The Creative Commons licencing framework, favoured by RCUK, is a popular strategy to allow scholarly material to be made publicly accessible whilst also allowing an author to retain copyright of his or her work. Joanna Wild and Rowan Wilson find that there is still a great deal of confusion in the academic community over how these licences work. The following is a helpful overview of the distinctions between licences and what each means for the readers and users as well as the authors.
A number of the enquiries to the Open Access Oxford Enquiries mailing list have asked us how the various types of Creative Commons licence specifically relate to scholarly articles. So, in this blog post we explain the rights that the CC BY licence grants to the reader (i.e. the licensee).
The RCUK policy currently mandates use of the Creative Commons ‘Attribution’ licence (CC BY) when an Article Processing Charge (APC) is levied. This licence allows others to distribute, remix, tweak, and build upon the licensed work, including for commercial purposes, as long as the original author is credited. It is the most liberal of the six Creative Commons licences in comparison with, for example, CC BY-ND (no derivatives, no modifications) and CC BY-NC (no commercial use).
But what does ‘remixing, tweaking, and building upon the licensed work’ mean in relation to scholarly articles? After all, academic practice has been dealing with similar situations for decades. The ‘criticism and review’ fair dealing exception within current UK copyright law allows you to quote material that you are directly criticising. Standard citation allows you to reference entire works that inform your own work. Many academics might feel uncomfortable granting the right to have their work adapted by others.
So does the CC BY licence actually enable any additional useful activities? The truth is that, for many purposes, it does not. However, it does allow the copyright holder to give blanket permission for various actions that a reader/licensee might want to do. It also gives the reader/licensee clarity about what they can do with the article without having to deal with the complexities of ‘fair dealing’ exceptions to copyright.
Fair dealing = limited purpose
‘Fair dealing’ permitted under copyright law is the limited reuse of copyright material for certain fixed purposes. One example is the ‘criticism and review’ fair dealing exception. That is, if you wanted to write a critique of some copyright material (provided it isn’t a photograph), you could reproduce a section of it under ‘fair dealing’ in order to illustrate what you were criticising, and then distribute the resulting work. There are many other fair dealing exceptions covering activities such as teaching, setting examinations, and news reporting. However, the bottom line under copyright law is that you always have to check carefully whether your particular purpose falls under one of the fair dealing exceptions. If it doesn’t, then you need to obtain permission from the copyright holder to use the material in your work.
CC BY = any purpose
In contrast, if an article has been published under a CC BY licence you can, as a reader/licensee, include a figure, table or photograph from that article in your own work (e.g. a paper or teaching materials that you will release online) without having to check whether you fall under one of the ‘fair dealing’ exceptions or having to obtain any additional permission from the copyright holder. All you have to do is to ensure that you acknowledge the original source.
But why choose the most liberal of the CC licences? Why not opt for CC BY-NC (non-commercial use) or CC BY-ND (no derivatives, no modifications to the original work)?
When choosing a CC BY-NC licence you might think that you only prevent use within the for-profit sector. This is not entirely true: you may actually prevent use within the public and non-profit sectors as well (see Friesen 2013, p. 83). For example, CC BY-NC prohibits someone from using a figure or table from your paper on any website (even a scholarly blog) that carries advertisements. Since the definition of non-commercial is ambiguous, the CC BY-NC licence can therefore lead to confusion.
Now, what does CC BY allow that CC BY-ND does not? Allowing derivative works, as CC BY does, opens up new ways of representing scholarly articles through text-mining and visualization techniques. It also allows an article to be translated into other languages and into Braille. Another benefit is that you can compile ’bespoke’ textbooks for your students by bundling your own ‘CC BY’ papers together with other ‘CC BY’ papers.
Finally, CC BY enables onward reuse. While your quotation of a section of someone else’s work might fit within a fair dealing exception, it’s possible that a third party might want to use the quotation in a different way which does not fit the exception. If the quoted material were licensed as CC BY, this would not be a problem.
CC BY protects the author too
One question that frequently crops up regarding the CC BY licence is whether adaptation or modification of a covered work might affect the original author’s reputation, perhaps by altering their argument or providing incorrect examples. This might be an infringement of the author’s so-called ‘moral rights’ here in the UK. In fact, Creative Commons licences require that all modifications to material they cover should not ‘be prejudicial to the Original Author’s honor or reputation’.
CC BY is not essential for Open Access. However, making a paper Open Access without the CC BY licence, or with a more restrictive type of Creative Commons licence (e.g. CC BY-ND or CC BY-NC), may mean that a reader must still obtain your specific permission to adapt the work and/or use it for commercial purposes.
The different flavours of CC licence enable you to be more restrictive if you want to be, but obviously the Government/RCUK wants its publicly funded research to be as unrestricted as possible.
CC BY just gives a more liberal blanket permission for some actions.
This post originally appeared on the Open Access Oxford blog and is licensed under a Creative Commons Attribution 3.0 Unported License.
Note: This article gives the views of the author, and not the position of the Impact of Social Science blog, nor of the London School of Economics. Please review our Comments Policy if you have any concerns on posting a comment below.
Joanna Wild is an independent consultant and researcher in the field of Technology Enhanced Learning (TEL) with particular expertise in Higher Education. Joanna has worked in a number of JISC-, HEA-, and ESRC-funded projects in the field of TEL, specialising in digital experience research and evaluation, learning design, Open Educational Resources, and Open Access. Most recently, she was part of a team introducing Oxford researchers to the RCUK policy on Open Access. Joanna’s blog is http://askawild.wordpress.com/me-and-this-blog/ and she tweets as @askawild.
Rowan Wilson is the licensing specialist within the University of Oxford’s free and open source software (FOSS) advisory service OSS Watch, helping academic developers choose licensing and sustainability models for their works and unpicking problematic FOSS reuse issues where they occur. Rowan was also instrumental in creating the Creative Commons-licensed Open Educational Resources podcasting project at Oxford known as OpenSpires which has released over 1000 Oxford lectures for redistribution and reuse.
This post is useful, thanks, but oversimplifies and presents only the positives of CC-BY, omitting the negatives. For example, you present the case that a professor can create a bespoke textbook composed of CC-BY works. Assuming this is accurate (see my next point for why this might not be the case), it is also correct that others, including for-profit commercial companies, can use these works to create textbooks – and they can charge for them. There is nothing in any of the CC licenses that requires that works can be made available for free.
To explain why this is an oversimplification, note that many works (even in print) are already derivatives. An article or chapter may contain sub-elements from third parties. The article-level CC license does not apply to these third party works. Even in a case of CC-BY within CC-BY, who / what is attributed is different for a subelement such as a graph by one author included in the article of another.
The permitting of derivatives while at the same time protecting author moral rights is another indication of why this is an oversimplification. Note that CC-BY invokes stronger moral rights than under copyright law. So you could be on solid ground creating a derivative but under shaky ground with respect to moral rights. In some cases you could be on shakier ground with moral rights with CC than with all rights reserved / fair dealing.
Thanks for this. But your defence of CC-BY does not address the most prominent objection to it – which is that it enables re-use not simply by ‘quotation’, which you cover, but by ‘remixing’, which you don’t. That is, it allows the reuser to mash up their words with the original, *without* quotation (i.e. without specifying whose words are whose – this is what we tell our students is plagiarism). While this enables some uses that *might* be healthy – e.g. translation (though that isn’t a neutral activity either, and is very hard for the author to police) – it also enables many uses that run against all the established norms of academic practice. I am happy for my words to be quoted in extenso – well beyond fair use, to include the entire text if desired – and thus I advocate a ‘no derivatives’ CC licence which enables that. But I am not happy to have my words mixed up with someone else’s, in ways that make it difficult to distinguish one from the other. (If there were a mark-up requirement, that would be another matter). This is a common view in the academic world. The majority of the contributors to Nature’s OA journal Scientific Reports also prefer ND licences.
I can of course try to defend my ‘honor or reputation’ by invoking the CC-BY ban on ‘mutilation’. But then we are back to the litigiousness which CC licences are meant to end – only now the onus is one me, the author, to defend myself, whereas under a ‘no derivatives’ licence the onus is on the reuser, who is entitled to quote my words endlessly but not to change them.
It’s important that defences of CC-BY address the strongest objections and not just the weak or obviously mistaken ones. When you dodge the difficult problems, you imply that critics are just ‘confused’ or misinformed, whereas there are much deeper conflicts of values and practices. These have now been recognized by HEFCE, which has so far learned from criticisms of RCUK’s policy and not prescribed particular forms of licence. They have also been recognized by Creative Commons, Wellcome, and others who I think now understand better that practices acceptable in the STEM publishing world do not always translate well into HSS disciplines, where we are not just reporting data (to be reused by anyone for their own purposes) but adopting forms of words specific and important to the author. See the report of our meeting at http://www.researchinfonet.org/uploads/2013/02/Note-of-Wellcomeworkshop-on-CC-BY-in-hums-and-soc-sci-final.pdf .
I’ve recently surveyed authors about a specific new problem with CC-BY licensing of research papers – at least one unscrupulous publisher is editing and republishing them as book chapters. The original publications are not clearly cited and the reuse gives the false appearance of author endorsement. OA journals appear uninterested in this problem.
You can see the survey results here: http://rrresearch.fieldofscience.com/2013/08/survey-results.html and my conclusions here:http://rrresearch.fieldofscience.com/2013/08/a-clearer-perspective-on-cc-by-reuse.html.
1st Things 1st
First mandate universal (Green) OA self-archiving. Then all the re-use rights users need and authors want to provide (and Fair-Gold OA publishing) will soon follow.
Pay instead, pre-emptively, for Fools-Gold, in order to have immediate CC-BY, and yet another decade with little OA — or CC-anything — will follow.
Firstly, the exam exception, and the various teaching exceptions are not fair dealing exceptions (at least not at the moment), contrary to what this piece says, but are from a quite different part of the law.
Secondly, the criticism and review exception does not have to be a quote from the item your are critiquing. You could copy something from piece A in order to critique piece B.
Finally, Peter M is incorrect – the CC BY licence requires the person taking advantage of it to identify where they got the original from. If they fail to do so, they are in breach of the CC licence terms.
Thank you Heather for your comments. Please find below my reply to your concerns.
“… There is nothing in any of the CC licenses that requires that works can be made available for free”:
While you are strictly correct to say that there is no CC stipulation that exactly demands that works or derivatives are made available at no cost, NC prevents primarily commercial reuse and SA is strongly dissuasive of commercial activity that involves the melding of ‘proprietary’ commercial material with third party CC material covered by that stipulation.
“… note that many works (even in print) are already derivatives. An article or chapter may contain sub-elements from third parties. The article-level CC license does not apply to these third party works. Even in a case of CC-BY within CC-BY, who / what is attributed is different for a subelement such as a graph by one author included in the article of another.”
Naturally one must make sure that material is properly accredited and its conditions of reuse both respected and noted. If this is done I don’t see a problem with reuse of the material for which reuse is permitted. The issue you are noting is, I think, with poor record keeping and accreditation, not with CC licensing itself.
“…. Note that CC-BY invokes stronger moral rights than under copyright law. So you could be on solid ground creating a derivative but under shaky ground with respect to moral rights. In some cases you could be on shakier ground with moral rights with CC than with all rights reserved / fair dealing.”
The England and Wales CC licences deal with moral rights by referring directly to the definition of derogatory treatment in the CDPA 1988, so I’m not sure quite what you mean here when you say that the moral rights within CC-BY are ‘stronger… than under copyright law’. If there is doubt about a mode of reuse, it would seem sensible to me to seek the opinion of the material’s originator, which is facilitated by the tendency of CC authors to provide internet-accessible contact details.
Thank you Peter. Please find my response to some of the issues you raise in your comments. For convenience, I provide my reply after the quotation of the relevant passage of your text.
“… your defence of CC-BY does not address the most prominent objection to it – which is that it enables re-use not simply by ‘quotation’, which you cover, but by ‘remixing’, which you don’t. That is, it allows the reuser to mash up their words with the original, *without* quotation (i.e. without specifying whose words are whose – this is what we tell our students is plagiarism).”
This comes down to a difference in how we define quotation. CC licences permit reuse of material with accreditation, but I agree that this will often amount to less rigorous accreditation than would be standard in the academic community generally. Being aware of this is important of course, but I don’t see it as necessarily a negative feature of CC.
“I am happy for my words to be quoted in extenso – well beyond fair use, to include the entire text if desired – and thus I advocate a ‘no derivatives’ CC licence which enables that. But I am not happy to have my words mixed up with someone else’s, in ways that make it difficult to distinguish one from the other… “
…and of course ND licences exist for precisely that reason and use case, while more liberal licences are there for those that positively wish to encourage more liberal and extensive reuse.
“I can of course try to defend my ‘honor or reputation’ by invoking the CC-BY ban on ‘mutilation’. But then we are back to the litigiousness which CC licences are meant to end – only now the onus is one me, the author, to defend myself, whereas under a ‘no derivatives’ licence the onus is on the reuser, who is entitled to quote my words endlessly but not to change them”
I think that CC licences, like any licence, are only of use in the context of enforceable ‘intellectual property’ rights. So while CC licences aim to communicate grants of rights widely and simply, they still all have stipulations that – if not enforced at law – are meaningless. So the notion that enforcing CC licence terms is in some way a failure is confusing to me.
“It’s important that defences of CC-BY address the strongest objections and not just the weak or obviously mistaken ones. When you dodge the difficult problems, you imply that critics are just ‘confused’ or misinformed, whereas there are much deeper conflicts of values and practices …”
I have no desire to avoid the objections, but it seems to me that they often spring less from CC licensing or academic practice in themselves, and more from occasions on which the two are thought mistakenly to be identical. The differences are real and important, and mean that there are occasions on which CC licensing on its own might be a poor vehicle for achieving traditional academic goals. However it should be remembered that CC licensing conditions exist in combination with normative practice in the academic world, and that the latter has traditionally not relied on legal enforcement. CC does not, and does not seek to undermine that practice, and it is up to reusers whether they respect that practice.
“Firstly, the exam exception, and the various teaching exceptions are not fair dealing exceptions (at least not at the moment), contrary to what this piece says, but are from a quite different part of the law.”
They all come from Chapter 3 of the CDPA, but I take your point that it may be confusing to refer to them all as fair dealing.
“Secondly, the criticism and review exception does not have to be a quote from the item your are critiquing. You could copy something from piece A in order to critique piece B.”
Thanks – this is a helpful additional point.
Excellent response, summarising many of the points I wanted to make when reading the others’ comments.
CC is a legal framework; use of a licence does not somehow preclude the co-existence of academic norms.