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CC-BY, Copyright, and Stolen Advocacy

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.

About Rick Anderson

I'm Associate Dean for Collections and Scholarly Communication in the J. Willard Marriott Library at the University of Utah.

Discussion

70 thoughts on “CC-BY, Copyright, and Stolen Advocacy

  1. “Last month, the same tabloid published a version of Davidson’s entire photo essay — again without his permission — with a new title (“Top Ugandan Gays Speak Out: How We Became Homos”) and with Davidson’s name, among others, in the byline.”

    This is in violation of the CC By licence, plain and simple. the license states,
    “You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.”

    Since the tabloid’s repurposing of Davidson’s article is not covered by the licence, it’s a straightforward case of copyright infringement, and Davidson is absolutely right to file suit against Red Pepper in Uganda.

    It makes no sense to criticise the CC By licence for the fact that some people break it — any more than it makes sense to criticise copyright law for the fact that some people break it.

    Posted by Mike Taylor | Mar 31, 2014, 6:42 am
    • I’m not sure you’re reading that right. The “reasonable manner” refers only to how attribution is given, not to how the material is re-used. In the first case, where just the unaltered photo is used with credit, that would seem perfectly in line with the license. In the second case one could make the case that all that is needed is a small notice at the bottom of the article noting the original title of the original article, but given that, the abusive re-use seems fully supported by the license.

      Posted by David Crotty | Mar 31, 2014, 8:17 am
    • This is in violation of the CC By licence, plain and simple.

      There was no CC-BY license in the case of Davidson’s article. As I said clearly in the piece, Red Pepper‘s reuse of that article was a case of straightforward copyright infringement.

      It makes no sense to criticise the CC By licence for the fact that some people break it — any more than it makes sense to criticise copyright law for the fact that some people break it.

      I agree, and that’s why I’m not criticizing the CC-BY license. I do, however, question the wisdom of coercing authors into accepting CC-BY as a matter of course, and I urge authors to educate themselves about CC-BY’s implications before adopting it.

      Posted by Rick Anderson | Mar 31, 2014, 8:57 am
  2. An excellent post. To underscore your points, copyright allows authors to protect their works from these kinds of egregious abuses. Every journal I’ve worked on has required us at some point to use copyright to protect an author’s work. Copyright is collected somewhat for financial reasons (to allow authorized reproduction), but also for systematic reasons — a publisher can’t know which work will need legal protection at the outset, so having the ability to protect everything is the best approach.

    People who ignore the realities of copyright are often shocked at what happens without its protections, or how some steps to increase its protections make a big difference. Universities seeking to claim employees’ copyrights may have a tiger by the tail.

    You allude to one of the many issues I have with Creative Commons, which is that its system is confusing and opaque. “CC-BY” tells me very little about the risks I’m taking. Why not call it, “Creative Commons Giveaway License,” as compared to “Creative Commons Non-Commercial Use LIcense” or “Creative Commons Educational Use Only License”? If the names were clearer, authors might have an easier time choosing. Now, with CC BY, CC BY-SA, CC BY-NC, CC BY-ND, CC BY-NC-SA, and CC BY-NC-ND, how can anyone tell?

    Perhaps most importantly, the underlying irony of the CC licenses is that they depend on copyright — otherwise, how would an author have any ability to choose a license? Copyright is the presumed underlying protection (CC licenses are called “public copyright licenses,” for instance). However, because Creative Commons sows confusion and doesn’t guide authors as to how best to protect themselves with copyright first, many authors don’t take reasonable steps to assert their copyright or register it, which ultimately makes both their copyright claims and their licensing claims less enforceable.

    Posted by Kent Anderson | Mar 31, 2014, 7:08 am
    • “the underlying irony of the CC licenses is that they depend on copyright”

      As the initial marketing slogan was “some rights reserved” I’d say the dependence on copyright was conscious and intended rather than ironic.

      Posted by Dan | Mar 31, 2014, 3:53 pm
    • I do not find cc-by as confusing as you maintain. When one is selecting the “flavor” of license one wants, the questions Creative Commons asks are very clear. If the copyright owner does not bother to read them, that is not the fault of Creative Commons.
      My understanding of US copyright law is that one already owns the copyright for items one has created, until one signs it away. One signs it away by signing an employment comtract woth one’s institution, by posting it on the web having clicked “I agree” blithely to terms, or by applying cc-by licenses.
      My understanding of Creative Commons is that it is NOT trying to do away with copyright, but that it is trying to make the differing rights clearer to everyone – creaters, users, and general public. Copyright is the law, just as ownership is the law. Just because you let your neighbor borrow your lawn furniture for a party does not mean you have given it away. Just because you allow others to freely read your material on the web does not mean it belongs to them.

      Posted by Andrea GillaspySteinhilper | Apr 2, 2014, 11:35 am
  3. Although I agree with the overall sentiment of the post, I wouldn’t agree that CC BY is designed to allow misappropriation of an author’s work. Section 4.c of the CC BY 3.0 license code (https://creativecommons.org/licenses/by/3.0/legalcode) seems to—or at least tries to—prevent misuse of content similar to the one in David Robinson’s case.

    It states that “Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. (…)”

    As is the case with copyright, in practice this doesn’t do much to prevent misuse and misappropriation of content. It’s not even clear to me if it provides legal recourse for such misappropriation, but it does take the author’s intended use into account in principle at least.

    What I do find troubling, though, is the complete lack of similar restrictions in the new CC BY 4.0 license. Cases like the ones described in this post make it clear that any OA licenses should strongly consider establishing safeguards against misuse and misappropriation of content.

    Posted by sasa | Mar 31, 2014, 7:25 am
    • It states that … You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation.

      I think there’s a deeper problem with this terminology than unenforceability, and that’s the problem of subjective interpretation. Suppose, for example, that Davidson actually had published his photo essay under a CC-BY license. Red Pepper could have republished it as originally presented (thus without distorting, mutilating, or taking any derogatory action in relation to it), without additional comment and with proper attribution, and could thereby have accomplished its own goals and remained fully in compliance with CC-BY. You or I (or Davidson) might have argued that because Red Pepper is a scurrilous and hateful rag, it committed an act prejudicial to Davidson’s “honor or reputation” simply by appropriating the piece — but that’s a purely subjective opinion. I don’t see what recourse the terms of CC-BY would have allowed in that case.

      Posted by Rick Anderson | Mar 31, 2014, 9:12 am
      • Well, yes, the terminology is vague and ambiguous, and subjective interpretation comes heavily into play in situations like the ones described. It’s as vague as the ‘Fair Use’ exception for traditionally copyrighted content, but I feel it gives enough pointers to determine what might constitute misappropriation.

        At any rate, I don’t think it’s even possible to put it into unambiguous terms. Traditional copyright alleviates that problem by saying “contact the copyright holder for permissions”, but in turn it creates the same problem for the copyright holder who has to decide whether a certain kind of use is appropriate or not on a case-by-case basis. It boils down to subjective interpretation both in CC BY and in traditional copyright.

        While it can be argued that the discretion to permit or prohibit a certain kind of use should rest with the copyright holder, I feel that it also creates a lot of unnecessary back-and-forth for those who wish to use the content in a completely appropriate manner.

        As you noted below in your response to Torsten, CC BY errs on the side of expansiveness, while I’d add that traditional copyright errs on the side of bureaucracy. Neither of the two prevent misuse nor copyright infringement, unfortunately.

        Posted by sasa marcan | Mar 31, 2014, 12:47 pm
  4. There may be a way to stop Red Pepper even with CC BY. The license (v3.0) states: “You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation.” Having the essay published in the context of an anti-gay campaign may be seen to damage the “Original Author’s honor or reputation”. Whether this would apply does of course depend on how the essay was presented. It also depends on a court to take the same view, and in Uganda that may be difficult – so I am not saying this would necessarily work but CC BY is not necessarily entirely toothless in this context.

    Posted by Torsten Reimer | Mar 31, 2014, 7:33 am
    • Hi, Torsten — see my response to Sasa, above. I think it applies equally to your comment.

      Posted by Rick Anderson | Mar 31, 2014, 9:13 am
      • It does to a certain extent, although I specifically referred to the issue of how the essay was presented. If, as you outline in your response to Sasa, it was just republished without any commentary then it may very well be hard to use that clause in court. If it was deliberately set into a homophobic context and presented in a certain way the case may be different. As I mentioned it also depends on the legal system in the country you would go to court. For instance, in Germany a court just ruled that only personal use is allowed by CC BY NC, therefore excluding non-commercial organisations from reusing such material. I don’t want to get into an argument about whether that is good or not, it just illustrates that local law plays a role here.To be fair though, in some countries it may also be hard to enforce copyright, so this does not apply exclusively to Creative Commons.

        In the end it comes down to a simple conclusion: Copyright restricts reuse, CC BY encourages it. It is useful to make authors aware that by using CC BY (or some of the other CC flavours) they may see their work used in ways they disagree with. However, we should also remind them – and I say this as a historian who has worked on printing and media – that even copyright does not necessarily protect them from having their words twisted. It may give you legal protection against all or most of your work being republished in that way, but not against people you consider “evil” using bits of it for the same purpose.

        Posted by Torsten Reimer | Mar 31, 2014, 9:34 am
        • If it was deliberately set into a homophobic context and presented in a certain way the case may be different.

          Possibly, but again, this is where subjectivity becomes a real problem. One man’s “remix” or “tweak” is another man’s “distortion.” It seems to me that it’s in the fundamental nature of CC-BY to err on the side of expansiveness.

          In Germany a court just ruled that only personal use is allowed by CC BY NC, therefore excluding non-commercial organisations from reusing such material.

          In the case of CC-BY-NC, that’s a completely unsurprising finding, since the “NC” in that license designation stands for “noncommercial.” The German court’s finding isn’t so much a matter of local law — it arises from the fact that CC-BY-NC is simply a different license, one that forbids commercial reuse without permission. The kinds of reuse allowed by the CC-BY license (the one under discussion here) are much, much broader, and explicitly include commercial reuse.

          Posted by Rick Anderson | Mar 31, 2014, 10:01 am
          • “It seems to me that it’s in the fundamental nature of CC-BY to err on the side of expansiveness.”

            Precisely! I call that a feature, you call it a bug, there lies the root of all our disagreements on licencing.

            “In the case of CC-BY-NC, that’s a completely unsurprising finding, since the “NC” in that license designation stands for “noncommercial.””

            I think you (very understandably) misread Torsten’s comment here. He was say, very counter-intuitively, that the German court found that the CC By-NC licence did not allow use even by a non-commercial radio station. Details here: in short, the court rules that the only thing CC By-NC covers is personal use.

            Posted by Mike Taylor | Mar 31, 2014, 10:08 am
            • Precisely! I call that a feature, you call it a bug, there lies the root of all our disagreements on licencing.

              I’m not calling it a bug, Mike. I’m saying it’s an aspect of CC-BY that authors should bear in mind when making decisions about whether to adopt it. (And a reason authors should be given a choice, rather than coerced.) What I’m referring to as a “problem” is the issue of subjectivity when it comes time to interpret or evaluate a reuse.

              He was say, very counter-intuitively, that the German court found that the CC By-NC licence did not allow use even by a non-commercial radio station.

              Thanks for clarifying this. You’re right — I didn’t catch the fact that this case involved reuse by a noncommercial radio station. That does seem like a strange ruling (though, again, pretty much irrelevant to our discussion of CC-BY licenses).

              Posted by Rick Anderson | Mar 31, 2014, 10:17 am
              • “[NC meaning personal-use-only] does seem like a strange ruling (though, again, pretty much irrelevant to our discussion of CC-BY licenses).”

                It seems very relevant to me, because most publishers that offer a choice between CC By and other licences include CC By-NC among the alternatives. That choice is a naively appealing one (I used NC licences myself back when I was young and foolish) but I think much of its appeal would fall away for most authors if they believed it was going to be interpreted as narrowly as this.

                Posted by Mike Taylor | Mar 31, 2014, 10:24 am
              • Ah, it seems we wrote our responses around the same time. Apologies for not expressing the NC argument clearly enough in the first comment, I hope it is clearer in the one below. Thanks to Mike for providing the reference and clarification.

                Posted by Torsten Reimer | Mar 31, 2014, 10:27 am
                • I would be interested in the answer to a different question. What difference would it make if an author simply stipulated the usage rights directly on his or her paper without reference to CC at all?

                  Posted by Joseph Esposito | Mar 31, 2014, 10:29 am
              • However much people complain about the ambiguity of the CC licences, I bet you a dollar that authors who are not lawyers will be able to express their intentions half so clearly.

                Posted by Mike Taylor | Mar 31, 2014, 10:34 am
              • I’m not saying the CC-BY license is ambiguous at all; I think the license itself is pretty clear. What can be much more ambiguous is the intention of the person re-using a licensed publication. Like I said, one man’s “remix” is another man’s “distortion.” That’s not because the license itself is unclear, but because the motivations behind people’s behavior are often (though certainly not always) unclear.

                Posted by Rick Anderson | Mar 31, 2014, 10:44 am
              • Sorry, I should have been more explicit. My “However much people complain about the ambiguity of the CC licences” comment was in response to Joe’s suggestion about having authors insert their own T&Cs in manuscripts instead.

                Posted by Mike Taylor | Mar 31, 2014, 10:56 am
                • I didn’t suggest that the CC licenses are ambiguous. My point is that they have no apparent social utility. Please enlighten me.

                  Posted by Joseph Esposito | Mar 31, 2014, 11:23 am
              • All right, third try.

                A. Joe suggests that “What difference would it make if an author simply stipulated the usage rights directly on his or her paper without reference to CC at all?”
                B. My implicit answer: “It would be bad, because regular people will not be able to write unambiguous legal language.”
                C. Hypothetical interlocutor: “But the CC language is ambiguous anyway.”
                D. My reply (the one I gave above): “However much people complain about the ambiguity of the CC licences, I bet you a dollar that authors who are not lawyers will be able to express their intentions half so clearly.”

                I skipped parts B and C in (what turns out to have been) a misguided attempt to save time.

                Posted by Mike Taylor | Mar 31, 2014, 11:29 am
                • Mike, the obvious response to this is that individual authors don’t have to draft their own language. They can copy and paste the CC language. My question is why do you need the CC organization if authors can simply add the information to their work? That’s a lot of pretax overhead that we are all paying for, and as far as I can tell, it serves no useful social purpose. But enlighten me, please. I have been asking this question for several years, including to CC staff, and I can’t get an answer.

                  Posted by Joseph Esposito | Mar 31, 2014, 9:32 pm
              • I’m not following. You feel that copy-pasting the text of the CC By licence into our papers will somehow be cheaper that writing “This work is is made available under the CC By licence”?

                Posted by Mike Taylor | Apr 1, 2014, 2:14 am
            • Perhaps worth clarifying–CC-BY-NC, even in cases such as the German court decision above, does not rule out re-use by whatever is considered a commercial entity. It just requires permission from the copyright holder and can’t be automatically assumed.

              Posted by David Crotty | Mar 31, 2014, 11:34 am
              • Of course: the same is true of any licence, up to and including “all rights reserved”.

                Posted by Mike Taylor | Mar 31, 2014, 11:36 am
              • Yep. But wanted to be clear that even the most extreme ruling on what is considered “non-commercial” does not absolutely rule out re-use by any group.

                Posted by David Crotty | Mar 31, 2014, 11:38 am
          • I won’t argue your first point as I did not want to say more than that CC BY 3.0 may give you an argument a court may listen to. Would I trust on it? No. Would I run this past my lawyer in the Red Pepper case, had the original material be published as CC BY 3.0? Yes.

            With regards to your second paragraph I disagree with your characterisation of “completely unsurprising” – the court has, after all, ruled that NC material may not be used by non-commercial entities under any circumstances. That means universities would not be allowed to use it in their teaching, nor would charities be allowed to use it. To my understanding that interpretation is different from how it would be seen in other countries where charities use CC BY NC material. Again, I did not want to argue this in much detail, just draw attention to the fact that licenses will be interpreted based on the law of the country the court resides in – so, to go back to your original case – what we may consider as damaging the author’s honour may not be seen that way by a Ugandan court.

            It would have been interesting to hear your thoughts on my comment about the limitations of copyright…

            Posted by Torsten Reimer | Mar 31, 2014, 10:18 am
            • It would have been interesting to hear your thoughts on my comment about the limitations of copyright…

              I agree with it, and I said as much in my piece: “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.”

              Posted by Rick Anderson | Mar 31, 2014, 10:30 am
  5. One important point missing here is the level of legal protection many (most) scholarly publishers provide for their authors via copyright (https://scholarlykitchen.sspnet.org/2013/10/22/updated-73-things-publishers-do-2013-edition/). When a publisher stands to gain something via licensing rights, they have a monetary interest in protecting copyright and going after those abusing it.

    When an article is published via an author-pays system with a CC-BY license, that motivation goes away. There is no longer any direct monetary benefit in having the author’s back in such matters. As I understand it, the Apple Academics book mentioned above does in some cases violate the CC-BY license by failing to attribute the original sources of the articles. But as far as I can tell, no original publishers of those articles have taken (expensive) legal actions against Apple Academics over these violations. Why would they bother? What’s to be gained?

    Hence something else to consider, that when one chooses a CC-BY license, one is generally giving up the legal services and protections that authors choosing traditional copyright receive. Essentially, you’re on your own.

    Posted by David Crotty | Mar 31, 2014, 8:31 am
  6. How about the book? At least, I won’t buy the book, if I can download the material free from the internet. Don’t you think that others have the same opinion? Then, the publisher will get no benefit, as nobody will buy the book.

    Posted by Jeanne A. Pawitan | Mar 31, 2014, 12:12 pm
    • Yes, I’m sure that’s true. I think the publisher is banking on the assumption that most people who are interested in a book on the topic won’t go to the trouble of searching for free online versions of the chapters before deciding whether to purchase. The nice thing, from their perspective, is that the book will have cost them relatively little to compile, so a relatively small number of sales will result in a profit.

      Posted by Rick Anderson | Mar 31, 2014, 12:19 pm
  7. In the coming weeks, an alternative copyright licensing system will be made available to the public. Using intellectual property licensing practices, instead of just copyright protections, it may provide additional resources, and opportunities, for authors. It is still too early to know if this new approach will be simple enough for mass processing of I.P. rights licensing to ensure its wide adoption. Accordingly, only time will tell whether it will fill the gaps between the purpose for Creative Commons licenses and the intellectual property protections sought by many.

    Posted by Robert Ross | Mar 31, 2014, 1:34 pm
  8. Small thing: the CC-BY license, since version 1.0, allows the original author to demand that subsequent licensors remove their name from the credit. It is at the bottom of Section 4(a): “If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any credit as required by Section 4(b), as requested.” (http://creativecommons.org/licenses/by/3.0/us/legalcode)

    My understanding is that this was for these kinds of situations, where your work could be associated with causes/purposes you don’t support (e.g. your illustrations ending up in a book on Holocaust denial). You can’t revoke the CC license (obviously — that would defeat the purpose), but you can, according to a proper use of license, remove your name from the offending work.

    Posted by Alex W. | Mar 31, 2014, 2:27 pm
    • But doesn’t that apply only to inclusion in a Collective Work or to the creation of a Derivative Work? In the event of simple republication of the original work in a different forum or outlet, it doesn’t seem like this term would apply.

      Even if it did, though, it also seems like this would be cold comfort to an author whose work has been reappropriated for uses that he or she deems repugnant. It’s good not to be forced to have one’s name explicitly connected to the work in the new context, but I can easily imagine an author wanting his work to be removed entirely from that context — and that seems to me like a reasonable thing for an author to demand.

      Posted by Rick Anderson | Mar 31, 2014, 2:48 pm
      • If it is just a pure, non-derivative reproduction, they aren’t changing anything from your original anyway. So I don’t really see what the issue is there other than maybe “guilt by association,” which the CC licenses don’t (and shouldn’t!) try to limit. If Neo-Nazis want to hand our verbatim copies of your article at their events, that’s pretty annoying but if you really believe in CC, that’s that. The ethos of CC/copyleft is explicitly opposed to the idea that you could use copyright as a weapon against people whose speech you don’t agree with.

        But the situation described in the article, where the photograph has been taken and added to a newspaper or magazine, that is (as I understand it) a transformative work, either regarding it as a collective work (e.g. the newspaper is a work composed of works) or a derivative work (the newspaper is a new, derivative work in its own right). So under CC you are able to say, “hey, you can use my photo — I can’t stop you from doing that — but you need to remove my name from it.”

        I think your general point — that copyleft means people can use your work for purposes you don’t agree with or intend — is a correct one. But the specific criticism of the attribution requirement of CC-BY seems like it needs to be tempered by the fact that you can request non-attribution as well.

        (But I am not a lawyer, etc. I only know about that clause of CC-BY because I took an IP course in grad school awhile back and we went over the requirements pretty closely, and I thought it was an interesting idea.)

        Posted by Alex W. | Mar 31, 2014, 9:27 pm
        • If Neo-Nazis want to hand our verbatim copies of your article at their events, that’s pretty annoying but if you really believe in CC, that’s that.

          Oh, I agree completely. And like I said in the piece, everyone ought to be completely free to publish under CC-BY if they so choose. The problem I’m addressing in this posting is the pressure that is being brought to bear on authors to publish under CC-BY regardless of whether they “really believe” in it. That, and the fact that too many authors don’t fully understand the ramifications of doing so, which include, for example, possibly having your work handed out at Neo-Nazi rallies (or whatever). If an author decides she’s fine with that, then clearly she “really believes in CC,” and more power to her. But I believe she ought to be allowed to decide for herself whether that’s okay with her, not pressured into doing it because other people think it ought to be okay with her.

          The ethos of CC/copyleft is explicitly opposed to the idea that you could use copyright as a weapon against people whose speech you don’t agree with.

          That’s a very stirring turn of phrase, but you have the moral logic backwards. When I say “you may not use my work to further your Neo-Nazi agenda,” I’m not “using copyright as a weapon” against you; I’m refusing to give you a weapon to use against someone else. You’re still completely free to pursue your agenda in whatever way you wish — I’m just declining to help you with it.

          I think your general point — that copyleft means people can use your work for purposes you don’t agree with or intend — is a correct one. But the specific criticism of the attribution requirement of CC-BY seems like it needs to be tempered by the fact that you can request non-attribution as well.

          Please note, again, that I’m not criticizing CC-BY on this (or any other) basis. I think it’s great that CC-BY exists, and if authors want to use it, then more power to them. If you want to encourage them to do so, then that’s fine too. I think it’s important that authors understand the ramifications of that choice, however, and I do mind when authors are pressured or coerced into it. That’s all.

          Posted by Rick Anderson | Mar 31, 2014, 10:05 pm
          • We’re in danger of drifting off-piste here, but I do want to make sure we have one foundational choice clear in our minds. In the matter of licence selection, there are more options than “Publisher chooses” (which typically means copyright transfer and all rights reserved by the new holder) and “Author chooses” (which is what you’re holding up as the self-evident alternative).

            My concern in publishing isn’t really for authors’ rights (though they’re of some importance) but for the benefit of wider society. In terms of setting norms, the best proxy for that is often the funder, whether a government or a charity. So in the end, I support CC By not because it’s better for authors (although it usually is) but because it’s better for the world at large.

            Posted by Mike Taylor | Apr 1, 2014, 2:30 am
            • In the matter of licence selection, there are more options than “Publisher chooses” (which typically means copyright transfer and all rights reserved by the new holder) and “Author chooses” (which is what you’re holding up as the self-evident alternative).

              As long as authors have a reasonable range of options, I have no complaint. My concern is about CC-BY being adopted and pushed on authors as the Only True License — either (less coercively) by means of advocacy rhetoric, or (more coercively) by funding entities that withhold money from authors who prefer another license.

              I support CC By not because it’s better for authors (although it usually is) but because it’s better for the world at large.

              And I support wholeheartedly your right to choose CC-BY and to make all of your work available that way. What I don’t support are efforts in the OA advocacy community to make other authors do the same — partly because I don’t share your confidence that CC-BY is always and necessarily “better for the world at large,” and partly because I think authors ought to be free to choose other options even if I regard some of those options as suboptimal.

              Posted by Rick Anderson | Apr 1, 2014, 8:02 am
              • I am more coercive than you’re assuming🙂

                It’s not enough for me that I should be allowed to choose CC By. I want a societal norm (enforced by funding agencies where necessary) that all authors use CC By. Why? Because I want what’s best for the whole world, not just for me. Crucially, funding bodies also care more about what’s best for society than what’s best for authors; which is why some, including Wellcome, are now requiring CC By.

                As always, academics can have a tendency to be very entitled about this kind of thing, as though we believe it’s our natural right that states and charities should fund us to do the kind of work we like to do, on our own terms. It’s not, of course: a bargain is struck. We get funding to do the work we love, and in exchange the state or charity gets the benefit to society that it wants. The funder is perfectly within its rights to insist on this; in the unlikely even that there are researchers who find this repugnant, they’re at liberty to turn down the funder’s grants and seek funding elsewhere.

                [Disclosure: although I am part of an academic culture that’s dependent on grants, I myself am unfunded and do my scholarly work in my spare time.]

                Posted by Mike Taylor | Apr 1, 2014, 8:09 am
              • This is probably worth noting. Because you do research as a hobby, rather than for a living, you are under different pressures than those who choose it as a profession. You are granted a level of freedom that is unavailable to those who must strive in an extremely competitive environment in order to feed their families and keep a roof over their heads. Hence, your opinions and needs may not reflect those of the average scientist particularly well.

                Posted by David Crotty | Apr 1, 2014, 9:29 am
              • Of course — that’s why I noted it.

                Meanwhile, it arguably also gives me a better perspective on how all of this looks from the outside, and how very self-obsessed and nearsighted the academic ecosystem can be.

                Posted by Mike Taylor | Apr 1, 2014, 9:34 am
              • Well, it’s certainly a perspective. “Better” is likely in the eye of the beholder. A view from the outside can provide a fresh look at an environment, but may also miss things important to those who have to live in that environment.

                Posted by David Crotty | Apr 1, 2014, 10:55 am
              • Yes. It’s why I usually try to triangulate by consulting with my more conventional academic colleagues.

                Posted by Mike Taylor | Apr 1, 2014, 10:56 am
              • Meanwhile, I’ve noticed a disturbing tendency that I hope you’ll not let yourself become a part of, and that is to discount pretty much every OA advocate on the basis of who he or she is. “You can’t pay any attention to Mike, he’s not a career academic” sits alongside “You shouldn’t take Erin McKiernan too seriously, she’s very early in her career”, and with “Mike Eisen can say what he wants, he’s in the privileged position of a PI” and “You can ignore the likes of Jack Andraka, he’s just a kid” and “No-one can touch Randy Scheckman, he doesn’t have to care what it takes to make it in the real world”.

                What we actually have is a strong convergence on pretty consistent OA principles, all emerging from people who approach the issue from very different directions.

                Posted by Mike Taylor | Apr 1, 2014, 11:02 am
              • Speaking just for myself, I would no more support that kind of rhetoric than I would support people saying “Well, you can’t trust anything they say at the Scholarly Kitchen because as we all know, they’re just a bunch of OA-haters.” But I’m sure no responsible scholar or scientist would ever talk like that, so there’s probably no point in bringing it up.

                Posted by Rick Anderson | Apr 1, 2014, 11:12 am
              • I do my best to look at what’s being said, rather than who’s saying it, but we’re all human so likely none of us are prejudice free (one wonders how much of an open mind the people you’ve listed have when they read something by Kent Anderson). But when one is looking to impose one’s views on a larger community, having widespread, continuous contact with that community is helpful. That’s something that journal editors have, perhaps moreso than the typical researcher (worth noting that several of the folks you’ve mentioned are indeed journal editors). It’s one thing to be able to say that the 10 people on my floor think my idea is great, it’s quite another for that idea to meet the needs of millions of researchers.

                Posted by David Crotty | Apr 1, 2014, 11:15 am
            • Is it better for scholarship to encourage the proliferation of bad translations?

              Posted by Sandy Thatcher | Apr 1, 2014, 12:45 pm
            • “My concern in publishing isn’t really for authors’ rights (though they’re of some importance) but for the benefit of wider society. ”

              In some other contexts, this statement would shouted down as advocating ‘socialism’ and abuse of individual freedoms. Many industries are supported by government grants/funds but are not expected to forgo earnings or potential for personal career advancement.

              Posted by notmensa | Apr 1, 2014, 8:57 pm
  9. As I have argued elsewhere, the CC-BY license does not prevent poor translations from being made and distributed, unless they can be shown to have been produced with the specific intent of “distorting, mutilating,” etc. the original and thereby harming the author’s reputation. Scientists may not care so much about the quality of translation, since so much of their work is carried out in the universal, untranslatable language of mathematics, but humanists certainly do, and should, care. The practical reality is that, once a poor translation is produced and circulated, there often is little incentive for someone else to do the work of producing a better one–unless the author cares so much as to pay for a better translation. The limitation of OA to CC-BY also marginalizes OA book publishing, as almost all of it is being done under CC-BY-ND-NC licenses. OA advocates thereby deny themselves the benefit of allying themselves with people involved with OA book publishing who otherwise are very sympathetic to the movement.

    Posted by Sandy Thatcher | Mar 31, 2014, 5:01 pm
  10. Yes, copyright infringment is a crime, and yes, CC-BY does have its problems but what I find amazing and shocking by this thread is that as far as I can see there has been no concern expressed about the real victims of this crime – the gays outed in Uganda who are now very probably in fear of their lives. I would have thought that being “contacting those whose photos appeared in it to see whether they are still willing to be publicly identified as gay” is the least of their worries.

    Posted by B. Houston | Apr 1, 2014, 9:37 am
    • Our focus in the Scholarly Kitchen is on issues related to scholarly communication, so that’s the context in which this particularly awful example of misappropriation was presented. But I hope it was clear to readers that what makes the Red Pepper example so horrifying is not the fact that it represents a breach of copyright, but rather its real-world impact on the people targeted by that tabloid. Part of what we’re debating here is the degree to which authors have the right to say whether or not their work will be used to victimize people in this way. As you point out, this is an issue that goes beyond the integrity of copyright or authorial intent itself.

      Posted by Rick Anderson | Apr 1, 2014, 10:03 am
  11. So, has anyone ever tried to enforce a CC-BY-NC or CC-BY-NC-SA license in a U.S. court of law? If so, how did that work out?

    Posted by Frank Lowney | Apr 1, 2014, 12:21 pm
  12. I’m not an author; can you please help me understand what is upsetting about the Epigenetics, Environment, and Genes/Apple episode? I’ve seen books like this before, and to me, the concern is that someone might be duped into paying $100; that is, this is a scam and I’m worried that someone is going to fall for it. Is that the main concern that the “outrage(d)” authors have, or are they outraged simply that someone is repackaging their CC-BY papers and selling them? I mean, if the work was serious and reasonably priced, would a lot of authors still be outraged by this kind of re-use?

    Posted by ech | Apr 2, 2014, 12:20 pm
    • As the author of a PLOS ONE paper myself, I am actively encouraging the group that co-ordinated the collection it’s part of to typeset, print and sell a dead-tree edition. That would be a fine thing to have, and wholly in accordance with both (A) the terms of the CC By licence and (B) my goal as an author of the paper.

      The problem with Apple Academic Press is that they deceptively change the titles of the articles, misrepresenting them as new works not available elsewhere, greatly over-charge, and do not contact the authors (which is not required by the licence but would be polite and in accordance with academic norms).

      If no recognised academic publisher takes up the opportunity to print this collection as a book, I hope someone will self-publish it with a print-on-demand publisher. One way or another, it ought to be available.

      Posted by Mike Taylor | Apr 2, 2014, 12:43 pm
      • I know nothing about Apple Press,but if they do indeed fail to identify material as previously having been published, that may be against the law. Someone who believes he or she has been damaged by this should consult with a lawyer. I hope it’s clear that someone can express skepticism about CC without endorsing the practices of traditional publishers.

        Posted by Joseph Esposito | Apr 2, 2014, 1:02 pm
    • As Mike points out above, some were upset that they were not notified by the publisher that this was happening. Others were upset, as you note, to find someone else exploiting their work for profit (with no remuneration offered to the author), particularly when they had thought they had paid a fee to require it to be freely available. Something of a misunderstanding of the license to which they had agreed.

      I think there are also issues regarding reputation. Academia is a reputation based business–how well you do is generally based on what people think of you and what they think of the work you do. Here you have what is perceived to be a less-than-reputable publisher marketing your work with your name on it. While CC-BY implies no endorsement, most people don’t know this, and will assume that the authors willingly entered into a business arrangement with this publisher. Similarly, fly-by-night predatory OA journal publishers can re-use papers published in reputable OA journals to pad their listings and to imply that high quality researchers have chosen to publish with them.

      Given the value of reputation in academia, it’s understandable that researchers are somewhat protective of how their names are reused.

      Posted by David Crotty | Apr 2, 2014, 1:03 pm
      • What Apple did is a bit more complicated than that. As we know, they can’t re-enclose a CC By work. What they did was disguise those works so they didn’t look like the existing CC By works that they were copied from, by writing new titles. Then what they sold was not access to the works (which would be a clear contravention of the licence) but physical artifacts (which may be OK by the letter).

        PLOS articles now (partly I think as a result of Apple’s behaviour) carry a very clear and explicit statement as follows: “Copyright: © . This is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.” So what Apple was doing, if they’re still doing it with PLOS articles, is definitely in contravention of CC By, in failing to attribute the source.

        Posted by Mike Taylor | Apr 2, 2014, 5:17 pm
        • Do you know if PLOS (or any publisher, or for that matter any author) has initiated legal action to enforce this type of license in a situation like this? Has anyone filed suit to demand attribution?

          If there’s no motivation to enforce the licensing terms, and the costs of doing so likely far outweigh the return, then is this an enforceable license?

          Posted by David Crotty | Apr 2, 2014, 8:27 pm
          • Sorry, I don’t know.

            Posted by Mike Taylor | Apr 3, 2014, 2:14 am
          • On a similar note, can anyone offer some positive examples where a journal using CC-BY made an important contribution? When speaking to editorial boards, it’s easy to come up with cautionary tales like those listed above, but to be fair, it would be helpful to have some examples of why they might want to go with CC-BY.

            Does anyone know of cases where CC-BY journal articles were reused to great effect, particularly cases where CC-BY-NC (or NC-ND) would not have sufficed, and where permission to reuse copyrighted articles would likely have been denied or too expensive?

            Posted by David Crotty | Apr 3, 2014, 10:04 am

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The mission of the Society for Scholarly Publishing (SSP) is "[t]o advance scholarly publishing and communication, and the professional development of its members through education, collaboration, and networking." SSP established The Scholarly Kitchen blog in February 2008 to keep SSP members and interested parties aware of new developments in publishing.
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