I’m fast moving into areas that I really have no expertise in and so apologies to those on the list much more knowledgeable than I. But I was struck by this point that Heather made:
The License is granted by the Licensor. Once the licensee has a copy of a CC-BY licensed work, the license is irrevocable. However, the Licensor has every right to change their mind, take down the CC-BY licensed work and replace it with a work with a more restrictive license. To understand whether a publisher has the rights of the Licensor, it is necessary to consider the contract (written or implied) between author and publisher. So far, so good. But surely the ‘work’ that is replacing the CC-BY work has to be a new version. Surely you can’t take down a CC-BY version of a paper, relabel it as 'All Rights Reserved' and repost it. In our PMC example, the person shutting PMC down would have to get the license holders of all the CC-BY content to provide new version of the papers before they could reissue them with new restrictive licenses. Is that likely? >From the CC FAQs >(https://wiki.creativecommons.org/FAQ#Can_I_change_the_license_terms_or_conditions.3F): What if I change my mind about using a CC license? CC licenses are not revocable. Once something has been published under a CC license, licensees may continue using it according to the license terms for the duration of applicable copyright and similar rights. As a licensor, you may stop distributing under the CC license at any time, but anyone who has access to a copy of the material may continue to redistribute it under the CC license terms. While you cannot revoke the license, CC licenses do provide a mechanism<https://wiki.creativecommons.org/Frequently_Asked_Questions#What_can_I_do_if_I_offer_my_work_under_a_Creative_Commons_license_and_I_do_not_like_the_way_someone_uses_my_work.3F> for licensors to ask that others using their material remove the attribution information. You should think carefully before choosing a Creative Commons license<https://wiki.creativecommons.org/Considerations_for_licensors_and_licensees>. David On 8 Apr 2015, at 19:26, Heather Morrison <heather.morri...@uottawa.ca<mailto:heather.morri...@uottawa.ca>> wrote: hi David, On 2015-04-08, at 12:47 PM, David Prosser wrote: Hi Heather OK, so let’s take your specific example. Every open access paper in PMC is mirrored in Europe PubMed Central. So our publisher not only has to get PMC switched off, but Europe PMC as well. Oh, and PMC Canada. I suspect that the moment that it is suspected that any publisher is trying to get all three sites shut down, through a massive lobbying operation on multiple national governments and private trusts (the funders of the three sites), somebody (and I would put money on Peter Murray Rust being first in line) will download the entire corpus and make it available. And there is nothing anybody can do to stop that somebody. PMC-International is a very good thing for the future of open access, and I advise all countries to set up mirror sites and actively participate in PMC-International. There is nothing to stop anyone from lobbying in more than one country or region at a time. The push for austerity / structural adjustment / privatization of public services over recent decades has been global in scope. Right wing governments in North America are very receptive to arguments for cuts to public services and privatization of public services. I cannot speak for Europe except to note that at least a few countries (Greece, Spain, UK) either are going through, or have recently gone through, austerity measures. In this scenario (lobbying to remove funding for PMC) someone downloading the corpus for re-release as open access would be a good thing. I have not investigated the cost of providing an equivalent service. Can anyone advise as to the costs and/or resources necessary for an individual downloading all of PMC to provide OA services to the world, or how this might work? My perspective is that if most works are licensing under the NIH fair-use public access approach rather than CC-BY this would avoid the temptation to re-enclose, and that is much simpler than trying to re-create the system. The danger is greater when the CC-BY license is in the hands of a company that holds some or all of the rights under copyright. For example, if a fee is paid to Elsevier, Wiley, etc. to publish a work as CC-BY, there is nothing in the CC-BY license per se that would prevent the companies from reverting to All Rights Reserved or other more restrictive licenses. This could happen even if the author retains copyright, because author copyright retention can co-exist with transfer of virtually all rights to a publisher (some license-to-publish approaches are very much like this). Authors could in theory negotiate publishing contracts to prevent this; but don't expect the industry to develop this. Is this true? Legal experts will need to help me, but looking at the current CC-BY code I note (https://creativecommons.org/licenses/by/4.0/legalcode): Section 2 – Scope. 1. License grant. * Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to: * reproduce and Share the Licensed Material, in whole or in part; and * produce, reproduce, and Share Adapted Material. Once the paper has been offered under a CC-BY license that license is ‘irrevocable’. Does ‘irrevocable’ not mean what I think it does? Further, also under Scope: The License is granted by the Licensor. Once the licensee has a copy of a CC-BY licensed work, the license is irrevocable. However, the Licensor has every right to change their mind, take down the CC-BY licensed work and replace it with a work with a more restrictive license. To understand whether a publisher has the rights of the Licensor, it is necessary to consider the contract (written or implied) between author and publisher. I'm not a lawyer either but before going into academia, I had more than a decade's experience as a professional librarian negotiating contracts (including terms and conditions) for licensed resources for multiple libraries at provincial and sometimes national levels. I do have some training in this, and my experience is that this work requires some knowledge of how contracts works (much of the basics here were covered in the CLIR/DLF model license long ago), but the knowledge of how people buy, sell, and use electronic resources is also essential. * 5. Downstream recipients. * Offer from the Licensor – Licensed Material. Every recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License. * No downstream restrictions. You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material. 5.B means again, once issued under a CC-BY license you can’t add new licensing terms on top. 2.5.B. refers to downstream recipients. As above, this does not apply to a Licensor who changes their mind, takes down a CC-BY licensed work and replaces it with a version with a more restrictive license. The phrase "not offer any additional or different terms or conditions" applies to the legal terms and conditions; this would not prevent anyone from selling the work (terms, conditions and technological measures that one encounters before getting to the work). It is not clear to me whether this section refers to Adapted Works. Section 3. A. v. refers (in the context of adapted works), to: "a URI or hyperlink to the Licensed Material to the extent reasonably practicable"; Why does this matter? One interpretation is that someone can take a CC-BY licensed work and use it to create another work under a different license to exploit for commercial purposes. The downstream user cannot interfere with the rights of other downstream users to the original licensed work, however this means the original licensed work not the re-used work. For example, if I upload a picture to flickr and license it CC-BY, someone can take the picture, alter it and use it as the cover illustration for an e-book that they are offering for sale; they have no obligation to use the CC-BY license for their work, but they have an obligation to try to link to my flickr picture so that others can make use of their rights under CC-BY. This will work only as long as flickr continues to exist, as a free service, does not change their URLs, and I do not change my mind, remove the picture or change the license in the meantime. Thanks again for your contributions, Heather Morrison _______________________________________________ GOAL mailing list GOAL@eprints.org<mailto:GOAL@eprints.org> http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal _______________________________________________ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
