In Part two of this interview post, I continue to grill an eloquent group of stakeholders with a wide range of views about the Plan S Rights Retention Strategy (RRS) and Creative Commons licensing. As we soak in these quite subtle approaches to what is a complex problem, I hope you, like me, are gaining a better understanding of these complex issues. Please start with Part One if you haven’t already read it.

Just to remind readers of who I am talking with here:

Nick Lindsay – Director of Journals and Open Access, MIT Press

Lynn Kamerlin – Professor of Structural Biology, Uppsala University, Sweden

Niamh O’Connor – Chief Publishing officer, PLOS

Steven Inchcoombe – Chief Publishing and Solutions Officer, Springer Nature

Jasmin Lange – Chief Publishing Officer, Brill

White doors isolated on white background

Do you think that academics, considered as researchers, authors, and readers, understand copyright, licensing and how they may have recourse if their rights are abused? How may we better serve academia when it comes to rights issues?

Nick Lindsay

We have author agreements for all of our journals and also post extensive information about copyright and licensing restrictions, benefits, and requirements on our website. My sense of this is that it’s an issue of intense importance for some, but for the majority, it’s little noticed as authors are simply wrapped up in too many other things to pay close attention to the copyright and licensing rules of any journal to which they submit articles. I do think there’s something to be gained by increasing education efforts on campus around not just copyright abuses, but options when it comes to the rights that researchers retain. MIT Libraries has one of the most active institutional repositories in all of academia and devotes full-time staff to populating it, and yet the deposit rate for papers from MIT faculty is still below 50%. So, a broader effort around educating academics about their rights and responsibilities when it comes to their published work could see benefits accrue in a number of areas.

Unfortunately, it’s true that it’s very difficult for publishers of our size to monitor for rights abuses, let alone ensure that authors are aware of individual instances of abuse of their rights. We do our best to take down the worst offenders but it’s a difficult activity for us given the scale of the problem and the resources at hand. Perhaps a more centralized effort similar to the AAP’s attempts to fight copyright abuse overseas would be warranted.

Lynn Kamerlin

In my experience, many, if not most, academics I have discussed licensing issues with have minimal understanding of copyright licensing, the implications of different types of licenses, or how they may have recourse if their rights are abused (in part because they are unaware of what rights they have in the first place). If and when they are aware of the nuances, they tend to prefer a CC BY-NC-ND license, in part due to the issue of retaining control of their work. While this is mainly anecdotal, it is reflected also in the 2019 Taylor and Francis Researcher Survey (2,755 respondents), which showed that the surveyed researchers’ least preferred license is CC BY, with the strongest preference for CC BY-NC-ND. This creates a problem when the interests of researchers and those of funding agencies are so at odds in terms of licensing of work. As publishers, it would be helpful to perform more outreach to the academic community to make them aware of the implications of different types of licenses (although as more and more funders have the license form mandated in their grants contracts, researchers are not left with licensing choice), but also if and where statistics are available on licenses chosen by researchers who do have license choice, to make funders aware of the views of researchers to that these can better align.

Niamh O’Connor

In general, no. But my question is why should they need to? Apart from researchers whose area of interest is IP and copyright law, the majority of academics didn’t pursue their passion for their subject in order to become experts in copyright and licensing. Do we really think that researchers wouldn’t want a great discovery to be built on their work, as long as their contribution is credited? I don’t think so. Copyright and licensing aren’t usually researchers’ major concerns when it comes to discovery either, as all of us in publishing see that the sharing and use of materials outside of the terms of their licenses is not unusual. I would also ask who, or what, we are really protecting when we act to protect the rights of researchers? More commonly what’s really at stake is publishers’ earning power, particularly when it comes to journal articles.

That said, if someone is re-using a CC BY licensed article without attribution, then it is reasonable that this should be addressed both in terms of legal rights and because it goes against our expected standards of research ethics. We also need to find ways to work together to evolve the research ecosystem and include the systems and signals of trust that are needed to create an open framework of knowledge and research built on an equitable system of rewards and incentives.

Steven Inchcoombe

I think few people, including researchers, think much about copyright or licenses. I think it’s our job as research publishers to meet their needs and concerns and therefore come up with solutions rather than leave them to do so. Finding these solutions based on a good understanding of their concerns and those of other stakeholders – their institutional employers, their grant providers, etc. – is, in my view, our best way to serve them.

Jasmin Lange

Many authors have a solid understanding of copyright and some are even proficient on the topic of licensing. However, at Brill we are receiving numerous questions on copyright and licensing issues every day, and I am sure the inboxes of librarians and OA officers at universities are full of such questions too. Our editorial, rights, and open access teams are trained on these topics, and we have a legal expert in-house who helps with more specific questions. This is one of the many functions we fulfill as a publisher.

As a community we could make a better effort to discuss alternatives to or future developments of the standard Creative Commons licenses. Alternatives should be discussed that, on the one hand protect author rights and certain revenue streams of publishers, but also grant readers those reuse rights needed for research to flourish.

What I find strange about the RRS is that it claims to give authors back control over their rights while in fact it establishes a blanket policy to restrict author rights in favor of user rights. The RRS might turn out to be a bitter pill for authors to swallow. Funders say they have the right to determine such a blanket policy, as they are paying the bill. That’s fair enough, but at the same time they should be upfront about the limitations and negative consequences of RRS too. There are always two sides to the story.

What is your view on how to enhance openness in research, while enhancing the abilities of authors to create and in cases reap reward from their work?

Nick Lindsay

There is movement at The MIT Press and in scientific scholarly communication circles more generally to promote openness in data and methods publishing as one way to accelerate the pace of scientific discovery. Taking down the rather significant cultural barriers to sharing data is, however, a non-trivial enterprise as is the standardization efforts that would need to be undertaken. We hope the Biden administration can put serious muscle into strengthening and enforcing federal policy in this area and that changes might be forthcoming from the Office of Science and Technology Policy (OSTP) as well as the National Science Foundation. With their support, we can move scholarly publishing forward in ways that are highly beneficial for all participants in the system including authors. New pathways in their research areas can be quickly opened up via such data sharing policies and education efforts from the National Academy of Sciences and others to help us get there will prove to be crucial.

Lynn Kamerlin

Some of the big steps forward in recent years have been a broader acceptance by publishers of preprints, including preprint updates until the Author Accepted Manuscript (which allows for work to become instantly available even prior to formal publication, and through the updates process, for others to see the evolution of the manuscript), and the increasing uptake of Read and Publish (R&P) agreements (which remove the burden of per-article Article Processing Charge [APC] costs away from individual researchers and allow authors whose institutions are part of R&P agreements to make work open access without individual barriers to publish). At present, some preprint servers will link to the final Version of Record (VoR) once a preprint is published in a peer reviewed journal, and some preprint servers / journals have partnered for direct transfer to the journal from the preprint server. Better integration with preprint servers would help, perhaps also if open peer review takes off, then the peer review process could also be made available and linked with the preprint server. Increased uptake and evolution of transformative agreements that would make OA financially sustainable for both publishers and authors is also important on both sides.

Niamh O’Connor

Open access publication with a CC BY license (or CC BY-ND for some disciplines) enhances rather than limits a researcher’s ability to reap reward from their work. Research is built on sharing knowledge and academic systems of value and reward are built on this sharing. Retaining copyright of their own articles increases researchers’ ability to share and is supported by many subscription journals as well as by those publishing under CC licenses. If the question is whether or not to patent the work and exclude others from reaping commercial reward – if there is any commercial reward to be had (according to Stephen Key writing in Forbes about 97% of patents never recoup the cost of filing), then that’s a separate issue from the licensing of a publication.

So, the issue here isn’t about the sharing of the research itself, it’s about who can reap rewards from the expression of the work embodied by the licensed article. And that seems to be much more about the publisher’s profit margin than anything about researchers’ gain. To really enhance openness in research,we need to focus not only on articles but on Open Research – for example, ensuring that data is FAIR, that code and software are available, and that methodologies are shared and re-used.

When you think about it, a default that ‘secret is best’ is not one that tends to serve many areas of society well…

Steven Inchcoombe

I think we need to measure and report on the activities needed to provide open content and the benefits that result from this. We then need to promote these benefits and include resulting metrics in the ways that researchers are evaluated and rewarded, whether that be through promotions, grants, prizes, or respect from their peers. The ‘systems thinking’ of greater openness, including open standards, open data, open code, etc. is generally sound but it has to also benefit to the creators of more open research as well as the users of this research. In support of this, we need to make it easier to do all the above, but that won’t be enough unless we change the research culture and ensure researchers that apply open research techniques to their work are better recognized and rewarded for this.

Jasmin Lange

Our job as publishers is to facilitate researchers’ ability to spend time on what matters most to them: undertaking research and communicating the results. Humanities and social science (HSS) authors not only speak to peers when they publish their research. I do believe that an author should have the freedom to choose the venue which fits their research best. For most works – and here I am fully convinced – the best and preferred model would be open access. The few who want to publish their work behind a paywall, e.g., as a widely marketed paperback, should not be stifled in their creativity and ability to reach audiences beyond academia. That can’t be in the interest of funders or anybody else. The best thing we can do is talk to researchers, listen to their needs, support and not enforce their transition to OA.

What do you see as the future for rights and licensing policies from your perspective?

Nick Lindsay

I suspect that as the scholarly communication universe continues to gravitate towards openness that the rights and licensing policies will follow suit. A strategy similar to the RRS taking hold in the US and elsewhere is certainly not outside the realm of possibility, and if it becomes ubiquitous, it’s likely to force publishers to consider more liberal licenses for their journal content lest they lose access to a very large source of research papers for their journals. This will undoubtedly push journal publishers to flip existing journals to open access and seek revenue from a mixed model that includes author fees; institutional, foundation and philanthropic funding; and possibly subscribe-to-open options. It’s going to force everyone to be more creative in how they approach keeping the engine of scholarly publishing humming along.

Lynn Kamerlin

I think the main challenge, as mentioned in my responses above, is the fact that right now there seem to be orthogonal views between researchers and policymakers/funders. Researchers that are aware of licensing issues support open licensing, but not completely open so that researchers maintain some degree of control over their work (through incorporating NC and/or ND clauses to CC licenses, for example), whereas funders want everything as open as possible. The American Chemical Society recently announced, for example, that Open Access Authors can now retain copyright over their work, which is in line with Plan S. However, the freedoms granted by a CC BY license make copyright retention a mere formality for authors. Part of the issue is the lack of author awareness of the implications of a CC BY license (or, in a software context, using a free software license). It’s clear that some authors will happily assign a CC BY license to their work with full understanding of its implications, and this is great, but unless there is a seismic shift in researchers’ views, this is not likely to be the preference of the majority. From a publisher perspective, providing researchers with choice and flexibility into how their work is licensed, and allowing researchers to retain copyright of Open Access work is an important step forward. This would include the exploration of, and, as relevant, application of new license types, for data/text mining and other specific situations that could arise in future. From a researcher/funder perspective, it’s critical to bridge the current gap that exists between funders and researchers, and to make researchers more aware of different licenses and their implications.

Niamh O’Connor

It has been a common refrain for years that we should ‘collapse the policy stack’ to make rights and licensing less complex and easier to navigate. Transitioning to a system where CC BY (and CC BY-ND in some disciplines) licenses are standard achieves this, allows researchers to retain the right to be credited for their work and allows discovery and innovation to accelerate while becoming more inclusive, equitable, and responsive to societal needs globally. We need to decrease focus on the static article as the primary research output of value, and evolve licensing to focus on publishing and research-sharing as a process rather than as an event. I’m not naïve enough to think that going to be as simple to do as it is to write, but it’s also not as complex as it is often made out to be and the potential gains far outweigh the effort required to make it happen.

Steven Inchcoombe

The rewards of a more open research system are, to varying degrees, faster and more efficient research held accountable to higher standards of integrity as a result of things like easier and clearer reproducibility testing. These potential benefits mean it is important that we find better solutions for rights management and content licensing for use by humans and machines. So, in my view, for those authors that want to publish their VoR open access, the CC BY license is an excellent model, maximizing re-use by all, but for those authors that never chose to publish their work OA, the minimum license level for their accepted manuscript (AM) should be CC BY-NC-ND if we are to strike the right balance between system benefits and individual academic independence.

Jasmin Lange

I really can’t predict how things will develop. However, I can say how I hope they will develop. We in the academic sector need to involve copyright holders in discussions on rights and licensing polices more actively, as it is already common practice in other creative industries. As funders, librarians, and publishers, we have to ensure researchers are up to speed with developments in OA policies and models, and at the same time we all should have a deep respect for their intellectual property.

Conclusion

Over the last two days you have read some thoughtful insights from four stakeholders in the academic publishing landscape. Have I come out of this exercise less confused than when I started? To some extent, yes. There is no question that fostering open and collaborative research is necessary. However, I remain unconvinced that the RRS is the right way to achieve openness. RRS seems unnecessarily heavy-handed, and even perhaps counter-productive to achieving a balance of openness in the academic ecosystem. If we are to use Creative Commons licensing, then I still am not convinced that CC BY is the way to go. Perhaps if we were to focus on CC BY-NC-ND, then we would find ourselves closer to the spirit in which academics create and share their ideas and words to further collaborative research.

What do you think?

Robert Harington

Robert Harington

Robert Harington is Associate Executive Director, Publishing at the American Mathematical Society (AMS). Robert has the overall responsibility for publishing at the AMS, including books, journals and electronic products.

Discussion

10 Thoughts on "Plan S Rights Retention Strategy, Copyright and the Academic Community – Part Two"

I’ve read the last two posts with interest and particularly appreciated the variety of views shared. I did want to contest the conclusion of this latest post, however, specifically that CC BY-NC-ND would be “closer to the spirit in which academics create and share their ideas and words to further collaborative work.”

CC BY-NC-ND is not an open license. The ND aspect of the license prohibits text and data mining – by definition – which many would agree is problematic. More of an issue is the NC license. Although many people identify “non-commercial” with “non-profit”, this is not the case and that license imposes a number of re-use limitations.

The text describing the NC license states that it cannot be used for “commercial advantages”; however, this term is not defined by either CC or in law. There are large differences in how people interpret “non-commercial” – for example, many would consider editorial use of images in a for-profit journal as non-commercial; however, a valid interpretation would also disallow use where money is exchanged, which would leave some publishers in breach of their own licenses should they use images from NC articles in content-based marketing.

Due to the wording, the license depends on “intent” – it does not matter if the entity looking to reuse it is for profit or non-profit. This means that if a charitable non-profit is using NC licensed content in a fund-raising activity, it could be argued (and has been successfully) that the use of the work was primarily intended towards commercial advantage, which would be against the license. This interpretation also applies to individuals. Its also worth noting that many institutions that people would assume to be non-profit, e.g., universities, schools, research institutions, are in fact often not. Non-profit is a legal status, not a moral one. David Sweeney also raised the very valid point on yesterday’s post that many governments aim to drive public-private engagement, which means that using an NC license explicitly goes against the aims of publicly funded research.

The last point I would make is that we are currently living in a situation where great good has been done by “commercial activities” – namely the creation of vaccines against Covid (also a great example of public-private engagement), the majority of which have been created with funding and support from pharma companies. To my mind, it would be a tragedy is this was stymied by people mistakenly limiting reuse of their content due to ideological concerns.

Overall, I feel there have been very strong arguments in favour of CC BY licensing made within these two posts, and my fear is that there is a great deal of misunderstanding regarding what “non-commercial” actually means in this context.

I think this is a good point — the NC license is so ill-defined that you can’t know if what you’re doing is allowable until you do it and someone challenges you in court over it. You’d probably just end up going to the rights holder and asking for permission to avoid this possibility, hence negating the efficiency granted by the Creative Commons license.

However, it remains unclear just what those economy-driving commercial reuses of research articles are meant to be. One example given here, COVID vaccines, is something of a red herring, as they were largely driven by reuse of research data, not re-publication rights to the research papers that described that data. It is conceptually difficult to disentangle the research results themselves from the stories written about the results, but what copyright involves is the reuse of the stories, not the concepts, ideas, or data that those stories contain. TDM is the most relevant suggestion as it involves parsing the stories, although there is already strong opinion that existing Fair Use/Fair Dealing law already allows this, hence the existence of search engines that do TDM on content that is under traditional copyright.

Text and data mining is explicitly against the NC-ND license — it is allowed for private use but not for distribution. While you are correct that some uses (e.g., search engines) are permissible under Fair Use, anything that produces a data set based on the mining (i.e., research), means that data set can be considered an adaptation of the original work and is therefore not allowed. Incidentally, this also means that content translation is also against the licences, which only further perpetuates the English-language centric nature of research.

You are correct that Covid vaccines are perhaps not the best example here; however, the point I was trying to make is that these licenses are so ill-defined that it is not hard to imagine a situation where this could preclude such research and I would simply ask — is this a risk worth taking when there is no clear benefit to the licenses, as they don’t actually do what many seem to think they do.

Is the text- and data-mining disallowed or is redistribution of the materials what is prevented? If your TDM work involved re-selling significant amounts of the content, then that would be blocked (probably also by a ND clause as well as they would represent a derivative work), but you could certainly do the research, describe the results, and sell something based on those results that didn’t require re-selling of the full original text (Google’s short excerpts in search results for example). Something Robert proposed as a solution in yesterday’s post was a license that included explicit language to permit TDM.

But I agree fully with your main point — the NC clause so highly problematic from so many different angles that it doesn’t offer the solution many think it does.

I think those of us at teaching-intensive institutions may have a different take on the question, “Do you think that academics, considered as researchers, authors, and readers, understand copyright, licensing and how they may have recourse if their rights are abused? How may we better serve academia when it comes to rights issues?” and to Niamh O’Connor’s response, “[W]hy should they need to?”

Yes, academics need to have a better understanding of copyright and licenses. Granted, academics like everyone else don’t want to be burdened by something that get complicated quickly. However, this fails to recognize that the privileges of publishing come with responsibilities. These responsibilities include leveraging copyright and licensing to build and sustain a healthier scholarly publishing ecosystem. Failure to do so give publishers and content providers full control over how they permit and limit access, which ultimately harm academics. One example of this is the refusal of some providers to license content to libraries. (The American Chemical Society, American Psychological Association, and the Modern Language Association refuse to license their style manuals to libraries. Also see Commercial Textbooks Present Challenges in a Virtual Environment and Statement on Textbooks in the Library Collection.)

Although this comment doesn’t relate directly to RRS, it does speak to the responsibilities that academics have to one another. Thus, while this blog tends to focus more on the production-side of research and researchers, I hope this helps offer priorities and needs from a different point of view. Perhaps engaging in rights and licensing education is an area where teaching-intensive institutions can take the lead to more open and equitable alternatives.

Perhaps a little naive and simplistic – but do we need licenses at all? Can we not just assume that all published work is freely accessible by all and do away with all article licensing – if authors want to retain any commercial rights they can do so via the patenting process (adding to the wealth of the nation/s)? Referencing relevant, previous or original work is already an accepted publishing standard. Publishers would be paid like anyone else for the services they provide (via APC or other mechanism) so do not need any rights over articles. Those who choose to self publish (eg Facebook etc) do not need to go via publishers but can obtain peer review through commercial or non-commercial providers – or not bother with peer review if they do not deem it valuable (eg Wellcome/F1000) . Thus leading to greater commodification of publishing services? This would be a better reflection of where we are today.

Under the Berne Convention, any created work is automatically copyrighted, so unless you impose specific licensing terms, reuse will be limited by traditional copyright and whatever your local fair use/fair dealing laws allow. So you can’t just do away with licensing unless you’re content with that status.

The other thing to consider is the difference between the sciences and the humanities. For the scientist, the research results are the data/discoveries from the research, and the paper is basically as story written about those results. For the humanist, the research result is often the argument, the written analysis of the subject matter. For these researchers, the IP is granted in copyright and is not patentable.

Which points to the clear notion that one-size-fits-all policies based around the needs of well-funded scientists are not fair or effective for all types of research.

Some interesting points raised, but from a sadly unrepresentative group of interviewees: Three traditional publishers, one researcher who has been highly vocal in opposition to Plan S from the beginning, and just one OA publisher. Way to skew the debate. Hearing opponents of Plan S argue that the RSS might “slow down” progress towards OA (progress that has for twenty years proceeded at a snail’s pace, largely due to lobbying and undermining by commercial publishers) or that it is “heavy-handed” smacks of victim-blaming. Since a goal of Plan S is to spur innovation, a -NC clause doesn’t make sense. Plan S funders allow a -ND clause “where researchers see the need to restrict adaptation of a published text,” so use that if necessary. However, all of this hand-wringing over licenses strikes me as simply a smokescreen to distract from the fact that enormous societal benefit will accrue when publicly-funded research is (finally) published openly by default.

I’m also frustrated with Plan S too.

They’re essentially telling authors to preprint every version of their paper under CC BY. Publisher policies usually try to restrict that, but if you do it and don’t tell them, you’ll almost certainly get away with it. If this is what Plan S thinks is going to change things, then the open access snail may as well be asleep.

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