Tuesday, May 19, 2015

Open access publishing: current issues in copyright and licensing

The purpose of this post is to record some of the issues I come across in the May 2015 survey of open access article processing charges relating to copyright and licensing. Copyright note: in this post I copy a lot of text from publisher websites. In doing so, I am drawing on my rights under fair dealing to copy portions of works for academic research and critique. I can do this even with works that are All Rights Reserved. However I cannot re-license the works of others. Language below from publisher websites is not covered under the IJPE CC-BY-NC-SA license. This illustrates one of the problems with looking for the simplicity of licensing at the level of whole works. My CC license may give a downstream user the incorrect impression that they are free to use these portions of works that are not under my copyright. This could pose problems for the downstream user, the publisher, and for me. If we want to push policies that demand licensing at the whole work level, this would make this type of work a lot more difficult if not impossible. I'd have to ask permission to use CC licenses for the publishers' work; I can imagine that this might be difficult when the reason I am doing this is to critique the publishers' practice. The other option is to omit these works, which is actually a loss of the re-use rights we have under fair dealing. Good copyright policies, practices and laws aren't just about Creative Commons. I argue that we need to defend, protect and expand our rights under fair dealing. 

Update July 4: Bentham Open: authors retain copyright, but clearly Bentham Open considers itself to be the Licensor of the Creative Commons Attribution-Noncommercial License. This illustrates two common confusions in open access publishing: author copyright retention which is nominal in nature (see below for other examples), and when Creative Commons licensing is used, who is the Licensor. In order to grant rights under copyright, one must first have the rights to grant. Bentham Open is clearly expecting a broad-based author copyright rights transfer that is very similar to full copyright transfer. 

In the publishers' words (from
--> http://www.benthamopen.com/editorial-policies.php section 13, copyright, viewed May 17, 2015):
  
--> Authors who publish in Bentham OPEN journals retain copyright to their work. Submission of a manuscript to the respective journals implies that all authors have read and agreed  
-->
  1. Bentham OPEN (Licensor) grants the author(s) a worldwide, royalty-free, non-exclusive, and non-commercial perpetual license to exercise the rights in the article published as stated below:
1.     All articles are published under the Creative Commons Attribution License (http://creativecommons.org/licenses/by/3.0/) which permits unrestricted, non-commercial use, distribution and reproduction in any medium, provided that the work is properly cited.
2.     The authors retain the copyright of their published article. They will also have the right to:
1.     Reproduce the article, to incorporate the article into one or more collective works, and to reproduce the article as incorporated in collective works;
2.     Create and reproduce Derivative Works for educational purposes.
3.     Distribute Copies
4.     Any commercial application of the work, with prior agreement by the author, is exclusively granted to Bentham OPEN
                  Waiver: Authors grant to Bentham OPEN (licensor) the right to retain all revenue from commercial sales of the author's published article in a Bentham OPEN journal.
                  Bentham OPEN offers affordable article processing fees, ranking amongst the lowest as compared to those of other OPEN access journal publishers. An article-processing fee payable by the author/ author's institution applies for every accepted article, to cover the costs incurred by OPEN access publication. Members of Bentham OPEN are entitled to discounted article processing fees.
                  Authors can self-archive post prints of their published articles.
                  Authors can reproduce derivative works of the article for educational purposes and distribute its copies.
Update May 28: Environmental Health Perspectives is published by the U.S. government and hence is in the public domain. Note the language about third party works - portions of articles taken from works copyrighted by others do not become public domain when published in EHP.

Copyright, Reproduction, and Citation

EHP is a publication of the U.S. Government. Publication of EHP lies in the public domain and is therefore without copyright. All text from EHP may be reprinted freely. Use of materials published in EHP should be acknowledged (for example, “Reproduced with permission from Environmental Health Perspectives”); pertinent reference information should be provided for the article from which the material was reproduced. Articles from EHP, especially the News section, may contain photographs or figures copyrighted by other commercial organizations or individuals that may not be used without obtaining prior approval from the holder of the copyright. For further information, contact EHP Permissions...from http://ehp.niehs.nih.gov/instructions-to-authors/


Update May 28: the Oxford Open license mixes up CC-BY and CC-BY noncommercial, says "compatible with the Creative Commons Attribution Licence" then shortly after "Noncommercial. You may not use this work for commercial purposes".


Update May 28: the Bosnian Journal of Basic Medical Sciences has language with a good model for differentiating commercial and non-commercial use:

For commercial use no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the Publisher.

For non-commercial use, with a proper citation, any part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the Publisher. from: http://www.bjbms.org/ojs/index.php/bjbms/about/submissions#copyrightNotice
Update May 28: Engg Publishers - the Journal of Computing / Academy Publisher's copyright transfer agreement is one example -  is a clear example of a fully gold OA publisher prohibiting author self-archiving. Following are the author / employer rights (employer in case of work-for-hire) after copyright transfer with respect to self-archiving:
The right to make copies of the Work for internal distribution within the institution which employes the author. from: http://www.jcomputers.us/JCP_Copyright.pdf 
The Electronic Journal of Geotechnical Engineering has nearly identical language in their Copyright Transfer Agreement:

The right to make and distribute copies of the work within the
   institution that employs the author. from: http://www.ejge.com/copyrite.txt

Similarly Physiological Research:
You can use freely your own article for the internal educational or research purposes of your own institution or company http://www.biomed.cas.cz/physiolres/Copyright_Form.pdf

Update May 27: the Creative Commons noncommercial element may be used for a number of reasons. Authors like myself or people sharing photos on flickr may prefer NC licenses simply because they want to share their work but do not want to grant blanket permission to others to make money off the work. However, publishers may choose to use NC to indicate that they wish to retain exclusive commercial rights. Dove Medical Press provides a clear-cut example of this. Following is language from the Dove commercial rights site:

The articles published on and distributed from the Dove Medical Press websiteat http://www.dovepress.com, or available at any journal indexing web sites or any other website that provide access to any DMP published articles or any part of an article (including, but not limited to the abstract, figures, tables) may not be distributed, make copies or reproduce, in any media or format,  all or any of the articles in any manner that is primarily intended for or directed toward commercial advantage or monetary compensation without the prior written consent of Dove
Medical Press, and the payment to Dove Medical Press of an appropriate fee. For the avoidance of doubt, providing a hyperlink to a DMP article in a manner that is primarily intended for or directed toward commercial advantage or monetary compensation shall be a breach of the license terms. 

Comment: this use of the noncommercial term is clearly intended solely to protect the financial interests of the publisher, not the rights of authors or research subjects or the protection of the OA status of the works which I would argue are other good reasons for considering noncommercial licenses. The inclusion of language about hyperlinking seems a better fit for IP protection / copyright maximalism than open access. It is ludicrous and dangerous to sharing (of knowledge, cultural, free expression of various kinds) to invoke copyright in linking. Imagine if we could not cite without clearing copyright? This example may help illustrate the attraction of the CC-BY license; CC-BY would address this kind of mis-use of the noncommercial element, however as I point out in the Creative Commons and Open Access series, this solves one set of problems but introduces other serious problems. 
 

Update May 22: the Elsevier website provides a good illustration of how author copyright can be in name only, with all but nominal rights transferred to the publisher. 

Update May 22: Brill has a suite of Open Content license-to-publish for different CC licenses that is worth a look. The author indemnity clause is a concern; I would recommend not signing. The NC licenses clarify that authors depositing in repositories are making their work available, but not for commercial use. This is a good move in my opinion; it protects repositories from pressures to sell their content.

Update May 21: mBIO has such good language for explaining what they mean in using a noncommercial license that the language is copied in a separate post. 

Update May 21: the draft policy I first noticed in the Journal of Orthopaedic Case Reports appears to be an OJS default policy.

Issue: CC-BY with "exclusive license to publish"
Computer Science Journals License & Copyright Policies - excerpts

For published papers Open Access Publications (OAP), following are the policies that are applicable:
  • author retain the copyrights of the work.
  • author has the right for proper attribution and credit for the published work.
  • author gives the right to reuse of their work defined by CC-BY.
  • author can self-archive his article provided that he inform CSC Journals including the complete details to which article is shared, submitted or uploaded to any website.

PUBLISHER RIGHTS

As an open access publisher, we need publishing rights in order to publish and widely disseminate and share your publish papers through websites, databases and for printing. Author gives certain rights to CSC Journals for their articles including:
  • An exclusive right to publish and distribute an article.


Advances in Electrical and Computer Engineering 
http://www.aece.ro/openaccess.php

Issues
  • copyright transfer
  • posting final PDF to repository explicitly forbidden
  • DOAJ indicates CC-BY-NC-ND while the journal site indicates All Rights Reserved 
This is far from optimal open access. I can understand why pushing for a CC-BY default would be tempting as a solution. But would a more liberal CC license solve these problems? This is less clear. If a journal requires author copyright transfer, there can be a license agreement between author and publisher that limits the rights of the author. If the publisher holds the copyright, the publisher can change the license or transfer the journal to another publisher that uses a different license.

DOAJ indicates that this journal is CC-BY-NC-ND, however I see no indication on the journal website that this license is used. It is possible that the journal changed policy at some point in time, in which case this information may have been correct when it was entered, and may be correct for some of the content in the journal, but not for articles published today. Indicating licensing at the journal level is not the simple solution that it might seem.

Excerpts from the Open Access Policy page:

 As an author of a paper submitted to Advances in Electrical and Computer Engineering journal, you have to transfer the copyright of your paper prior to the evaluation process. The copyright transfer covers all rights to referee, translate, publish, digitize, archive, reproduce and distribute, including reprints, photographic reproduction, microform, or any other reproductions of similar nature. For details please see the Copyright Transfer Form.

By signing the Copyright Transfer you still retain substantial rights, such as self-archiving. Bellow are summarized some of the right the author(s) retain along with some things they are not allowed to do. 

 What you are expressly NOT ALLOWED to do:

- Do not post the full article PDF file downloaded from the AECE web-site to any other web-site(s). Instead, you may use a link to the article page using the permanent link by using the Digital Object Identifier (doi:) link http://dx.doi.org/AECE-paper-doi (every article has a DOI number assigned - see the one assigned to your paper);

Copyright statement from a recent article:
 Copyright ©2001-2015
Faculty of Electrical Engineering and Computer Science
Stefan cel Mare University of Suceava, Romania All rights reserved: Advances in Electrical and Computer Engineering is a registered trademark of the Stefan cel Mare University of Suceava. No part of this publication may be reproduced, stored in a retrieval system, photocopied, recorded or archived, without the written permission from the Editor. When authors submit their papers for publication, they agree that the copyright for their article be transferred to the Faculty of Electrical Engineering and Computer Science, Stefan cel Mare University of Suceava, Romania, if and only if the articles are accepted for publication. The copyright covers the exclusive rights to reproduce and distribute the article, including reprints and translations.

Permission for other use: The copyright owner's consent does not extend to copying for general distribution, for promotion, for creating new works, or for resale. Specific written permission must be obtained from the Editor for such copying. Direct linking to files hosted on this website is strictly prohibited.

Disclaimer: Whilst every effort is made by the publishers and editorial board to see that no inaccurate or misleading data, opinions or statements appear in this journal, they wish to make it clear that all information and opinions formulated in the articles, as well as linguistic accuracy, are the sole responsibility of the author. 

The solution? The default open access policy statement that comes with OJS journals may be enough. The intent is clear. Uses consistent with the global exchange of knowledge are clearly in line with this policy. Commercial use and creation for derivatives for reasons other than the global exchange of knowledge are not clearly pre-approved, avoiding the problems of blanket downstream permission that come with CC licensing. 

Open Access Policy

This journal provides immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.

Electronic Journal of Biotechnology

Issues
  • copyright transfer
  • author re-use limited to unspecified academic purposes 
Excerpt from the journal's instructions to authors  http://www.ejbiotechnology.info/index.php/ejbiotechnology/about/submissions#authorGuidelines May 19, 2015

Copyright Notice

Upon acceptance of an article by the journal, authors will be asked to transfer the copyright to Electronic Journal of Biotechnology, which is committed to maintain the electronic access to the journal and to administer a policy of fair control and ensure the widest possible dissemination of the information. The author can use the article for academic purposes, stating clearly the following: "Published in Electronic Journal of Biotechnology at DOI:10.2225/volXX-issueX-fulltext-XX".
 International Journal of Agricultural Management & Development

Issue: copyright transfer. Text from publisher website May 21, 2015: http://www.ijamad.com/authorsguideliens.htm
-->
if and when the manuscript is accepted for publication, the authors agree to automatic transfer of the copyright to the publisher.

International Journal of Educational Research & Technology: copyright transfer  http://soeagra.com/ijert_author.html " COPYRIGHT POLICY
Each manuscript must be accompanied by a statement that it has been neither published nor submitted for publication, in whole or in part, either in a serial, professional journal or as a part in a book which is formally published and made available to the public. For the mutual benefit and protection of authors and publishers it is necessary that authors provide formal written consent to publisher and transfer of copyright form after acceptance of papers is necessary that authors provide formal written consent to publisher and transfer of copyright form after acceptance of papers "

International Journal of Education Research - website says "free online access" and Author Guidelines include this disclaimer:

The IJER is protected under international copyrights. The IJER provide full data free of cost to all users. Important notice for copy right are –
·         No data from this website can be copied or used anywhere without pre-permission.
·         Neither IJER nor a member involves in copy and reuse of data from any other website.
·         All material in IJER undergoes peer review to ensure fair, objectivity, independency and educational need.
·         Neither the editor of IJER nor a member of this journal involved in the preparation of material contained in the other journal or website.
·         IJER may use the link of other journal or other website to operate by other parties.
·         The links will be provided purely for educational purpose.
      ·         IJER disclaims all liability with regard to your access of such linked web sites.
 International Journal of Educational Research and Development
  
Issue: copyright transfer with exclusive publisher rights 

From the Author Fees page: 
In case of publication of the article in the journal, I/We hereby assign copyright to the ‘International Journal Of Innovative Research & Development’ for its publication in any form/language including all media (print and electronic, or presently unknown), and exclusive right to use the matter for the life of the work (no time restriction on reuse of matter). ‘International Journal Of Innovative Research & Development’ may assign its rights under this Agreement.
Note that this is in contradiction with the spirit the default OJS statement on the journal's open access policy page which states: "This journal provides immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge". This contradiction may reflect a default policy left in the software without review or a learning curve about open access.

More examples of copyright transfer (I won't copy the language every time unless there is something different):

License to publish - the Problems of Economy Journal has an interesting license to publish. The Licensor is the Author - here is what the author grants to the journal - it appears the only limitation for the author involves giving away exclusive rights to another publisher:

2.1. The Licensor grants the Licensee a non-exclusive license, which gives the right to use the Article of the Licensor within the contractual boundaries.
2.2. This Contract provides the rights to use the Article in the following ways:
– reproduction of the Article;
– inclusion of the Article into journals, anthologies, monographs, etc.;
– distribution of the Article;
– presenting the Article to the general public in such a manner that its representatives can have access to the Article from any place and at any time at their own discretion.
2.3. The Licensor has the right to continue to use the Article and provide a non-exclusive license for its use to other parties.


Interstat copyright statement:  InterStat does not copyright its contents. Thus an author is free to submit the article elsewhere. Of course, an article which has already appeared in a copyrighted publication may not be submitted for publication in InterStat. [Comment: the publisher is based in India, a signatory to the Berne Convention which includes automatic copyright. If the publisher does not claim any copyright, this remains with the author(s), assuming they are from Berne countries. This might not be clear to authors].

CC-BY with limitations on author use - Journal of Ayurveda and Holistic Medicine

The undersigned author(s) retain copyright and grant the journal right of first Publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal...All accepted works should not be published elsewhere without prior written permission from JAHM. [emphasis added] The author(s) hereby represents and warrants that they are sole author(s) of the work, that all authors have participated in and agree with the content and conclusions of the work, that the work is original, and does not infringe upon any copyright, propriety, or personal right of any third party, and that no part of it nor any work based on substantially similar data has been submitted to another publication.

CC-BY in DOAJ and on publisher website with full copyright transfer and no indication of CC-BY license on 2 recent articles - language from the Journal of Multidisciplinary Scientific Research online copyright form: 
COPYRIGHT TRANSFER: Copyright to the above work (including without limitation, the right to publish the work in whole, or in part, in any and all forms) is hereby transferred to RESEARCH, SCIENCE AND TECHNOLOGY PUBLISHERS.

Update May 21 - note that this appears to be an OJS default statement as the same language appears in
-->
Mathematical and Computational Forestry & Natural-Resource Sciences
http://mcfns.com/index.php/Journal/about/submissions#copyrightNotice
CC-BY with an interesting draft policy statement - but this does not explain to authors that the license grants others commercial and re-distribution rights from the Journal of Orthopaedic Case Reports - language:

Update October 4, 2015: the Journal of Orthopaedic Case Reports now uses a CC-BY-NC-SA license which seems to be a good fit for the rights-sharing approach they are looking for.  The editor has honoured me to write an editorial on this topic for the January 2016 issue, which I have accepted. The issues are complex - not just which CC license to use, but also the nature of the contractual relationship between journal and publisher - so this is an interesting and timely topic.

Proposed Policy for Journal of Orthopaedic Case Reports


Authors who publish with this journal agree to the following terms:

  1. Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal.

  2. Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal.

  3. Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (See The Effect of Open Access).

Copyright transfer + CC-BY-NC-ND + referral to copyright clearance center for photocopies:  those who wish to get their photocopies are requested to obtain permission from copyright clearance centre - Journal of Toxicologic Pathology.

CC-BY-NC-SA with instructions to contact author  to request permission for noncommercial use (the point of the CC licenses is so it is not necessary to request permission): mBio  http://mbio.asm.org/site/misc/authors.xhtml
  • issue: failure to understand that CC license terms are meant to avoid the need to ask permission

All Rights Reserved with extra limitations: The Modern journal of Applied Linguistics (MJAL) 
All rights reserved. No part of this journal may be reproduced in any form, by Photostat, microfilm, xerography, or any other means without permission in writing from the copy right owner. from http://www.mjal.org/
 This post is part of the Creative Commons and Open Access critique series.
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