Ceased and transferred publications and archiving: best practices and room for improvement

In the process of gathering APC data this spring, I noticed some good and some problematic practices with respect to journals that have ceased or transferred publisher.

There is no reason to be concerned about OA journals that do not last forever. Some scholarly journals publish continuously for an extended period of time, decades or even centuries. Others publish for a while and then stop. This is normal. A journal that is published largely due to the work of one or two editors may cease to publish when the editor(s) retire. Research fields evolve; not every specialized journal is needed as a publication venue in perpetuity. Journals transfer from one publisher to another for a variety of reasons. Now that there are over 11,000 fully open access journals (as listed in DOAJ), and some open access journals and publishers have been publishing for years or even decades, it is not surprising that some open access journals have ceased to publish new material.

The purpose of this post is to highlight some good practices when journals cease, some situations to avoid, and room for improvement in current practice. In brief, my advice is that when you cease to publish a journal, it is a good practice to continue to list the journal on your website, continue to provide access to content (archived on your website or another such as CLOCKSS, a LOCKKS network, or other archiving services such as national libraries that may be available to you), and link the reader interested in the journal to where the content can be found.

This is an area where even the best practices to date leave some room for improvement. CLOCKSS archiving is a great example of state-of-the-art but CLOCKSS' statements and practice indicate some common misunderstandings about copyright and Creative Commons licenses. In brief, author copyright and CC licenses and journal-level CC licensing are not compatible. Third parties such as CLOCKSS should not add CC licenses as these are waivers of copyright. CC licenses may be useful tools for archives, however archiving requires archives; the licenses on their own are not sufficient for this purpose.

I have presented some solutions and suggestions to move forward below, and peer review and further suggestions are welcome.

Details and examples

Dove Medical Press is a model of good practice in this respect. For example, if you click on the title link for Dove's Clinical Oncology in Adolescents and Young Adults a pop-up springs up with the following information:

"Clinical Oncology in Adolescents and Young Adults ceased publishing in January 2017. All new submissions can be made to Adolescent Health, Medicine and Therapeutics. All articles that have been published in Clinical Oncology in Adolescents and Young Adults will continue to be available on the Dove Press site, and will be securely archived with CLOCKSS".

Because the content is still available via Dove's website, the journal is not included on the CLOCKSS' list of triggered content. This is because CLOCKKS releases archived content when it is no longer available from the publisher's own website.

CLOCKSS Creative Commons licensing statement and practice critique

One critique for CLOCKSS: - from the home page:  "CLOCKSS is for the entire world's benefit. Content no longer available from any publisher ("triggered content") is available for free. CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever".

This reflects some common misperceptions with respect to Creative Commons licenses. As stated on the Creative Commons "share your work" website:  [your emphasis added] "Use Creative Commons tools to help share your work. Our free, easy-to-use copyright licenses provide a simple, standardized way to give you permission to share and use your creative work— on conditions of your choice".

The CLOCKSS statement  "CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever" is problematic for two reasons.
1. This does not actually reflect CLOCKSS' practice. The Creative Commons statements associated with triggered content indicate publisher rather than CLOCKSS' CC licenses. For example, the license statement for the Journal of Pharmacy Teaching on the CLOCKSS website states: "The JournalPharmacyTeaching content is copyright Taylor and Francis and licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License".

2. This would be even more problematic if it did reflect CLOCKSS' practice. This is because CLOCKSS is not an author or publisher of the scholarly journals and articles included in CLOCKSS. Creative Commons provides a means for copyright owners to indicate willingness to share their work. When a third party such as CLOCKSS uses CC licenses, they are explicitly or implicitly claiming copyright it order to waive their rights under copyright. This reflects an expansion rather than limitation of copyright that may lead to the opposite of what is intended. For example, if one third party is a copyright owner that wishes to claim copyright in order to grant broad-based downstream rights, another third party could use the copyright claim to support their right to claim copyright in order to lock down others' works. A third party that is a copyright owner providing free access today could use this copyright claim in future as a rationale for toll access. This could come into play if in future toll access seems more desirable from a business perspective.

The CLOCKSS practice of publisher-level copyright (see 1. above) is problematic because Creative Commons first release of CC licenses was in December 2002. Scholarly journal publishing predates 2002 (the first scholarly journals were published in 1665), and not every journal uses CC licenses even today. Retroactive journal-level CC licensing would require re-licensing of every article that was published prior to the journal's first use of CC licensing.

For example, the copyright statements of volume 1 dated 1990 on the PDFs of the CLOCKSS-triggered Journal of Pharmacy Teaching read: "Journal of Pharmacy Teaching, Vol. l(1)1990 (C) 1990 by The Haworth Press, Inc. All rights reserved". This suggests that all authors in this journal at this point in time assigned full copyright to The Haworth Press, although actual practice was probably more complex. For example, if any authors were working for the U.S. federal government at the time, their work would have been public domain by U.S. government policy. Any portions of third party works included would likely have had separate copyright. Even assuming the simplest scenario, all authors had and transferred all rights under copyright to Haworth Press, the authors would retain moral rights, hence it would be necessary to contact all of the authors to obtain their permission to re-license the works under Creative Commons licenses.

The idea of journal-level CC licensing is at odds with the idea of author copyright. This confusion is common. For example, the website of the Open Access Scholarly Publisher's Association Licensing FAQ states: "one of the criteria for membership is that a publisher must use a liberal license that encourages the reuse and distribution of content" and later "Instead of transferring rights exclusively to publishers (the approach usually followed in subscription publishing), authors grant a non-exclusive license to the publisher to distribute the work, and all users and readers are granted rights to reuse the work". If copyright and CC licenses really do belong to the authors, then journal-level Creative Commons license statements are incorrect.

Even more room for improvement

The above, while leaving some room for improvement, appears to reflect best practices at the present time. Other approaches leave even more room for improvement. For example, in 2016 Sage acquired open access publisher Libertas Academica. The titles that Sage has continued can now be found on the Sage website. The Libertas Academica titles that Sage no longer publishes can be found as trigged content on the CLOCKSS website. However, the original Libertas Academica website no longer exists and there is no indication of where to find these titles from the Sage website.
Titles that were formerly published by BioMedCentral are simply no longer listed on the BMC list of journals. For example, if you would like to know where to find Gigascience, formerly published by BMC, you can find information at the site of the current publisher, Oxford. A note on the SpringerLink page indicates that BMC maintains an archive of content on its website. However, if you look for Gigascience on the BMC journal list, it simply is not listed. It would be an improvement to follow the practice of Dove and include the title, link to the archived content, and provide a link to the current publisher.

Solutions? Some suggestions

If journals and publishers were encouraged to return copyright to the authors when a journal is no longer published, or a book is no longer being actively marketed (in addition to using their existing rights to archive and make works freely available), then authors, if they chose to do so, could release new versions of their works. For example, a work currently available in PDF could be re-released in XML to facilitate text and data-mining, or perhaps updated versions, and authors could, if desired, release new versions with more liberal licenses than journal-level licenses that must of necessity fit the lowest common denominator (the author least willing or able to share).

Education, among the existing open access community, and beyond is needed. First, we need to understand the perhaps unavoidable micro level nature of at least some elements of copyright under conditions of re-use of material. For example, if a CC-BY licensed image by one photographer or artist is included in a scholarly article written by a different person that is also CC-BY licensed, the moral rights, including attribution, are different for the copyright holder of the image and that of the author of the article. In academia, attribution and moral rights are essential to our careers.

The intersection of plagiarism and copyright is different in academia. If one musical composer copies another's work, copyright law is likely the go-to remedy. If a student presents someone else's work as their own, academic procedures for dealing with plagiarism will apply, regardless of the copyright status of the work. For example, the musician using a public domain work need not worry about copyright but the student using a public domain work without attribution is guilty of plagiarism and likely to face serious consequences. Evolving norms for other types of creators (amateur or professional photographers, video game developers) may not work for academia.

For CLOCKSS, a statement that all triggered content is made freely available to the public, and that additional rights may be available for some works, with advice to look at the work in question to understand re-use rights, would be an improvement.

Your comments and suggestions? 

This is an area where even today's best practices are wanting, and the solutions / suggestions listed above are intended as an invitation to open a conversation on potential emerging practices that may take some time to fully figure out. Peer review and suggestions are welcome, via the comments section or e-mail. If you are using e-mail, please let me know if I may transfer the content to this post and if so whether you would like to be attributed or not.

This post is cross-posted to the Sustaining the Knowledge Commons research blog and forms part of the Creative Commons and Open Access Critique series. Comments and suggestions are welcome on either blog.

Editorial: open access, copyright and licensing: basics for open access publishers.

Just published (February 2016) in the open access Journal of Orthopaedic Case Reports at the invitation of Editor-In-Chief Dr. Ashok Shyam: Editorial: open access, copyright and licensing: basics for open access publishers. Journal of Orthopaedic Case Reports 6:1 p. 1-2. DOI: 10.13107/jocr.2250-0685.360

This post is part of the Open Access and Creative Commons critique series. 

Author copyright in name only

The Elsevier website provides language illustrating clearly how author copyright can be virtually identical to a copyright transfer.

From the Elsevier Copyright page, under For Open Access Articles:

Authors sign an exclusive license agreement, where authors have copyright but license exclusive rights in their article to the publisher**. In this case authors have the right to:

• Share their article in the same ways permitted to third parties under the relevant user license (together with Personal Use rights) so long as it contains a CrossMark logo, the end user license, and a DOI link to the version of record on ScienceDirect.

• Retain patent, trademark and other intellectual property rights (including raw research data).

• Proper attribution and credit for the published work.

**This includes the right for the publisher to make and authorize commercial use, please see the "Rights granted to Elsevier" tab for more details.

Comments

The copyright may be in the author's name, but clearly the author has signed away all rights. The only rights that remain for the author are those "permitted to third parties". The author has become a third party with respect to their own work.

Patent, trademark and other IP rights are not part of copyright. It is deceptive for Elsevier to post these here as if Elsevier had these rights to grant.

This post is part of the Creative Commons and Open Access Critique series.

mBio: a good model for language explaining what's covered by noncommercial use

mBIO has excellent language on their website http://mbio.asm.org/site/misc/authors.xhtml
explaining what they mean to exclude and include by using a CC noncommercial license. This could be model for others so copied in full below. The first part is copied directly from the CC website, a good practice which avoid errors in interpretation that would be possible with paraphrasing.

ASM publishes mBio articles under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 Unported license. The author(s) retains copyright under this license. Others may adapt, reorganize, and build upon the published work for noncommercial purposes, as long as credit to the author and original article is given, and the new work, which includes the previously published content, is licensed under identical terms.

Attribution-Noncommercial-Share Alike

View License Deed | View Legal Code

Noncommercial reuse is defined as use that is not intended for or directed toward commercial advantage. This would include the following:

• Content requested by an academic or educational institution
• Content requested by a not-for-profit publisher if not for resale
• Content requested for use by the government
• Content requested for a thesis or coursepack
• Author request to use his/her own material

Individuals seeking to obtain permission for commercial reuse of mBio journal content may do so through the Rightslink web-based permissions and commercial reprint system. To use Rightslink, on the mBio website search for the journal article containing the content which you would like to reuse and then click on the "Reprints and Permissions" link that appears on the journal table of contents or within the article content box.

Commercial reuse applies if the content being requested will be distributed for a fee or by an organization legally recognized as a commercial entity (demonstrated, for example, by payment of taxes, incorporation, or support by advertising/corporate sponsorship). This includes:

• Commercial/for-profit publishers
• Companies or organizations representing or interfacing with a for-profit pharmaceutical organization (e.g., content to be reused to promote or advertise a pharmaceutical product)
• Medical device companies
• PR/Advertising/Medical communications agency/Media 

This post is part of the Creative Commons and Open Access critique series.

A case for strong fair use / fair dealing with restrictive licenses for reuse in scholarship

The types of works that many students and faculty would like to be able to include in scholarly works are not necessarily from other scholarly works. For example, scholars in my doctoral discipline of communication study a wide range of types of works including newspapers, television, films, cartoons, advertising, blogs and social media, and public relations materials. It is very useful for scholars to be able to include images and text from the primary source materials, either as illustration or for purposes of critique. Obtaining permission to use even small excerpts of such works is time-consuming at best. I argue that it would be in the best interests of scholarship to advocate for strong fair use / fair dealing exceptions for research and academic critique globally and accept that more restrictive licenses may be necessary to avoid the potential for re-use errors that could easily occur with blanket licenses allowing broad re-use. For example, while it makes sense to allow scholars to include small movie stills in an academic piece, it could be quite problematic for scholars to include such items in works that grant blanket commercial and re-use rights downstream.

This illustrates what I see as one of the problems with the one size fits all CC-BY license preferred by some open access advocates (which I consider to be a serious error): what I interpret as an implicit assumption that all of the works scholars are likely to want to re-use are other scholarly works. Rather than making assumptions, let's do some research to find out what scholars and students would like to be able to re-use. Anecdotally, in my experience the most popular items for re-use are images from popular culture (especially characters from the Simpsons TV series), not scholarly works. Scholarly journals like to use photos to add interest and aesthetic value. If it is the case that the greatest interest in re-use for scholars involves works from popular culture / outside the academy, then ubiquitous CC-BY licenses for absolutely every scholarly article, book, and dataset in the whole world would not solve the primary re-use question for a majority of scholars.

This is not meant to suggest that advocacy for global fair use / fair dealing rights for academic research and critique is an easy task, rather to raise the question of whether this is an appropriate and useful goal for scholarly works.

This post is part of the Creative Commons and Open Access Critique series.

Creative Commons CC-BY confusions

This discussion on CC Mixter illustrates some common confusion about CC licenses, in this case CC-BY. The first commenter asks whether it is considered legal or ethical to take songs that have been licensed as CC-BY and compile them into an album to sell. These three commenters appear to agree that this is legal. The first commenter is not convinced that this is ethical. The second commenter suggests that while this might be legal, it would make a lot of artists mad as they likely did not understand the implications when licensing their work CC-BY. I bring up this piece of anecdotal evidence as this fits my own experience that people using CC-BY licenses do not necessarily understand the implications of doing this. I would also like to argue that the name "Creative Commons" is somewhat misleading as the cultural notion of a commons is more akin to a common resource or set of resources that is shared by a community in an equitable way, while the CC licenses facilitate exploitive as well as community use. 

CC Mixter discussion: from http://ccmixter.org/thread/2659

First post

So I was having a discussion with someone regarding the CC licensing model and we came up with a situation which seems to be a bit of an ethical dilemma and I wanted to get the opinions of some musicians that create CC content.

So, this is specifically regarding CC-BY licensed work. The situation we were considering is someone compiling a bunch of CC-BY songs into a single album (a mix CD I guess you’d say) and selling that album (assuming they attribute the original artists as required by the license of course).

Now, based on the CC-BY license I am fairly certain that this is totally legal as there are no restrictions on what you can do with the music. The question is, is this ethical?

Comment by CC Mixter discussion participants

Commenter 1:  "It is 100% ethical, because that is precisely what the license is for.

I strongly believe many people would be upset about it; but in most cases that would be because they didn’t understand the full implications of licensing their music as CC-BY in the first place (things like licenses being non revocable, for instance)"

Commenter 2: "Anytime I license something CC-BY, I assume that it will be used for profit by someone else. Sometimes I seek material that is CC-BY so I can add to it and possibly put it on an album… for personal profit".

This post is part of the Open Access and Creative Commons critique series detailing my work-in-progress which is designed to explain important differences between open access per se and Creative Commons licenses which provide useful tools for open access but cannot be equated with open access.

Chang vs. Virgin Mobile

The Chang vs. Virgin Mobile case illustrates some of the complexities behind the CC-BY license. A picture of a minor girl was posted to flickr with a CC-BY 2.0 license, and it was picked up and used by Virgin Mobile in an advertising campaign, without asking the permission of the photographer. The family was not pleased with this and fought this in court, against Virgin Mobile on several different grounds including copyright, privacy and publicity rights, and against Creative Commons for failing to warn against this possibility. The plaintiffs ultimately dismissed the case.

From my perspective, this case raises some issues to consider before deciding that a particular creative commons license is optimal for scholarship.

•  When people consider the use of a CC-BY license, the potential for negative and not just positive downstream uses should be taken into account. Not every potential downstream user is an academic with a substantial commitment to scholarly integrity. There are pros and cons to each one of the CC license elements. I argue that the best service to potential CC licensors to provide the best available advice about each of the CC licenses, including known pros and cons and informing people that there is no way of predicting in advance every potential kind of use of CC licensed work. Creative Commons comes close to providing good service, but in my opinion fails due to participation in the attempt to deprecate CC's NC and ND license. For an example of this, go to the CC license chooser. If you choose not to allow derivatives and/or commercial use, you will be informed that "this is not a free culture license", while licenses allowing derivatives and commercial use state "this is a free culture license". 

• Ethical and legal liabilities: this was a family photo licensed CC-BY by the family. The family objected to use of the photo in the ad on the basis of copyright, privacy and publicity rights. If the photo were from a research subject and licensed CC-BY by the researcher, not the subject, there is a strong possibility that the subject would have a case that the researcher's CC-BY license violated a research ethics protocol of a university, research centre and/or funding agency. The bar for informed consent for research subjects is much higher than the bar for an organization like Creative Commons. If the researcher used a CC-BY license because their institution or funding agency required the use of this license, there could be legal liabilities for these bodies as well. I would like to emphasize that while there may be legal liabilities to consider, the ethical issues are more important. If you are using CC licenses on works that others have made substantive contributions to, such as allowing you to use their photos or stories, then you have an obligation to think carefully about the potential uses of the works and providing advice to potential research subjects that allows them to make truly informed decisions about how this work is licensed. 

Summary and conclusion

Creative Commons licenses is the not the simple solution to scholarly copyright that some of us would like to see. There are good reasons for scholars to hesitate to grant some of the rights CC makes available, including derivative and commercial re-use, including ethical and legal consideration. As an open access activist, I am concerned that the push by some in the open access movement for a CC-BY / CC-BY-SA default license for open access is more harmful than helpful to open access. Unleashing the potential for creation of derivatives and commercial use will unleash negative as well as positive benefits. When this happens, scholars and policy-makers who believe that they have been misled about the benefits and downsides of particular CC license elements are likely to be just as unhappy as the young woman and her family in this case were. The purpose of my Open Access and Creative Commons critique series is to try to alert my colleagues in the open access movement about these dangers to open access per se. 

The CC summary or this case can be found here.  The CC wiki page for court decisions is here.

The commerical overlords of scholarship rewrite copyright licenses to suit themselves

As just posted to the openscience list:

What can or cannot be done under CC-BY may quickly become a moot point - according to Elsevier Connect, "the International Association of Scientific, Technical & Medical Publishers (STM) is contemplating the release of a more specific user license designed for scholarly communication. This would likely:

• Permit scholarly non-commercial use 
• Prohibit the creation of derivative products 
• Expressly permit text and data-mining for academic purposes and translation"

The International Association of Scientific, Technical & Medical Publishers (STM) has a Copyright & Legal Affairs Committee which aims: "To pursue, within the limits of the STM Association's aims and objectives, the highest possible level of international protection of copyright works and of the services of publishers in making these works available".

from: STM / An Introduction to Copyright & Legal Affairs / The Aims of the Copyright and Legal Affairs Committee
http://www.stm-assoc.org/copyright-legal-introduction/

Elsevier, Wiley, Springer, and Taylor & Francis all have multiple listings under STM Membership.

In other words, while the academics who do the work of scholarship, writing and editing struggle to understand the legal concepts and present solutions off the sides of our busy desks, the companies that have long been in the business of profiting off our work and our generosity have lots of $ to hire lawyers to change the legal landscape to suit their preferred priorities (profits for themselves / their shareholders).

best,

--
Dr. Heather Morrison
Assistant Professor
École des sciences de l'information / School of Information Studies
University of Ottawa

http://www.sis.uottawa.ca/faculty/hmorrison.html
Heather.Morrison@uottawa.ca

ALA Accreditation site visit scheduled for 30 Sept-1 Oct 2013 /
Visite du comité externe pour l'accréditation par l'ALA est prévu le 30
sept-1 oct 2013
http://www.sis.uottawa.ca/accreditation.html
http://www.esi.uottawa.ca/accreditation.html

This post is part of the Creative Commons and Open Access Critique series

The Elsevier "open access" / exclusive license to publish hybrid

Elsevier has come up with a twist on open access licensing that should give pause to advocates of equating open access with particular Creative Commons licenses such as CC-BY, that is, a version of what they call "open access" that involves an exclusive license to publish.

In Elsevier's own words, from Elsevier Connect:

"for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. - See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf"

This post is part of the Creative Commons and Open Access critique series. 

for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. - See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf

for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. - See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf

for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. - See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf

for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. - See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf

for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. - See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf

for open access articles we use an exclusive licensing agreement, which applies to all our Gold Open Access content. While granting publishing and distribution rights to us, this exclusive licensing agreement means that authors retain copyright alongside the scholarly usage rights we have always supported. - See more at: http://elsevierconnect.com/what-changes-when-publishing-open-access-understanding-the-fine-print/#sthash.dTcOLuCV.dpuf

Creative Commons and Open Access research: some next steps

Rosie Redfield has posted results of a survey on author perspectives of CC-BY licenses on RRResearch, along with her own comments. This is a useful addition to a question that is very much in need of serious critical research and analysis, a line of research that I am in the process of developing.  In order to make informed decisions about what kinds of uses to permit, encourage, forbid or discourage, authors and others with interests in this area (such as research funders) need to know all of the implications. Redfield's research to date has shown that many authors that have agreed to CC-BY licenses did not realize some of the implications of this decision - for example, authors did not know that their CC-BY articles could be republished as book chapters by a commercial publisher for profit without their knowledge or permission.

Here is my overall perspective on what is needed in this line of research:

Analysis of what might actually be permitted (or forbidden) under CC licenses. With any legal matter, there is the question of what the writer of the law / license intended and how others might reasonably interpret the words. Specific areas that need attention include:

• permission for re-enclosure for profit, whether accidental or purposive. CC licenses do not imply that works need to be free of charge. The licenses forbid adding DRM to a work, but they do not forbid paywalls before one gets to the work (this is probably impossible, given that most of us have to go through a paywall of some kind to access the internet per se).  From my perspective this is a signficant danger, one that could be a huge setback for the open access movement. For example, if commercial medical publishers moved to CC-BY open access then changed course and decided to release these works as toll access only (CC-BY does not preclude this), and then lobby to remove funding for PubMedCentral and other publicly owned open access archives, then it is feasible that massive amounts of works made OA via CC-BY could very quickly revert to toll access, with no recourse available to authors or their funders. This is the primary reason I argue against CC-BY as a default.
• author moral rights are stronger under CC BY attribute than automatic copyright. What are the implications for scholarship? I argue that at minimum this is the opposite of the intention of BOAI.
• What kinds of re-use of scholarly works would actually be desirable and useful for scholarship, and what are the conditions where this would make sense to the authors? Translation is one example - there are obvious advantages to scholarship to making this as easy as possible, but obviously dangers to authors' reputations if poor translations are attributed to the author. There is probably some middle ground. For example, automated translation services are available even for many works not CC licensed for reuse. This does not appear to be contentious, perhaps because the translation services are not portraying the results as authorized versions.

This post is part of the Creative Commons and Open Access critique series. 

Academically appropriate comments are welcome - by which I mean, state who you are and where you are coming from. For example if you are affiliated with an organization that has a vested interest in or commitment to a particular CC license, this affiliation should be stated in your comment.

Attitudes and values regarding the dissemination of your research

Summary

This portion of the T&F OA survey supports arguments that scholars as a group do not support the Creative Commons - Attribution Only license (CC-BY), but rather when using CC licenses tend to prefer more restrictive licenses, with CC-Attribution-Noncommercial-NoDerivatives (CC-BY-NC-ND) being the most popular option. There was strong support for text and data mining. There was an interesting difference in reaction to pre-approving translations (largely positive) and adapations as a whole (largely negative), suggesting the possibility of a more nuanced approach such as ND with preapproval of translations outside the CC license per se. Attribution is taken as a given; further research into the question of attribution might be merited as attribution may not be advisable in the case of research data and the norms for attribution can vary, for example with scholarship and Wikipedia. This portion of the survey indicates support for Taylor and Francis traditional practices (Exclusive License to Publish and Copyright Transfer), which is not surprising considering the survey pool (scholars connected with T&F) and high probability of bias in these responses. 

Details

This is the third post in my Taylor and Francis Open Access Survey critique series covering p. 8 - 10 of the results of this survey, on Attitudes and values regarding the dissemination of your research and Licenses. Please see the main post above for overall critique of this survey. In brief, social science research intended to inform public policy should not be conducted by a commercial entity with a stake in the outcome (this is fox researches hen research), and the survey as a whole is significantly flawed methodologically. The following comments should be interpreted in the light of this overall critique.

Taylor & Francis questions are in bold. 

What are your attitudes and values regarding the dissemination of your research? p. 8 (14,533 respondents)

It is acceptable for ... without my prior knowledge or permission, provided I receive credit as the original author.

Comment: this question assumes attribution as a given. For further research, it should be noted that there are reasons to question the assumption of attribution. For example, with data sharing public domain (not attribution) may be preferable, and some scholars are experimenting with contributing to Wikipedia, which uses attribution but in a different way (authors are anonymous).

The strongest support was for my work to be re-used for non-commercial gain, with 64% either agreeing or strongly agreeing. This was followed by others to use my work in text - or data-mining with 48% agreeing or strongly agreeing. Translations and including works in an anthology received only slightly less support. 

Respondents reacted negatively to others to use my work for commercial gain with 67% agreeing or strongly agreeing and others to adapt my work with 50% disagreeing or strongly disagreeing.

Licenses (p. 9) (13,143 respondents)

Please indicate in each case if you would be willing to sign the license when publishing your research (Response options: Yes, always; Only in certain circumstances; No, never).

Response options included a variety of Creative Commons licenses, with a significant omission: the Sharealike option, along with License to Publish and Copyright Transfer. The most popular response was Creative Commons - Attribution - Noncommercial - NoDerivatives CC-BY-NC-ND with 71% responding Yes, always.  

Exclusive License to Publish and Copyright Transfer were only slightly less popular. I am inclined to discount these responses because of the obvious strong likelihood of social desirability and acquiescence biases, that is, this is a T&F survey which is likely to elicit positive responses to T&F practices (see the main post in this series for detailed explanation and references); also the pool of respondents are obviously a group that continues to work with this traditional publisher ("Yes, always" actually defines the group), and respondents in favor of the publisher's practices may have been more likely to respond. 

The Creative Commons - Attribution only license (CC-BY) received the lowest positive response, with 15% indicating "Yes, always", 59% indicating "Only in certain circumstances" and 26% "No, never".

License preferences (p. 10)  (12,882 responses)

Please choose your most preferred, and your second most preferred, of the above licences.

Please choose your least preferred of the above licences.

Responses show a similar pattern to the questions on the page above. The most popular option was CC-BY-NC-ND. CC-BY elicited a strong negative reaction.

The response bias discussed above should be taken into account in interpreting the apparent popularity of traditional Taylor & Francis practices (Exclusive License to Publish, Copyright Transfer). That is, the survey population consists of scholars who work with Taylor & Francis; scholars who favor T&F practices may have been more likely to respond to the survey; and of respondents, there is a strong likelihood of social desirability and acquiescent response biases. 

Discussion

This section of the survey supports the argument that many scholars do not support the Creative Commons - Attribution Only license (CC-BY), but rather when using CC licenses prefer more restrictive licenses, in this case with CC-BY-NC-ND being the top preference. Other evidence supporting this argument comes from Nature Publishing Group's analysis of author choices for Scientific Reports, referenced from here, which offers a range of CC licenses and found that CC-BY is selected by only 5% of scholars.

This is important because many open access advocates equate open access with the CC-BY license. I argue that the similarity between CC-BY and the open access definition of the Budapest Open Access Initiative is superficial in nature, that CC-BY has both positive and negative implications for scholarship, and as a default has significant loopholes which would present an ongoing danger to open access. My work in this area can be found in my Open Access and Creative Commons critique series.  

The detailed questions about re-use are somewhat useful in indicating what kinds of re-use scholars are likely to be willing to grant. Noncommercial, text and data-mining, translations and including works in anthologies are all supported by many scholars. The difference between adaptions (negative reaction) and translations (positive reaction) is interesting, as this suggest that while scholars do not necessarily want to grant blanket rights for all kinds of derivatives, many would be okay with blanket permissions for translations. This suggests that a more nuanced approach might be worthwhile, for example perhaps NoDerivs with pre-approval of translations handled outside of the CC license per se.

The results of this survey also show that respondents to a T&F survey tend to respond favorably to T&F traditional practices. This is evidence of ongoing support for T&F, which may not be necessary given that authors and editorial boards continue to work with this publisher; beyond that, given the high probability of bias, this finding should be largely discounted. 

This post is part of the Taylor and Francis Open Access Survey critique series.

A problem with CC-BY: permitting downstream use with no strings attached is the toll access model

The Creative Commons - Attribution (CC-BY) only license grants blanket permission rights for commercial use to any third party downstream. Proponents of CC-BY argue that this will open up the possibility for new commercial services to serve scholarship. This may or may not be; this is a speculative argument at this point. However, if this happens, this opens up the possibility that these new services will be made available on a toll access basis, because none of the CC-BY licenses is specific to works that are free of charge.

This is very similar to the current model for dissemination of scholarship. Scholarly research is largely funded by the public, whether through research grants or university salaries. Scholars must make their work public (publish) in order to continue to receive grants, retain their jobs and advance in their careers. They give away their work to publishers with no strings attached, often signing away all copyright. A few publishers have taken advantage of this system to lock up scholarship for their private profit.

One potential outcome of a CC-BY default for scholarship is a next generation of Elsevier-like toll access services. Many scholars and the public whose work was given away through CC-BY could be unable to afford the latest and best services made possible by their contributions. This is just one of the reasons to give serious thought to this matter before recommending a CC-BY default. For more, please see my Creative Commons and open access critique series.

Thanks to Heather Piwowar for posting an opposing view on google g+ that helped me to work through this argument.

Wikipedia, scholarship and CC-BY

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The Wellcome Trust's Robert Kiley, a long-time open access advocate, raised a common rationale for a default CC-BY license in a comment on Richard Poynder's interview of Mike Rossner.  Following are my comments. Summary: a scholarly CC-BY is not compatible with the Wikipedia conception of attribution, which involves anonymity. Permitting open re-use in Wikipedia with attribution (assuming the problem of Wikipedia anonymity is overcome) means that any Wikipedia editor can change the words of scholar, a situation that seems highly likely to result in scholars being incorrectly cited due to the edits of others. I am a fan of Wikipedia, have contributed as an editor in the past and may do so in the future, and am in favour of increasing the scholarly content in Wikipedia. However, I argue that what needs to happen is that Wikipedia policy and practices need to be more flexible to accommodate the needs of scholars and their works, rather than all scholars being required to give away all of their work for blanket commercial rights to any third party to suit the preferences of the current Wikipedia team. 

Following is my comment on this topic on Poynder's blog.

Robert Kiley says: Equally, the NC clause prohibits a user from sharing content at resources like Wikipedia. See table at: http://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright)

Comment: first, I would like to say that I am a fan of Wikipedia. I use Wikipedia, have contributed to Wikipedia in the past, and would like to see more scholarly content in Wikipedia. However, there are some problems with including scholarly content in Wikipedia, and I argue that these are not resolved by CC-BY.

The first problem is the difference in the expectations of attribution. For scholars, the key elements in attribution are things like the scholar, journal, and publisher. In Wikipedia, the norm is anonymity Attribution. This means that Wikipedia and scholarly works are not compatible from the perspective of Attribution.

Another reason for caution in including scholarly works in Wikipedia is the norm that anyone can edit. If the work of a serious scholar is deposited in Wikipedia, it could be "corrected" by someone with far less knowledge. If this is combined with Attribution (assuming the Wikipedia anonymity problem is overcome), then it seems highly likely that the result will be incorrect citations of scholar's works. This would harm rather than benefit scholarship.

Finally, if we want to see more scholarly works in Wikipedia, it is Wikipedia policies and practices that need to change to accomodate this rather than a wholesale transformation of scholarship to accomodate the preferences of the current Wikipedia team.

To return to Robert Kiley's comment: it is not the NC clause that prohibits a user from sharing content at Wikipedia, but rather Wikipedia's policies that do not permit works with NC clauses. Wikipedia is free to develop a more flexible policy at any time.

This post is part of my Creative Commons and Open Access critique series. 

UK Business, Innovation & Skills Committee’s inquiry into Government’s Open Access Policy: my submission

Update September 11: the BIS Committee has posted its full report here.  

Conclusions and recommendations are available here.

Update March 11: the BIS Committee has posted the full set of evidence here. 

Dr. Heather Morrison

Vancouver, British Columbia, Canada

hgmorris at sfu dot ca

Business, Innovation & Skills Committee

biscommem@parliament.uk

February 5, 2013

Re:            Business, Innovation & Skills Committee’s inquiry into Government’s Open Access Policy

http://www.parliament.uk/business/committees/committees-a-z/commons-select/business-innovation-and-skills/news/committee-announces-an-inquiry-into-open-access/

1.     This is an individual submission from a scholar specializing in open access and scholarly communication and a long-time open access advocate. This is a substantially different submission from the one that I recently submitted to the House of Lord’s Science and Technology Committee.

Executive Summary

2.     Changing the Government’s Open Access Policy from one intended to support ‘gold’ open access publishing to a straightforward ‘green’ open access policy requiring researchers to deposit works for open access in a UK-based repository is recommended. This is absolutely necessary to ensure that the works of UK researchers remain open access and available to UK researchers and the UK public. The Open Access Policy applies only to UK researchers, not publishers. A researcher can publish in a fully open access journal that uses CC-BY, which is then sold to another publisher and converted to toll access. The steady growth of open access journals, and more recently monographs, over the past few years illustrates that ‘green’ open access policy is sufficient to drive growth in open access publishing. Conversely, the policy as written is highly likely to harm ‘gold’ open access publishing, by inflating prices which is likely to decrease support for this approach outside the UK.

3.     The use of CC licenses for scholarly works should be considered experimental for the time being. None of the CC licenses map to any definition of open access. Any of the CC licenses can be used with toll access works. Some of the arguments used for CC-BY do not bear careful scrutiny. For example, it is a common belief that CC-BY is needed to facilitate data and text mining. CC-BY is not necessary, sufficient, or even desirable for data and text mining. Internet search engines routinely conduct data and text mining on a massive scale without any need for CC-BY. CC-BY can be used with works that are not at all suitable for data or text mining, such as locked-down PDFs. The Attribution element of CC-BY is problematic when a number of data / text mining sources are combined; data experts recommend CC-0 or public domain, not CC-BY.

4.     There are aspects of the CC-BY license that are problematic for scholarship. CC-BY will often be incompatible with research ethics and rights of third parties whose work is included in scholarly works. Permitting the creation of derivatives may open up possibilities for new ways of speeding the advance of knowledge, but it also opens up the possibility of introducing errors and damaging the reputations of scholars by facilitating the creation of poor quality derivatives. These are just a couple of examples. Much more thought and research would be desirable before a default license for open access scholarly works is accepted.

5.     The vast majority of open access journals do not use Creative Commons licenses at all, and those that do, do not always choose CC-BY. Only 11% of the fully open access journals listed in the DOAJ use the CC-BY license. There is evidence that, given a choice, scholars prefer to use more restrictive licenses. Recent evidence from Nature’s Scientific Reports found that only 5% of scholars given a choice between 3 CC licenses chose CC-BY.

6.     There are problems with affordability in scholarly communication in addition to access barriers. It is important to create a future for scholarly communication that is both open access and affordable. At the average cost of $188 per journal found by Edgar & Willinsky in a major survey of journals using OJS, the full cost of global open access publishing could be supported by the budgets of academic libraries, at a small fraction of current spend, which could free funds to support emerging needs such as preservation of electronic information and support for research data services. At the rate of the $5,000 per article charged by Elsevier’s Cell Press for “sponsored access”, the costs of the global scholarly communication system would increase by 16%.

About me

7.     Recently, I completed a doctorate at the Simon Fraser University School of Communication. My dissertation, Freedom for scholarship in the internet age https://theses.lib.sfu.ca/thesis/etd7530, reports on research that is highly relevant to this inquiry, particularly chapter 5, on the economics of transition to open access, and chapter 3, which includes a substantial section mapping Creative Commons licenses and open access. I have developed and taught courses on scholarly communication and open access at the University of British Columbia’s School of Library, Archival and Information Studies and have published extensively on the topics of scholarly communication and open access, including the monograph Scholarly Communication for Librarians: Chandos, 2009. I have also taught Information rights for the information age at the SFU School of Communication.

8.    I am also a librarian with more than a decade’s experience, primarily negotiating

purchase of electronic resources at a provincial and sometimes a national level, through my position as Coordinator at BC Electronic Library Network.

Detailed comments

9.     Open access policy should always require that researchers deposit work into open access repositories – the ‘green’ approach, and never require that researchers publish in open access venues such as journals – the ‘gold’ approach.

10.  Open access policy should stipulate that researchers deposit works into UK based open access repositories, such as institutional repositories. The reason for this stipulation is to ensure that UK funded research remains open access and remains available to the UK research community and public. To illustrate why this is necessary, consider the scenario where a researcher publishes in an open access journal but does not deposit in a UK based open access archive. The open access journal may cease to exist or be sold to a publisher that decides to change the model from open to toll access. Note that policies covering UK funded researchers, by definition, cover the actions of the researcher, not the publisher.

11.  It is not necessary for open access policy to require publication in ‘gold’ open access journals, because ‘green’ open access policies are more than sufficient to provide incentive for publishers to adapt and offer ‘gold’ open access journals. Over the past few years, thanks in large part to the leading-edge ‘green’ open access policies of the UK Research Councils and similar funding bodies elsewhere, an open access publishing system has emerged and is growing on a steady basis. There are more than 8,000 fully open access, scholarly peer-reviewed journals listed in the Directory of Open Access Journals (DOAJ). The net growth of the DOAJ is a fairly consistent 3-4 titles per day.

12.  It is premature to make any recommendations about which license is optimal for scholarship. For this reason it is not advisable to insist that researchers publish using the CC-BY license.

13.  One of the reasons it is not advisable to recommend the CC-BY license is because many of the arguments in favour of this license are not well thought out. For example, on a superficial level CC-BY appears to reflect the strong open access of the Budapest Open Access Initiative definition. However, this superficial resemblance is not reflected in the legal code. For example, CC-BY does not necessarily mean “free of charge” which is central to any definition of open access.

14.  There is a common misperception that CC-BY is needed to facilitate text and data mining. CC-BY is not necessary, sufficient, or even desirable for text and data mining.

15.  CC-BY is not necessary for text and data mining. Internet search engines such as Google conduct text and data mining on a massive scale, on a continuous basis. This text and data mining is routinely conducted on works with any of the Creative Commons licenses, or no license specified, and even web pages that are All Rights Restricted. On the Internet, the way to note that a web page is not available for text and data mining is to use the norobots.txt in the web page’s metadata. Otherwise, the default is that text and mining is the norm.

16.  CC-BY is not sufficient to permit text and data mining. The Creative Commons licenses are a means by which creators or rights holders can waive certain rights that they have under copyright. However, the CC licenses do not place any obligations on the licensor. A CC-BY license can be used on a work that consists of locked-down image files that are not at all useful for text or data mining. A CC-BY license can also be used on a website that uses the nonrobots.txt metadata that tells the web that the page is not available for crawling.

17.  CC-BY is not desirable for text and data mining, because the attribution element is problematic when large numbers of datasets are combined. Data experts are recommending CC-0 or similar types of licenses for data for this reason.

18.  CC-BY licenses can be problematic for scholarship.

19.  CC-BY as a default for scholarly works is highly problematic, because CC-BY places no obligations on the licensor. An open access publisher using the CC-BY license can sell all of their journals to another entity. There is nothing in the CC-BY license that obligates the purchaser to continue with the open access model; they are free to convert all of the journals to toll access. This is one of the reasons I always recommend that open access policy be for ‘green’ open access archiving.

20.  CC-BY licenses will tend to conflict with research ethics and rights of third parties whose works are included in scholarly works covered by policy. A CC-BY license grants blanket permission to use works, including commercial works and making of derivatives, to anyone, anywhere. This means that a picture of a research subject could be harvested and included in an image bank to sell for a wide variety of uses, including advertising. Informed consent in this situation would require explaining to research subject that if their photo is published under a CC-BY license the consequences could include such scenarios as having their picture (possibly modified) posted as part of an ad on a bus.

21.  CC-BY licenses, by allowing for derivatives on a blanket basis without requiring permission, can add inaccuracy into the scholarly record and/or damage the reputation of scholars, universities, and the UK education system, if poor quality derivatives are made.

22.  CC-BY licenses, by granting commercial rights on a blanket basis, permit commercial entities to use the works of a publisher to compete with the publisher for revenue. For example, a commercial company could set themselves up to automatically capture new content created by a journal in order to attract advertising revenue that might otherwise have gone to the journal. This is a threat to journals, particularly smaller society journals.

23.  The full impact of the Creative Commons licenses at this point in time is not fully known. Allowing for the creation of derivatives could open up the potential to increase the speed of knowledge creation and/or the development of useful new tools and services, or it could slow down progress by facilitating the creation and dissemination of poor quality derivatives. For this reason, the use of particular licenses for scholarship at this point in time should be considered experimental. Use of the CC licenses should be encouraged, but a particular license should not be selected as a default, and researchers should not be required to use a particular license.

24.  Most open access journals do not use Creative Commons licenses at all; those that do use CC licenses do not necessarily use CC-BY. Only about 11% of the fully open access journals listed in the DOAJ use CC-BY (see Suber, P. June 2012 SPARC Open Access Newsletter, The Rise of Libre Open Access http://legacy.earlham.edu/~peters/fos/newsletter/06-02-12.htm

25.  There is some evidence suggesting that CC-BY is not the choice of scholars themselves. Nature’s Scientific Reports is a gold open access journal that provides authors a choice of CC license, affording an unusual opportunity to observe the CC license choice of scholars when all other variables are equal, e.g. there is no difference in cost based on the license choice. As reported by Nature’s Grace Baynes to the GOAL Open Access list on February 5, 2013, only 5% of authors chose the CC-BY license (from http://mailman.ecs.soton.ac.uk/pipermail/goal/2013-February/001557.html).

Details:

1 July 2012 to 7 November 2012

Introduced CC-BY;

Three license choices available

412 papers accepted

* 37% were CC BY-NC-SA 

* 58% were CC BY-NC-ND 

* 5% were CC BY

26.  The affordability of an open access scholarly publishing system hinges on the average cost per article. The majority of open access journals do not charge article processing fees, so it is important not to confuse average cost per article with the APF approach. In addition to the access problem, scholarly communication has had an affordability problem over the past few decades. It is important to address the affordability problem in the transition to open access.

27.  By my calculations, if all of the world’s scholarly peer-reviewed journal articles were published at the $188 US average per article found by Edgar & Willinsky in their 2009 survey of more than 900 journals using Open Journal Systems, the full cost could come from academic library budgets with cost savings of 96% of academic library budgets (for details, see chapter 5 of my dissertation). It is important to seek these savings as academic libraries have many new needs to fill, such as preservation of electronic information and supporting research data services. On the other hand, if the average cost were the $5,000 per article charged by Elsevier’s Cell Press for “sponsored access”, this would increase the cost of the system overall by about 16% - and still not achieve open access, as sponsored access is not really open access, just free-to-read from the publisher’s website.

28.  The RCUK’s generous block grants for article processing fees are likely to distort the market by inflating costs for article processing fees. If this approach were to success in achieving open access, it would be at the cost of increasing the problem of lack of affordability of the system. However, I predict that this approach will fail, as the impact of inflating the costs of article processing fees is very likely to decrease support for open access publishing outside the UK, thus dooming the sector the grants are intended to support.

29.  I predict that an unintended consequence of the RCUK block grants for article processing fees will be a decrease in support for this approach outside the UK as this is likely to inflate costs. This will decrease the competitiveness of the UK research system, as it will be stuck with costs that researchers elsewhere do not have to pay.

Thank you very much for the opportunity to participate, and for the UK’s leadership in the area of open access policy.

Heather Morrison, PhD

hgmorris at sfu dot ca

Update Feb 25: the Creative Commons response to this consultation can be found here