdotally, in my experience the most popular items for re-use are images from popular culture (especially characters from the Simpsons TV series), not scholarly works. Scholarly journals like to use photos to add interest and aesthetic value. If it is the case that the greatest interest in re-use for scholars involves works from popular culture / outside the academy, then ubiquitous CC-BY licenses for absolutely every scholarly article, book, and dataset in the whole world would not solve the primary re-use question for a majority of scholars. This is not meant to suggest that advocacy for global fair use / fair dealing rights for academic research and critique is an easy task, rather to raise the question of whether this is an appropriate and useful goal for scholarly works. This post is part of the Creative Commons and Open Access Critique series on my scholarly blog, The Imaginary Journal of Poetic Economics. To comment on the blogpost: http://poeticeconomics.blogspot.ca/2015/04/a-case-for-strong-fair-use-fair-dealing.html Creative Commons and Open Access Critique series: http://poeticeconomics.blogspot.ca/2012/10/critique-of-cc-by-series.html best, -- Dr. Heather Morrison Assistant Professor École des sciences de l'information / School of Information Studies University of Ottawa http://www.sis.uottawa.ca/faculty/hmorrison.html Sustaining the Knowledge Commons http://sustainingknowledgecommons.org/ heather.morri...@uottawa.ca ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
Thanks for sharing your well - thought position, Heather. My background is science, where the arguments for CC-BY are clear (legal uncertainty inhibits reuse), but I don't profess to know the dynamics of communication studies. In your example of a film still, why would it be ok to use in the first paper, but not downstream? Is the argument that TV film producers will seek to prevent even scholarly use of their works if authors retain copyright vs. publishers? On Apr 25, 2015 3:11 PM, Heather Morrison heather.morri...@uottawa.ca wrote: The types of works that many students and faculty would like to be able to include in scholarly works are not necessarily from other scholarly works. For example, scholars in my doctoral discipline of communication study a wide range of types of works including newspapers, television, films, cartoons, advertising, blogs and social media, and public relations materials. It is very useful for scholars to be able to include images and text from the primary source materials, either as illustration or for purposes of critique. Obtaining permission to use even small excerpts of such works is time-consuming at best. I argue that it would be in the best interests of scholarship to advocate for strong fair use / fair dealing exceptions for research and academic critique globally and accept that more restrictive licenses may be necessary to avoid the potential for re-use errors that could easily occur with blanket licenses allowing broad re-use. For example, while it makes sense to allow scholars to include small movie stills in an academic piece, it could be quite problematic for scholars to include such items in works that grant blanket commercial and re-use rights downstream. This illustrates what I see as one of the problems with the one size fits all CC-BY license preferred by some open access advocates (which I consider to be a serious error): what I interpret as an implicit assumption that all of the works scholars are likely to want to re-use are other scholarly works. Rather than making assumptions, let's do some research to find out what scholars and students would like to be able to re-use. Anecdotally, in my experience the most popular items for re-use are images from popular culture (especially characters from the Simpsons TV series), not scholarly works. Scholarly journals like to use photos to add interest and aesthetic value. If it is the case that the greatest interest in re-use for scholars involves works from popular culture / outside the academy, then ubiquitous CC-BY licenses for absolutely every scholarly article, book, and dataset in the whole world would not solve the primary re-use question for a majority of scholars. This is not meant to suggest that advocacy for global fair use / fair dealing rights for academic research and critique is an easy task, rather to raise the question of whether this is an appropriate and useful goal for scholarly works. This post is part of the Creative Commons and Open Access Critique series on my scholarly blog, The Imaginary Journal of Poetic Economics. To comment on the blogpost: http://poeticeconomics.blogspot.ca/2015/04/a-case-for-strong-fair-use-fair-dealing.html Creative Commons and Open Access Critique series: http://poeticeconomics.blogspot.ca/2012/10/critique-of-cc-by-series.html best, -- Dr. Heather Morrison Assistant Professor École des sciences de l'information / School of Information Studies University of Ottawa http://www.sis.uottawa.ca/faculty/hmorrison.html Sustaining the Knowledge Commons http://sustainingknowledgecommons.org/ heather.morri...@uottawa.ca ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
[GOAL] Re: A case for strong fair use / fair dealing with restrictive licenses
There are arguments against CC-BY as a default that apply across all disciplines. The most important is the potential for downstream enclosure. The sale of the business you've been involved with, William (Mendeley) to Elsevier may be illustrative here. Scholars who upload works to services like Mendeley are not necessarily aware of the business environment. BioMedCentral was bought by Springer a few years ago. Springer continues to run BMC on an open access basis, but they have no obligation to continue in this direction (unless there is a contractual obligation behind the scenes that requires this). A broad-based CC-BY success of the open access movement could easily and quickly revert to toll access on a massive scale in the future (short, medium or long term). A system of institutional and disciplinary repositories full of content available under generally more restrictive terms (eg fair use / fair dealing base), with some redundancy through multiple copies, would be a more sustainable system for open access. To return to the topic of whether strong fair use / fair dealing with more restrictive licenses might be better for open access and scholarship, there will be examples from areas of science similar to the ones that I have made for communication. For example in all applied sciences (eg engineering, some areas of chemistry, medicine), some researchers will be working with (or critiquing) organizations of various types (commercial, government, not-for-profit). These organizations will sometimes have materials of use in academic works (photos, videos, figures, charts). In the case of cooperating organizations, scholars may have more success obtaining permission to use third party works if they will be included in works with more restrictive terms (eg all rights reserved or CC-BY-NC-ND). In the case of critique, arguments for rights to use portions of works to critique them (fair use / fair dealing) cannot be extended to rights to grant blanket downstream commercial and derivative rights, or to create a situation where others could assume such rights in error by indicating that the whole work (article, book, journal) is CC-BY. Issues with third party works with CC-BY defaults are inability to include third party works, academic freedom issues if scholars cannot include works because of a CC-BY policy, legal risks for decision-makers who demand or strongly encourage others to use CC-BY, and I argue ultimately limitations on the kinds of research that academics can do if we must work under expectations of releasing all our works as CC-BY. Issues with third party works were mentioned in the responses to the recent review of the RCUK policy with respect to the CC-BY requirement: http://www.rcuk.ac.uk/research/openaccess/2014review/ best, Heather Morrison On Apr 26, 2015, at 3:11 AM, William Gunn william.g...@gmail.commailto:william.g...@gmail.com wrote: Thanks for sharing your well - thought position, Heather. My background is science, where the arguments for CC-BY are clear (legal uncertainty inhibits reuse), but I don't profess to know the dynamics of communication studies. In your example of a film still, why would it be ok to use in the first paper, but not downstream? Is the argument that TV film producers will seek to prevent even scholarly use of their works if authors retain copyright vs. publishers? On Apr 25, 2015 3:11 PM, Heather Morrison heather.morri...@uottawa.camailto:heather.morri...@uottawa.ca wrote: The types of works that many students and faculty would like to be able to include in scholarly works are not necessarily from other scholarly works. For example, scholars in my doctoral discipline of communication study a wide range of types of works including newspapers, television, films, cartoons, advertising, blogs and social media, and public relations materials. It is very useful for scholars to be able to include images and text from the primary source materials, either as illustration or for purposes of critique. Obtaining permission to use even small excerpts of such works is time-consuming at best. I argue that it would be in the best interests of scholarship to advocate for strong fair use / fair dealing exceptions for research and academic critique globally and accept that more restrictive licenses may be necessary to avoid the potential for re-use errors that could easily occur with blanket licenses allowing broad re-use. For example, while it makes sense to allow scholars to include small movie stills in an academic piece, it could be quite problematic for scholars to include such items in works that grant blanket commercial and re-use rights downstream. This illustrates what I see as one of the problems with the one size fits all CC-BY license preferred by some open access advocates (which I consider to be a serious error): what I interpret as an implicit assumption that all of the works scholars are
