In a recent New York Times story, journalist Denver David Robinson tells about how, while working in Uganda for a nonprofit organization, he did a photojournalism project for the Advocate magazine. His project helped “a dozen members of the (LGBTQ) community (tell) their stories, most for the first time.” The essay was published both online and in the Advocate‘s February-March 2013 print issue.
One year later, Uganda’s president signed into law the Anti-Homosexuality Act, making “sexual relations between persons of the same sex” a crime punishable by imprisonment and/or death.
In the wake of that legislation’s enactment, a Ugandan tabloid called Red Pepper reportedly published an article (which doesn’t seem to be available online, thus sparing me having to decide whether to link to it) with the title “Homosexuality Could Cause Mental Illness — Medics.” According to Robinson’s report in the New York Times, the article included, without his permission, one of the copyrighted photos from his project.
It then gets worse. Last month, the same tabloid published a version of Robinson’s entire photo essay — again without his permission — with a new title (“Top Ugandan Gays Speak Out: How We Became Homos”) and with Robinson’s name, among others, in the byline. (In the wake of this unauthorized republication, the Advocate removed the online version of Robinson’s original piece; its editor is trying to contact those whose photos appeared in it to see whether they are still willing to be publicly identified as gay.)
Robinson plans to file suit against Red Pepper in Uganda for copyright infringement.
Why am I writing about this in the Scholarly Kitchen? Because for some time I have been concerned with the growing movement to pressure scholarly authors into publishing their original work under a Creative Commons “Attribution” license (known for short as CC-BY) rather than under the terms of traditional copyright. As explained at the Creative Commons website, CC-BY licenses allow anyone to “distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation.” The pressure on authors to adopt CC-BY takes a number of forms. Some definitions of Open Access (OA), including those of the Berlin Declaration and the Bethesda Statement, explicitly require not just free public access to the document in question, but also public reuse rights that overlap significantly or completely with the terms of CC-BY. Membership in the Open Access Scholarly Publishers Association (OASPA) is also subject to this requirement. The Scholarly Publishing and Academic Resources Coalition (SPARC), “considers the terms outlined by the… (CC-BY license) to be the standard terms for Open Access.” The Wellcome Trust requires that all articles resulting from research that it funds be published under CC-BY.
To be clear, there are many good things about CC-BY and good reasons to adopt CC-BY licensing in one’s work, especially if one is a scholar or scientist, and I believe authors should have maximum freedom to publish under those terms if they so choose. But there can also be good reasons to hesitate, as Robinson’s experience indicates. If you tell the world “use my work in any way you wish, just make sure you identify me as the original author,” you’re authorizing not only responsible academic and professional reuse and distribution, but also any other kind of reuse that might fit an academic, social, or political agenda with which you do not wish to be associated. Because Robinson published his article under traditional copyright, he has legal recourse against those who have misappropriated his work; if he had published it under CC-BY he would have no recourse at all, because — in publishing terms — the kind of use being made of his work is exactly what CC-BY is designed to allow.
Last year we saw a troubling (if far less repugnant) example of how something like this can happen in the academic realm. Apple Academics Press published a book titled Epigenetics, Environment, and Genes. The book was comprised almost entirely of articles taken, without their authors’ permission, from OA journals in which they had been published under CC-BY licenses. It is now being sold on Amazon for just over $100. Although members of the scholarly community have responded with outrage, Apple Academic Press has done nothing illegal or even unethical. As long as the authors of the articles are given due credit, this kind of reuse is one of the many that are explicitly allowed under CC-BY terms. If the authors feel mistreated by Apple Academic, it’s because they failed to read (or understand) the agreements they signed when they submitted their articles for publication in OA outlets. What is troubling about this example is not so much what the publisher did, but the fact that authors are apparently being pushed to adopt CC-BY licensing without understanding its ramifications. Ultimately, the responsibility for gaining that understanding lies with the authors, but this points up one more reason for all of us in the scholarly community to be as open and up-front as possible about those ramifications as we discuss and debate policy initiatives.
Obviously, it needs to be said that traditional copyright doesn’t strictly prevent people from appropriating one’s original work and reusing it for repulsive and hateful purposes, any more than laws against burglary have eradicated break-ins or laws against assault have given us a society free of violence. What copyright does do, however, is give the author legal recourse in the event that his or her work is appropriated and reused by others without permission and in ways to which the author objects. In the case of Denver David Robinson, he now has the option of filing suit against the publication that stole his work and perverted its intentions. It may or may not do him much good — but if he had published his piece under a CC-BY license, he would have no recourse at all. (The tabloid even gave him attribution, though in this situation that fact only made the situation more repugnant to the author.)
The more general issue here is not so much about the relative merits of copyright and CC-BY licensing, however: it’s about the Law of Unintended Consequences generally. We may undertake a project or a program with nothing but the best intentions, seeing all the ways in which it might make the world a better place. But invariably, if the project or program is enacted it will also have consequences we did not foresee (and in many cases could not have foreseen), and they will never be uniformly positive. When an author gives up the right to control re-publication and the creation of derivative works, she makes her original work much more available for positive reuse — but also for irresponsible, or even hateful reuse, since she gives up the right to say how, where, whether, and in what context her work will be repurposed.
Authors who find this troubling are not being unreasonable. This is an issue that needs, I believe, wider and more rigorous discussion.