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Last week, I attended my first Academic Publishing in Europe (APE) meeting. Celebrating its 10th anniversary, the meeting is held each year in Berlin. Its attendance is capped at 200. It was a very useful meeting to attend for a number of reasons. The attendees came from across Europe primarily, with many from the Dutch and German publishing houses, providing a mix that we rarely see in the US or even in the UK. The meeting itself struck me as more willing to court controversy, which was helpful because this generated insights and better discussions during breaks and social events. There was a lot to talk about also because European policymakers are much more adamant about open access (OA), which is speeding up its implementation and revealing interesting stresses and contradictions.

Because of this, I found myself having thoughts I haven’t had before, at least not so clearly.

“The #1 issue in public access is the public funding of science.” This quote — which came from Fred Dylla as he discussed how US federal research funding as dropped as a percentage of GDP from more than 2% in 1965 to about 0.7% in 2013 — started a major cascade of thinking, especially after learning that the European science initiative, Horizons 2020, is allocating funding to support OA APCs while cutting funding for basic research overall. In the US, funding in constant dollars for research has declined more rapidly over the past few years. Wellcome Trust has set aside millions to support eLife, funds that may have otherwise gone to research grants. I think all the papers published in eLife would have been published elsewhere anyhow. In the UK, millions of pounds have been diverted from research budgets to support OA APCs. Overall, this is creating a situation in which more research is being published OA, but less research is being funded in general. The value proposition of scientific research is widely understood, while the financial benefits of OA are speculative at best. Even if they exist, if there are fewer scientists pursuing research agendas, then who is using all this pre-paid information? The Horizons 2020 trade-off is especially blatant. There is clearly an opportunity cost to OA funding as it is currently realized, and this is something that should be addressed quickly so that we don’t rob Peter (research dollars) to pay Paul (APCs). So while OA may be an issue some wish to advocate for, the larger issue right in front of us is that research budgets in major economies are shrinking, leaving many questions unaddressed and fewer scientists working full-time.

Is there a coming “baby bust”? As China has ramped up its research outputs and polished its abilities in both research and research reporting, we’ve seen another nation with as many researchers as the United States emerge. Along with increased pressures to publish overall in established markets, China’s rise has created a glut of papers on the market. Publishers are scrambling to deal with through new journals, mega-journals, and so forth. Plans are being made for more journals to cope with the rising number of papers. However, there may be a demographic time bomb in our midst stemming from the funding problems mentioned above. In our plans, either consciously or subconsciously, we may be straight-lining research outputs based on the rapid increase we’ve seen over the last decade. But with grant recipients growing older and young scientists unable to find stable funding and work, we may be creating the conditions for a “baby bust,” a generation with fewer researchers overall, which will lead to a drop in research outputs. Or perhaps with Western funders diverting money to OA APCs instead of adding money, we will only see the “baby bust” in Western research programs, giving China — which has a more strategic and committed government overall — a clear advantage.

Is the six-month embargo going to unite subscription and OA publishers? European policymakers are making noise about a six-month embargo rather than the more common 12-month embargo. However, with Gold OA proliferating rapidly in Europe and elsewhere, this embargo shift has the potential to threaten OA APCs as much as it may threaten subscriptions — that is, why pay so much for a few months of access? Either model finds itself facing this question if the embargo shrinks. Continued moves in this direction may create an uncommon alignment between publishers using the Gold OA business model and those using the subscription business model. And when a publisher uses both, they may be doubly motivated.

Creative Commons has important flaws, as does its implementation. Last year, I dug into Creative Commons and found it lacking for a variety of reasons. It seems I’m not alone. If you’ve ever bothered to read a Creative Commons license — something few of the publishers in attendance have actually done, it turns out — you begin to see how poorly constructed and weak the licenses are overall. A strange brew of copyright and contract law, CC licenses are untested, and two lawyers who presented each suggested that CC licenses may not pass muster in courts someday. For instance, some provisions in CC licenses are bound to be superseded by copyright law in most jurisdictions. Elements of CC licenses not informed or superseded by copyright law then depend on contract law to be binding. But as contracts, CC licenses are problematic, as there is no clear offer or acceptance, and one party — the authors — have no idea who they are contracting with. As for CC BY, the contract is probably de facto meaningless as no party is incentivized to enforce it. The CC mix of copyright and contract law (maybe that’s what “CC” really stands for — copyright + contract) may prove unworkable. While this is something the courts will figure out over time, we need to be aware we may be promulgating licenses that could be found lacking later. More bothersome even than this is the fact that we are seeing again and again that authors do not prefer the CC BY license, yet it is demanded by many prominent funders and within many definitions of OA. Some of these same groups are claiming that publishing should be “by scientists, for scientists.” If this is the case, why isn’t repeated evidence that CC BY is not preferred acknowledged by allowing for a more diverse approach to OA licensing? Robert Kiley from Wellcome argued that CC BY should only be abandoned if it has been shown to “cause harm.” That’s not a market-serving standard, especially when we have abundant evidence that authors believe it harms them and their interests. Authors have indicated repeatedly that they do not prefer the CC BY license. Why can’t we agree with them?

We have a lot to learn about data publishing, and need to improve our vocabulary. It was clear from discussions about data publishing that we are making big strides in some ways, but not in others, especially in talking about differences and boundaries. In some cases, “data publishing” was defined as posting the underlying data; in other cases, it was expanded to include code and scripts involved in models and analyses. Where and when “code publishing” makes sense may be an entirely different matter from data publishing, and it may require a completely different set of approaches and policies. We probably shouldn’t conflate the two. Human subject data is categorically different, as well, yet we blend it into these discussions in a way that drags the discussions down. We should probably separate it out. Biological data has another set of concerns, as do materials data. And so forth. Refining our discussions will require really hard and disciplined work, as will creating the repositories once we’ve decided what is going to happen.

Are non-profits structurally less able to innovate? During one of the dinners associated with the meeting, I struck up a conversation with a scientist who also studies the psychology of innovation. It was a fascinating discussion. One of the traps that can derail innovation is a lack of follow-through — that is, ideas start, but then the will to execute them, overcome unexpected barriers, or invest sufficiently to realize the goal falters. It is difficult for commercial organizations to innovate, but often they have a consistency of leadership and a culture of long-term financial planning that help support consistent effort and innovation projects. Non-profits, on the other hand, churn elected leadership regularly. Many elected society leaders have one-year terms, and bring a completely new set of priorities to the organization when they arrive. This continuous need for management to reeducate and refocus draws resources and attention away from new initiatives, making them less likely to succeed. Ultimately, a lesson of “we can’t innovate” may take hold in an organization, shutting down innovation initiatives firmly. It’s something to think about.

There were a lot of great topics covered at the meeting — reproducibility, climate science data publishing, emerging data standards, and university presses included. The group was convivial and navigated difficult conversations with respect and genuine curiosity. We can only hope to emulate a similar tone in every venue.

Kent Anderson

Kent Anderson

Kent Anderson is the CEO of RedLink and RedLink Network, a past-President of SSP, and the founder of the Scholarly Kitchen. He has worked as Publisher at AAAS/Science, CEO/Publisher of JBJS, Inc., a publishing executive at the Massachusetts Medical Society, Publishing Director of the New England Journal of Medicine, and Director of Medical Journals at the American Academy of Pediatrics. Opinions on social media or blogs are his own.


35 Thoughts on "Going APE — Thoughts and Insights with a European Perspective"

I certainly agree with the confusion regarding data publishing. Data is an incredibly difficult and complex concept, along the lines you mention and several others as well. I did staff work for the US Interagency Working Group on Digital Data (IWGDD) which struggled to formulate federal data policy for several years. In the end the best we could do was articulate the concept of requiring a data management plan for each funded project, which leaves all of these data issues to be resolved on a case by case basis. This looks like the approach that many of the federal agencies will take as the OSTP mandated US Public Access program emerges. (The second anniversary is nigh and only DOE has announced its data plan, which is to require data management plans, which NSF already does.)

The basic problem is that data can mean a great many different things, in any given case as well as from case to case. For example, what is the data for the global average temperature for a given year? It can range from a single number to millions of thermometer readings taken around the globe, then processed by highly complex algorithms embodied in complex computer codes, with various intermediate levels along the way. And the data may include everything that is written as well.

It is ironic that such a little word can refer to such complexity.

I find the data management plan requirement to be something of a cop-out. Don’t get me wrong, every proposal needs a data management plan. But that doesn’t really answer the questions around data availability and what is required of researchers. It strikes me that the agencies are seeing how incredibly complex this question is, and rather than trying to answer it, they’re throwing up their hands and telling researchers–you tell me what you think you should do, and then I’ll tell you if that’s okay. This puts a burden on the researcher, and makes for much more of a gray area than just having a basic set of rules.

Your interpretation is correct in that the government decided they could not make specific rules for the handling of specific types of data. I think that was an honest finding, not a cop out. So far as I know there is no “I will tell you if it is okay” clause here, as far as how specific data is handled, but then we have not seen most of the agency plans. I personally have trouble imagining a regulatory solution to the issue of which data should be treated how? If you look at the range of data handling types and possibilities it is staggering. Better to let each field feel its way in, which is what the data management plan (DMP) approach does.

I just realized that the acronym DMP could be pronounced “dump.” Gadzooks!

By the way, David, if you (or anyone reading this) have specific proposals for rules about data management I would love to hear them. Is anyone working on such? It is a wicked problem.

Not me, I have enough on my plate and other than asking that any such plans use openly available common standards and identifiers (ORCID, DOIs, FundRef) I’m doing my best to stay out of it. I have heard suggestions that the requirements be punted over to the journals rather than the agencies, mainly because journals aren’t subject to things like Bayh-Dole, but doing something so unpopular with researchers may be a tough sell to most journals.

It is a complex problem. I would like to see specific rules for specific common data types where standards have been established. I think they could also offer general rules–all data collected must be made publicly available in X type of repositories by Y date (and waivers can be applied for by doing Z). Some general rules would make composing a data management plan easier though I suppose it’s something of a minefield the agencies are trying to avoid.

The first problem is the vast vagueness of “all data collected.” What might the regulatory definition of that central concept look like? I cannot imagine it.

The White House defines it as:
“data is defined, consistent with OMB circular A-110, as the digital recorded factual material commonly accepted in the scientific community as necessary to validate research findings including data sets used to support scholarly publications, but does not include laboratory notebooks, preliminary analyses, drafts of scientific papers, plans for future research, peer review reports, communications with colleagues, or physical objects, such as laboratory specimens.”

I used to lecture on regulatory design and this is a fine example of a very bad definition. Its core concept is unknowable, which is “material commonly accepted in the scientific community as necessary to validate research findings.” So basically they too have punted to the practices of the specific field, whatever they might be, just as the DMP does.

“Data sets used” is also far too vague (and very different from your proposed “data collected”). In many cases it would be absurd to suggest that I deposit a data set that I used, especially if I merely analyzed an existing huge data set, which is common in fields like astronomy and climate.

Regulatory definition is both essential and difficult, because one has to say who and what is, and is not, covered so clearly that people can comply.

The questions you raise about CC licenses are important and need to be addressed. It is also important to recognize that CC licenses have been modified over time. E.g., the CC BY license used to carry language referring to “moral rights” that could protect authors against having their works distorted or otherwise mistreated as in, say, having them poorly translated. But that language was dropped, and now the BY license affords no recourse for authors whose works are badly translated and whose reputations may be harmed as a result. Only a license with ND can suffice to provide that protection now.

The question about non-profits and turnover hurting innovation is a good one also. I have an article coming out in April in the Journal of Scholarly Publishing where I discuss the fate of a CIC project in the mid-1990s that was aimed at developing an OA monograph publishing system. It failed, in part, because most of the principals involved–both head librarians and university press directors as well as the CIC’s executive director–either retired or left for other jobs, and the momentum for the project quickly dissipated thereafter.

To paraphrase you.. The value proposition of scientific research is widely understood, while the financial benefits of using the funding to generate shareholder profit are speculative at best.

What if the #1 issue in the public funding of science is the transfer of that funding to generate significant profit by publishers and their shareholders, rather than research?

For governments, economic development is a key reason why research is funded. Most governments hope to drive a healthy economy in their country, bringing employment and tax revenue as just a few of the benefits of spending. So I’m a bit confused to see the concept of generating profit, employment, tax revenue, quality of life, etc., suggested as a problem for research, rather than a goal.

And for what it’s worth, the profits going to publishers and their shareholders are small potatoes compared to other companies and their shareholders. According to this site (http://www.autm.net/Bayh_Dole_Act1.htm), in the year 2012 alone, $36.8Billion of net product sales were generated via technology transfer from university research projects. Is this a problem too, and should we be stopping these companies (many started by researchers and their universities) from profiting as well?

Kent is concerned about how public funding is spent on Open Access. I’m suggesting we look at the mission rather than model

No reason to believe that OA does a better job than traditional publishing in realizing this mission. Two ecosystems, one immature. A lot of faith and money have been put into an untested notion. I am not opposed to OA, but I think the assumption that it does a better job somehow is simply unproven.

I’ll bite. What is the mission behind dedicating public funds toward research? What is meant to be accomplished? Why are the discoveries allowed to be privately owned and patented? Is it a more efficient use of public funds if the publication process can be paid for by third parties (tuitions, student fees) rather than taking money away from research?

I agree on the importance of the issue, but alternative approaches to funding scientific publishing may be making the situation worse. Based on RCUK data and other data, Gold OA has so far generally benefited the bigger for-profit players in academic publishing. In that regard, it is having the effect you probably don’t want. Non-profits and society publishers are generally not doing as well with it. Subscription dollars tended to come from tuition and fees. Gold OA dollars generally come from research funds. So, you are ending up with what appears to be a channel developing between research funds and large, for-profit publishers via OA publishing. These are issues that are increasingly important to the overall health of the research environment.

Sorry for coming in late to this conversation. Part of the problem with the funding model for APCs si that the community as a whole is having to support both subscription payments and open access publishing. If all journals were open access, much (all?) of the budget currently going to subscriptions could be used to support open access, either through sponsorships or APCs. That way tuition and fees could be paying for the costs of publishing as they largely are now.

The additional financial burden being placed on libraries is indeed a major problem with some access policies. Because the policies are not universal, libraries are asked to pay to make their own researchers papers available to others, but still have to subscribe to see research from outside of their own institution/country. But given efforts by publishers to eliminate “double-dipping”, it would seem that these are not additive costs across all of publishing, but instead a concentration of costs on the institutions subject to such policies. Each article must be paid for, either spreading that cost broadly among subscribers or concentrating it on the author. When an institution pays APCs, they are taking on a higher percentage of the total costs, saving money for others not subject to such policies.

If all journals were open access, much (all?) of the budget currently going to subscriptions could be used to support open access, either through sponsorships or APCs. That way tuition and fees could be paying for the costs of publishing as they largely are now

This would seem a solution, but the reality of how subscription costs are paid make it non-viable. Library budgets come from a wide variety of sources. I have asked many a librarian, and while some are unable to pinpoint exactly the source of their funds, it’s usually a mix of things like tuition, student fees and in some cases, grant overheads. One could divert the portion of grant overheads away from paying subscriptions and toward APCs, but that still leaves a gaping hole for how you would cover the costs paid for through other channels.

If I run a teaching institution which does very little research, then I would get to keep my library budget and spend it elsewhere, as I have no APCs to pay. If I am a research-heavy institution, then I will likely see an increase in costs, because as a producer, I’m now covering costs for all consumers of the literature. It is unlikely that the teaching institution is going to divert their tuition funds over to the research institution to help them out.

CC licenses are far from “untested”. They have been enforced in court in multiple jurisdictions, in at least 11 cases around the world, and “to CC’s knowledge, the licenses have never been held unenforceable or invalid.”
Licensing of copyrighted material is not a “mix” or “strange brew of copyright and contract law”. Licenses are an integral part of copyright law: see the “WIPO Guide on the Licensing of Copyright and Related Rights” –
The operating system and software you used to write this post are copyrighted, and you’re using them under license. That license is legally binding, even though the licensors “have no idea who they are contracting with”. Musicians routinely obtain licenses to perform songs whose writers “have no idea who they are contracting with”.
CC licenses are just another type of license, cowritten by Harvard Law Professor Lawrence Lessig, vetted by countless other lawyers as they’ve been ported to other jurisdictions, and repeatedly enforced in court.

They have been enforced in court in multiple jurisdictions, in at least 11 cases around the world, and “to CC’s knowledge, the licenses have never been held unenforceable or invalid.”

Looking at the 11 cases linked above, only a few of them involve a court decision that supported a CC licenses. The majority are cases that were settled or dismissed, or where the court did not consider the CC license in its decision (and one that was seen by a Rabbinical Tribunal and not a court of law).

I was just about to say the same thing. Many of these, when you read the summaries at least, don’t prove the point. Also, just because a lawsuit did not test the validity of the CC license, that may simply reflect that the matter didn’t rest on the validity but on other matters, and was resolved before that became a question. In at least one case, the copyright aspect of CC licenses prevailed, again suggesting these are not really adding that much.

Quaint as they may sound, Rabbinical tribunals are part of the Israeli legal system, and this one imposed a fine (in “No. 71036 N. v. Newspaper”).
We’re agreed that your original claim that CC licenses are untested was false, that they have been enforced in international courts, and that neither of you or your unnamed “two lawyers” can name a single case where any CC license has been found invalid or unenforceable. That’s after more than a decade in use, with the total number of licensed works now over 800 million. I like those odds.
But you still refer to a “copyright aspect of CC licenses” as opposed to some other aspect. That’s like talking about the driving aspect of a driving license. See the CC FAQ again:
“CC licenses are operative only when applied to material in which a copyright exists, and even then only when a particular use would otherwise not be permitted by copyright.”
Although both of you argue incessantly against CC licenses, you make constant use of CC-licensed photographs on this blog, instead of buying stock photos. Four of the five license options on David’s bioRxiv are CC. Every article in Kent’s new OA megajournal will be CC licensed. Call me a cynic, but it’s almost as if you don’t believe your own propaganda.

First, I am not associated with, in any way, bioRxiv (though I have been told that CC BY is by far the least popular license option chosen by authors). I do manage publications that offer CC licenses to open access authors, though our default is CC BY NC or CC BY NC ND, with CC BY offered for authors that need it. While I would advise against using CC BY, our author needs come first.

Second, from the source you sent us to:
“This case was decided by a private Rabbinical Tribunal. Thus, it is not an official Israeli court opinion.”
Since the source is a wiki, you might consider revising it if this is indeed inaccurate.

Third, I don’t think I argue incessantly against CC licenses in general, but I do have problems with CC BY in particular. In this particular area, I tend to think of CC BY as being “unenforceable” more in a de facto manner than in a legal manner. It may hold up perfectly well in court, but there’s very little motivation for anyone to take it to court. A total of three court decisions in 14 years is perhaps indicative of this lack of motivation (how many copyright decisions have courts made in that same time period?). I don’t see publishers having any motivation to go through an expensive court case just to make sure an author is given attribution for their work. There’s simply no benefit to the publisher in doing so, which leaves the author to fend for themselves (see PLOS’ lack of legal response to the Apple Academic books). Very few authors will likely be motivated to spend the enormous court costs required for the minimal benefits likely to be received from getting that attribution.

No author in a European country has any reason to go to court over a CC BY license because the author can have recourse to the “moral rights” embedded in European copyright law that makes attribution a fundamental right. Copyright law in these countries makes the CC BY license redundant.

I wonder if there has been any litigation over the meaning of “noncommercial” in CC licenses that use NC?

My apologies for my mistake on bioRxiv. I had you mixed up with Rick Anderson. My point stands, however, in that you and Rick (and soon Kent) release articles under CC licenses, all of which are derivatives of CC-BY. Similarly, you routinely include copyrighted photos in this blog under CC licenses. If the licenses were unenforceable, you’d be infringing copyright. So the chefs and their lawyers (SSP, CSHL, OUP) clearly believe that they’re enforceable, contrary to the argument made here.
I’ll leave the distinction between a court and a tribunal to the rabbis, but there as in secular courts elsewhere, violating a CC license resulted in a legally binding penalty. They are demonstrably enforceable.
Moreover, the small number of CC lawsuits to date is a very good thing. TA publishers don’t fight on behalf of their authors, but against them, as in Elsevier’s legal threats against self-archiving on academia.edu. Elsevier sued to prevent scholars Ted Bergstrom and Tim Gowers from revealing their extortionate, multimillion dollar subscription prices. You don’t see Amazon suing customers for revealing their prices. Lawsuits like these are a deadweight loss of the TA copying monopoly, and the less of them the better.

Rick Anderson is the Associate Dean for Scholarly Resources and Collections at the University of Utah’s J. Willard Marriott Library, and again, has no connection to biorXiv. I used to work at CSHL many years ago, before biorXiv existed–perhaps that’s the source of the confusion.

As Kent states in his comment, we try to use pictures that are in the public domain, or failing that, images where the creator has expressed that they are unlikely to sue us for their use. This is a matter of convenience–the pictures are somewhat superfluous here, and we’d likely do without them should any legal matter arise. I have no idea whether the licenses would hold up in court if someone who issued a CC BY license decided to take us to court for our reuse. We wouldn’t let it get that far because it’s not important enough to us to go through the expense.

Similarly our journals offer the licenses, but whether they’re enforceable in a court of law is up to the courts, not us. Can you say,without any doubt whatsoever, that every use of a CC license would be upheld by every court? I can’t. We offer them because they are the norm in the community, and as a service industry we try our best to meet the needs of our customers. And whether any of our companies would go to court to enforce attribution is an open question. We know that the major OA publishers have declined to bother.

Actually, I do have a connection to biorXiv, though there’s no particular reason for David to have known that. That said, it’s hardly “my” biorXiv, as Neil puts it — I serve as an unpaid member of their advisory board.

Publishers’ motivation to enforce a license is more a matter of copyright ownership than of any particular license, so I don’t think it’s fair to single out CC BY in that context. The entire CC license suite is built upon letting the authors retain copyright to their work and determine how it may be legally reused by others. That might be beneficial in many ways, but it also absolves publishers of any responsibility to enforce these licenses in court (hey—you’re the copyright owner; your publisher is basically just one of the licensees following the license terms you set).

On the other hand, publishers who have the authors sign off their copyright don’t really go through court cases for the sake of an author receiving proper attribution, either. Those publishers simply protect their own IP which the authors gave them in exchange for publishing services. It’s rarely—if ever—done purely for their authors’ benefit.

Also, to touch upon the topic of CC BY enforceablity, the recent Flickr controversy which you covered here on SK last month was a very interesting case of authors ultimately banning Flickr’s legitimate reuse of CC BY licensed content (which, in turn, speaks volumes about the integrity of the supposedly irrevocable CC licenses themselves). With that controversy in mind, though, I could definitely see attribution rights being de facto enforced more efficiently on the Internet—ranging from informal requests via email to fully fledged public outcry via all sorts of media outlets—rather than in the court anyway.

On the other hand, publishers who have the authors sign off their copyright don’t really go through court cases for the sake of an author receiving proper attribution, either. Those publishers simply protect their own IP which the authors gave them in exchange for publishing services. It’s rarely—if ever—done purely for their authors’ benefit.

Publishers may have different motivations for protecting copyrighted works, but the end result, preserving attribution and integrity of the original article ends up the same. One also must think in terms of licensing and the revenue it produces. When one signs a book contract, the usual practice is to receive a royalty on sales, but also one receives a fairly large (often 50% in my experience) share of any revenue generated from licensing (translations, reprints, coursepacks, reuse of images, chapters, etc.). This is often an area where publishers enforce copyright to the mutual benefit of both themselves and their authors.

The Flickr foofaraw was indeed fascinating. I’d be curious to know how many users of the service switched away from using CC BY licenses after the controversy. I’m not sure how well this would translate universally. Yahoo! backed down because they had need of further contributions from the protesters to keep Flickr running. Flickr was more valuable than the photo printing service. If a third party was using the CC BY Flickr photos in the same manner, they would have no reason to listen to the protesters, as they would have no leverage with no Flickr to protect.

Huh, that’s interesting news to me. I wasn’t aware that licensing royalties that book authors recieve were that much higher than their share of sales royalties. In that sense I guess you could argue that publishers enforce copyright to the benefit of their authors. Is there any information available on how common that is in practice?

Regarding the Flickr users switching away from CC BY licensing, this will probably be fairly easy to determine as time passes by. By Creative Commons’ own admission (http://creativecommons.org/weblog/entry/44586), Flickr is the largest public archive of CC-licensed content so it should be possible to record any trends in the uptake of other CC licenses in comparison with CC BY as new content gets created and shared by their users. I’d expect Creative Commons to have that information published in their next “State of The Commons” report, actually, so I’m looking forward to seeing their findings as well.

” In that sense I guess you could argue that publishers enforce copyright to the benefit of their authors.” Yes, that is the norm. Some contracts stipulate that this is the publisher’s responsibility. If a publisher does not pursue copyright violations, the publisher could get sued by its authors.

The contracts that i am familiar with give the author and publisher the right to pursue a suit separately, if either one of the parties opts not to joining the other in doing so.

These contracts do split subsidiary rights for the most part 50/50, though for some rights (like movies) the author’s share is typically higher, more like 75%.

The 50/50 split also pertains to journal article contracts, though these contracts understandably seldom envision film rights sales!

Also, for what it’s worth, in the session I put together on OA for the upcoming PSP meeting, I asked John Wilbanks to present the rationale behind the CC BY license and why it’s important for OA, because I don’t feel this argument has been given enough exposure and examination by publishers (and for purely selfish reasons because I wanted to learn more about it myself):

The two lawyers aren’t unnamed — you can look them up on the agenda for the meeting, which I linked to in the post. Lots of laws and statutes exist for more than a decade before hitting the rocks, so a decade time test isn’t very meaningful. As for our use of CC images, that is a convenience, certainly, but we also have access to Getty images that are licensed; however, the blogging platform makes those difficult to insert because WordPress hasn’t integrated them as well as the Wikipedia images. If they were as easy to insert, we’d be using Getty images a lot. Even then, we may have to take them all down one day (or WordPress might) if there is a court ruling that invalidates the contract aspect or finds they fall afoul of fair use or some other concatenation of legal thinking.

The tone of this post’s section on CC was to point out that we may be courting risk deploying the CC licenses as widely as we are. I think that stands. You think the risk is slight or non-existent. I, and others, aren’t so sure.

And as for funders and others insisting on CC BY, I think that’s a real problem of not heeding what authors and researchers really want. They actually prefer plain old copyright compared to CC BY.

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