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Licensing Controversy — Balancing Author Rights with Societal Good

Glee cast version single cover.

Glee cast version single cover. (Photo credit: Wikipedia)

Requirements for a Creative Commons Attribution (CC-BY) license for scholarly papers are based on the societal good that unfettered reuse provides. This public good, however, must be weighed against the interests of the research community, particularly the rights of authors.

While much of the discussion about the recent UK House of Lords Select Committee hearing on open access focused on embargo periods, the submitted written comments bring to light a strong level of concern over demands for a Creative Commons Attribution (CC-BY) license for scholarly papers. The list of concerns is lengthy, but here are a few highlights:

The primary reasoning proponents offer in favor of CC-BY (rather than less controversial non-commercial licenses) is as an economic and innovation driver — as yet unknown reuses of scholarly articles may at some point provide valuable new tools, and spark new industries. The removal of all restrictions on commercial use is needed to remove uncertainty. The RCUK states:

Crucially, the CC-BY licence removes any doubt or ambiguity as to what can be done with papers, and allows re-use without having to go back to the publisher to check conditions or ask for specific permissions.

It’s important to note that the CC-BY license does not provide direct benefits to an author of a given article, but is instead a sacrifice that is being asked, for the benefit of others. As the typical researcher may fall into both camps — that of a content creator and that of either an entrepreneur looking to profit from the works of others or a customer of that entrepreneur — the balance between risks and rewards must be examined and understood.

The Nature Publishing Group recently released data on author preferences, when given a choice of licenses for their Scientific Reports journal. Authors overwhelmingly choose more restrictive licenses — those preventing derivative works and commercial reuse of articles — over the more permissive CC-BY.

In a talk given at the recent STM FACT Seminar on Licensing in an Open Access Environment, Taylor & Francis’ Vicky Gardner discussed results of a recent author survey. Again, authors strongly preferred tighter controls on the reuse of their articles.

The somewhat presumptuous, if not downright arrogant response to these datasets, the notion that researchers “perhaps don’t fully understand their choice,” ignores the reality of the academic research career structure. Reputation is the currency of the realm. Career advancement and funding are heavily based on one’s standing in one’s field. If anything, researchers are hyper-aware of this, and do their best to control their own destinies. They patent their discoveries, and they avoid the uncontrollable and unstructured nature of social media as a primary means of communication.

Researchers have fought hard for years to retain copyright on their published papers, and more and more journals rely now on a license to publish, leaving those rights with the creators of the content. CC-BY means relinquishing those rights — not just to publishers, but to the entire world.

This means your work may be reused by groups and in ways that may not meet your approval. This can be as trivial as someone slapping a saucy blonde on the cover of your public domain novel to promulgating misinterpretations of your research, or the using your research subjects’ images and information in advertisements for products.

The ever-charming singer songwriter and geek’s geek Jonathan Coulton recently ran into the limitations and practical unenforceability of Creative Commons licenses when the Rupert Murdoch-owned Fox Network program Glee aired what appears to be a note-for-note recreation of his 2005 cover of Sir Mixalot’s paean to the gluteus maximus, Baby Got Back.

Coulton licenses his music under a Creative Commons Attribution Non-Commercial (CC-BY-NC) license. Essentially, you’re free to copy, adapt and distribute the work, provided that you attribute it to Coulton, and you’re forbidden from reusing it for commercial purposes without specific permission from Coulton. Baby Got Back presents further complications, since it is a cover of a previously copyrighted song, with Coulton’s unique arrangements and lyrical additions.

Fox apparently maintains that this reuse is fully within its legal rights, and no attribution to Coulton is required whatsoever. The attribution portion of the CC license is particularly difficult to enforce, for reasons that Gardner explains in the video linked above around the 6:20 mark.

If Coulton feels he has a legal case against Fox, he must decide whether the expense and time commitment required would be justified by an outcome of merely receiving some small retroactive credit for his work. As an independent musician, any expenses incurred in defense of his rights are his own. As it stands now, millions of Glee fans will always know this clever creation as the sole invention of the show’s creators, and will never likely hear of Coulton.

As Kent Anderson recently pointed out, one of the key benefits a publisher offers authors is copyright protection. If someone misuses or abuses your work and reputation, or claims credit for your creation, it’s nice to have a team of legal sharks on your side to help clear things up. Licensing revenue provides motivation for publishers to pursue the difficult and expensive protection of these rights. With no revenue possible under CC-BY, authors will be essentially left on their own.

It’s also unclear if CC-BY truly “removes any doubt or ambiguity as to what can be done with papers.”

Taking a look at journals that currently offer articles under a CC-BY license, all have Terms and Conditions required for use of their websites. These Terms and Conditions often contradict the unfettered reuse offered by the CC-BY license. In the case of Elsevier and Wiley, it appears that there is one standard set of Terms and Conditions used for all journal websites regardless of license. Contradictions with the CC-BY license abound, but may just be an oversight in need of an updated terms and conditions page for these types of articles. I am not a lawyer, but this seems ambiguous to me — if not corrected, do the CC-BY license terms supersede those of the journal?

Even PLoS and BioMedCentral, which exclusively use CC-BY licenses, require reuse restrictions. PLoS forbids the user from emailing “any unsolicited or unauthorized advertising, promotional materials, ‘junk mail,’ ‘spam,’ ‘chain letters,’ ‘pyramid schemes,’ or any other form of solicitation.” It would seem then, that harvesting author email addresses for mailing lists, a commercial reuse of articles allowed under the CC-BY license, is prohibited. Similarly, BioMedCentral states that, “Collecting these [corresponding author] email addresses for commercial use is not permitted.” Further, the user is prohibited from using any PLoS site for any “unauthorized purpose.” That sounds an awful lot like the publisher permission the RCUK was hoping to avoid.

Many of these journal site terms are in the best interests of authors. No one wants more spam. But the CC-BY license is not about what’s best for authors — it’s about unlimited reuse of the authors’ work. That may mean the development of an incredibly valuable tool for researchers. Unfortunately, it also may mean crass commercial exploitation by an unsavory entity looking to flood your mailbox with scams. Such are the tradeoffs of using such a blunt instrument as CC-BY.

For a funding agency, the value that CC-BY offers needs careful analysis, rather than being automatically assumed. The Nature Publishing Group already charges authors an additional fee for the use of a CC-BY license, ranging from $200-$500, depending on the journal. This serves to replace the revenue brought in by secondary rights licensing, revenue that currently subsidizes the article processing charge for non-CC-BY articles. I’ve heard through the grapevine that similar options are coming soon from many other publishers in response to CC-BY requirements.

Are the funding agency’s gains from the CC-BY license worth paying an additional $500 per paper that could instead be used to fund further research? Is providing free raw material for a company in San Francisco or Bangalore really a good investment for the UK government’s research funds?

There are some potential great gains for society that could be accomplished through carefully applying better licensing terms to articles. It’s unclear though, if the overly broad CC-BY license is the right tool to accomplish those goals. CC-BY seems to be something of a default choice, insisted upon because it is how some parties have chosen to strictly define “open access.”

Is a dogmatic approach requiring a rigid following of orthodoxy the best method for adapting to a complex and unpredictable situation? Why not focus on the desired goals instead, and work to create flexible and evolving mechanisms for achieving them? Is there perhaps a yet undeveloped set of licenses that could better serve the needs of both authors and society, or are we stuck with CC-BY as the only possible option? If so, are funders willing to supply additional funding to make it happen and to offer legal representation for their authors should unexpected abuses occur?

Perhaps the best thing that has come from the announcement of funding agency OA requirements is that it has brought new voices to the conversation. Instead of the usual back and forth between committed advocates and skeptical publishers, we’re now hearing from research societies and a much broader swath of researchers themselves. These groups come to the table with their own sets of priorities. Communication, understanding, and an openness to flexibility will serve all parties well in finding the right path forward.

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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

18 thoughts on “Licensing Controversy — Balancing Author Rights with Societal Good

  1. One of the core questions here is: what right should an author have to a monopoly on commercially exploiting his work when he has already been paid from public funds to do that work? I think the answer is pretty obviously “none”. Society funds it; authors no more have a moral right to lock up the results than publishers do. That would be just another form of double dipping.

    (I also think it’s usually in the authors own selfish best interests to use a maximally permissive licence, but that’s a different line of argument.)

    Posted by Mike Taylor | Feb 12, 2013, 12:18 pm
    • That’s more of a patent question than one of copyright. The Bayh-Dole Act, at least in the US gives that monopoly right to the researcher (and his/her institution) as an incentive for innovation and performance. As usual, it’s a question of balance. Does allowing one to personally exploit one’s own work drive societal gain more efficiently than taking away that exclusive right? Do incentives for success lead to more innovation? Does removing those incentives drive researchers to different, more rewarding careers elsewhere? Repealing Bayh-Dole would remove billions of dollars annually from the coffers of research institutions and researcher themselves.

      All good questions, but fairly irrelevant to this blog posting, which deals with copyright rather than patent. Copyright only covers the article itself, not the ideas behind the article or the discoveries made. Perhaps here the question is whether an author should have an exclusive right to control the reuse (at least the commercial reuse) of his/her words and writings. I suspect that many, if not most academics and academic institutions would balk at a research funder requiring they sign a “work for hire” contract (https://en.wikipedia.org/wiki/Work_for_hire).

      Posted by David Crotty | Feb 12, 2013, 12:36 pm
      • I agree that this issue comes up much more with respect to patents, but it applies in essentially the same form to copyrights. In both cases, the state may grant a monopoly to a creator. There is always and obviously a downside to this — that others don’t get benefits they would otherwise have had. The hope is that the upside exceeds this: that the promise of monopoly incites the creator to efforts they would not otherwise make.

        You ask “Does removing those incentives drive researchers to different, more rewarding careers elsewhere?” I don’t believe I know any academics who, if they were not granted a monopoly on commercial exploitation of their work, would respond “Well, it’s not worth it then, I’ll go and work in marketing instead”. They may be out there, of course; if they are, then I wonder whether it would be such a great loss to academia to let them go.

        (But all of this is rather abstract, because as we both know the status quo is that in 90% of cases authors give up ALL their rights to publishers anyway. Certainly switching to an author-retains-copyright CC BY system could not harm such authors.)

        Posted by Mike Taylor | Feb 12, 2013, 12:42 pm
        • I don’t believe I know any academics who, if they were not granted a monopoly on commercial exploitation of their work, would respond “Well, it’s not worth it then, I’ll go and work in marketing instead”.

          This may come from your particular field of work, paleontology, which offers less potentially lucrative rewards for patents. I personally know dozens of researchers who have started their own companies based on their discoveries, some of whom subsequently left academia for the commercial opportunities offered. I know many academics who have happily paid for their houses and their children’s education through their patent earnings. There’s also the question of the “brain drain”, where many of the best and brightest minds currently go to places like Wall Street rather than pursuing scientific research, because the career structure and the returns offered pale so much in comparison. I would prefer a system that makes science as compelling a career as possible, and rewards the best minds for things like curing diseases rather than figuring out ways to trade stocks one femptosecond faster.

          But all of this is rather abstract, because as we both know the status quo is that in 90% of cases authors give up ALL their rights to publishers anyway. Certainly switching to an author-retains-copyright CC BY system could not harm such authors.

          Are there any figures available on this? Do 90% of journals still require full transfer of copyright? I’m with you in thinking this is not necessary and it’s reasonable to allow authors to retain their copyrights. I’m not convinced though, that the CC-BY license is the best license to protect authors’ interests, and as the article suggests, would like to see more development of licenses that provide more balance.

          Posted by David Crotty | Feb 12, 2013, 12:57 pm
          • It’s certainly true that palaeontological discoveries offer less commercial exploitation opportunity than electronics!

            Still, remembering that the point of government-granted monopolies (patents and copyrights) is to encourage creativity, how many of the academics you know who retired on their patent earnings went into academia with that goal in mind? I would guess not many. Meanwhile, their retiring from academia on the back of their patents is a loss for science, as those people aren’t doing any more research.

            I do agree, of course, that we want our best minds working on real problems, not on new ways to move money from one place to another.

            I have no numbers for how common copyright transfer is beyond my sense (possibly again biased by my orientation to palaeontology) that it’s pretty much ubiquitous outside of the obvious open-access publishers. That experience certainly justifies the “90%+” figure, but I’ve never seen a study on it.

            Posted by Mike Taylor | Feb 12, 2013, 1:13 pm
            • They didn’t stop doing research, they just left academia. They’re actually performing the societal good that this funding is supposed to supply–they’re turning discovery into practical treatments and products that improve the welfare of society. The question is whether its better that the inventor/discoverer of that knowledge is the one who gets to make that translation, or if it’s better for society to throw things open to all comers, and likely have a huge commercial company push the inventor aside.

              And for what it’s worth, I’ve seen more and more publishers of all stripes adopting a “license to publish” approach rather than an assignment of copyright. But I have no hard numbers either.

              Posted by David Crotty | Feb 12, 2013, 1:30 pm
              • “The question is whether its better that the inventor/discoverer of that knowledge is the one who gets to make that translation, or if it’s better for society to throw things open to all comers.”

                That is indeed the question. Unfortunately, it’s one that’s incredibly hard to get good data on, for the obvious reason that we can’t conduct randomised controlled trials.

                Still, I am inclined to think based on what data we have that societies that err on the side of freedom to innovate tend to do better than those that control how new discoveries are used.

                Good news on increasing licence-to-publish.

                Posted by Mike Taylor | Feb 12, 2013, 1:41 pm
              • The other factor to consider in the balance is the public disclosure that a patent grant requires. In exchange for the limited monopoly, the inventor must make public the knowledge behind the invention, rather than keeping it as a trade secret. So in some ways, these limits on exploitation work to make the knowledge behind the discovery more “open”.

                If researchers could not patent their work, I’m betting many would not publicly disclose key research results until they were far down the path toward exploiting it themselves, rather than putting it out right away and seeing Glaxo run off and make a fortune from it, leaving them with nothing.

                So there are ways that locking up the commercial use of the knowledge actually serves to speed the process of further discovery, letting others share in the information immediately, even if they are then limited in trying to commercially exploit it without paying a licensing fee.

                Again, all part of a complicated balance with pluses and minuses.

                Posted by David Crotty | Feb 12, 2013, 4:14 pm
              • Good point on the disclosure aspect of patents. That, and the much shorter terms, make them in those respects much more palatable than copyrights. Unfortunately, the fact that independent reinvention is no defence against patents has rather set them up as the prizes in a land-race, and software patents in particular have become beyond ridiculous.

                Oh dear. We manage to have a civilised conversation on this blog, and the outcome is ironically that it leaves me despairing. Pretty much all of our IP law is, if not actually broken, then at least prone to the most egregious abuse.

                Posted by Mike Taylor | Feb 12, 2013, 5:30 pm
              • We have civilized conversations here all the time. I’m really happy to see you engaging more lately, rather than coming in combative or snarky. There’s much to be learned from others with different viewpoints and different sets of expertise.

                I’m not sure I would call our entire IP system broken, but it could be greatly improved (both copyright and patent reform are long overdue).

                Posted by David Crotty | Feb 12, 2013, 8:27 pm
  2. I don’t think I understand the point made here. Whatever license you have on a paper, this does not prevent commercial re-use of the idea. This is not a patent. The only case where a CC-BY license could cause trouble if there are material in the paper that can be re-used (like code, data, artwork, etc). This might not be the case in all fields, but in mine (neuroimaging) you pretty much get nothing out of a paper. No data, no code. Just the figures. What’s the point of protecting academic figures against commercial use ?? Again, I must be missing something.

    Posted by Pierre Bellec | Feb 12, 2013, 5:09 pm
    • I think that one root of my lack of understanding is one of the first claims made in the post:

      “I have previously suggested that CC-BY will result in lost revenues for journals, shifting the financial burden to the research community, rather than putting on those seeking to profit from reuse of journal articles.”

      Organization like frontiers do publish open access articles for *cheaper* than regular Elsevier journals … where the paper is not open access. The CC-BY license will not suck out more revenues from research to publish, if anything it will reduce the costs. It is “just” going to kill the bulk of the benefits of a whole industry that used to live out of public subsidies. The sad truth is that a lot of the services offered by this industry has unfortunately become obsolete in the age of internet.

      Posted by pbellec | Feb 12, 2013, 5:17 pm
      • There are lots of journals providing different levels of service at lots of different price points. The for-profit, owned by a huge corporation BioMedCentral journals for example charge authors less than some of the journals owned by the not-for-profit PLoS.

        Here’s an incomplete list of the sorts of things that publishers do for authors:

        http://scholarlykitchen.sspnet.org/2012/07/18/a-proposed-list-60-things-journal-publishers-do/

        Some of these things are important, others, one can perhaps do without. But no matter the journal, no matter the publisher or the access model, there are costs involved. The question is how to reduce those costs as much as possible, and to leave the maximum amount of money from the research funding budget to be put toward doing actual research. One way to do this is to bring in revenue from other sources, by selling the secondary rights to reusing the article to a third party that wants to profit from it. That means things like a pharma company paying for reprints to be given to physicians. Or aggregators who want to sell compilations of articles from many sources (and yes, many of these aggregated collections contain OA articles). Or maybe someone wants to reprint the article in a book or use an image from the article in an advertisement.

        Every time one of those sorts of sales is made, it means a revenue stream that doesn’t rely on the researcher or take money out of their budget. That strikes me as a good thing. If we truly want to move away from the subscription business model, then new models that don’t rely on research funding should be emphasized.

        Which is a long answer for your original question of “protecting academic figures from commercial use”.

        Posted by David Crotty | Feb 12, 2013, 8:59 pm
    • You are correct that much of the “controversy” over this issue stems from a confusion between the copyright status of an article and the patent status of the discoveries and ideas behind the article. More on this subject here:

      http://scholarlykitchen.sspnet.org/2012/10/30/cc-huh-fundamental-confusions-about-the-role-of-copyright-and-the-reuse-of-data/

      There is a notion that for some types of research, text-mining for example, the article itself becomes a piece of data, needed for reuse in discovering something new. It’s unclear though, how copyright would prevent that, unless one is trying to redistribute or re-sell the paper itself, rather than using it as a tool/datapoint.

      Will address your second question below.

      Posted by David Crotty | Feb 12, 2013, 8:31 pm
  3. There are other arguments against using a CC-BY license not covered here, which I have addressed in this article: http://jlsc-pub.org/jlsc/vol1/iss1/5/. Most authors I know would be concerned about having their work badly translated because this could lead to misunderstanding. Many authors also worry about having their articles collected in anthologies that could be slanted in ways that would cast their work into a bad light. Despite what Mike Taylor says about authors signing over rights to publishers, one service that publishers do provide is to arrange for translation and anthologizing in ways that protect their authors’ best interests. Indeed, publishers usually give authors veto rights over arrangements with any particular re-publisher.

    Posted by Sandy Thatcher | Feb 21, 2013, 9:15 pm
  4. The issues here are quite complex because much depends on the contract of employment when work is done under the aegis of a university or business. Much more fundamental and important is the theft of copyright in a title (book) because in Britain there is no protection. We had an author under an assigned contract ; ie, transferred to publisher, but when the book was republished by a registered charity, we could not get any response from the guilty party and the Charity Commission refused to interfere. After using solicitors we were told that the only way was to go to Court with a barrister at an approximate cost of £20,000.
    The point I am making is that in Britain, unlike the USA, there is no body which sets out to protect copyright. We imagine that lodging details and books at the British Library is for that purpose, but unfortunately not.
    Therefor all arguments about who owns copyright are worthless unless there is resort to the Courts.

    Posted by Dr Joseph Batty | Feb 26, 2013, 6:02 am

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