This example is meant to illustrate one of the reasons why I recommend AGAINST CC-BY as a default for open access. CC-BY is the Creative Commons - Attribution Only license, giving blanket permission, in advance, for anyone to re-use a work, including making derivatives, as long as the work is attributed. From the user's perspective, this is great! However, it is important to note that CC-BY opens up possibilities that are both positive and negative. I am focusing on the negative, because so many of my colleagues in the open access movement appear to focus exclusively on the positive. Here is one illustration of why CC-BY is not always a good idea.
Picture a research subject in an obesity study, who agrees to allow the researcher to use their picture in a published research article. The researcher, following traditional protocols for working with research subjects, will probably have said something about the publication. However, it is at present very unlikely that the researcher has told the subject that they plan to publish with a CC-BY license, which means that their picture will be available for anyone, anywhere, to use for commercial purposes, including making derivatives. A weight loss company could take this picture and use it in an advertisement on the side of a bus, a use of a CC-BY licensed work that is arguably quite appropriate. If this kind of consequence of publishing with CC-BY (very different from traditional academic publishing) is not explained to the subject in the process of requesting permission to publish the picture, then the researcher does not have informed consent, and will be in violation of research ethics protocol if the picture is published CC-BY.
In a case like this, there are legal as well as moral issues to consider. A research subject in this position might well want to sue someone - that someone could be the researcher, the university, the journal, and/or a research funder if the policy of the latter was the reason for publishing CC-BY.
This could happen without CC-BY. However, CC-BY makes this more likely - a commercial entity might well gather CC-BY licenses to create a database of images to sell (Springer Images already does this). A CC-BY-NC and/or ND license (NC = noncommercial, ND = no derivatives) would signal to a potential user of the image that a usage like this would be appropriate, and would protect the researcher, university, etc. from legal risk by making a lawsuit less likely (with CC-BY-NC and/or ND, the fault is clearly that of the weight loss company, so they are more likely to be sued), and gives a strong argument in the case that a lawsuit does proceed.
The BOAI 10 recommendation of CC-BY is one of the reasons that I cannot support BOAI 10 as a whole. This is not a small disagreement about priorities or preferences, but rather one element of BOAI 10 that I regard as a serious error to be avoided.
Updated October 27 correcting typos and some minor proofreading.
This post is part of the Creative Commons and Open Access critique series.
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