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:
- As noted by a cohort of history journal editors recently, the CC-BY license raises questions of lost revenue for authors and worries about scholarly integrity.
- 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.
- CC-BY licensing terms are a difficult match for journals that require reproduction of previously copyrighted material (art journals, literary analysis journals, and review journals of all sorts). Although it is possible to include differently licensed material within a CC-BY article, this can be confusing for readers, potentially expensive for authors to secure permissions, and worrisome in that it may possibly make the author and publisher liable for damages if the work is illegally redistributed. More details on this at about the 8 minute mark of this talk.
- Disturbing scenarios have been raised in which CC-BY could lead to violations of researcher ethics and patient consent laws.
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.