Late last week, cOAlition S unveiled a new policy, characterized as a “Rights Retention Strategy,” which will apply to all research underwritten by the coalition’s membership of funding agencies. The new policy continues and expands the Plan S requirement that all publications arising from research funded by cOAlition S members be made immediately and freely available to the public under the terms of a Creative Commons attribution-only (CC BY) license or its equivalent.

Though billed misleadingly by cOAlition S as a plan “to safeguard researchers’ intellectual ownership rights,” both the purpose and the effect of this expanded strategy remain — as has always been the case with Plan S publishing requirements — to take intellectual ownership rights away from authors, transferring them to the general public (rather than to publishers).

Yellow copyright symbol with string hanging over blue background.

Reasonable people may, of course, agree or disagree with such a policy, and there’s no question that funders are perfectly within their rights to impose whatever lawful restrictions they wish on the use of their research grants. What is not reasonable, however, is to characterize a policy that mandates CC BY licensing or its equivalent as one that “safeguard(s) researchers’ intellectual ownership rights.” Under such a license, the author retains absolutely no intellectual ownership rights.

Anticipating the usual sophistry in response to this observation (“Wait wait, yes they do! After assigning a CC BY license to her work, the author retains the full right to copy, distribute, make derivative works, etc.!”) let’s quickly review again what it does and doesn’t mean to be the copyright holder in a work. Holding copyright is not what gives a person the right to make copies, distribute, create derivatives, etc. – all of us have those rights unrestrictedly in works that are in the public domain and therefore not under copyright at all, and all of us have the right to do those things within the bounds of fair use (or “fair dealing,” in the UK) for works that are under copyright. Being the copyright holder is what gives an author the exclusive right to do those things, beyond the scope of fair use. In other words, it’s not the right to do those things, but the right to prevent other people from doing them, that is the domain of the copyright holder. The author’s right to say to one person or company “You may do X with my work” and to another “You may not” has been at the core of copyright ever since the Statute of Anne.

I realize that some will consider that an off-puttingly negative statement — one that assumes scholars and scientists publish their work for the purpose of preventing people from using or sharing it. But of course the reality is much more complicated than that. Scholarly and scientific authors certainly want to share their work and want it to be read — especially by their colleagues — but they may or may not care very much whether it’s available universally. Or they may be willing to trade the possibility of universal access for other things that are also important to them. And more to the point, they may not want their work to be, for example, published in translation without their approval, or republished in a hate publication, or resold for profit without their permission, and so forth. The right to say “no” to such uses is precisely the right that is given away when an author assigns copyright to a publisher, or publishes his work under a CC BY license.

An actual “rights retention strategy” would allow authors to retain their exclusive prerogatives under copyright, and exercise them as they see fit.

In other words — and although advocates for universal and mandatory CC BY hate it when this fact is pointed out — there is a vitally important reality that authors need to understand before they adopt CC BY, either by choice or by accepting research funding from a grantmaker who requires it: while applying a CC BY license to one’s work does, in a purely legalistic and technical sense, leave the author as the copyright holder, for all practical purposes doing so places the work in the public domain. CC BY gives the general public the right to do whatever they want with the work, exactly as if it were not under copyright at all. The only requirement is an acknowledgment of the original author’s identity.

This eradication of the author’s intellectual ownership over her work is not a bug, but a feature of CC BY; it is exactly what the license is designed and intended to do, which is why cOAlition S has adopted it — despite the organization’s Orwellian assertion that its policy “safeguard(s) researchers’ intellectual ownership rights.”

And this “feature not a bug” point is an important one. Maybe you’re reading this post thinking, “He’s missing the point. Of course it’s true that mandatory CC BY takes choice and control away from authors, and so much the better — authors have repeatedly shown that unless choice and control are taken away from them, they’ll continue irresponsibly assigning copyright to publishers, or selfishly retaining their exclusive rights for themselves, or foolishly selecting more restrictive licenses that prevent the general public from doing absolutely whatever it wishes with their work.” And if that’s your position, fair enough. But if so, be honest about it. Let’s dispense with nonsensically characterizing that position as a defense of “researchers’ intellectual ownership rights.” Your position is not that researchers should retain intellectual ownership over their work, but rather that they should relinquish all intellectual ownership over their work, and transfer it to the general public. An actual “rights retention strategy” would allow funded authors to retain their exclusive prerogatives under copyright, and exercise them as they see fit.

Of course, an author who chooses CC BY for himself, in the full and accurate understanding of its real-world effects on his rights as a copyright holder, is no more being victimized than he is when he willingly assigns his copyright to a publisher. If authors choose this course of action, good for them. The question is whether we should applaud when those with power over researchers use that power to impose such a requirement on them.

ADDENDUM: The timing of this announcement from the European Research Council may not be entirely coincidental. (H/T to Gary Price of InfoDocket for the tip.)

Rick Anderson

Rick Anderson

Rick Anderson is Associate Dean for Collections and Scholarly Communication in the J. Willard Marriott Library at the University of Utah. He speaks and writes regularly on issues related to libraries, scholarly communication, and higher education, and has served as president of NASIG and of the Society for Scholarly Publishing. He serves as an unpaid advisor on the library boards of numerous publishers and organizations including biorXiv, Elsevier, JSTOR, and Oxford University Press.

Discussion

65 Thoughts on "cOAlition S’s Rights Confiscation Strategy Continues"

Valid point made about the semantics involved. What about those countries that include Moral Rights in their laws? CC BY does not remove those and so, for example, a neo-Nazi outlet that republished a CC BY piece might infringe the Moral Rights of the original author by implying the author was in favour of such republication.

I thought about getting into the moral rights issue, but it seemed like it might be too much inside baseball — but you’re correct that in the context of a political regime that protects moral rights, that is the one sliver of copyright prerogative that the author might retain under CC BY.

I believe that moral rights are included as part of copyright protections in the Commonwealth. They aren’t in the US.

Let’s remember, too, that this isn’t only an issue of semantics itself. In a contract (such as one entered into between a funder and a fundee), semantics has a direct and real-world impact on people’s rights and obligations.

Moral Rights are much wider than just UK and members of the Commonwealth. All EU member states, China and Taiwan are amongst other countries that have them. I suspect countries with moral rights are responsible for a significant % of the world’s scholarly outputs. When I referred to semantics, I was referring to the use of words by Coalition S that you made the focus of your piece.

And as I said above, I agree that in any political regime that protects moral rights, those rights remain after a work is made CC BY.

As for semantics again: the focus of my piece was on the real-world effects of the words that cOAlition S uses. That effect is the obfuscation of issues and the misleading of authors. Semantics is more than just a question of words when, for example, the words affect people’s understanding of their rights and obligations — or when they directly define those rights and obligations.

The longer this goes on, the more like Elsevier cOAlition S becomes. Everything is heavy handed and euphemized to the point of a semtanics-based argument

The fact that the coalition is not willing to be upfront and honest about its endgame is why so many people are concerned with its actions.

So Rick, for those who wish to publish OA to increase availability and are given a choice of CC licenses, is their one with fewer pitfalls? My recollection is all leave copyright with the authors, and authors will seldom have the resources to enforce their terms, especially internationally. It seems mostly an honor system.

CC BY is the license that assigns all of the author’s exclusive prerogatives under copyright to the general public, but there are other variants by which the author can give away some of those prerogatives while retaining others. CC-BY-NC, for example, says “You can do anything you want with my article as long as your reuse isn’t commercial; if you want to make commercial reuse of my work, you have to ask permission.” CC-BY-ND says “You can do anything you want with my article except create derivative works,” and so forth. The Creative Commons website provides a nice breakdown and explanation of its various licenses at https://creativecommons.org/about/cclicenses/.

It’s hard to see what “defend(ing) the copyright” would mean when the work is CC BY, given that it is the entire purpose of CC BY to make all reuse of the work perfectly legal.

Perhaps reproducing without attribution would qualify. Or substantively changing the content but attributing those changes to the original author.

Reproducing without attribution wouldn’t be a breach of copyright under CC BY, though — it would be a breach of the license terms (which I think would be a matter of contract law rather than copyright law), and it could also rise to the level of plagiarism (which isn’t illegal).

And, of course, substantively changing the content and attributing the resulting version to the original author could actually be legally required by the license, depending on what the substantive changes are.

One approach is signing a license with a publisher where the author retains copyright, but grants rights to the publisher. The publisher then is the one who puts the article under the Creative Commons license, and takes responsibility for enforcing the terms (whatever they may be). How much effort a publisher is going to put into such enforcement is going to vary publisher to publisher, and license to license. For example, a publisher might have stronger motivation to enforce a CC BY-NC license if they’re able to sell commercial reuse rights.

David: Good point. In my mind the only way an author will enjoy his/her copyright rights is if someone else is prepared to step up to the plate, so to speak, and defend the copyright.

While I find the semantic arguments you’ve outlined worth considering, you seem to have forgotten the second part of the second bullet point in the cOAlition S commitment “… or, by exception, if so decided by a cOAlition S Organisation, a Creative Commons Attribution, NoDerivatives “CC BY-ND” licence, or equivalent.” Isn’t that at least partially what you are advocating in the reply to another commentator above? Why did you chose not to include an analysis that?

You’re entirely correct, Rikke — cOAlition S does allow its individual members to let authors choose a CC-BY-ND license if they wish. I should have included a proviso to that effect.

That doesn’t come close, however, to what I’m advocating. What I’m advocating is that authors be allowed to retain all of their rights as copyright holders. In other words, I’m advocating that cOAlition S do what it claims and pretends to be doing, rather than what it actually does, which is require authors to give up all (or virtually all) of their authorship rights.

If the specific funder will allow. If the funder says it must be CC-BY, then the RRS does not allow an author to over-rule that. Which, I think, further underscores Rick’s main point that the author is not retaining all their rights as a copyright holder.

Little story to illustrate the potential danger of CC-BY. Whilst I was at OECD, I published a book on behalf of a UN agency which insisted the work be CC-BY (they had just made this their policy for all works). Six months post-publication I got a call: could we issue a take-down notice to Amazon because they had repackaged the work and were offering it for sale. It wasn’t so much that it was being sold that upset the UN agency – and their authors – but that the repackaged e-book was (to put it politely) a dog’s breakfast. Plainly done by some infernal Bezos-inspired machine, Amazon has stripped out the artistic illustrations of elephants (under regular copyright) leaving elephant-shaped holes in the text. They had also succeeded in mangling the layout so whilst all the words were in the right order, the UI was over the place. Yet, on the (now-plain, typographical) cover, the names of the authors and the UN agency were proudly displayed; the damage to their brand and reputation there for all to behold. I had to gently explain that this was allowed under a CC-BY license and Amazon had done nothing wrong. I have recounted this cautionary tale often to those who argue in favour of CC-BY. Caveat socius.

And another illustrative story: authors from a UN agency (again!) published a series of “early” guidelines in an OA journal and happily signed the agreement not realising that the CC BY they had agreed to was not the CC BY licence required by UN agencies. So the authors didn’t have the rights to sign that licence according to their employment contract (problem one) but the user rights were unaffected. Then someone did exactly what you described above (problem two) – took the content and published it on Amazon as a book). The UN agency was very unhappy as they wanted to refine/revise the journal articles to publish as a book themselves and felt that the existence of the (perfectly valid) book on Amazon undermined their opportunity, and potentially undermined the guidelines they were generating and the reputation of the organization (being simply a replication of the “early” guidelines articles rather than an updated, value-added publication). I believe that they have given up trying to take the book off Amazon. Like Toby, I use this as an example of where licences go wrong. Cave quid volunt

I’ll just jump in here to point out that while these anecdotes illustrate important downsides of CC BY, none of this means that CC BY licenses are “bad.” It only demonstrates that CC BY has downsides as well as upsides–just as any disposition of copyright will. When copyright holders actually choose to make their work CC BY, and do so without coercion and in full possession of the facts, that’s great. What is problematic, in my view, is treating OA-with-CC-BY as the One True Way, and imposing it universally (which, let’s be very clear, is cOAlition S’s stated aim — with occasional, grudging concessions to CC-BY-ND when the author can make an argument for it that’s persuasive to the cOAlition S funder).

I echo Rick’s point – these cautionary tales are just that, cautionary. When asked, I always advise those considering CC-BY to weigh up its benefits against a possible risk to reputation (usually of concern to most IGOs I’ve worked with) and whether ceding so much control is in their best interests. I make sure they understand that they have a choice of copyright regimes and a good policy is to pick the right one for the particular circumstances of each publication.

The term “confiscation” appears ill used here: Plan S does not confiscate anything. It simply says the following: our agency or foundation has paid for your research. We know that attribution is important to you. However, we also know that most of the rights covered by copyright generally do not need to apply to scholarly documents. Just give up the other rights as a condition of our financing you.

Now, if you want to publish while retaining copyright, find your money elsewhere. And if you want to publish with publishers who do not pay you, but insist on a copyright transfer, think again about who is confiscating what.

If publishers want to sell services (such as page formats, digital formats, etc.), let them sell these services on some (really) open market (with no NDAs), and without requesting a copyright transfer. Leave the copyright issue aside: this is precisely what CC licenses try to do with a contractual scheme.

The term “confiscation” applies quite well, actually. COAlition S members require the author to give up all of her exclusive prerogatives as a copyright holder. The fact that this requirement is attached to necessary research funding doesn’t change the confiscatory nature of the policy.

As for this:

However, we also know that most of the rights covered by copyright generally do not need to apply to scholarly documents.

See, here’s the thing: it’s really not up to you to tell authors which of their rights do or don’t “need to apply” to their work. I tend to think it would be better to let authors make that determination themselves.

Of course, if you control research funding, then that gives you power over researchers; the more research funding you control, and the fewer other options they have for getting that funding, the more power you have to impose on researchers your own personal beliefs as to what should and shouldn’t matter to them. If you have enough power, you can even impose a confiscatory policy that requires researchers to give up all of their rights as copyright holders. And as I said above, if you’re a funding body you’re certainly within your legal rights to do that. But if you insist, absurdly, on characterizing that imposition as a defense of “researchers’ intellectual property rights,” you can bet that someone’s going to point out the Orwellian doublespeak that such a characterization represents.

Hi, Rick –

I’m a total newbie in the field of scholarly/academic copyright issue, so please excuse me if this question has an obvious answer that I’m missing!

To my understanding, the aim of the RRS is to make publicly-funded research available immediately, rather than, as has been the case in the U.S. and elsewhere, within a 6 to 12 month time-frame. But it’s not novel in it’s call for this kind of research to be publicly available generally. In terms of the issues you raise – concern, for example, that the author’s work can be used in a hate publication – is the RRS the source of these issues, or does it simply trigger them sooner than otherwise? That is: couldn’t a hate publication still use a researcher’s work for its own ends without the RRS, just 6-12 months later?

Thanks for your thoughts!

Hi, Jay —

Welcome to the wonderful world of scholcomm!

So, to answer your question: you’re right that the issue here isn’t really one of timing; it’s a problem of cOAlition S taking rights away from authors (which they’ve always done) while claiming that they’re doing the opposite (which is new). The term “Rights Retention Strategy” is a classic example of Orwellian doublespeak — “language that deliberately obscures, disguises, distorts, or reverses the meaning of words.” If it were their intention to help authors retain their rights, cOAlition S could have simply said “authors funded by our member organizations must retain copyright in their work rather than assign copyright to publishers,” and leave it at that. But instead they require authors to retain copyright in a strictly technical sense, while giving away all of the rights that copyright law gives them (by means of a CC BY license).

So you’re right: the RRS is not the source of this issue; the issue has been there since the beginning of Plan S. What the RRS does is dress the old problem up in a new, misleading name. Drawing attention to this fundamentally misleading language, and explaining what makes it so misleading and why that matters, is the main purpose of my piece.

Thanks, Rick – this is helpful!

I’m actually writing a short article on the issue – it would likely go to print tomorrow, though, so it’s a quick turnaround. Could I shoot you an email about it?

I think it is also an important distinction that the public access mandate in the US doesn’t mean the 6-12 month embargoed piece is suddenly licensed CC-BY when the embargo lifts. So, in the case of the US public access mandate and others that don’t include the CC licensing aspect, it isn’t just timing.

Serious question, Rick… Are you not allowed to copyright the work in addition to CC BY license it? I really don’t understand how you are giving up your rights as an author.

Hi, Scott —

Good question, and I’m glad you asked because you’re probably not the only one wondering. It is indeed complicated.

Being the copyright holder is what gives you the exclusive right to decide who may and not reuse your work (beyond the bounds of fair use). If you want a journal to publish your work, then you can retain your copyright and grant the journal a publication license, or (more commonly) you can assign copyright entirely to the publisher.

Creative Commons has created a suite of licenses that you can adopt when you want to grant some or all of your exclusive rights to the general public. When you apply a CC license, you remain the copyright holder, but you abdicate the control that the law gives you over your work — either all of them (as in the case of a CC BY license), or some subset of them (as in the case of the various other licenses available).

So while you remain, technically, the copyright holder when you adopt a CC BY license, you don’t retain any of the rights that accrue to you legally as copyright holder. Your right to decide who may and may not republish, copy, distribute, publicly perform, create derivative works, etc., has disappeared; anyone who wishes to may now do anything they want with your work, as long as they acknowledge you as the author of the original version. (If you assign copyright to a publisher, of course, you also lose your rights as a copyright holder.)

Does that help?

Yes. So, I believe when they say “rights retention,” they mean the general public having the rights, not the author having the rights. In a way they are going back to the you can’t copyright facts/ideas/systems type of science, but science has gone way beyond that. They are talking about cutting out the publishers, but you point out that cuts out the author, too, right?

Scott, if this is the case, is “rights retention” the right term? The public isn’t retaining rights; the public is being given them?

I believe when they say “rights retention,” they mean the general public having the rights, not the author having the rights.

Right, and that’s why calling it a “Rights Retention Strategy” is so deeply misleading. It’s true that you can’t copyright facts or ideas, but that’s not true of a written article. The author of a document is the copyright holder in that document as soon as the document is written; that means that the public (or the publisher) doesn’t get those rights unless the author subsequently gives them away. That’s what makes cOAlition S’s language here so misleading: they say they are requiring the author to “retain” her rights, but in fact their policy specifically forbids the author from retaining them. It’s a classic example of Orwellian doublespeak.

Also worth considering that these rules are being applied to Humanities researchers as well as Scientists. For the Science researcher, the research output is the data and the result, and the paper serves as a narrative to explain the experiments and the result. For the Humanist, the research output is the argument, the written words. Scientists can retain their intellectual property through patenting their discoveries, yet Humanists are required to give up their IP because it is based around copyright.

How frequent are there problems due to the CC-BY license, and how much harm do they really do?

In the real world, strict licensing causes much more harm than lax licensing. Problems that do occur include researchers being forbidden to do text and data mining, and authors having to redo their own figures because they are forbidden to reuse them from their earlier works.

Being forced to give rights to the public actually protects researchers from publishers, just like being forbidden to work for less than the minimum wage protects workers from employers.

How frequent are there problems due to the CC-BY license, and how much harm do they really do?

When a person’s rights are taken away by someone in power, the harm that’s done in the first instance is the loss of those rights. That harm is incurred in every instance of confiscation. The downstream effects of that harm constitute a second-order question, and the answer will vary from situation to situation. So your question is a bit like asking “How frequently are there problems due to an unreasonable restriction on free speech, and how much harm do such restrictions do?” The answers to those two questions are A) every time, and B) it depends.

In the real world, strict licensing causes much more harm than lax licensing. Problems that do occur include researchers being forbidden to do text and data mining, and authors having to redo their own figures because they are forbidden to reuse them from their earlier works.

You’re citing very selectively some problems that are created by letting authors retain their rights, characterizing those as “real world” problems, and implying that the problems created by taking away authors’ rights are somehow not problems in the “real world.” But of course, that’s nonsense. In the “real world,” both approaches create a mix of upsides and downsides. Reasonable people may disagree on which suite of costs and benefits is the best one; what’s not reasonable is to radically misrepresent one’s policy of rights confiscation as a policy of “rights retention.”

Being forced to give rights to the public actually protects researchers from publishers, just like being forbidden to work for less than the minimum wage protects workers from employers.

This analogy is laughably inapt. For one thing, being paid more for one’s work entails virtually no downside for the employee, whereas losing all of her rights as a copyright holder entails significant downsides for the author. (Authors understand this, of course, which is why so many organizations dedicated to universal OA are having to find ways to force authors into it.)

For another, the assertion that taking away an author’s rights constitutes a “protection” of the author… well, let’s just say that somewhere George Orwell is chuckling, bitterly.

Thank you for the reply. Could you further explain what the authors are doing with these rights, and how this benefits research? How many researchers really need or want to micromanage what others are doing with their articles?

I thought (perhaps naively) that in almost all cases, researchers would want their articles distributed as far and wide as possible.

The struggle for the rights to academic articles is fundamentally between the public (including other researchers) and the publishers. Your attempt to insert the authors in the equation is contrived. There may be exceptions, of course, but please do not give them undue weight.

Could you further explain what the authors are doing with these rights, and how this benefits research? How many researchers really need or want to micromanage what others are doing with their articles?

This is a very strange question. Do authors have to justify to you their desire to retain the legal rights in their work? Why do you believe that it’s up to you (or anyone else) to decide for authors whether or not they have sufficient justification for that desire?

I thought (perhaps naively) that in almost all cases, researchers would want their articles distributed as far and wide as possible.

I’m not sure that belief is naive, exactly. I’d characterize it as simplistic and perhaps more informed by OA advocacy rhetoric than by an understanding of how scholarly communication works.

The struggle for the rights to academic articles is fundamentally between the public (including other researchers) and the publishers. Your attempt to insert the authors in the equation is contrived.

I think you’ve fundamentally misunderstood how copyright works. There is no “struggle” over the rights to academic articles that doesn’t involve authors, for the simple reason that it’s authors (not the general public, not other researchers, and not publishers) who have these rights in the first instance. What’s “contrived”here is your attempt to address the issue as if authors and their rights could possibly be excluded from it.

Your analogy between copyright and free speech is unconvincing. Copyright is not a fundamental human right like free speech. (Actually, copyright restricts free speech.) Copyright only exists for the purpose of helping science and culture progress. Admittedly, given the current state of copyright law, you may be forgiven for losing sight of the original purpose, and believing that copyright is here to help publishers make money.

Anytime copyright goes against scientific or cultural progress, we should welcome whatever weakens it, be it CC licenses or open access mandates.

Your analogy between copyright and free speech is unconvincing.

I didn’t make an analogy between copyright and free speech. I pointed out that when you restrict someone’s rights, doing so entails two kinds of impact: the simple loss of the right itself (which is the same impact in every case) and the downstream impacts of no longer having that right (which will vary greatly from case to case). This is true no matter what kinds of rights we’re talking about; that doesn’t mean that all rights are analogous.

Anytime copyright goes against scientific or cultural progress, we should welcome whatever weakens it, be it CC licenses or open access mandates.

I disagree that allowing authors to retain their copyrights goes against scientific or cultural progress. (Also, it’s important to remember that CC licenses themselves don’t weaken copyright. It’s only when authors are coerced into adopting them that the authors’ rights are threatened.)

Rick,

Thank you for this very well-written piece. Some commenters seem to be getting into discussions of the merits of various approaches to copyright, which you explicitly did not intend to address here. I think your very targeted point is difficult to argue against – that cOAlition S is framing their policy as one that allows authors to retain rights, when it specificly requires authors to give them up.

I really don’t think it is worth debating with Rick on his piece. He has a particular point of view and he is not going to be budged on it. I would however note a comment (from David Crotty I think) that scientists have patents to protect their IP interests whilst humanities folk do not. Are there any statistics to show what % of patents are held by individual scientists, as opposed to their employers or assignees?

Calling someone intransigent is easy. It’s a lot more work to engage with the arguments and have a serious discussion. Sylvain has been doing that work, and has contributed genuine intellectual content to the conversation. Charles, you’re welcome to do that too, if you’d like.

I don’t know of any analysis on quantities of patents that are held solely by institutions versus co-held with the researcher. In my experience, those institutions that are more generous in sharing the rewards of research have a competitive advantage over those that draw a harder line. The policies of the individual funders come into play as well (as far as I know, most funders leave IP in the hands of the researchers and their institutions) and in the US, the Bayh-Dole Act grants those rights to researchers and their institutions for Federally funded research.

The balance here is something I’ve been thinking about for a long time, dating back this post from 2013:
https://scholarlykitchen.sspnet.org/2013/08/06/is-access-to-the-research-paper-the-same-thing-as-access-to-the-research-results/

I’m always a bit confused by the enormous struggles ongoing over rights to the stories written about the research results while we continue to lock up the actual research results themselves, and the seeming willingness to create an unfair playing field that grants one set of rights to science researchers but withholds those rights from humanists.

Rick, I agree with you that the wording used was inaccurate/misleading, but I don’t agree that making CC a condition of funding is damaging to researchers’ interests, or to scholarly communication. We just have to agree to differ on that.

I’m taking part in this discussion late. Rick Anderson is right when he says that with a CC BY license authors give away their exploitation rights (not the moral rights) of their work (article, book, photo, etc.). Where of course these exploitation rights are given away to everyone and not to one person or party.
However, whether or not you retain your copyright is decided in the publishing license that authors sign with a publisher and not whether or not they grant a CC BY license (or any other usage license) to their work. If the publisher is granted an *exclusive* publishing license, you as the author lose your copyright, regardless of what usage license is granted to the work. Only if the publisher is granted a non-exclusive publishing license will you, as an author, retain your copyright.

In order to keep your copyright (or not), the publishing license is essential, not the usage license.

So if Plan S wants authors to keep their copyright, authors must sign a non-exclusive publishing license with a publisher.
Plan S requires two things from authors: 1/ authors must retain their copyright (and they do so by signing a non-exclusive publishing license with a publisher), and; 2/ authors must grant a CC BY usage license to their work. What I see is that these 2 things are often lumped together in discussions.

Together with a CC BY usage license, it may not make much of a practical difference whether you have given an exclusive or non-exclusive publishing license to a publisher. However, if the work has been given a CC BY-ND or -NC usage license, this is certainly important.
Furthermore, of course, if the publisher has been granted a non-exclusive publishing license, it is the author and not the publisher who should take action in the case of copyright infringement.

It seems to me that very few researchers choose any license at all to AAM:s in repositories and this is a big problem – if the license is not chose, one does not how it can be reused. So forcing the researcher to choose the license can be seen as a step ahead. If one is not prepared to do that, one is quite free to seek funding from a non-CoalitionS-funder.

The problem is not just to remove ambiguities, the problem is to allow reuse for reasonable purposes, in particular for future research. Unless I am much mistaken, the default does not allow anything, which is why CC licenses were created in the first place. However, researchers are typically forbidden to use these licenses by publishers, unless they pay extra. Hence the need for funder mandates. (In the current situation, there does not seem to be a realistic way of allowing CC licenses without making them mandatory.)

I understand the idea behind wanting Creative Commons licenses to reduce friction on reuse, but it’s inaccurate to state that copyright does not allow for anything. Depending on where one lives, countries offer significant reuse rights under the rules of Fair Use or Fair Dealing, and most publishers explicitly spell out what one can do with articles. There are also regional laws, such as in the UK that make clear that text and data mining are explicitly allowed on copyrighted material (http://contentmine.org/2017/12/19/text-data-mining-uk-law/). It’s also important to be clear on what copyright restricts — reuse of these words in this order and these original images. The concepts and ideas presented in the paper are freely available for reuse, except in the case where they are protected by patents, something that seems to continue to confuse many (https://scholarlykitchen.sspnet.org/2013/08/06/is-access-to-the-research-paper-the-same-thing-as-access-to-the-research-results/).

the problem is to allow reuse for reasonable purposes, in particular for future research.

Sylvain, I think it’s possible that you’ve radically misunderstood the nature of the CC BY license. That license doesn’t allow “reuse for reasonable purposes”; it allows completely unlimited and unrestricted reuse, for any and all purposes. This is why authors generally don’t prefer CC BY, and have to be forced to adopt it by those who have power over them.

This suggests that the AAM and the version of record are different works, each of which is or can be subject to a separate copyright.
From a copyright point of view, all versions of a work are one and the same work.
So, if an author has transferred the copyright of his article to a publisher, then the publisher has the copyright on all versions of the article, including the AAM. However, as part of the publication agreement, some rights may be licensed back to the the author, for example the right to post the AAM in an institutional repository.
See this blog post by Kevin Smith (from 2014): https://blogs.library.duke.edu/scholcomm/2014/01/28/setting-the-record-straight-about-elsevier/

I’d be interested to see supporting evidence for the claim that authors don’t like CC BY and therefore it has to be forced on them.

Authors do not really have a choice, in a publish or perish system where CC BY would prevent them from later publishing in journals that matter for their careers.

Agreed — ruling out 85% of journals, particularly the top journals in many fields, has been enormously controversial among Coalition S funded researchers, and was a driver in the ERC pulling out of Plan S recently.

Thank you David for the details on fair use. Since this varies a lot between juridictions, it looks difficult to rely on this for allowing reuse by all other researchers.

Rick, I am well aware that there is no practical way to allow reasonable reuse without also allowing unreasonable reuse. But, coming back to my first comment on your post, is unreasonable reuse a real problem?

But, coming back to my first comment on your post, is unreasonable reuse a real problem?

And, coming back to my original response, the answer to that question is one for the author of a work to decide for her- or himself. It is not, in my view, an answer that should be imposed on the author by those who control her funding or her employment. It strikes me as supremely arrogant for those with power over authors to tell them “Here are the concerns you should have about the reuse of your work, and here are the concerns you should not have because they don’t represent a ‘real problem’.” (Or, as Jean-Claude would have it, because your rights as an author “do not need to apply to scholarly documents.”)

I suspect the employees of a publisher may have different motivations around the licensing of a work meant to promote a service they’re offering than an author might on their life’s work.

From what I understand, the percentages have not changed significantly over the entire existence of biorxiv. Also, experiments that changed around the order that licenses were listed had no effect on author choice.

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