Guest post by Richard White Manager, Copyright & Open Access at University of Otago Aotearoa New Zealand
I am often asked to advise on licensing, sometimes by editors who are moving a journal to open access or by authors faced with a licence choice in the process of submitting an article. For many, the more traditional “all rights reserved” approach is simpler, a warm blanket of familiarity. So, while these days people recognise that allowing others to access and reuse their work is beneficial, amid all the legalese and myths about OA, they feel unsure about throwing off the blanket just yet.
Here are a few pointers about open licences. There are other open licences around but I will stick to Creative Commons (CC), as these are by far the most prevalent in academic publishing.
CC licences preserve your right to object to misuse of your work.
A typical concern about open licences is “improper” use of a work, such as misattribution, false claims of authorship or what we call “derogatory treatment” of a work, that is, where the reputation or integrity of the work or author is harmed. However, here there is no difference between all rights reserved and open licences. Moral rights are always retained with any CC licence, which means misattribution or derogatory use of your work can be handled the same way with open or closed rights. Correct attribution is a legal requirement under any variety of CC licence just as it is with all rights reserved. Nor can someone reusing your work imply any sort of endorsement from you.
Along the same lines, people often think that choosing a No Derivatives (ND) option further protects against improper use of your work. Copyright laws around the world already allow people to use your work in certain ways, such as private study, criticism or review, or news reporting. As above, this is not affected if a work has an open licence: these are statutory rights that people can exercise however the work is licensed.
No Derivatives (or ND) does not mean, as people often think, that the only thing people can copy is the whole work in its entirety. It means people cannot make a derivative work or, in simpler terms, an adaptation of the work (see: what exactly is an adaptation?). People can still, say, reproduce something in another format or copy a chapter out of an ND work for teaching; but ND would prevent a translation into another language because that’s an adaptation. The CC website has an excellent piece that goes into detail as to why using ND for academic publications is misguided.
In fact, I would argue, even if someone plagiarises you or misrepresents your work, copyright is unlikely to be your first defence. You’re much more likely to use norms of academic ethics, such as initiating a complaint through letters to the editor or arguing for retraction of a work, than you are to claim copyright infringement. (You might go down a legal route, especially if your work has commercial value, but in my experience this is an exceptional case).
While we’re thinking about commercial aspects, the Non Commercial (NC) condition doesn’t offer the protection you think it does.
First of all, copyright protects the expression of an idea, not the idea itself. So, if you publish your amazing formula for that new miracle cure in an all rights reserved journal it is only the words you have chosen to describe it that is protected (plus formatting, layout etc.), not the idea itself. Protection of ideas is what patents are for and those require an onerous, lengthy and expensive process of proof and registration. So, if you publish your idea in a paywalled journal it is just as copyable as if it was published in an open access journal (remember you still have your moral rights, as described above). The difference is that the all rights reserved article itself is protected by copyright and can’t be copied without permission being granted. Choosing NC does mean that someone can’t make money off the work in question, which, in this example, means the article itself, not the ideas or theories contained in it.
Still, it’s easy to empathise with the impulse to choose the NC option: why should anyone make money off your work? To this I would say: researchers have happily been signing copyright transfer agreements for years with publishers. You have explicitly been giving one party the right to make money off your work to some of the most profitable companies on Earth.
In terms of your own rights, with an open licence you have more rights to your own work than with a copyright transfer agreement. If your work is published with a CC BY licence you can copy it, adapt it, use it in teaching, adapt it into other forms, translate it, and so on. The thing you have to weigh up with CC BY is that other people have these same rights. Are you happy for others to reuse your work in the same way, bearing in mind what we’ve learned above about your moral rights being unaffected?
Choosing an NC or ND licence restricts other people’s uses but it might actually restrict your own rights, depending on the agreement you sign. If part of the agreement is that you transfer copyright to the publisher the CC licence is applied by them, your rights are the same as any reader, i.e. you can’t use the work commercially or adapt it. Only the copyright holder can do these things – the publisher. Other agreements let you retain copyright, which is better in terms of your own rights. However, be careful to read the fine print. As explained elsewhere, some publishers offer you a CC BY NC ND licence where you retain copyright but also grant them an exclusive licence to commercial and adaptation rights, as well as the right to sublicense the work to others as they see fit. “Exclusive” is a key word here: you are nominally still the copyright holder but you can’t exercise any rights other than those any reader has under the CC licence. In such cases, if you are choosing NC because you’re worried about commercial exploitation of your work, be aware that you are allowing commercial exploitation by one party (the publisher).
Other considerations about open licences:
- CC BY is the easiest to understand.
- Governments, funders and all the big OA-only publishers use CC BY.
- NC or ND conditions mean your work can’t be copied onto Wikipedia.
- Do you want your work to be accessed and reused (without the barrier of permission) by people who often have no access to subscription material: businesses, entrepreneurs, other educators, students, government agencies, citizen scientists, community groups, etc?
- Yes, someone could make money off your work. Since the work is available for free and they have to acknowledge the source and the open licence, they’re only likely to do so if they add some value.
- Outfits like EBSCO or ProQuest already harvest OA content from all sorts of sources and include it in their commercial databases. This is perfectly legal (for CC BY works, at least) and no-one seems to have particularly noticed or complained. It just means there are different ways to find the work.
Hopefully this helps readers appreciate that licence choice should be made with an understanding of what this really means. There will always be cases where an NC or ND licence or all rights reserved is appropriate but, when I explain these things to people, in most cases a CC BY licence gives them the rights they are interested in as authors. A poorly-informed licence choice can cut off a limitless number of potential positive uses because you’re worried about a tiny handful of potential problems that are better dealt with in ways that have nothing to do with copyright.