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).
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.)