September 21, 2017

CC BY and Its Discontents—A Growing Challenge for Open Access | Peer to Peer Review

Rick AndersonRecently I attended the conference of a major learned society in the humanities. I was only there for a day and attended only two sessions: one as a panelist and the other as an observer. Both sessions dealt with issues related to open access (OA), and in both of them I was deeply taken aback by the degree to which the scholars in attendance—not universally, but by an overwhelming majority—expressed frustration and even outright anger at the OA community. The word predatory was actually used at one point—not in reference to rapacious publishers but to OA advocates. That was pretty shocking.

More recently, in a different meeting, I listened to a presentation by the executive director of another large and important scholarly society, this one in the social sciences. His presentation was in no way heated or angry, but he made it abundantly clear that among his organization’s members there was deep dissatisfaction with significant aspects of the OA movement’s current direction.

Many private conversations before and since, often with scholars who did not want to express publicly anything that might be construed as objection or resistance to OA, have only reinforced the messages I received in those meetings.

What is the nature of the concern? Why would these scholars and scientists—academics who value the sharing of knowledge and who want to see the benefits of scholarship spread as broadly as possible (and who presumably want to reach as many readers as possible)—object to OA?

The answer is that they don’t typically object to OA itself, and in my experience many of them say so very explicitly in the context of voicing their concerns and frustration. What they object to is a particular parameter of OA as it is currently defined by a large and dominant segment of the OA community: the Creative Commons Attribution (CC BY) license, which is enshrined in what is now the closest thing to a canonical definition that OA has: the Berlin Declaration on Open Access. The declaration does not use the term Creative Commons (CC licensing was a relatively new thing when it was being formulated), but it defines acceptable reuse licensing in terms that align exactly with those of CC BY:

Berlin Declaration: The author(s) and right holder(s) of (open access) contributions grant(s) to all users a…license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship.

CC BY definition: This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation.

What this means is that, according to the Berlin Declaration, what makes an article OA is not that it can be accessed and read by everyone at no charge. In order to be considered OA, the article’s content (and “all supplemental materials”) must also be made publicly available for any kind of reuse, including commercial reuse, without the author’s permission.

It’s important to note that not everyone in the OA community agrees that CC BY, or its functional equivalent, is a necessary feature of true OA. Some distinguish between “gratis” OA (which makes an article free to read but leaves the author some or all of the traditional exclusive prerogatives provided by copyright law) and “libre” OA (which makes it reusable under CC BY terms) and are happy to consider both of them genuine forms of OA. Some prominent voices in the movement insist that CC BY should not be regarded as a sine qua non of OA, while others assert that there is no such thing as OA without CC BY.

So why does this issue amount to more than intramural squabbling over a controversy that will inevitably end up getting resolved internally at some point? Several aspects make it noteworthy and worth careful consideration on the part of anyone interested in the future of scholarly communication.

First of all, although there is squabbling among individuals in the OA community about whether CC BY should be enshrined in our definition of OA, highly influential institutions have taken significant steps—in some cases within the last month—to make that enshrinement more official. In addition to its functional inclusion in the terms of the Berlin statement, CC BY licensing is also publicly endorsed by the Scholarly Publishing and Academic Resources Coalition (SPARC) as “the standard terms for Open Access.” Recently, both the Gates Foundation and the Ford Foundation have announced that all of their grant-funded projects and research must be published under CC BY licenses. The Public Library of Science (PLOS)—whose journals collectively published more than 35,000 articles last year, making it the undisputed 500-pound gorilla of OA publishing—asserts flatly that “open access stands for unrestricted access and unrestricted reuse” and does not allow its authors to use any license other than CC BY. Nor does BioMed Central, another very important OA publisher, or its sister company Chemistry Central. In the UK, the Research Councils UK (which funds roughly $4.5 billion of research each year) also generally requires the results of research it funds to be published under a CC BY license. (If a funded author does not use RCUK block grant funding to cover an article publishing charge, then she may restrict commercial reuse of her work.)

Second of all, consider the findings of a recent survey taken by the publisher Taylor & Francis among its authors, who represent a broad spectrum of academic and scientific disciplines. That survey found that fully 65 percent of them consider the reuse terms of CC BY to be “unacceptable.”

All of this suggests an important question: Why do authors mind? The answer will vary from author to author, of course, but one of the most common concerns expressed has to do very specifically with commercial reuse. In one recent situation, several authors who had published with PLOS and BioMed Central were startled and outraged to see that their articles had been bundled, without their permission but in full compliance with the terms of CC BY, into a high-priced book published by Apple Academic Press.

In my experience, many authors who would happily make their work freely available for noncommercial reuse, adaptation, remixing, performing, etc.—for whom, in fact, that kind of free and noncommercial reuse is a big part of what OA is all about—are not comfortable allowing all comers to reuse their work commercially without at least asking permission. The authors I have spoken with mostly tend to say the same thing: “We believe in openness and sharing, and we want our work to be as freely and widely available as possible. But if you’re going to take my work and somehow sell access to it or otherwise use it to make money, you need to ask my permission first.” Some would be willing to allow commercial use in a nonprofit context without permission; others don’t want any commercial reuse of any kind without their authorization. Not all of the authors who have published in OA outlets have been aware that this has meant doing so under CC BY, but the number of authors who have figured this out is growing quickly, with predictable results. (And then there’s the growing question of whether it would be acceptable to require students to make their work available on an OA basis, including CC BY, as a condition of academic progress.)

So the question we in the scholarly community need to be asking ourselves is: Where do we believe authors’ rights should end and the public’s right to access and reuse should begin? Does it make a difference whether the scholarship in question was supported with public funds? If so, does public funding give the public a moral right to read the results of that scholarship, or to read and reuse without any restriction, or to read and reuse with some restrictions? What if the scholarly product was not supported by public funding—should it be made freely available simply because it is scholarship and we don’t want to commodify knowledge?

I don’t know how this issue will end up being resolved. One thing does seem clear to me, however: if authors (in the aggregate) have anything to say about it, the future of OA is unlikely to include CC BY as a required feature. Of course, not everyone wants authors to have anything to say about it. That fact should prompt us to deep and serious reflection about what we think the limits of academic freedom ought to be.

Rick Anderson About Rick Anderson

Rick Anderson (rick.anderson@utah.edu) is Associate Dean for Collections & Scholarly Communication at the University of Utah’s J. Willard Marriott Library. He serves on numerous editorial and advisory boards and is a regular contributor to the Scholarly Kitchen blog. He currently serves as president of the Society for Scholarly Publishing, and a collection of his essays titled Libraries, Leadership, and Scholarly Communication was published this year by ALA Editions.

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Comments

  1. We have encountered this issue with College & Research Libraries, C&RL employs the CC BY-NC (non-commercial) license in order to address the concerns regarding commercial re-use, but it is something for which we have been asked about in the past by colleagues in the OA community. For the reasons you note, I continue to support this approach, but it’s clear that it’s an area of scholarly services and faculty liaison that is still emergent.

  2. Hi Rick

    These objections about commercial use are hypocritical. Why do they not object to commercial publishers making money from their articles? They usually sign away all copyrights to commercial publishers and NOW they have the gall to complain about others making commercial use of their work. Sometimes I just do not get scientists!!

    • Rick Anderson says:

      I can see why you might consider their objections wrongheaded, but I don’t think they can fairly be called hypocritical. There’s a big difference between assigning copyright to a specific publisher and making your work freely available for reuse by anyone in the world for any purpose whatsoever. There’s nothing necessarily hypocritical about being more comfortable with the former than with the latter.

    • THESE commercial publishers are sought after by the writer because they are engaged in the writer’s field of interest and study, with editorial staff that understands the specific territory, research implications, and shared values. This is very different from any and all commercial publishers/entities in terms of reuse, adaptation, remixing, performing intentions (with no restrictions) that could in many ways carelessly make mockery of serious research efforts and resultant societal benefit–as in political bias or religious restrictive practice and beliefs, military strategic justifications, etc.

  3. You ask whether the public has a “moral right” to access and reuse the results of publicly funded research. But it’s important to note that what you’re talking about is not the actual research results themselves, but rather the articles written about those results. If the public truly “owns” what they fund, then why are researchers allowed to lock up their discoveries behind patent paywalls, charging millions of dollars for taxpayer funded discoveries? In many ways, arguing about access to and reuse of the stories written about discoveries seems a distraction from dealing with the thorny issue of the discoveries themselves. It’s a bit like saying it’s vital that you can read about my cure for cancer, but if you actually want to use that cure, well, you’re going to have to pay me.

    Why does the public’s “moral right” only extend to sets of words and images in a particular order but not to actual research results?

    • Rick Anderson says:

      Hi, David —

      That’s a good question, and it’s one that reflects the complexity that lurks beneath the often simplistic rhetoric surrounding this set of issues. I can’t answer it directly because I’m not entirely sure where I stand on what the tax-paying public doesn’t and doesn’t have a moral right to when it comes to research results. (I’ve always liked your metaphor: just because the subway was built with public funds doesn’t mean the public has a moral right to ride the subway at no further charge.)

  4. What is the total economic “loss” thus far to academics from someone reusing their article in a commercial manner that they disagree with?

    And then what is the total economic gain to society from having articles available, even if commercially? Remember, “commercial” in this sense also applies to use in universities as teaching materials, which from the strict legal definition a CC-BY-NC would not allow (reuse in paid for course packs, etc).

    My guess is a few hundred $ on the side of doing something academics don’t commercially agree with, versus many millions of $ on the commercially agree with side. It would greatly improve your article to include, rather than omit, those benefits and use cases.

    There are many other legitimate cases that academics have in mind where CC-BY-NC could block reuse. For example, if cash changes hands, even at a non-profit, then CC-BY-NC would legally block that transaction. This is why the similar Open Source licenses for software, on which the Internet has been built, do not limit commercial activity. The greater good far outweighs any bad apples. One only needs to look at how open source software has impacted the world over the last couple of decades to understand what benefits CC-BY (and CC-0) holds for scholarly works.

    An excellent primer on the use cases where a Non-Commercial license actually harms academics is on Peter Murray Rust’s, University of Cambridge article https://blogs.ch.cam.ac.uk/pmr/2013/08/01/why-cc-nc-hurts-authors-hurts-readersreusers-and-only-makes-additional-money-for-publishers/

    You also fail to mention the inherit conflict of interest which Taylor & Francis had in that licensing survey. For them, there is a financial benefit if authors choose CC-BY-NC over CC-BY and so their survey needs to be taken with a grain of salt.

    • Hit enter too soon…

      For those more interested on the legal side of CC-BY vs CC-BY-NC the reason true Open Access has chosen CC-BY (and CC0) is the legal gray area that CC-BY-NC brings. A non-commercial license would open up academia to future litigation. All it takes is one unfavorable court to rule against reuse (even if agreed to by the academic) to bring lawsuits into universities.

      Again, this is why the open source software industry has for the most part done away with commercial clauses. It discourages legitimate reuse as people and organizations will be too afraid of potential litigation if unsure whether they’re using it commercially or not. The keyword is “commercial,” which is very grey in the legal sense and open for anyone to interpret in a court of law.

      Ultimately, NC does more harm than good.

    • I’m a bit confused by the “total economic cost” versus “total economic gain” argument. If it costs your company $1 to reuse my article, am I not a part of society, and thus hasn’t society just added $1 in gain from your private company? Why do the profits of technology companies and private universities benefit society while the profits of publishers do not?

      There are also “costs” in play here which are not economic. What is the reputational cost to a researcher when someone does a poor job translating their CC BY article into another language and spreads false information in their name? What is the reputational cost to a researcher when their CC BY article is repackaged by a sleazy publisher and sold to their colleagues for a high price? What is the reputational cost to a researcher when the images from their CC BY obesity study are used in ads on the sides of buses for snake-oil treatments? Given that academia is a reputation-based business, I find it unsurprising that researchers are keen to do what they can to protect and control their reputations.

      And to be clear, CC BY-NC does not in any way block reuse of an article. It just may require you to ask permission to do so if you plan to use it for commercial purposes. Sourcing the materials you need for your activities is part of the cost of doing business, even if you’re a not-for-profit. Essentially what is being asked here is that researchers and publishers sacrifice to save others effort and make the work of others more profitable. Why should a researcher put their own reputation at stake so Google or Pfizer or whoever can save a little time and make a little more profit? Why should a publisher act against the clearly stated wishes of its authors in order to help make some third party a little bit richer? Why do we not instead require a CC BY-SA license in order to hold those third parties to the same standards we hold the authors and publishers?

      Further, as asked above, why does this argument not extend to the actual research results. The $15M that Harvard pockets each year from selling paywalled access to its patents, even the $115M that the U of California system puts in the bank is chickenfeed compared to the societal costs of paying for the medicines and products that result from this intellectual property ($36.8B in 2012 from US federal research funding alone). Why are we wasting time on the stories written about the discoveries rather than the discoveries themselves? Why are we demanding that researchers give up ownership of their writings but not their discoveries?

    • Also, you suggest the T&F study is inaccurate. Are there any studies that show results that are contrary? Every study I’ve seen shows something similar. Also, in every instance I’ve seen where authors are given a choice of licenses (Nature, Cell, Elsevier, Wiley, biorXiv), authors overwhelmingly choose more restrictive licenses with CC BY being the least popular.

    • Rick Anderson says:

      What is the total economic “loss” thus far to academics from someone reusing their article in a commercial manner that they disagree with?

      Jason, you’re assuming that the authors who object to being compelled to accept CC BY are objecting on the basis of potential economic loss. That’s not what I’m generally hearing from authors. I’m hearing objections based on a belief that they ought to be able to have some say over the commercial reuse of their original work. It’s a rights argument rather than an economic one.

      You also fail to mention the inherit conflict of interest which Taylor & Francis had in that licensing survey. For them, there is a financial benefit if authors choose CC-BY-NC over CC-BY and so their survey needs to be taken with a grain of salt.

      Are you suggesting that by asking authors to express their opinions about CC BY, T&F was somehow pushing its respondents toward a particular answer? The questions in the survey look pretty neutral and non-leading to me.

    • David – you’re being naive to think that simply because an article isn’t CC-BY that it wouldn’t be used for nefarious purposes. Copyright infringement happens every day. The same is true with software under restrictive licenses – it is still misused. By and far the “reputation costs” you claim are not unique to the particular copyright license used, however the possibility of lawsuits is material if an article under NC is misused (or interpreted as misused by a court of law). Once those profits start falling at Elsevier, T&F, etc one can guarantee they’ll look at which universities and others are using their CC-BY-NC articles in a legal grey area and start filing the lawsuits. This is why they prefer it, it’s an option for the future. Were I a practicing lawyer I’d tell clients to stay away from using any NC article or risk litigation. Ultimately that leads to discouraging re-use, which is why funders are moving away from that non-commercial licensing. Funders want to encourage reuse, not restrict it.

      David – “Also, in every instance I’ve seen where authors are given a choice of licenses (Nature, Cell, Elsevier, Wiley, biorXiv), authors overwhelmingly choose more restrictive licenses with CC BY being the least popular.”

      FYI even Nature has moved to CC-BY by default. So, if you’re right then I do not know why Nature would go against the wishes of its authors. As stated in their announcement, “…CC BY license is widely considered to be the gold standard as it allows maximum reuse and discovery…” And in personal communications, and also spoken at conferences, there has been acknowledgment of survey bias and that re-ordering the choices resulted in different survey outcomes. (See announcement http://www.nature.com/press_releases/cc-by-4-0.html)

      Rick, you’re re-interpreting and putting words into my comment, which is bizarre. I only commented that you failed to disclose T&F’s financial COI.

      Economic and legal debates aside, I empathize with authors who still want CC-BY-NC or the equivalent. No problem. There are plenty of funders and publishers who will still offer that option. However, I also support the growing numbers who understand the benefits of CC-BY (or CC0) and that they generally are the best licenses for maximizing scientific reach and reuse by society. Were I personally funding millions I too would want that knowledge put to maximum reuse, so one can’t blame the funders for that.

    • Rick Anderson says:

      Rick, you’re re-interpreting and putting words into my comment, which is bizarre. I only commented that you failed to disclose T&F’s financial COI.

      I certainly didn’t intend to put words in your mouth or to re-interpret your comment. I’m trying to understand why you think T&F has a financial conflict of interest in asking authors to express their opinions about different CC licenses. If T&F were encouraging authors to oppose a license that goes against T&F’s interests I would see your point, but since it doesn’t look to me like T&F did any such thing in that survey, I’m not seeing where the conflict of interest lies. Can you explain?

    • Jason, it’s interesting to me to see you use terms like “nefarious” and “misuse” to characterize perfectly allowable reuses under CC BY. A better indictment of the problematic nature of blanket licenses, a better rationale for demanding control over one’s writing and reputation couldn’t be written.

      While abuses may happen under traditional copyright, authors do have legal rights to stop those abuses. Under CC BY, the things you call “nefarious” are legally allowed so nothing can be done about them. More restrictive licenses offer authors channels to block such abuse. Most large publishers have in-house counsel and entire legal departments who spend a great deal of their time pursuing such cases.

      Another problem with CC BY is that it provides no monetary incentive to enforce the terms it offers. Under copyright, a publisher has incentive to stop abuse. Under CC BY, no such incentive exists. As an example, it’s worth noting that the publisher of the original articles in the Apple Academic case cited above (PLOS) chose not to take any legal action against the violations of the CC BY licensing terms that occurred. Authors were left to pursue expensive legal action on their own.

      The Nature move to CC BY as default is 100% a public relations maneuver. They have not eliminated the other choices in any way whatsoever. However, the increased attention paid to their lack of OA uptake due to the debacle of their ReadCube article sharing program has put them on the defensive. Here they can make an announcement which will have little material change on author choice yet gains them good press. If they were truly committed to CC BY, why still leave the other options open? Also ask yourself, how many journals with the word “Nature” in the title offer CC BY (answer: 1, Nature Communications, no other Nature branded journal offers any OA option, let alone Creative Commons licensing).

      As far as changing the order around of the licenses offered, Nature did that experiment:
      http://www.nature.com/news/researchers-opt-to-limit-uses-of-open-access-publications-1.12384
      “The journal’s publisher, Nature Publishing Group (which also publishes Nature) yesterday revealed that of 685 papers accepted between July 2012 and mid-January 2013, authors chose either of the more restrictive licences 95% of the time — and the most restrictive, CC-BY-NC-ND, 68% of the time. In November 2012, the publishers wondered whether the ND licence might be most popular because it was the middle option listed on the copyright form. They changed the order, putting the ND licence first — only to find that even more researchers began to choose this option.”

  5. Richard Smith-Unna says:

    You state that under the Berlin declaration, “In order to be considered OA, the article’s content (and “all supplemental materials”) must also be made publicly available for any kind of reuse, including commercial reuse, without the author’s permission”. This is wrong – in making their creation OA the author explicitly gives permission for all kinds of reuse. Any reuse is therefore with the author’s permission.

    The same misconception comes up again in the article: “many authors […] are not comfortable allowing all comers to reuse their work commercially without at least asking permission”. Permission has already been given, by releasing the work under the license. If what you really mean is that authors want to be able to selectively give permission, with the option to profit from some uses of the work, that is what should be said, because the current phrasing gives the false impression that commercial reuse is without permission and somehow underhanded.

    • Rick Anderson says:

      You state that under the Berlin declaration, “In order to be considered OA, the article’s content (and “all supplemental materials”) must also be made publicly available for any kind of reuse, including commercial reuse, without the author’s permission”. This is wrong – in making their creation OA the author explicitly gives permission for all kinds of reuse. Any reuse is therefore with the author’s permission.

      I think we’re just saying the same thing in different ways, Richard. Once the author has made her work available on an OA basis (where OA is considered to include CC BY), anyone who wants to make commercial reuse of her work does not have to ask her permission to do so because that permission is built into the CC BY license. That’s exactly the issue I’m discussing in this article.

      If what you really mean is that authors want to be able to selectively give permission, with the option to profit from some uses of the work, that is what should be said…

      That’s not what I mean. What I am hearing from authors is not that they see CC BY as getting in the way of their making money on their work; rather, their concern is that CC BY takes away from them all control over how their work is used. Not everyone believes that authors should have any such control; this is where the conflict lies.

  6. The very act of having to get permission would put me off. Life is too short these days to stop and write to an author (or worse, multiple authors), or publisher, once one has worked out who to go to. Then wait till there is reply. If author is on holiday, wait a week. CCBY allows a quantum leap in the speed of scientific communication.

    So in my hypothetical journal, an author not agreeing CCBY need not waste my time or that of referees. At the very least, a journal should strongly encourage CCBY and explain the hidden pitfalls of -NC, or worse, -ND, both of which might be obvious first choices.

    If you were to survey a primary school to choose between chocolate and dried fruit, most would opt for former. The job of those in the know is to educate them, not to announce that chocolate is the way to go for kids. Sorry, sounds condescending, but I like simple examples. ;-)

  7. If the humanities and social sciences want to block commercial reuse, they should do so, but don’t try to call it open access. It’s not open if it requires negotiating rights for any sort of reuse.

    I do think it’s very misguided to object to someone other than the author capturing value, because that value would remain inaccessible otherwise. Some things are only valuable in the aggregate. I’m glad more funders are starting to realize this.

    • Rick Anderson says:

      If the humanities and social sciences want to block commercial reuse, they should do so, but don’t try to call it open access. It’s not open if it requires negotiating rights for any sort of reuse.

      The diversity of views on this particular point is part of what makes this whole issue so interesting and difficult. There are some who agree with you that unless it’s CC BY it isn’t OA. There are others — some of them prominent and influential members of the OA advocacy community — who say that such a position is unnecessarily narrow and counterproductive. So far, the evidence seems to suggest that authors tend to agree with the second position.

      I do think it’s very misguided to object to someone other than the author capturing value

      I’m not aware of anyone who does object to that. Any author who submits a paper for publication anywhere (under any copyright or access arrangement) is demonstrably fine with “someone other than the author capturing value.”

  8. Stuart Buck says:

    “In one recent situation, several authors who had published with PLOS and BioMed Central were startled and outraged to see that their articles had been bundled, without their permission but in full compliance with the terms of CC BY, into a high-priced book published by Apple Academic Press.”

    So authors are worried that articles that are all freely available at any time are somehow going to be resold at high prices? What happened here was certainly irritating, but at the same time without consequence. Who, after all, would buy such a book when they could access content for free already? Virtually no one.

    • Rick Anderson says:

      What happened in this case was without commercial consequence to the authors, certainly — they never had any intention of selling access to their articles. But authors tend to care about things other than money. How their work is presented, with whom it is associated, etc. — these are things about which authors often care quite a bit, and it’s one reason that so many of them want to retain some small degree of control over the re-use of their work. What Apple Academic Press did in this case is something that Elsevier could have done just as easily and legally. What if the authors don’t like Elsevier and would rather not have their work published in an Elsevier book? (The fact that Elsevier is relatively unlikely to do something like that is beside the point — we’re talking about what rights it is reasonable for authors to want to retain.)

  9. Something else not mentioned in the article is the additional financial burden placed on the research community by the CC BY license. Journals earn a significant amount of income from sources outside of the research community through licensing and rights arrangements. Examples include reprint sales to pharma companies and licensing fees paid by aggregators like EBSCO, ProQuest, JSTOR and the like. Any time a journal can bring in revenue from sources outside the research community, it can accordingly reduce the prices paid by researchers for subscriptions or article charges. Under CC BY, these revenue channels for journals disappear and all the costs of publication are now focused solely on the author.

    • Stuart Buck says:

      This is robbing one pocket to pay the other pocket. Licensing fees from aggregators ultimately have to be repaid when the aggregators charge for library subscriptions (mostly at universities). It’s not as if the licensing fees paid by aggregators are just free money into the research system — the research system ends up paying regardless. In fact, with CC-BY, aggregators will hopefully go away and be replaced by free services (a la Google Scholar or future non-profit indexing systems that would cost far less), resulting in overall savings.

    • Stuart–In my experience, the aggregators deal more with teaching institutions than research institutions. Most are offering articles with some delay (often a 2 to 3 year lag between publication and availability through the aggregator). These are not schools doing active research and have little need to see the newest and latest research papers for their teaching purposes. Hence the cost savings by relying on aggregators rather than the original sources. These aggregator subscriptions are thus not being paid out of research funding budgets, unlike a significant portion of OA author fees. Instead they come mainly from tuition and student fees. If these teaching institutions can stop devoting tuition/fee revenue to aggregator fees it will not be transferred to the research budgets of research institutions.

    • Rick Anderson says:

      This is robbing one pocket to pay the other pocket.

      Funny you should say that — it’s exactly the concern I’ve always had about author-pays Gold OA: the APC that you write into your research grant to pay a publisher represents money that then can’t be used to underwrite research. Some will argue that the trade-off is worth it, others might feel that it isn’t — but the reality of the trade-off is undeniable. You can only spend a dollar once, and if you spend it on dissemination of old research it’s no longer available to spend on new research.

  10. Timothy Vollmer says:

    I’ve always enjoyed Peter Suber’s explanation of open access literature as “digital, online, free of charge, and free of most copyright and licensing restrictions…OA removes price barriers (subscriptions, licensing fees, pay-per-view fees) and permission barriers (most copyright and licensing restrictions)” (http://legacy.earlham.edu/~peters/fos/overview.htm). For a lot of open access advocates, publishers, and funders, CC BY has become the gold standard for fulfilling a progressive vision of the definition described by Suber. Even Nature Publishing Group has made CC BY the default for their open access offerings, and in 2014 44% of its authors chose to publish open access immediately upon publication–up from 38% in 2013 (http://blogs.nature.com/ofschemesandmemes/2015/01/26/a-recap-of-a-successful-year-in-open-access-and-introducing-cc-by-as-default).

    As you mention, CC BY has been enshrined not only in the Berlin Declaration, but also mentioned several times in the document created during the 10th anniversary of the Budapest Open Access Initiative (http://www.budapestopenaccessinitiative.org/boai-10-recommendations). The recommendations coming out of that meeting recommended CC BY “as the optimal license for the publication, distribution, use, and reuse of scholarly work.” Within the same document the authors recognize that there is an OA spectrum along which authors, funders, and advocates move:

    “In developing strategy and setting priorities, we recognize that gratis access is better than priced access, libre access is better than gratis access, and libre under CC-BY or the equivalent is better than libre under more restrictive open licenses. We should achieve what we can when we can. We should not delay achieving gratis in order to achieve libre, and we should not stop with gratis when we can achieve libre.”

    You raise an interesting and important question in your post when you ask, “Where do we believe authors’ rights should end and the public’s right to access and reuse should begin?” From a public policy perspective, should authors that accept public funding be in a position to demand the use of a NonCommercial license that reserves for the author the commercial rights to sell access? If so, this is not full open access (http://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.1001210).

    It’s easy to understand why some think the public is getting a raw deal when it comes to being able to utilize the research and data that their tax dollars generate. It probably doesn’t help that incumbent commercial publishers continue to bring in 35% profit margins (http://www.nature.com/news/open-access-the-true-cost-of-science-publishing-1.12676). It’s well understood that the public typically has to pay for scholarly materials several times over before they are granted access to them, including public funds that pay for researcher salaries and journal subscription fees, not to mention the free labor provided by scholars for peer review. There are a lot of people who don’t think this is an efficient–or wise–use of public funds if in the end the public that paid for an article to be written has to pay a second time in order to read it.

    Instead, some groups like Creative Commons and the Open Policy Network are advocating that all publicly funded resources be openly licensed resources, and that those materials be made available under liberal open licenses that permit broad reuse (such as CC BY), or even put into the public domain using existing tools like the CC0 Public Domain Dedication. When something is created with public funds, the more clear it is to many (myself included) that the public should be able to enjoy full, unfettered access to it. Requiring CC BY on the outputs of grant funding has already been demonstrated, not only the examples you cited, but on the $2 billion Department of Labor program that is funding the creation of openly licensed digital educational content for community colleges to conduct worker retraining. All of these publicly funded educational resources will be licensed CC BY. The Department wants “to ensure that the Federal investment of these funds has as broad an impact as possible and to encourage innovation in the development of new learning materials” (http://www.doleta.gov/grants/pdf/SGA-DFA-PY-13-10.pdf).

    It should also be noted that many policies that have settled on CC BY as the default also contain a safety valve for releasing under a different license. For example, both the Hewlett and Ford Foundation policies say they will entertain exceptions/opt-outs if the grantee can make the case that CC BY doesn’t make sense or can’t be used for a particular publication or educational resource.

    Even if a slight rebalancing of the rights granted to the public to the research it funds is not convincing from a policy perspective, the question remains: given a choice, should scholarly authors share their works under more liberal licenses, or more restrictive ones? Which licensing option will best serve their interests and their needs while preserving their right to be credited for their valuable insights? Which license will enable the greatest exposure of their research and writings to the maximum number of readers? And how does maximum readership support the scholar’s personal, institutional, and discipline-specific research goals?

    Some projects have already shown the unexpected and delightful possibilities for reuse when liberal licenses like CC BY are used for scientific and scholarly research articles. By definition, CC BY articles and content can be used in ways not contemplated by the original author but which can produce interesting and useful in other related (or not) areas–specifically because the open license grants particular permissions in advance. For example, a small group of Wikipedians developed the Open Access Media Importer, which scrapes PubMed Central CC BY-licensed articles and uploads the audio and video materials (almost 19,000 files thus far) to Wikimedia Commons so that those resources can be reused within Wikipedia articles. The reason this content can be used on Wikipedia is because it is licensed under a liberal license such as CC BY. Content shared under NonCommercial licenses cannot be used on Wikipedia.

    The doors that open with liberal licenses not only benefit the public; they benefit authors as well. You mention that many authors are concerned about CC BY because they do not wish for their works to be used commercially. But do most scholarly authors have a reason to restrict commercial use because they have another venue for exploiting their work? I would assume that not all authors want or seek commercial rights in the first place because their primary goal is the widest dissemination of their research (of course, typically with attribution). These authors “write to be read,” and groups like the Author’s Alliance have sprung up to support such authors.

    • Rick Anderson says:

      From a public policy perspective, should authors that accept public funding be in a position to demand the use of a NonCommercial license that reserves for the author the commercial rights to sell access? If so, this is not full open access.

      At least, not according to PLOS (which, as a highly profitable publisher of OA content, has something of a vested interest in this issue) and many other influential members of the OA community. But that view remains controversial, and the disagreement matters. It’s also important to point out that authors who prefer CC BY NC are not necessarily seeking to retain the right to sell access; very often, what they’re trying to retain is the right to say whether or not others will sell access to their work or otherwise exploit it for commercial gain.

      When something is created with public funds, the more clear it is to many (myself included) that the public should be able to enjoy full, unfettered access to it.

      But what about when it’s only partially created with public funds, and partially created with non-public funds? That is, of course, the reality for virtually all formally-published scholarship. If the articles in question were purely the result of public investment, the question would be very simple. Unfortunately, they almost never are, and for that reason (among others) the issue is not that simple.

      Even if a slight rebalancing of the rights granted to the public to the research it funds is not convincing from a policy perspective, the question remains: given a choice, should scholarly authors share their works under more liberal licenses, or more restrictive ones?

      That question is a good and important one. But even if you and I were to answer it to our mutual satisfaction, another important one would remain: should authors be the ones to make the final decision as to what license they’ll use, or should they be forced to accept one license (whether as a matter of institutional policy, or in the form of a funder mandate, or by law, or in some other way)? Even those who agree on the superior virtues of CC BY don’t all agree on the degree to which authors should be coerced into adopting it.

  11. John Weitzmann says:

    I’ve been advocating OA for around 8 years, I know several well-funded concerns that may speak against it depending on special situations, but to honestly argue against proper OA i.e. CC BY for outcome of research _fully_funded by the public … leaves me flabbergasted and wondering whether a) I stepped into a time machine to 2010 or b) there might be vested interests behind such an article.

    I mean: The large science societies in Europe today push hard towards proper OA, whole editorial boards (i.e. scientists) of journals are leaving major publishers who do not offer OA compliant models or charge twice for them – and suddenly there is “messages” that scientists want to keep commercial rights in order to prevent others from making huge profits from research results fully or largely financed by taxpayers? Really? Maybe the author misunderstood something oder wanted to misunderstand?

    And what risk of big money being made is there really when something is put under CC BY and thus everybody is allowed to print, sell and make big bucks? Ask economists if you don’t have a sufficient gut feeling that this is bogus. If everybody can copy it AND must indicate it was freely licensed there is no economic incentive anymore for any predatorial or parasitical business model. None. There’s only a beneficial cut in transaction costs for transactions that have already been paid for. To demand commercial monopolies for such publicly funded content, that is predatorial.

    • Rick Anderson says:

      I’ve been advocating OA for around 8 years, I know several well-funded concerns that may speak against it depending on special situations, but to honestly argue against proper OA i.e. CC BY for outcome of research _fully_funded by the public … leaves me flabbergasted and wondering whether a) I stepped into a time machine to 2010 or b) there might be vested interests behind such an article.

      Sorry, is someone arguing against CC BY? I know I’m not. Are you equating the discussion of CC BY’s pros and cons and the airing of authors’ concerns with “arguing against” it? (If you are, then unfortunately you’re not alone.)

      I’d also like to ask you to be a little more specific about what you’re implying with regard to your comment on “vested interests.” Are you suggesting that I have a hidden agenda of some kind in discussing this issue? That would be a fairly serious accusation, and I think you should either make it so it can be addressed, or not make it, rather than coyly hinting at it.

      I mean: The large science societies in Europe today push hard towards proper OA, whole editorial boards (i.e. scientists) of journals are leaving major publishers who do not offer OA compliant models or charge twice for them – and suddenly there is “messages” that scientists want to keep commercial rights in order to prevent others from making huge profits from research results fully or largely financed by taxpayers? Really? Maybe the author misunderstood something oder wanted to misunderstand?

      Do believe that these two realities are mutually exclusive? (The two realities being that there are organizations pushing for what you call “proper” OA and some editorial boards jumping ship over the issue, while at the same time authors in large numbers are expressing dissatisfaction with compulsory CC BY?)

      And what risk of big money being made is there really when something is put under CC BY and thus everybody is allowed to print, sell and make big bucks? Ask economists if you don’t have a sufficient gut feeling that this is bogus.

      As I mentioned in response to an earlier comment along these same lines, the authors who prefer CC BY NC (or some other more-restrictive version of CC) are not necessarily thinking about who will or won’t “make big bucks” from reuse of their work. In many cases it comes down to being able to choose with whom their work will be associated. In some cases they don’t expect that reuse of their work will make anyone rich, but they have concerns about the for-profit reuse of their work in principle and don’t want it to be attempted without their permission.

      You may feel that these concerns are ridiculous or unreasonable. If so, again, you’re not alone. But whether you’re right or wrong, that’s only one important question; another important question is whether or not authors ought to be able to choose for themselves rather than having the choice imposed on them.

      To demand commercial monopolies for such publicly funded content, that is predatorial.

      Just to be clear here: you’re asserting that for an author to insist on keeping any control whatsoever over the commercial re-use of her work constitutes predatory behavior — is that correct?

  12. Richard James (@DElibrarian) says:

    I like Crotty’s point. Maybe some hep C drug research is OA, maybe not. You still need to pay $1,000 per pill for Sovaldi, so what of it? It’s not like the layperson can develop their own treatments out of fundamental research in medicine, so what’s the benefit of being able to read it? Practical point of care information usually is free online through different agencies (as is the primary research via the various UN agencies, if you’re in the developing world, CC-BY notwithstanding).
    Perhaps authors’ opposition to absolutist OA is understandable in simple human terms. To the extent that it has always been irksome to researchers to give away the store to publishers, at least it was still always identified as ‘theirs’. CC-BY completely strips away any residual pride of ownership.

    • Rick Anderson says:

      I don’t think I agree that CC BY “completely strips away any… pride of ownership.” That license does require attribution, which means that any reuse has to make it clear who the original author is. In this sense, there’s no difference between giving away your copyright to a commercial publisher (so it can publish your article, with attribution, in its journal) or making it available to anyone else who wants to publish it (with attribution). When I hear authors expressing concern about compulsory CC BY, it’s not because they’re afraid they won’t get attribution — it’s because they want to be able to choose how and where and by whom their work is published.

  13. Interesting