Hi Christoph and Heather,

Thanks for shedding light on this!

I'm doubtful that it's right to say that "in open-access publishing authors
typically grant a non-exclusive license to the publisher" (at least these
days) and I agree that it would be helpful to have a more detailed study,
e.g. some numbers about for how many CC-BY-published works it is actually
done like this vs. done with copyright transfer or an exclusive license. I
agree also that this step in the rights transfer chain should be more
explicit, to users, to the public, etc., including in tools like
HowOpenIsIt.

But why do publishers require an exclusive license or copyright transfer
for publications published under CC-BY in the first place and not just use
a "non-exclusive license to the publisher"?

>From what Heather writes ("no obligations to continue to make a work
available under a particular license") it seems there are clear downsides
to not just using a "non-exclusive license to the publisher", but there
surely must be benefits as well?

Frank

On 21 September 2016 at 22:50, Heather Morrison <heather.morri...@uottawa.ca
> wrote:

> hi Christoph,
>
> This isn't as simple as it appears.  Combining Creative Commons licenses
> (including CC-BY) under the copyright of the author combined with rights
> transfer to the publisher that are not much different from full copyright
> transfer appears to be a common practice.
>
> Elsevier has a particular clear example of this, as I wrote about here:
> http://poeticeconomics.blogspot.ca/2015/05/author-
> copyright-in-name-only.html
>
> However, Elsevier is not alone. Last year in examining APC publishers I
> recorded a number of anomalies here: http://poeticeconomics.
> blogspot.ca/2015/05/open-access-publishing-current-issues.html We are
> still working on the 2016 APC survey.
>
> This is important. If the publisher, not the author, is the real rights
> holder and hence Licensor for CC purposes, the Licensor has no obligations
> to continue to make a work available under a particular license, unless
> they have contracted to do so with the author.
>
> If this is a common practice, note that it means that it is not possible
> to tell from looking at the license whether there has been a rights
> transfer or not. A CC-BY license indicating author copyright may be nominal
> only. You have to examine any license the author has agreed to with the
> publisher to be certain. Not every publisher posts samples of such
> agreements online.
>
> Whether this would hold up in a lawsuit in a particular jurisdiction is a
> different question, as is whether authors are retaining copies of what they
> have agreed to. A record of payment for an article under a particular CC
> license likely not address this transfer of actual rights under copyright.
>
> This situation is one of the reasons I strongly recommend that open access
> policy always require green OA archiving deposit, even if the policy-maker
> wishes to support transition to OA publishing. The license for a downstream
> CC licensed work cannot be revoked even if the publisher prefers not to
> continue to make the work available under those terms. This provides
> backup, as well as a disincentive to potential future backsliding on
> rights.
>
> best,
>
> Heather Morrison
>
>
> On 2016-09-21, at 3:58 PM, Christoph Bruch <christoph.bruch@os.helmholtz.
> de>
>  wrote:
>
> Dear All,
>
> 2 day ago OASPA has addressed
> “Best practices in licensing and attribution: What you need to know”
> In a blog post
> http://oaspa.org/best-practices-licensing-attribution-need-to-know/
>
> The rights transfer chain is addressed in the following paragraph
>
> “Instead of transferring rights exclusively to publishers, which is the
> approach usually followed in subscription publishing, in open-access
> publishing authors typically grant a non-exclusive license to the publisher
> to distribute the work, and all users and readers are granted rights to
> reuse the work under the terms of a Creative Commons license. CC-BY allows
> for unrestricted reuse of content to maximise the reach and influence of
> the work, subject only to the requirement that the author is given
> attribution.”
>
> I appreciate that OASPA has picked-up the issue but believe firstly it
> needs to be treated in more detail and secondly OASPA should issue a
> recommendation based on this more detailed study.
>
> This recommendation should include that publishers clearly explain their
> licensing practices so authors and funders can fully understand.
>
> Regards,
>
> Christoph
>
>
> Christoph Bruch
> Helmholtz Association
> Helmholtz Open Science Coordination Office
> http://os.helmholtz.de
> W: +49 (0)331 28 82 87 61
> M: +49 (0)151 14 09 39 68
>
>
> *Von:* goal-boun...@eprints.org [mailto:goal-boun...@eprints.org] *Im
> Auftrag von *Christoph Bruch
> *Gesendet:* Freitag, 27. Mai 2016 09:33
> *An:* 'Global Open Access List (Successor of AmSci)'
> *Betreff:* Re: [GOAL] CC-BY with copyright transfer - correction
>
> Dear All,
>
> I raised the issue transparency of rights chains in conversations with
> OASPA and CC.
>
> From what I understand there is no recommendation in this respect from
> OASPA and CC does not offer routinely a way to indicate who is the actual
> rights holder as they assume that this is the author.
>
> As I see it, OASPA should develop in cooperation with the academic
> community recommendations that OA publication for which APC are paid should
> not involve any individual rights transfer to the publisher.
>
> Instead the publisher should rely on the CC-BY license provided by the
> author.
>
> Attention has to be paid to rights of included third party works such as
> illustrations.
>
> I will suggest to CC to consider ways to better identify the licensor.
>
> Regards,
>
> Christoph
>
>
> Christoph Bruch
> Helmholtz Association
> Helmholtz Open Science Coordination Office
> http://oa.helmholtz.de
> W: +49 (0)331 28 82 87 61
> M: +49 (0)151 14 09 39 68
>
>
>
> *Von:* goal-boun...@eprints.org [mailto:goal-boun...@eprints.org
> <goal-boun...@eprints.org>] *Im Auftrag von *Couture Marc
> *Gesendet:* Mittwoch, 25. Mai 2016 19:46
> *An:* Global Open Access List (Successor of AmSci)
> *Betreff:* Re: [GOAL] CC-BY with copyright transfer - correction
>
> Hi all,
>
> Greg Tananbaum, from SPARC, informed me that there has been a change in
> 2014 in the  “Copyrights” criteria of “How open is it”, which now stress
> authors’ rights/permissions more than copyright ownership.
>
> The original, 2013 version I discussed is the one available on SPARC own
> website; Greg told me this will soon be fixed. The version available on
> PLOS website should be the right one, though:https://www.plos.org/
> files/HowOpenIsIt_English.pdf
>
> The fact remains that the very notion of “author/publisher copyright
> ownership” should treated with much caution: as always, one must read the
> “small print”.
>
> Marc Couture
>
>
> *De :* goal-boun...@eprints.org [mailto:goal-boun...@eprints.org
> <goal-boun...@eprints.org>] *De la part de* Couture Marc
> *Envoyé :* 24 mai 2016 08:50
> *À :* Global Open Access List (Successor of AmSci)
> *Objet :* Re: [GOAL] CC-BY with copyright transfer
>
> Hi all,
>
> I also agree that this is an important, but badly treated/understood issue.
>
> For instance, in SPARC’s “How open is it” scale, author copyright
> ownership gives a minimum of 4 (over 5) for the “Copyrights” criterion,
> irrespective of possible restrictions that, as one sees, may amount in
> practice to no more rights than publisher ownership. Thus Elsevier’s
> exclusive licence gives them 4/5 for this criterion.
>
> http://sparcopen.org/wp-content/uploads/2016/01/hoii_guide_rev4_web.pdf
>
> In 2012, in my response to SPARC’s Request for Comments on a preliminary
> version of this guide, I had stressed this exact problem, explaining that
> the real issue was author control over usage, not copyright ownership per
> se. I don’t know if I was the only one to do so, but nothing was changed in
> the final version. This is the kind of situation that makes me believe that
> the issue is all but well understood.
>
> Marc Couture
>
>
>
> *De :* goal-boun...@eprints.org [mailto:goal-boun...@eprints.org
> <goal-boun...@eprints.org>] *De la part de* Peter Murray-Rust
> *Envoyé :* 24 mai 2016 04:38
> *À :* Global Open Access List (Successor of AmSci)
> *Objet :* Re: [GOAL] CC-BY with copyright transfer
>
>
> I agree with Heather, this is unclear and needs checking. There is a
> difference between the author of a work and the owner. I would agree that
> it appears to be a deceptive practice. I have had similar problems
> "arguing" with Elsevier about text-and-datamining "licences" where the
> licences apparently give rights to Elsevier.
>
> I will try to get an informal opinion.
>
> On Fri, May 20, 2016 at 6:18 PM, Heather Morrison <
> heather.morri...@uottawa.ca> wrote:
> Elsevier's copyright page provides a very clear example of copyright
> transfer combined with CC licenses. Elsevier is not alone in this practice;
> I see this quite frequently while looking for APCS.
>
> The Elsevier copyright page:
> https://www.elsevier.com/about/company-information/policies/copyright
>
> States under "for open access articles":
> "Authors sign an exclusive license agreement, where authors have copyright
> but license exclusive rights in the article to the publisher. In this case
> authors have the right to share their articles in the same ways permitted
> to third parties..."
>
> This language makes it very clear that when Elsevier applies CC licenses,
> Elsevier (or one of its partners)  is the Licensor or copyright holder,
> even when there is a copyright statement indicating the author holds
> copyright.
>
> I argue that this is a deceptive practice that I call author nomination
> copyright.
>
> This is important,  because CC licenses place obligations downstream for
> licensees, not Licensor. The copyright holder of a CC license has no
> obligation to continue to provide a copy of the work under the same terms
> in perpetuity (unless there is a separate contract).
>
> To assess the extent of this practice one must examine journal/author
> contracts, not just visible indications, because even if an author is
> licensed CC-BY and indicates the author as copyright holder, it may
> actually be the publisher who owns all the rights under copyright.
>
> best,
>
> Heather Morrison
>
>
>
>
>
> _______________________________________________
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> GOAL@eprints.org
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>
>
>
> --
> Peter Murray-Rust
> Reader in Molecular Informatics
> Unilever Centre, Dep. Of Chemistry
> University of Cambridge
> CB2 1EW, UK
> +44-1223-763069
> _______________________________________________
> GOAL mailing list
> GOAL@eprints.org
> http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
>
>
>
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