Author’s rights: let’s be clear on the problem

Posted on 2 August 2008
Filed under Academia, Copyright, Creative Commons, Licenses, Open access, Publishing
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There are a number of available remedies (e.g. 1, 2, 3) to the problems posed by authors signing away their copyright to academic journals. But the thicket of solutions and the surrounding rhetoric can sometimes muddy up what the real problem is. So let’s be clear:

Researchers want to publish their research in academic journals.
As author, the researcher owns the copyright inherent in her article. (This doesn’t apply to works produces by government employees, such as intramural NIH researchers, which are not subject to copyright and are in the public domain. Different considerations apply when the author is an employee or contractor and agrees contractually that the employer or client will own the copyright in the work. But this is the situation for most academic researchers.)
These journals often ask researchers to transfer exclusive copyright to the journal as a condition of publication. This “request” is usually in the form of a boilerplate template license (which is not presented as negotiable).
If the author signs away her copyright, then (absent any other agreement, such as a journal policy or an accepted addendum to the copyright transfer agreement) the author will not have sufficient rights to self-archive a copy of her article in an open access repository (aside from any rights which may exist under fair use or other copyright exceptions) or to make it available under an open license (such as a Creative Commons license compatible with the BBB definition of open access).

The existing journal policies and author addenda vary in their specifics: not all of them offer as much flexibility for the author as is desirable for open access. (For instance, they may specify that only certain versions of the article manuscript may be self-archived, or only in certain locations — e.g., on the author’s personal Web site but not in a disciplinary repository — or may not allow the author to apply a CC license to the article.) It’s also important to note that not all journals ask for exclusive copyright: some ask only for the rights necessary to publish the article; others (particularly open access journals) require the author to agree to a CC license.

But for journals that do ask for exclusive copyright, the problem isn’t that the author is giving the journal too many rights (as is sometimes portrayed in the rhetoric around this subject). Rather, the problem is that the author isn’t keeping enough rights. If we were discussing a tangible object, then the preceding two sentences would be semantically identical, but copyright is an intangible: the author can give away rights and keep them at the same time. This point isn’t always made clear.

The ideal approach, then, gives the broadest rights to both the journal and the author. Most important here is the author: as I’ve mentioned, some of the existing addenda and journal policies are too narrow in their “grant” (return) of rights to the author. Ideally, the author should end up with a set of rights as broad as copyright itself: either copyright itself, or a non-exclusive, royalty-free, irrevocable license to do anything with the work (including to sub-license it).

But there’s also little harm in giving a broad grant of rights to the journal. In fact, we can imagine a harm in giving too narrow a grant of rights: for instance, a well-meaning journal that wishes to reproduce the article in a way that will improve access or usefulness, but which was only granted (say) a right of first publication and of reproduction in the original medium — combined with an unlocatable author (or her heirs), the article is effectively an orphan work.

We can imagine few objectionable uses of a scientific article — or at least, few objectionable uses to which we think the author should actually be able to object: this is one the premises of open access. So there’s not much harm in giving the publisher, as well as the author, wide leeway in permission to use and re-use the article.

(As always, I’m not a lawyer, this is not legal advice, etc. …)

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Public access is law at the NIH: What’s next?

Posted on 2 January 2008
Filed under Academia, Creative Commons, Licenses, Open access, Publishing
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On Dec. 26, President Bush signed HR 2764, the Consolidated Appropriations Act, bringing into law a requirement for a mandatory public access policy for National Institutes of Health grantees.

Peter Suber has (as usual!) been covering events at Open Access News, and today adds his comments in his newsletter. If you’re unfamiliar with the policy, start there. The newsletter also links to the coverage at OAN, including links to commentary around the Web.

As Peter points out, it’s important to remember that although the mandate is now on the books, it isn’t yet in effect. In other words, Congress has instructed the NIH to adopt a mandate; now it’s time for the NIH to implement it. The legislative language is relatively brief, so there are several details for the agency to work out. Peter mentions some of the open questions in his newsletter; here are my predictions and suggestions.

First, though, let me affirm the significance of the legislative victory. A mandatory self-archiving policy for the NIH will make a strong, positive contribution to the progress of science, to taxpayer access and public understanding, and to the momentum of open access. This is important and should be applauded. Peter says it as well as I could, so again I refer readers to his newsletter.

Before addressing Peter’s questions, I want to raise one of my own: the question of when. The legislative language doesn’t set a deadline or timeline for implementation. Hypothetically, an unwilling NIH could delay implementation indefinitely, until forced by a court order or later Congressional arm-twisting. On the other hand, the NIH might have been preparing for implementation prior to the language’s passage, and might adopt its revised public access policy next week. These examples are extremes and hypotheticals — I don’t think either is the case — but there’s definitely ample wiggle room.

I predict, then, that the opponents of public access (some scientific publishers) will ask the agency to delay implementation, probably under the guise of needing time to revise their own policies. This request will be private at first, and the NIH will probably agree for a time. Eventually, though, the agency will want to implement the policy; inevitably, the publishers will claim they’re not ready, and that premature implementation will do irreparable harm to their business, and that they’ll be forced to seek a court order blocking implementation if the NIH goes forward.

This delay strategy — first asking, then suing — could be powerful for the publisher opponents of public access. Eventually, they’ll lose; that much is clear. But the sabre-rattling — in public, private, and the courts — could deter other agencies from adopting strong public access policies, and Congress from legislating them. This is basically a FUD strategy — and don’t underestimate the impact of fear, uncertainty, and doubt, particularly on specialized technical issues of limited interest to the general public.

I suggest, then, that the advocates of public access keep a soft but steady stream of correspondence to the NIH, Congress, and other funding agencies. All three need political cover, especially to pursue policies not yet legislated (in the light of the above-predicted opposition FUD). Regarding the legislation already passed, the NIH will need to be reminded that taxpayers are watching, and want to see public access implemented sooner rather than later; the NIH also needs to know it has back-up in court. The Bush administration isn’t a great fan of the mandatory public access policy (though its opposition is the mildest possible, and much closer to ambivalence); the administration may end up in the position of having to defend in court a policy it doesn’t like. Finally, Congress will need to be reminded that voters like public access, so it will be proactive in oversight of the implementation (including if/when the lawsuits drop).

On to Peter’s questions:

How will the NIH deal with conflicts between its OA mandate and the policies of publishers where NIH grantees may submit work?

Prediction: Grantees have a contract with the NIH before entering into any contract with a publisher. Grantees will be required to meet the terms of their NIH grant, which includes self-archiving; grantees who don’t will be treated as non-compliant. If a publisher won’t agree to terms that allow the researcher to comply with his grant terms, the grantee will either have to find another publisher or violate their publishing contract, entering a game of chicken with the publisher (will publishers really sue, or otherwise retaliate against, researchers who self-archive their own work as required by law?).
Suggestion: As above. The legislation is clear: the NIH shall require that all investigators funded by the NIH submit […]. There’s no legislative authorization for exemption.

What sanctions, if any, will the agency use for non-compliance?

Prediction: The initial policy won’t detail any specific sanctions. If the policy mentions non-compliance in any way, sanctions will only be mentioned in an open-ended manner.
Suggestion: Grant disbursements should be frozen to grantees until manuscripts prepared under previous grants (under the mandatory policy) are deposited.

Will the policy apply retroactively to previous NIH grants?

Prediction: No.
Suggestion: No, although previous grantees should be encouraged to deposit.

The US has already adopted a government-purpose license allowing federal agencies to disseminate the results of the research they fund. In 2005, the NIH knew about the license but decided to rely on publisher consent instead. Will it rely on the license this time?

Prediction: No. Grantees will be required to agree to a license as part of their grant contract. (This does not “rely on publisher consent” so much as preempt it: method #2 as described by Peter here.)
Suggestion: As above, although grantees also should be encouraged to use a Creative Commons license compliant with the BBB definitions of open access (either by retaining their rights or publishing with a journal that uses CC licenses).

Will the policy allow grantees to use grant funds to pay publication fees at fee-based OA journals? The NIH is already willing to pay these fees, but it may or may not integrate this policy with the new OA mandate.

Prediction: No. The agency’s policies on permissible expenditures (for grants already awarded) will remain separate from their policies on grant distribution.
Suggestion: As above. The legislation contains no requirement to do this. However, the agency’s policies on permissible expenditures should permit it (without linking it to the self-archiving mandate, other than in the capacity that OA journals might submit the author’s manuscript on her behalf).

Will the policy require OA for raw or refined data generated by NIH-funded research? The NIH already has a data-sharing policy, but it’s not a mandate.

Prediction: No, these policies will remain separate.
Suggestion: As above. The legislation contains no requirement to do this. However, the agency’s data-sharing policy should be made mandatory, subject to the provision of adequate cyberinfrastructure and to policies protecting human-subject confidentiality.

I’ll end with a final suggestion: that university administrators and librarians prepare to help their researchers comply with the policy. It’ll take some getting used to, and the publisher FUD won’t help things (the rampant inaccuracy in reporting on the policy won’t help, either). We’ll need university counsels, research administrators, and librarians to stand up and help their faculty understand the policy.

Forward-thinking librarians will designate a staff member (such as their scholarly publishing liaison, open access director, or subject specialist for medicine) as a point of contact for faculty who need help. That staff member will familiarize himself with the details of the policy and with the mechanics of deposit, and be available to walk faculty through the process.

The NIH policy can also be a great teaching moment for campus leaders to engage their peers in a conversation about open access — and help carry momentum beyond the faculty in medicine.

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GFDL revision: Is there hope for CC interoperability?

Posted on 23 November 2007
Filed under Creative Commons, Licenses
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I was reminded by the recent release of the new Affero GPL (very welcome news!) of the ongoing revision of another Free Software Foundation license, the GNU Free Documentation License (and its derivative, the Simpler FDL).

The GFDL is the license used by Wikipedia, resulting in a wealth of free content available under that license. Unfortunately, its copyleft clause only allows combinations with GFDL-licensed works — there’s no compatibility with functionally equivalent Creative Commons licenses, i.e. BY-SA.

For years, there’s been talk from all sides on working toward interoperability. But it hasn’t happened yet. I’m holding out hope for a breakthrough in the GFDL revision process.

If you want to participate, you can comment on the GFDL draft. Asheesh Laroia has posted a comment encouraging work toward a solution. After logging in, you can “agree” with the comment (here) or add your own comments in reply.

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Scholarly societies and open access publishing

Posted on 2 November 2007
Filed under Creative Commons, Licenses, Open access
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In the latest SPARC Open Access Newsletter, Peter Suber posts the results of research with Caroline Sutton on scholarly society publishers with open access journals. At its core is a list of open access journals affiliated with scholarly societies and various characteristics associated; the post contains some analysis. The list and analysis also considers society journals with hybrid open access options.

The information is quite interesting, and practical (for decision-makers and OA advocates). The authors note that they’d like to explore the topic in greater depth. Here, then, are my comments — hopefully useful for Phase Two.

The number of societies involved, and the number of journals published, is large, accounting for 16% of the Directory of Open Access Journals (450 out of 2900). The number of open access journals is considerably larger than the number of journals with hybrid OA options (450 vs. 73).

The geographic base of OA-publishing societies is broad — 57 countries/regions — compared to just 5 countries/regions with hybrid journals (93% of which is composed of the US and UK). (Note: I’m not clear whether the “geographic location” listing in the chart is based on the society’s location or the journal’s. For example, European Physical Journal is published by Societá Italiana di Fisica; the location is listed as “Europe”. I’d appreciate if the authors could clarify this.)

Similarly, the publisher:journal ratio for open access journals is much lower than that of hybrid journals. “Most societies publishing OA journals publish just one. […] Only five societies publish just one hybrid journal.” To suggest some possible causes for this, it might be that societies publishing multiple journals do so because publishing is a profitable endeavor for them, and therefore they’re more concerned about loss of revenue. Or perhaps societies with more emphasis on publishing are simply more hesitant to make rash decisions with their journals. Maybe it’s because their executives receive bonuses based on the financial performance of the publishing division. These might be avenues for the authors to explore in Phase Two.

Might there be a link between the geography and the prevalence of open access? I’d expect there might be some network effect or peer pressure, but that’s not what I mean. I frequently hear that journal profits often subsidize other society activities — at least in the U.S. Perhaps this isn’t the case in other countries, where perhaps journals are more likely to themselves be subsidized. I’d like to hear thoughts from anyone who has them.

The hybrid journals seem to pay more attention to copyright issues. This seems consistent with the self-selecting nature of hybrid OA: I can imagine some authors in no-fee OA journals having no opinion about, or even ignorant of the fact that, the journal is OA; clearly that’s not the case for hybrid journals. I’d be curious to see a comparison of the fee-based OA journals (only 17% of the list) with the hybrids (all fee-based); I suspect the difference might be insignificant.

Unfortunately, the study found that only 15 of the 450 OA journals state that they use Creative Commons licenses. The exact number might be a bit fuzzy, but it looks clearly as though most OA society journals don’t comply with the BBB definition of open access. (Which means, in my view, that we shouldn’t be calling them “open access”, but rather “toll-free” or some comparable appellation.)

There is a seeming underrepresentation of social sciences, arts and humanities among OA journals: 79% of the list are from science, technology, and medicine. The accepted wisdom is that this mirrors the divide among OA journals in general, regardless of publisher. I can posit several potential explanations for this, but regardless of cause, it only increases the importance of OA for scholarly monographs; more on this in a later post.

I hope, concurrent with the Phase Two research, the authors refine this for publication in a journal. That’ll make a more powerful citation and get it seen by more readers. It’ll also force the authors to iron out some of the niggling methodological issues, including those noted here and in the original post itself.

One note about the reliability of the data: The DOAJ is known as the definitive source for information about open access journals, but I’m not sure their data about hybrid journals is as comprehensive. I’d be keen to hear from anyone who knows about this, but until I do, I’m hesitant to draw many conclusions about hybrid journals. If many simply aren’t listed in DOAJ, that could account for wide variances in results.

Some information I’d like to see in Phase Two, in addition to the topics already noted in the original post and those noted above:

information about society publishers with policies that permit self-archiving (from SHERPA/RoMEO)
information about society publishers whose journals are delayed OA (though I’m not sure where one would find this information)
when these journals became OA
whether these journals were born OA or converted from pre-existing toll-access journals
whether these societies also publish toll-access journals or have converted entirely to OA
a more complete listing of impact factors / Eigenfactors for these journals
a definitive listing per journal on whether the publication meets the BBB definition of OA
more clarity on the definition of “scholarly society” (e.g. the World Health Organization is listed as a publisher here; it seems a stretch to say the WHO is primarily a scholarly society; same with the American Federation of Teachers, primarily a labor union)

A final note: The authors mention that their list of scholarly societies that publish OA journals is significantly longer than recent lists of societies opposed to OA government policies (specifically, the US National Institutes of Health self-archiving mandate). The authors do caution against a direct comparison, but they leave out the fact that their list of scholarly societies is worldwide, while presumably only societies based (or with substantial members / activities) in the US would speak out about policies of the US government. I count 82 unique OA-publishing societies based in the US, plus 8 unique US societies with a hybrid-option journal; adding the 12 unique international OA-publishing societies, there are perhaps 102 OA-publishing or -offering societies who might reasonably be interested in US policy, significantly less than the 425 the authors were using in their comparison.

Coincidentally, of the 9^* US societies with a hybrid-option journal, four signed the Association of American Publishers letter opposing an NIH mandate:

Someone with more time on their hands can do the cross-check of the 82 OA-publishing US societies.

* Yes, I said 8 in the preceding paragraph: the American Physical Society publishes both a hybrid and an open access journal, so it was counted in the OA list and therefore not “unique” for that tally.

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Let’s all sue Creative Commons: a defense, and suggestions for publicity et al.

Posted on 22 September 2007
Filed under Copyright, Creative Commons, Licenses, Open content
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I get a bit defensive when I see my friends getting sued – perhaps a little bit due to my loathing for the seemingly inevitable day when I, too, get sued. So I was irked when I heard this week that Creative Commons had been dragged into a lawsuit by a photographer and his subject against Virgin Mobile.

The photographer had snapped a photo of the subject and uploaded it to Flickr under a Creative Commons Attribution license, which allows commercial use, modification, and redistribution. Virgin’s advertising department or hired firm found the photo on Flickr and exercised those rights, adding a snarky caption to the photograph, then plastering it on bus shelters and billboards to advertise a new service.

When I first heard the story, I figured it was the fault of some moron (or over-reaching) lawyer who didn’t understand Creative Commons, and thought CC played some active role in the licensing process. Accordingly, I assumed the claim against CC would be dropped quickly. But having read Larry’s take on the complaint, I see the gripe, and it’s a bit more substantive. The photographer argued that that CC failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.”

It’s an interesting claim, which echoes an argument sometimes levied against free software licenses: If you make the license easy to use, then people will use it without understanding what it means. At worst, that will invalidate the license, with nasty effects for downstream users; at best, it’s likely to create bad blood between the license user and its creator.

Without necessarily accepting the claim that their licenses might be invalid, the free software and open content communities have attempted in various ways to hedge their bets against the claim:

The Free Software Foundation requires a copyright transfer for non-trivial contributions to the GNU project. This not only makes it easier to enforce the license against violations, but also adds a bit of certainty that the code is licensed validly. It’s one thing to paste some text into the header of some code; it’s another to sign a contract transferring one’s copyright, which (assumedly) contains a clause stipulating “I own the copyright or have the right to transfer and/or sublicense it.”
The Registered Commons project aims to create a central database of CC-licensed works whose authors have vouched to the database “Yes, this is my work, and I make it available under this license.” Again, the goal is to add certainty for downstream users that the content is licensed validly.

If I were Virgin, I certainly would have preferred to use CC-licensed photos from Registered Commons, or tried to obtain some kind of affirmative response from the author. Although Virgin has the legal right (under copyright) to use any appropriately-licensed work, they don’t have much defense if something falls through (as happened here).

Virgin might have contacted the authors of the works they wanted to use and asked, “We’d like to use your photograph. You’ve already granted us the right to do so, and we don’t have to pay you. But we’d like to send you a small payment as a token of gratitude; will you fill out this form that tells us who you are, and confirms that the work is yours and we can use it?” Certainly, some authors wouldn’t have replied, or would have declined; Virgin can calculate its risk to use those works. But for authors who did reply – and really, filling out a form is a small price to pay for $100 – Virgin would gain a bit of certainty about the work they were using. The relationship now looks more like a contract with a professional photographer, who warrants that he has the appropriate releases etc., than like Virgin poaching personal photos from the Web and pasting them on billboards.

If this regime is starting to sound like it violates the spirit of the CC licenses, it shouldn’t. Frankly, actors with more to lose – like corporations with deep pockets – have always taken extra steps to protect themselves against potential liability. In 2005, documentary filmmakers released a statement of best practices for fair use. One might ask why this was necessary – isn’t the case law relatively clear what constitutes fair use? – but skittish studios would pull up short of their legal rights, afraid of having to face an infringement suit. The best practices document acts as a form of collective security for that community.

Perhaps, on principle, one should insist on exercising one’s rights to the legal maximum at all times. But where there’s even a bit of legal uncertainty, it should be no surprise that some will decide “better safe than sorry”. I don’t fault Virgin for not doing so here (at least with regards to the validity of the copyright license), but this episode demonstrates the potential blowback if one doesn’t.

To mention another example, there’s been some discussion that minors under age 18 are not legally able to license their work (at least in some jurisdictions). What if one of the Virgin photos was snapped by a 16-year-old – with litigious parents? In this case, regardless of whether the licensor understood the license, it would be invalid. Not a situation the downstream user wants to be in!

So assuming the license is valid, does CC “adequately educate and warn … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use”? This issue is slippery, because it seems any argument that “it’s right there in the license terms” is similarly an argument in favor of shrink-wrap and click-through licenses. But in a word: Yes. There is certainly some debate over what exactly is a commercial use under the CC licenses, but Virgin’s use is undebatably commercial. I can’t fathom how anyone, when presented with a choice to “allow commercial uses”, wouldn’t consider commercial advertising to be a use they were allowing under the license.

What about the right of privacy, which the photograph’s subject claims was violated? The CC licenses make no claim regarding that right, or any outside of copyright (unless moral rights and the DMCA’s access rights are considered outside of copyright). Neither Virgin nor the photographer should have expected the license to grant or waive those rights.

But enough of the defense. Is there anything CC could do better, to ward off these problems in the future? Here are a few suggestions:

On the “Things to Think About” page, add a point about rights other than copyright. Be clear that the right to use the copyright in certain ways does not invalidate any claims about privacy, publicity, defamation, trade secrets… there’s a lot that could be entangled here.
In the license chooser, after an individual has selected which rights they wish to grant, the user is brought to a page that says “Here is the license you’ve chosen”. This would be a very appropriate time to reiterate the terms of the license chosen, either by displaying the human readable license inline or (preferably) by displaying a shorter summary oriented to the author. e.g. “You waive your right to prevent or control commercial uses of this work, including the right to be compensated for any commercial use.” The page could also say, “If this isn’t what you intended, go back and pick a different license, or click here to learn more about our licenses.”
In the human-readable license summary, along with the disclaimer that the license doesn’t affect the user’s fair use or fair dealing rights, add a disclaimer that says “This license only applies to copyright in the work and not to any other rights.” This could also be a time to point toward what’s not protected by any right: e.g. “This license only applies to copyright in the work, insofar as it exists, and not to any other rights.” This might make it clearer to the user that non-copyrightable material, such as ideas, concepts, facts, and works which have passed into the public domain cannot acquire any additional restrictions under a CC license.
Add a disclaimer in the lawyer-readable license to state, in legal terms, the above.
Since this subject is recently in the news, post a brief summary or FAQ on the CC blog reiterating points like “What is a commercial use?” and “What other legal issues might be entangled in a copyrighted work?” This might also be a good time to address the question “How can I protect myself against getting burned by using an apparently CC-licensed work?”

Finally, two discussion questions about the suit:

Why isn’t Flickr (Yahoo) named as a defendant? If CC “failed to adequately educate and warn”, surely Flickr’s license chooser is at least as liable. I don’t think either should be liable, but you’d think the lawyer would file against the deep pockets rather than the non-profit.
Having established that CC is a non-profit and therefore doesn’t have a lot of money, what are the plaintiffs hoping to achieve? If it’s remuneration, they’re barking up the wrong tree at best, or viciously mean-spirited at worst. If it’s punitive, that’s rather harsh. If they just want to force CC to change its practices, why file the suit — why not just raise the issue with the community? I expect you’d get equally good results: there might be a bit less urgency, but there also wouldn’t be the animosity a lawsuit naturally stirs up.

Although I don’t think CC is at fault here, it is important to act. For the ecology of CC-licensed works which permit commercial use, that use is important. It’s important to have clarity, good information, and certainty when using licensed works. Without improvements here, CC licenses may be a valuable tool in the sharing economy, but they’ll be unable to realize their full value for the commercial economy.

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