Tuesday, October 29, 2013

Is Creative Commons Flexible Enough for Historians?

Gumby and Monkey, by Joe (CC-BY-SA)
Creative Commons licenses are incredibly useful. They're easy to use. More and more people understand them. It's even possible to do web searches of Creative Commons content making it easy to find content you can use with confidence. The Open Access movement, particularly in the UK, seems to be promoting Creative Commons licensing as the best way to move towards open access to research, because it means we can (largely) leave lawyers out of it all and implement a standard set of licenses that everyone understands (or should understand). I see the practical merits in that and am a big fan of keeping costs at a minimum. But I also see the counterpoint, that many historians feel Creative Commons just isn't designed for them (see my previous post on Alternative Licensing). Sometimes that feeling is based on a misunderstanding. Sometimes, I think, it's justified. In the interest of opening that discussion, I thought I'd present a couple of scenarios in which I believe Creative Commons is not flexible enough for historians looking to manage the rights associated with their research.

For all of these scenarios, let's assume the work in question is an academic monograph written solely by me.

1) Supporting certain derivations

What I want: I'd like people to be able to translate my book into a range of formats (braile, French, audio, stage performance) without having to ask me, provided that every effort is made to ensure that the translation accurately represents the arguments and positions of the original, and the translator is listed as such on the title page or where applicable. This reuse is only permitted if the entire work is included in the translation.

Why this is important to me: I'm a big supporter of accessibility; I wouldn't want anyone working to provide access to my work for the blind to feel they were prevented from doing that good work by a legal restriction.

Why CC is not sufficient: CC-BY would allow this type of reuse. But it would also allow someone to translate only the introduction, or to pick and choose parts and rearrange them in a way that changes my message. I'm worried if they do that someone might get the wrong idea about my work. You may not think that's important, but it's my book and my reputation, and I am worried. I could use a 'no derivatives' license, CC-BY-ND, but I do want to allow certain types of derivatives under certain conditions.

2) Supporting certain commercial reuses

What I want: I'd like professors creating course readers to feel empowered to use parts of my book with their students. I'd also like private individuals to be able to use individual chapters in edited collections with modest print runs (let's say less than 500). I don't want Evil Publishing Ltd to be able to do the same without asking.

Why this is important to me: I'm a big supporter of ensuring students and my colleagues have access to my work. I also think it's important to support small entrepreneurs. But I know that the publishing industry is big business, and if they're going to make big money from my ideas, I think it's fair to ask that I get a cut of that. Anyone who has ever licensed stock imagery to use on a website or in print knows that the price of the license changes with the number of 'impressions'. In essence, the bigger the advertising campaign, the more money they want to charge you to use the image. This merely attempts to apply those types of restrictions on my book.

Why CC is not sufficient: CC-BY wouldn't give me the power to put the restrictions on Evil Publishing Ltd that I believe is important. Forcing me to use CC in this instance forces me to give away rights I would like to hold onto.

* * *

Those are just a couple of simple examples, which I don't believe are far fetched when considering licensing and reuse from the historian's perspective. For them to work, I think at the very least we need to adopt a CC-BUT license, in which creators are allowed to add restrictions to their license. As I said before, if the concerns of licensors aren't met, they won't get on board. I'd like them on board, but that may need to come at the expense of what seems on the surface to be a simple CC solution.

13 comments:

Jonathan Dresner said...

Actually, my understanding of current disability law is that republication of material in braille (and as sound recording when access is limited to those with documented disabilities) is, in fact, an existing exception to copyright. Authors aren't asked for permission before the Library of Congress National Library Service or Learning Ally (formerly Recording For The Blind and Dyslexic) makes material available.

If CC licenses don't recognize this, then they are a significant step backwards for disability access.

Adam Crymble said...

Thanks for making this point Jonathan. You could very well be right, as I'm afraid I'm not up to date on the current laws (in various countries) on the right to convert content to braile, etc.

Even if that's not a legal barrier, it is for me as an author if I don't believe the license covers my needs. I'm not likely to use something I don't think works. And even if we leave the braile example off, I'm still stuck in a situation where I cannot allow translation into foreign languages, etc. It's that lack of flexibility that I find troubling.

Torsten Reimer said...

Adam, there will always be a case where someone has a scenario that is not covered by a particular license. You can define a dozen licenses and yet it would be easy to come up with a dozen other scenarios that are not covered because someone has a special use case. The beauty of CC licenses is that they cover most general scenarios, that the basics can easily be communicated (considering how complex the legal scenario is) and that they are widely used and supported. Now, nothing is going to stop you defining a new license if you need it; however, on the level of detail you suggest - your scenario 2) contains at least seven elements and others may want a print run of 200 or also allow school teachers etc. - I cannot see this getting very wide uptake. And adding a few hundred licenses that cover scenarios similar to yours would really make things complicated.

However, I wonder if there is not a more elegant way. You could, in scenario 2), release your book as CC BY NC and add a sentence saying that you allow limited print runs for free. You could release your book in scenario 1) as CC BY ND and either say what derivatives you would allow or ask people to contact you. That's why the CC licenses say "Any of the above conditions can be waived if you get permission from the copyright holder." Unless there is a requirement that will be shared by tens of thousands or more content creators that seems a much better way to me.

Adam Crymble said...

Torstein, thanks for your comment. You suggestion for releasing additional rights a good one, because it offers flexibility. I'd encourage you and others to incorporate that in any programs to educate authors about rights management. I imagine you'd get a much more welcoming reception from the hesitant crowd.

Torsten Reimer said...

The interesting thing about this is that in none of the conversations I have had with academics here at Imperial College the issue you have described was even hinted at. Academics are mostly concerned about the worklfow, additional workload and someone telling them the journal they want to publish in is not suitable.

Funnily, adding more licenses makes the workflow more complicated, so it would go against what people told me so far. In many ways it is also not feasible as publishers, repositories and funders only offer/accept a few licenses and certainly no personal add-ons.

There is concern that HEFCE may mandate CC BY an nothing else, but so far all I heard was that some prefer the NC version.

So in the work I am currently involved in bringing this up would either be impossible, complicate matters for everyone or not address academics' main concerns. They want simpler workflows, faster payments of APCs, clarity which license they are allowed to use and what that means for them, not having to deal with publishers directly over payments, a "one button" solution for making their work OA. I am not saying that there are not other concerns but this is the current feedback from my constituents.

Arthur Burns said...

This is a very interesting thread. I think Adam makes a very clear statement about concerns in the historical community, a lot of which relate to the sense historians have (correctly)of the integrity of their work being founded in its totality: they have no objection to the reproduction of evidence they discover or cite via the traditional practice of footnoting, but they do worry about half sentences/paragraphs/arguments being reproduced where key qualifiers etc are omitted without there being clear evidence that this has happened.

I'm struck by Torsten's comment: is the clue here that the academics he consulted are at Imperial (where there are few humanities scholars, and no historians)? It is quite clear from the ongoing discussions that different types of academics have very different relationships to their prose and intellectual property which can't be assumed to be common across the HE community.

Torsten Reimer said...

Arthur, you are correct in saying that different disciplines have different concerns. My last comment was a response to Adam's suggestion regarding my current work, not a general statement about the needs of all academics. That's why I mentioned Imperial College, where I manage the Open Access project.

However, I am also a historian by training (Ph.D. on early modern English history), I work with the AHRC on one of their themes and I have a background in digital humanities. So I am very aware of the different publishing culture and that some issues, like OA monographs, don't have a one size fits all answer.

I understand that historians are concerned or feel this is driven by the needs of sciences more than the humanities. I am just not sure that what you describe is a CC related issue. After all, "half sentences/paragraphs/arguments being reproduced where key qualifiers etc are omitted" happened in my beloved 17th century, happened in the 19th century when history emerged as a profession and happened in the pre-digital 20th century. That is a failure of academic culture/practice and if copyright cannot stop this no license that, like CC, builds on copyright, can.

Torsten Reimer said...
This comment has been removed by the author.
Torsten Reimer said...

This week I was looking around for high profile journals that allow neither green nor gold open access. In the STEM subjects that does not seem to be a serious issue, but it is in the humanities - history in particular.

For instance, Past & Present, a journal that started out as an innovative venture, has an embargo period of 36 months for self-archiving. Effectively this means that no RCUK-funded researcher can publish there anymore. In 2016 with the HEFCE rules we may face a situation where no historian at a UK university may publish in P&P anymore.

Peter Mandler, speaking for the Royal Historical Society, argues that "30 of our leading History journals have made a stand on a 36-month embargo period", so he sees them fighting a good fight. The funders still don't change their policies, so what will UK historians do when they can no longer publish in 30 leading journals?

Why do I mention this? Because from a personal view I think it is issue like this that we absolutely need to address asap if we want to make OA work for historians.

Adam Crymble said...

You're right Torstein, that is an issue. But not all historians (in fact most historians I know) get funding to do their research. Many are still content with a bit of time at the archives. As a historian, I might be inclined to say 'who cares' and publish in P&P anyways, if I felt that was the best place to showcase my work. If P&P and similar journals find themselves slipping in terms of quality, then I imagine they will correct their policies accordingly.

My wife is one of your Imperial College academics. As an engineer, her concerns about publishing are vastly different than mine. We don't agree really on any aspect of copyright or dissemination. So like you, I do know the different cultures at play here. The fact that they're so different, to me, suggests they need different solutions. And it looks like HEFCE is starting to see that, which is a great step.

Torsten Reimer said...

History is indeed one of those subjects where a lot of research is unfunded. The issue with the proposed HEFCE policy is that if you want to return your research to the REF that does not matter anymore: no OA, not returnable to the REF. So this really affects everyone who wants a career at a UK university.

As you say that still leaves quite a few historians in the UK who may not be too concerned, but if I was working as a historian I'd be busy drafting emails to those leading 30 journals now. From what I hear about this most UK historians are not yet aware of the trouble ahead though.

The funders do acknowledge differences between disciplines, with embargo periods between 6-24 months (more like 12, but there are 24 month cases) to accommodate for the humanities in particular. HEFCE are likely to follow these periods, so as you say there is recognition of the differences.

Interesting to hear about your wife; who knows, maybe I will one day run into her at an OA event here. I can imagine your concerns may be different. For me being an author of a story and not "just" a researcher is what sets history publishing apart from the sciences.

Adam Crymble said...

The embargo periods are an interesting issue. If a journal has a 36 month embargo period, then in theory that work does not meet REF standards on Open Access. But REF wont' rear its ugly head again until 2020, meaning that I could 'embargo' my work for 60 months at which point it would be permanently Open Access as of REF submission day.

I'm not sure about the logistics here, but it seems to me that these history journals have about 3 years to actually get on board with OA before their authors are in any sort of trouble. It would be ridiculous to call a work non-OA that in fact was, just because years ago it had a longer-than-desierable embargo period on it.

Torsten Reimer said...

As it looks at the moment, from 2016 onwards REF-able publications will have to be made OA no later than at the point of publication. This means that unfortunately your strategy won't work here.

If P&P don't reduce their embargo periods within the next two years they are out - unless cases like this would be covered by an exemption or percentage targets. There will be some flexibility, but even so there is a risk that some historians may find some of their best work will not be considered for the REF.