CC-BY and - or versus? - open access

Many in the open access movement consider CC-BY, the Creative Commons Attribution license, to be the very embodiment of the spirit of the Budapest Open Access Initiative - giving away all rights to one's work, including commercial rights, for open access. My own take on this is that while CC-BY can provide a useful tool for those fully engaged in the open access spirit, the license is problematic for open access. This is important now that funding agencies in the U.K. are beginning to require CC-BY licenses when they fund open access article processing fees. That is to say, we are now looking at a situation where organizations that do not have any commitment to (or even liking for) open access, may be required to use this license.

Some questions that I think should be raised at this point:

The CC-BY legal code, as I read it, does not mention open access, nor is there any wording to suggest that the license can only be applied to works that are open access. Here is the URL for the legal code:
http://creativecommons.org/licenses/by/3.0/legalcode

Questions:

1.    Am I missing something in the legal code, i.e. does it say somewhere that this license is only for open access works?

2.    Is there any reason why a publisher could not use a CC-BY license on toll-access works? (Here I am talking about an original publisher, not a licensee).

3.    Is there anything to stop a publisher that uses CC-BY from changing their license at a later point in time? (Assuming the license is the publisher's, not the author's).

4.    Is there anything to stop a toll-access publisher from purchasing an open access publisher that uses CC-BY, and subsequently selling all the formerly open access journals under a toll-access model and dropping the open access versions? The license would not permit a third party to do this, but what I am asking about is if the original licensor sells to another publisher.

To sum up, my perspective is that CC-BY, while superficially appearing to be the embodiment of BOAI, is actually a problematic license with significant loopholes and serious thought should be given to this before it is recommended as a standard for open access.

For discussion on this topic, see one or more of the following lists:  GOAL, the SPARC Open Access Forum, open-science, SCHOLCOMM, or cc-community.

See also:  Graf, Klaus and Sanford Thatcher: Point Counter Point: is CC-BY the best open access license? in Journal of Librarianship and Scholarly Communication, May 2012. 

CBC Radio Interview August 13, 2012.

This clip of my CBC Radio Early Edition Interview August 13, 2012 with Kathryn Gretsinger (about 10 minutes) is a reflection on the significance of the University of British Columbia Library / Elsevier text-mining arrangement inspired by open data advocate Heather Piwowar. Thoughts on the potential for acceleration of discovery through text-mining from cancer research to humanities, the Elsevier boycott, the added work for libraries with open access.

Dear Creative Commons: please drop the gratuitous insult

Creative Commons has a new license chooser with an added feature: it tells us whether or not the license that we have selected is a "Free Culture License". For the record, I do not agree with whoever has decided what is or is not a free culture license. From my perspective, a truly free culture that uses the nifty Creative Commons tools that I like welcomes and respects people who wish to use licenses that include noncommercial and / or no derivatives terms. Also, a service that wishes to grow does not insult its friends in this manner. CC - please drop the insult.

Wiley moves toward broader open access

An important announcement from Wiley about their move to broader open access through use of the Creative Commons - Attribution (CC-BY) license for Wiley Open Access Journals. This is a strong indication that Wiley is joining a growing list of traditional commercial scholarly publishers to undertake serious competition for the growing open access environment for scholarly publishing - as is the title of Rachel Burley, Wiley's VP and Director, Open Access.

While I support the full range of CC licenses for open access, CC-BY is the simplest option for the profit-oriented commercial publisher wishing to be taken seriously about its commitment to open access publishing - important because this perception will help a publisher to be on the list of publishers / journals suitable for those funding open access article processing fees.

Next steps I would recommend to Wiley:

•  a commitment to publishing journals in a format suitable for data and/or text-mining and that will facilitate re-use of portions of content (for example, a CC-BY license on a locked-down PDF removes legal barriers to re-use, but not technical barriers)
• a strengthened commitment to support for author self-archiving to allow authors more choice (not all authors have funding support for open access article processing fees)
• prepare to compete for high quality publishing services at reasonable prices - consider a range of possible future competitors that includes PeerJ with prices starting at $99 for a lifetime of publishing

Kudos and welcome to the open access world to Wiley!