Thursday, October 24, 2013

Academic Freedom License: An Alternative to CC-BY

Professor Peter Mandler, President of the Royal Historical Society allegedly made this comment today at an Open Access event held in London. I was not at the event, but I have heard this concern expressed before: CC-BY licenses allow someone to take an academic work, completely twist the words of the author, and republish it in a way that suggests those are the opinions of the author (either intentionally or through ignorance).

The fear is certainly valid, whether you agree with the interpretation of the license or not. No academic would be happy with the idea of someone twisting their words and republishing something that, if misconstrued, could damage their reputation as a scholar.

I'm inclined to suggest that a CC-BY license does not in fact grant these rights, as the fine print about 'moral rights' points out, noting that 'derogatory treatment' of the licensor's work is not permitted.

Nevertheless, the terms of the license do suggest it is up to the licensor to monitor and police this activity, and if necessary, turn to the courts to enforce it. That's just not practical for a busy academic.

Remixing isn't the only problem. Copyright of images or graphs can also be an issue. Anyone who gives a public lecture these days will be familiar with the release forms that you're asked to sign that require you to grant someone the right to reproduce images and graphs you don't own that happen to be on your powerpoint slides. Academic monographs have the same problem. How can we release our content as open access if the work contains someone else's work for which we have had to ask permission?

If I'm not mistaken, these two issues are the biggest objections to CC-BY licenses for the humanities and social sciences. Thankfully, Professor Mandler has offered another solution, and I'm all for solutions:

New License needed for HSS (Humanities and Social Sciences)

What a fabulous idea. What on earth are we waiting for? I present to you all for consultation: the Academic Freedom License, designed specifically with the needs of academics in mind, that both promotes open access and reuse, and prevents the types of abuses outlined above.

Academic Freedom License

For works released under an 'Academic Freedom License', you are granted the right:

To Share - to copy, distribute and transmit the work in its entirety only.
To Analyse - to data mine and study the work and publish or create work of your own based on that analysis.
To Sell - to make commercial use of the work in its entirety only.

Under the following conditions:

Attribution - You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work)

Excluding - You are prohibited from sharing, analysing, or selling any aspects of the work specified by the author or licensor (such as images under copyright or sections not produced by the author)

With the understanding that:

Waiver - Any of the above conditions can be waived if you get permission from the copyright holder.

Public Domain - Where the work or any of its elements is in the public domain under applicable law, that status is in no way affected by the license.

Other Rights - In no way are any of the following rights affected by the license:
  • Your fair dealing or fair use rights, or other applicable copyright exceptions and limitations;
  • the author's moral rights
  • Rights other persons may have either in the work itself or in how the work is used, such as publicity or privacy rights


Torsten Reimer said...

Hi Adam,

We have discussed this yesterday, but as Twitter puts some limitations on discussions of that nature I have decided to leave a comment on the blog instead as I hope that will make my argument clearer.

Introducing a new license means work and additional effort. You need lawyers to design it and then you need a lot of communications and advocacy effort to explain it to the potential users. Even now, with just a handful of CC licenses that is really hard work and as the event yesterday showed even those with an interest in this space don't seem to fully understand the basic principles of these licenses
There is also a complex institutional process regarding Open Access where in order to pay Article Processing Charges universities have to check whether the license chosen actually meets the funders' requirements. Publishers charge more for some licenses too - CC BY tends to be more expensive for the authors than CC BY NC, partly because the latter protects commercial interests of the publisher. Introducing even one more license into this mix has the potential to seriously complicate things - I invite you to come visit us at Imperial College to understand the complexities of compliance with funder mandates and the hard work colleagues in the library have ahead of them to educate colleagues on licenses.

For those reasons I don't think adding another license is a good idea, also as it takes effort away from communicating the current licenses so that everyone understands what they can do. Even so I would not be against suggesting a new license if that would really meet a need of the academic community - and if it would be feasible to convince the funders to accept this license. Without funders supporting a license there is not much way ahead I am afraid.

This brings us to the key question: is there a need for the license you suggest or not, i.e. does CC allow you to cover what your Freedom license sets out.

Basically, the license you suggest looks like CC BY. It allows all sorts of reuse, including commercial use, and requires attribution without giving the impression of endorsement. That is exactly what CC BY covers.
You do however add two changes: 1) highlighting that elements in the document may be available only under a different license and 2) only allowing distribution of the document (data set etc.) in its entirety.

1) What would stop you from releasing your document as CC BY and just add a note with a different license to an element such as a photo?

2) Won't stop people from quoting and misquoting your document; copyright is limited by fair use and other restrictions. I can still take your work out of context and twist your meaning. However, you do hurt legitimate reuse as having to reproduce, let's say a book, in its entirety if I only need four pages will effectively make it useless for re-use.

So in short, your license does not add very much to CC, but what it does add does not stop the behaviour it was meant to stop and it makes legitimate re-use much harder, perhaps even impossible.

Therefore I'd rather concentrate on explaining CC better instead of putting effort into something that does not seem that helpful.


Tim Hitchcock said...

I tend to agree with Torsten on this. CC-BY works for me, and thre is no licensing agreement that will prevent the ill- and small-minded from misusing academic work. Besides, the essence of the thing is a belief that good work, strong argument and being right, is the best defence against mis-use. The 'whole document' thing would also seriously prevent re-use. Imagine for a moment, putting together a course reader from the chapters of twenty different books. The only way to do it under your license would be to contact each author separately.

Adam Crymble said...

Thanks both to Torsten and Tim for your comments.

I think I'm looking at this issue from a slightly different perspective than Torsten. I understand there are all sorts of discussions going on with universities and libraries and funding bodies. Those are important for the people involved, but more important to me is that we promote Open Access so that research can have its maximum impact and anyone in the world can access the findings of our work whether they are employed by a university or not.

I'm not particularly worried if that Open Access ticks the boxes of the Wellcome Trust or the AHRC or HEFCE. I'm more interested in developing a culture of Open Access that academics want to be a part of.

For that to work, I think the Open Access movement needs to make sure it's allowing researchers the agency to participate in this process. If someone says CC BY or CC BY ND doesn't work for them because they don't believe it protects their particular interests, then I believe it's our job to say, Ok, what do we need to change to make you comfortable? Shouting at them to "sign the damn contract, it's the only way!" or (as is increasingly the case) making them look foolish and uneducated, is not going to win converts to this cause. And I reiterate, that for me, this cause is to convince people to share their work more openly.

There are a million different leases out there. A million more contracts between individuals on a myriad of issues. What makes intellectual property so simple that it can be solved with one of 3 licenses?

Tim, you note my proposed license doesn't allow someone to take a chapter and put it in an edited collection. You're right. But we can fix that. It was just a proposal. It should probably also make it clear if translation or reformatting (eg, to speech or video) is allowed. There are lots of use-cases. All these skeptics are asking for is the right to be consulted about which ones are acceptable and which are not. If we listen to their concerns and let them participate, I think we can achieve open access whether HEFCE mandates it or not.

But a non-compromising approach that demands CC or nothing isn't going to win anyone over.

Torsten Reimer said...

Adam, the fact that I am involved in the system that delivers OA does not mean that I don't share your wish to make OA something that all academics want to participate in. Even so I am still not sure why we should invent a new license when the existing one does what is required. Your answer to someone not understanding CC seems to be to invent another license. My suggestion is to explain CC better so that they understand that it meets their requirements.

Now, if the academic community has a requirement that does not stop the main drive behind OA - widest dissemination and reuse - and that cannot be addressed by CC licenses (of which there are six, not three, plus CC0) then we should have a discussion. From looking at your license suggestion I am still not entirely sure what that requirement is (see above). What am I missing?

Adam Crymble said...

Hi Torsten,

I think the only thing you're missing is that these people feel alienated by the insistence that their problems are already solved and they're too thick to realise it.

If I decided I wanted to classify the colour of all the walls in my house, and you said my bedroom was blue and I said it was cyan, we could either armwrestle or hold a series of symposiums to sort it out, or I could just say 'ok fine it is blue' because I recognize that actually achieves my origional goal of classifying colours.

You say these people need to be educated, but I'm not convinced they're going to be receptive to it, because they feel their needs are not met by these contracts/licenses and the response they are getting is consistently, not to worry about it, just sign, just sign.

This is not an intellectual issue but a human resources one. Those people need to FEEL involved in a discussion in which both sides give and take. So far there's been very little give from their perspective, and while that ceases to change I don't think you'll find they give any more. I'd certainly argue that the skeptics have come a lot farther in terms of compromising than have those on the OA side of the debate.

Torsten Reimer said...

Licensing is complicated. I don't claim to understand it all and I am certainly not saying that academics who have concerns about CC are thick. What I have been saying throughout this conversation is that we need to explain it better. Note that this is a requirement on us - funders, publishers, CC, libraries etc. - and not on the academics.

If I understand you correctly you say that this is not about CC not being suitable but about academics feeling alienated by the (repeated) suggestion they don't understand that/how the license works. Your solution is to re-brand CC BY in the hope that this will make things easier to understand. So this comes down to you saying that if someone has concerns about a tool and how it is presented it would be better to develop the same tool again from scratch under a new brand - instead of addressing the concerns with a better manual. Apart form the additional effort required I am also concerned about the risk that academics will have concerns about the new license as well - so you would find yourself in the same situation as before, just more confusing because of there being another license to explain.

So unless a clear requirement that does not stop the main drive behind OA - widest dissemination and reuse - is put forward I prefer to put my effort into helping academics to understand and use the tools they currently have and/or are mandated to use. If in the process of working on your Freedom License you discover requirements that are currently not met I'd love to hear about them so that we can join forces. Until then I'd rather support my colleagues in the library in their mission to provide good advice on the current licenses.

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