Business Models, Commerce, Copyright, Research, Technology, Tools, Usability

The Financial Burdens of the CC-BY License for Scholarly Literature

English: Heavy Burden

English: Heavy Burden (Photo credit: Wikipedia)

Ten years ago, the Budapest Open Access Initiative defined “Open Access” (OA) as including the reuse of published articles for “any other lawful purpose, without financial, legal, or technical barriers.”

Recent funding agency mandates calling for OA publication of funded research results have perpetuated this call, with the RCUK and Wellcome Trust requiring works to be released under the CC-BY license, which permits reuse of articles (without compensation) for commercial purposes.

Allowing reuse of published articles for further research is certainly an important goal, but giving up rights revenue from commercial exploitation of published papers may be counterproductive for the research community, shifting a financial burden onto an already overburdened system.

First, a few quick definitions of the different licenses:

CC-BY-NC: You are free to copy, distribute and transmit the work, and to adapt the work. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). You may not use this work for commercial purposes. Any of the above conditions can be waived if you get permission from the copyright holder.

CC-BY: You are free to copy, distribute and transmit the work, to adapt the work and to make commercial use of the work. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).

Reuse of published papers has become an important issue as technology has reached a point where it’s possible to textmine enormous swaths of the literature in order to perform large-scale analyses of research results. Semantic technologies and other approaches offer great promise for discovering previously hidden connections and conclusions from completed studies and published literature. If these approaches live up to their billing, that’s a tremendous level of efficiency that can be added to the system, milking the absolute most out of any experiment at little additional cost.

It’s understandable why the status quo is no longer adequate, and why funding agencies want to ensure unrestricted access for the research community via the CC-BY-NC license. The question is whether it is in that community’s best interests to see that same level of free access extended to commercial enterprises via the CC-BY license.

The argument in favor of CC-BY, particularly for government funders, is that it will drive the creation of new businesses, resulting in increased employment, tax revenue, etc. But like other aspects of funder OA mandates, it’s unclear whether those making the demands have investigated the impact of likely unintended consequences. Earlier this week, Todd Carpenter wrote a post about the implications these licenses have for standards and for individuals. It’s important to also think about the financial impact they may have on the research community.

As has been discussed numerous times, online publication and providing access to articles costs money. It may be free to the reader, but someone, somewhere is paying for it. Under a CC-BY-NC license, textmining and reuse costs are supported by commercial entities, intent on exploiting the literature to make their fortunes. Under CC-BY, the burden falls on the research community.

The first obvious impact of a CC-BY license is on journal reprints. While this may have little effect in some fields, article reprints (both print and electronic), usually purchased by pharma companies, are an important source of revenue for medical journals. Many publishers, particularly not-for-profits and societies, use those revenues to help keep subscription prices as low as possible. Taking away the sale of reprints means that the lost revenue will be passed along to the subscriber and author, through increased subscription costs or higher article processing charges (APC’s).

I’m pretty sure that subsidizing pharma advertising is not something funding agencies are interested in paying for, yet it is an immediate cost shift that will occur.

But reprints aren’t the only place where the CC-BY license shifts the financial burden from for-profit companies to the scholarly community. The technologies used for textmining and other analyses are constantly evolving. Making publications available for use with new technologies requires a significant level of constant investment. New technologies must be developed and tested, implemented for new articles and retro-fitted to previously published articles. Systems for providing bulk downloads of the entirety of a publisher’s output must be developed, put in place, maintained, and upgraded over time. These bulk downloads result in significant bandwidth costs.

Someone has to pay for all this.

Under a CC-BY-NC license, the research community gains access to material and these sorts of tools, but a good amount of the costs will be borne by those actively trying to use the material and tools to turn a profit. Take away commercial underwriting, and either the research community has to shoulder the entire burden, or these technologies go away altogether. Under CC-BY, without increased research community funding, there is no longer any incentive for publishers to continue to develop and implement these new technologies. Why update your metadata? Why not block bulk downloaders if all they do is cost you money that can’t be recovered?

There is precedent for this sort of arrangement, and this is where things start to border on the hypocritical. Many funding agencies allow researchers and their institutions to patent the results of their work. There’s an obvious disconnect in logic here — if it’s important that everyone have unfettered access to the reports written about the research, then isn’t it even more important that the same level of access is available to the actual results of the research themselves? Does it matter if I can read about your breakthrough in curing cancer if I’m not allowed to use that breakthrough for treatment?

The logic behind allowing those patents is that they serve a few important purposes. First, they provide incentive for researchers — if we want to keep the best and the brightest minds in the academic research world, we need to offer them significant rewards for achievement. Similarly, we want to offer incentives for providing and improving access to the scholarly literature for reuse.

Second, patents provide a significant amount of funding to drive further research. Research institutions rely on this funding, provided by commercial entities, to pay for their continuing research programs. Universities brought in more than $1.8 billion in technology transfer funds in 2011 alone. These funds are in some ways more valuable to an institution than grant funding because they do not have the same restrictions that are normally placed on grant dollars, and thus can be spent where the university needs them most. They also recur dependably for many years on end.

Universities fiercely defend these intellectual property paywalls. The University of California is currently suing Facebook, WalMart, and Disney over alleged patent violations.

A University of California spokesman said it considered the patents public assets and “should be paid a fair value when a third party exploits that university asset for profit.”

But if the patented results were discovered in experiments funded by grants, aren’t they already “Bought, Then Paid For“?

Given how incredibly tight the current research funding climate is, in the end it makes sense that successful research programs should be allowed to parlay that success into further funding. If a company is going to strike it rich using a university’s invention, then that company should be able to afford to pay for the raw materials that led to their fortune.

And if a company is going to strike it rich using published papers, then that company should be able to afford to pay for the raw materials and tools that led to their fortune.

Opening access to the literature for reuse without increasing the financial burden for the academic research community can be accomplished with a CC-BY-NC license. In some ways, it’s also in the best interests of the for-profit companies themselves.

One important lesson that the Internet has taught us is that it’s foolhardy to rely upon free services for mission critical activities. As the famous line goes, “If you are not paying for it, you’re not the customer; you’re the product being sold.” Free services must find a way of paying the bills, and those become the priority for the service, not the needs of users.

If you’re a textmining company, would you rather work with a resource that’s constantly creating new APIs and faster delivery mechanisms, or one that neglects any improvements in these areas and actively works against bulk downloading of papers? If textmining companies want well-maintained, up-to-date, and easy-to-use resources that are sustainable over the long-term, they must be willing to pay for those services. Without that support, publishers have no incentive to serve their needs.

I do think economic growth can be generated even if startups have to pay for access to raw material. I would like to see measures put in place to require low and consistent fees for that access, and have in the past suggested compulsory licensing as one solution. At the very least, funders may want to consider a more nuanced licensing approach, outlining specifically what activities are required to be free. This will help prevent the financial burden being shifted from commercial, for-profit interests to the research community.

While broadening access to research literature is an important goal, it must be done in a well-planned manner, one which doesn’t result in increased work and increased financial hardships for the researchers themselves. The choices here seem pretty clear cut: the status quo is not acceptable, so we can either move to an unreliable system that requires additional funds to come out of research budgets, or we can instead plan for a sustainable system supported on the backs of those looking to exploit the literature for financial gain.

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About David Crotty

I am a Senior Editor with Oxford University Press' journal publishing program. Prior to that I served as an Executive Editor at Cold Spring Harbor Laboratory Press, and was also the commissioning editor for their book publishing program. Many years ago, I was a research scientist, receiving my Ph.D. in Genetics & Development from Columbia University, and doing postdoctoral research in neural development at Caltech.

Discussion

17 thoughts on “The Financial Burdens of the CC-BY License for Scholarly Literature

  1. The first contradiction of these licenses is that they leave individual authors with a copyright that is meaningless on the market — it has no remaining commercial value because the license supersedes it. As for protecting the work, an unregistered copyright in the context of a CC-BY license has no power, as an author has to prove actual commAnderson’smages, and, by logical extension, there can be no actual damages when you’ve surrendered commercial rights in this manner.

    Posted by Kent Anderson | Oct 2, 2012, 7:13 am
  2. I am glad to see that some others are pushing back against the OA advocates who think that the BOIA definition should exclusively delimit what is considered OA. They not only thereby deprive themselves of allies in the movement but also display their naivete with respect to what the consequences of their advocacy is. Todd and David have both done great service by highlighting some of the adverse consequences of using the CC-BY license instead of the CC-BY-NC license. Besides their arguments, I have argued that there are sound scholarly reasons why authors should want to have some control over translations and anthologizing of their articles and books.

    Posted by Sandy Thatcher | Oct 2, 2012, 10:26 am
  3. I expected more chatter on this… One thing I did note here in the UK was reference being made to studies showing the economic advantage to OA. I think the reference resolves to this paper here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1492578 which is an interesting read. The assumptions and indeed range spread of some of the variables are probably a source of much debate. I like the bit about the increase in R&D returns…

    Posted by David Smith | Oct 2, 2012, 6:02 pm
    • Yeah, I was surprised at the silence from CC-BY advocates as well. Other than a few vague tweets that seemed to entirely miss the point of my post, no one has tried to present an argument that CC-BY is a better deal for the research community than CC-BY-NC. I can understand why a government wants to push new business opportunities which may lead to increased tax revenue and employment. Those goals may not line up well with the best interests of academic researchers though. Really if the whole point was helping businesses ruthlessly exploit the academic community then why move to OA at all?

      Posted by David Crotty | Oct 2, 2012, 6:13 pm
      • The other side is presented by Klaus Graf here: http://jlsc-pub.org/jlsc/vol1/iss1/5/.

        Posted by Sandy Thatcher | Oct 2, 2012, 7:48 pm
        • The argument there is a bit vague and circular–he wants the widest possible distribution because it’s the widest, it’s the best because that’s what OA definitions call for, and it’s the best because that’s what the journals he likes use. He does make a good point about course packs (something that could be addressed by funding agencies specifying what types of reuse are required, rather than blanket terms). Realistically, you could take his entire argument and use it against the patents that bring in $1.8 billion to universities annually.

          Posted by David Crotty | Oct 2, 2012, 8:12 pm
  4. Does CC-BY prevent a publisher to sell access via bulk download and better meta-data, while papers with minimal meta-data are freely available to read at a given rate? In other word, why could not a publisher sell precisely what it ads to each concerned party (selling the article processing to the author, and the broadband access to textminers) ?

    Posted by Benoît Régent-Kloeckner | Oct 4, 2012, 11:00 am
    • It’s a really interesting model in general, going with a “freemium” approach. The basic article is free, but if you want extra services you have to pay.

      The problem in this case is I’m looking for a means of best serving the needs of the research community. I want to drive further research and make the best tools and the full breadth of the literature freely available to researchers. If you block bulk downloads and minimize metadata on the free version, then only those with money to spend can do textmining research. If you’re going to put these tools behind a paywall, it kind of negates the idea of making them freely available, at least for textmining research.

      CC-BY-NC means that non-commercial researchers have free full access to articles and tools and the costs are subsidized by pharma and startups trying to make a profit. I’d favor that because it’s better for the research community than locking them out.

      Posted by David Crotty | Oct 4, 2012, 12:10 pm
      • Of course, this raises the thorny issue of just what is meant by “noncommercial” use, about which there has been little consensus (as revealed by a survey conducted by Creative Commons itself several years ago). Are researchers in a pharma lab making “commercial” use just because they are working for a for-profit company? The ruling in the Texaco “fair use” case would suggest so, but that never got confirmed at a higher court level beyond the Second Circuit. How about researchers in a university who subsequently file a patent claim and then share in the proceeds from the licensing of that patent to a commercial company? Or what about faculty working in for-profit universities like Phoenix? Determining what NC means is by no means an easy task.

        Posted by Sandy Thatcher | Oct 4, 2012, 1:18 pm
        • Absolutely. There’s a level of fuzziness in the CC license (though to be fair, there’s also a situational fuzziness in fair use of copyrighted material). Again perhaps a reason for funders to specify the types of reuse they want available for their funded research rather than the broad strokes of a license that ends up in them paying for pharma marketing.

          Posted by David Crotty | Oct 4, 2012, 2:11 pm
          • “[funder] paying for pharma marketing” seems like stretching the truth.

            How about “Funders wanting to create maximum impact and utility of the research they fund, setting the terms for the publication of the research they fund to support that aim and then not caring about missing the opportunity for publishers to extract additional revenue from some pharma companies” ?

            Posted by andersnorgaard | Oct 8, 2012, 4:02 pm
            • Phrase it however you’d like Anders. Someone has to pay for these often expensive technologies. I’d rather put some of the burden on pharma, Silicon Valley and other startups rather than giving them a free ride on the back of the research community. Every penny we can get from alternative business models means lower APC’s and/or lower subscription prices. Every penny a funder can save on not paying for infrastructure costs like these is another penny that can go to funding actual research. Why not ask those seeking to make a fortune from these tools to cover their fair share of the costs?

              Posted by David Crotty | Oct 8, 2012, 4:09 pm
              • “Every penny we can get from alternative business models means lower APC’s and/or lower subscription prices”.

                Somehow I don’t really trust you on that one. But it would be very interesting if publishers would publish financial statements detailed enough that claims like that could be verified. Do you know of any that do?

                The next problem would be that even if some money moved the way you describe AND if it was a relevant amount, it is still unclear that moving money like that is a better idea than eg. reducing a tax-break for pharma-companies and using that revenue to fund public research.

                Posted by andersnorgaard | Oct 8, 2012, 5:17 pm
              • Well, it will probably vary from publisher to publisher. But I think we can agree that many, if not most publishers, will try to make up for lost reprint revenues through other channels, and frankly, the most obvious ones are subscription prices and APC’s.

                There seems to be a lot of interest from funders in discouraging publishers from “double dipping”, getting them to reduce subscription prices to reflect APC revenue (a practice OUP already does, by the way). Why not include reprint revenue or licensing revenue in such requirements?

                And I agree with you that it would be nice to see more transparency in terms of financial reporting, particularly because I think it would make a stronger case for the not-for-profits over the commercial publishers. But the research community seems to have little influence over financial reporting laws for private companies.

                The next problem would be that even if some money moved the way you describe AND if it was a relevant amount, it is still unclear that moving money like that is a better idea than eg. reducing a tax-break for pharma-companies and using that revenue to fund public research.

                Is that a realistic option? How much power can research funding agencies wield over a country’s tax code? Private funders certainly can’t turn to solutions like this. But if it’s possible, why not do both? Is there some limit on ways we can reduce costs and increase research funding?

                Posted by David Crotty | Oct 8, 2012, 6:50 pm
      • I think Benoits point is that CC-BY doesn’t prevent publishers from selling bulk access. Or trying to.

        The problem, I guess, is whether publishers can offer competitive prices? If publishers simply want to cover costs – they should be able to offer competitive prices – unless, of course, publishers simply do not offer cost-effective hosting services. (and if they don’t offer cost-effective services, that begs the question – do funders (or anyone) see any moral argument that those bloated costs be covered with their money).

        Posted by andersnorgaard | Oct 9, 2012, 10:55 am
        • But Benoit’s suggestion creates a system that is no longer open. If you publish everything under a CC-BY license, but then block bulk access and remove useful metadata and API’s and put those behind a paywall, then you’ve negated the entire purpose of the CC-BY license. You are going from a situation where access is limited to those who can afford to subscribe to the journal to a situation where access is limited to those who can afford to pay for bulk/tool access.

          The goal should be to open access to the research world, to reduce expenses for researchers, not increase them.

          As for competitive prices, that’s why I’ve suggested compulsory licensing as a useful mechanism here. Set a standard across the literature, a low, affordable rate for reuse for commercial purposes. That makes it easier to administer and easy to afford for those looking to cash in. Meanwhile those looking solely to do further research and increase the world’s knowledge pay nothing (because of the CC-BY-NC license) but still get access to cutting edge tools.

          That strikes me as a balanced situation, one that reduces costs and opens free access for the research community, one that offers incentive to publishers to continue to improve and implement new tools, and one that requires that those seeking to get rich from the literature help support the tools they need to use for their businesses.

          Posted by David Crotty | Oct 9, 2012, 11:14 am

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