A troubling result from publishing open access articles with CC-BY

For week four of the Why Open? course, we are looking at potential benefits of openness, as well as potential problems with it. There are many, many interesting stories and case studies listed on that part of the course, and I’m still working through looking at them (I’m interested in them all!).

For this post, I decided to add in another story that has recently come to my attention, and that hits home for me as an academic.

Rosie Redfield, Professor in the department of Zoology at the University of British Columbia, recently blogged about an issue that a colleague had experienced with an open access publication: after publishing in an open access journal (PLOS One), which puts a CC-BY (Creative Commons Attribution) license on published articles, she discovered that her research paper had been included in a collection of papers published by Apple Academic Press, for which the publisher was charging over $100 Canadian.

CC-BY logo, downloaded from the Creative Commons downloads page

Now, this may not seem so bad, because, after all, the CC-BY license allows this. It allows others to do anything they want with one’s work, so long as one is cited as the original author. So it would seem not to be the case that the publisher is doing anything wrong (that’s what I thought at first), and what’s really at issue here is authors not knowing that this sort of thing could happen. Thus it would seem that education about what CC-BY allows is all that is really needed (that’s also what I thought at first).

And even if the publisher is charging a lot of money for a book with open access articles in it, those articles still remain open access to be viewed by anyone, so no harm done, right?

Wrong. As I started reading more of Redfield’s posts on this issue, and when I read the results of a survey she did of researchers, I started to see some of the complications of the situation. Then when I met with her in person last week, I came to realize the nuances of what is happening and the potential problems that can result, both for researchers and for the public.

What’s the problem?

This is not simply a matter of authors being upset that someone else is making money off of their work (though as the survey results show, some do have that concern)–there are other problems as well. These are not listed in any particular order, but rather the order in which they’re coming to mind for me.

1. One might argue, as some of the authors in the survey did, that a publisher is making a profit off an open access work becomes more of a concern when authors have to pay a fee to publish in many open access journals (or to publish an article as open access in non-open access journals). Here’s a pretty thorough list of scholarly journal publishers and their “article processing charges” (APC’s). I was once asked if I wanted to pay over $2000 to have a 2-3 page book review published as open access in an otherwise closed journal. I decided the book review just wasn’t that good. 

The point is, it’s not just that some people are upset that others are making money off their work, but rather that they had to pay to publish their work open access, and they did this because they wanted the work available for others to view for free. Well, of course, it isn’t always individuals paying these APC’s–people can use grants to do so, and/or they can get funding to do so from their institution, just to name a couple of other sources of the money.

A rebuttal could be: well, the articles are still available to view for free, on the journal’s website, and likely other places around the web as well. This brings up the next problem.

 

2. Just because the articles are available for free elsewhere doesn’t mean the people who see the book in which they’ve been republished, and which is selling for a good chunk of money, are able to find that out easily. The problem with this particular book that Redfield talks about in her blog is that there was no indication at all that these were open access articles, and that they are available for free on the web. Of course not–that would mean no one would buy the book. Several authors in Redfield’s survey mention that they think such books should have to list the original source of the publication.

So people looking for scientific research may see the book and think they need to buy it to get access to the research. I find this quite troubling, as for me, the point of open access publishing is to allow people access to research without having to pay. That people are ending up getting duped into paying is a problem, in my view.

And it’s not just individuals, libraries may be buying such books (and using public funds to do so), as suggested in a comment on one of Redfield’s blog posts on this issue (the comment also mentions some other important downsides as well). When I met with her, Redfield told me she had spoken to a librarian at the University of British Columbia libraries, who said that they had about 50 of Apple Academic Press’s titles. Redfield was in the process of getting these titles to find out whether any of them are republications of open access articles.

Redfield notes in a blog post that actually, according to the terms of PLOS One, anyone who redistributes an article for that journal must also “make clear the license terms under which the work was published.”  The same is true for the license terms of BioMed Central. Upon looking into the legal code of the CC-BY 3.0 unported license, it seems to me that this sort of thing is required by the CC-BY license itself. It says, in section 4(a), here, that “You must include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform.” I had forgotten this, but of course I include a link to the CC license for any CC-licensed image I use on this blog, for example, precisely for that reason.

The PLOS One license terms also say that the redistribution of articles from PLOS journals must include citation not only of the author, but also of the original source. So do the Wiley Online Open terms (which allow you to publish an open-access article in an otherwise non-open access journal). And Taylor and Francis and Routledge Open too. I’m not going to do an exhaustive search of all open journals, or journals that allow open-access content, to see what their terms are. The point is that such terms do exist, and at least in the case where the article from PLOS One was republished without citing the original source and license, such terms were violated.

 

3. The articles in the book Redfield talks about were edited to some degree from how they appeared in the original publications (I’m not sure how much, exactly). Of course, the CC-BY license allows others to “adapt” the work, so this is not a problem in itself. The problem comes in when one thinks about what might be possible, such as book editors making fairly significant changes to an article that, even by accident, end up making the argument weaker or suggest claims that the author would not have made him/herself.

Then, what comes into the picture is potential harm for the author, from people thinking they’ve said things they haven’t, and wouldn’t, say (if those things put the author in a bad light because they make the argument worse, or the data analysis worse, etc.). A number of the authors in Redfield’s survey said they would be worried about possible misrepresentation of the authors’ interpretations of results. Other authors worried that others might think they had self-plagiarized–published the same thing twice, without citing their earlier publication.

It might seem on the surface that the CC-BY license allows such things to happen, but as Redfield points out in one of her blog posts, CC-BY (and all CC licenses that have “attribution” as one of their requirements) have a “no endorsement” clause: those who use a work licensed CC-BY and alter it in some way, must not indicate that the original author endorses the revision of the work. The legal code of the CC-BY license makes this even clearer–see section 4(b)(iv) here. 

Since the publisher of the work Redfield discusses listed the authors as “contributors,” and did not state that the articles had been previously published elsewhere and edited for publication in the book, one could make the case that the way they’ve presented the articles suggests “endorsement” by the authors. Redfield argues for this point here.

But since the authors in this case were not told that their articles were going to be published in the book, they did not have a chance to give an endorsement or not. Nor does CC-BY require that original creators of works with a CC-BY license be informed that their works are being reused and adapted.

 

What should be done?

My first thought, upon seeing the first one or two of Redfield’s blog posts, was that this problem could be solved by simply educating authors about the various CC licenses, and about what is allowed under CC-BY, so they can decide whether they want to use CC-BY or some other license. I thought that those who wanted to avoid the problems noted above could choose a different license, like perhaps CC-BY-SA (share-alike)–which would require that any use of the work have an equivalent license on it, possibly reducing incentives to republish collections of such works–or CC-BY-ND (no derivatives)–which would not allow anything to be changed. There are several problems with this response.

 

1. It may not be the case that authors have a choice of licenses when publishing in an open access journal, or when publishing an open access article in an otherwise non-open access journal. PLOS One, for example, does not give you a choice–you have to use CC-BY or not publish there. So do BioMedCentral and PeerJ and  Sage Open. Some publishers do allow a choice, such as Wiley (you can choose a license for your open access article in an otherwise non-open access journal), and Taylor and Francis.

But those who are worried about reuse of CC-BY articles might just choose not to publish in the OA journals that require CC-BY (this does not apply to researchers who are mandated to publish open access as CC-BY, of course). Unless some other things change. Like possibly the following.

 

2. As noted above, the republishing of open access articles without citing the original publications and licenses under which they were published may be in violation of the license terms of the original articles. If so, then it seems logical that legal action should be taken against the publishers who violate those terms. This is what Redfield suggests in a blog post.

I agree, but who should take such legal action? It’s too much to ask for individual authors to take legal action, unless they can find legal counsel who will take on the case without charging anything, or very much. Who among us has enough money to pay attorneys and other fees to sue a publisher?

Redfield suggests perhaps the journal publishers should take on the duty of suing such book publishers, which seems to me to make sense because the book publishers are violating the terms of the journal publishers’ own licenses. But this raises other issues, as discussed in the comments to that post (authors are the ones with legal standing to sue because they hold copyright, journals may have to raise article processing fees to cover such activities).

One might also ask: what motivation do journals have to go after publishers who are redistributing content that the journal is not making money from each time it is accessed anyway? They have made money through other means than subscriptions or fee for access, so would they be motivated to try to stop such republication? Perhaps, if enough authors shy away from publishing open access articles because of fears of this sort of thing happening.

 

Conclusion

The bigger point here is the following. Even if you don’t think this is a big deal (and many don’t, as evidenced by comments on Redfield’s blog posts about this issue), it appears that there are a good number of authors who do, and who may then choose not to publish in open access journals because of it. This is ignoring the point, of course, that many researchers are now being mandated to do so; there are still quite a few who are not…though this may change soon.

Even if a journal allows a choice of licenses, authors may wonder if, were it to be the case that the license was violated, they or someone else would be able to take action to do something about it. And if no one is doing anything about it, then what’s to stop this sort of thing from spreading further, if it’s lucrative? 

Whether it is a profit-making business, whether significant numbers of individuals and libraries are buying such books, remains to be seen. And the more that authors are required to publish open access works, the more this sort of thing might become lucrative, if it isn’t already. But I think this is an issue worth paying attention to and trying to figure out what can and should be done about the violation of open access licenses in open access journals, even if one doesn’t think that has happened in this particular case.

38 thoughts on “A troubling result from publishing open access articles with CC-BY

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  2. It seems to me that Creative Commons (CC) is what happens if you ask a lawyer to tamper with something that had hitherto been rather simple and easy. (See for example Saul Albert’s 2004 critique here: http://www.metamute.org/editorial/articles/commercial-commons). Before, pretty much, if you had posted something on the public internet, you were presumably cool with it being copied elsewhere, because you actually understood what the word ‘download’ meant.
    In his articles for the press in the ’90s, rms was already using the perfectly adequate phrase “© Richard Stallman, YYYY. You may reproduce this verbatim text in any medium as long as this copyright notice is also preserved” , though such a formulation was presumably insultingly straightforward for the legal profession.
    CC has thus always clearly been, in my mind, a tool of the forces of reaction. But then those “Show me only CC’d works” buttons on search engines are rather useful. Do however note that the rms practice circa 1995 does avoid the difficulty outlined above, in which readers of the book collection of articles licensed under Creative Commons have been deprived of the knowledge of their own rights to the text.
    Finally, in all this discussion of CC variants, mention of the ND (no-derivatives) variant always seems to be the one that gets lost, though this is arguably the most important variant for maintaining the integrity and authenticity of a work.
    While authors maximally conserving their own rights seems to be the best way to ensure that scholarly communication fully exploits the properties of the internet, unless scholars choose some recognised formula for so doing, they’re unlikely to be able to enforce their will. Part of the goodness of GNU was always the knowledge that the Free Software Foundation could present credible legal threats to software houses in breach of the GPL. Who’s doing the suing when CC conditions are breached?

    • Thank you for your comments, Douglas. I can see the appeal of a simple system where “posting online” means “go ahead and use it however you wish, copy it, re-post it, do whatever you want” but I do wonder that if that’s what it meant would we have fewer things posted online? I don’t know, and that’s not the situation we’re in, so it’s pretty impossible to tell for sure. And, of course, technically whatever you’ve created and posted online is copyrighted to you (well, not everything, perhaps…there does need to be some level of substance for it to be considered your “intellectual property,” I’m assuming), and for those who are aware of that, some (or many?) might be wary of using things however they wish when they haven’t been given more clear assurance that they won’t get sued if they do, through something like a license. I’m not sure the old system, then, which I vaguely remember (having only gotten on the www for the first time in graduate school), was something that would lead to the wide array of information available and shareable today. It’s not a perfect system we’ve got, with these open licenses (CC and others), but I’m not convinced they’re worse than the more informal practices.

      So I’m curious…could you explain a bit further how CC is a tool of forces of reaction? I want to make sure I’m getting your point.

      I’m not sure that the Richard Stallman practice noted in your comment would have solved the issue discussed in the post, since if the book publisher had actually followed the terms of the CC-BY license, the readers could have seen that the original articles were published CC-BY (must include terms of license for the original works if you reproduce them or alter them), and if the publisher had also given the original place of publication, as at least one of the journals involved asks those who reuse the works to do, then readers could have known where to find these articles for free. Now, this does assume readers either know what CC-BY is, or are motivated to look it up. But the information is at least there to show that the works are available for free elsewhere, and that they can be reused by the readers themselves if they wish (under certain conditions).

      Perhaps it’s the complications of those conditions that you’re objecting to here, while the Stallman version is simpler? Still, the Stallman version wouldn’t indicate to readers where they might find the original for free online, which is what I would have liked to have seen in this case. This particular case is an issue, for me, of paying for what is already free and open access works, more than one of reuse and republication, though readers of the book would also have those rights.

      Some scholars want to use something like ND (no derivatives), but others don’t because ND means those who access their articles can’t make translations of them, or use tables and drawings from them in new contexts or with slight changes, without asking first. So while that might help some aspects of this situation, it could create other problems. And really, the main concern here in the blog post is that the terms of the license as it was weren’t followed, so changing the license isn’t going to solve that problem.

      What it comes down to, for me, is what to do when license terms aren’t followed. And your last question here is therefore the big one in my mind.

  3. could you explain a bit further how CC is a tool of forces of reaction?

    As Saul Albert very ably outlined in his critique of Creative Commons at its inception (did you read the article I linked?), CC may be most readily understood as a capitalist tool to define and homogenize free cultural production in order that it can be more cleanly exploited.
    Briefly, when the web was new and cool, all kinds of things became rapidly available “because you could” and “because it was cool” temporarily liberated from the conditions of bourgeois production. We might continue this suitably evocative use of Marxist terminology by describing the early beneficiaries of this revolution as the ‘computerized classes.’
    Those social elements who did not benefit from the fact of the new revolution: indeed whose interests were threatened by the new technology, fought back, and with varying degrees of imagination and success, have succeeded in reproducing their old methods using the new technology (vide: “ebooks” “iTunes”). These are the forces of reaction to the internet revolution. That they actively seek to create poverty amidst infinite abundance is indicative of the cruelty and depravity of their extremist ideology.
    And that’s yer historical materialist dialectic right there, madam. That’ll be three shillings and sixpence please!

    • Yes, I did read the article you linked! I found many criticisms there, at least one of which no longer applies to CC (the Geneva convention one), and I wasn’t sure which one(s) of the criticisms Albert gives fell under your “forces of reaction” claim. I just wanted more clarification for your own position, for myself, and for other readers who may not be familiar with that phrase. Though I usually agree with Marxist arguments, I’m not always clear on the particular terms used and whether they are used the same way by all, so I like to have specifics when possible. Which you have given here, so thank you! Hmmm…now I’ll have to find a one of those proprietary tools to give you your shillings and pence via the internet!

      Excellent points. Myself, I lean heavily towards just making my work public domain. I’m still engaged in an internal battle with myself as to why I’m not doing that. Vestiges of a capitalist upbringing I haven’t shaken off? I don’t know. Plus, I still want people to be able to create things and to be able to make a living off of what they’ve created without having to work for someone else, given the current economic & social situation in which we live in many parts of the world. Intellectual property is one way to do that in the here and now, with all its many downsides. One of which is that it doesn’t get us any closer to getting out of the economic and social situation of the here and now.

      And CC at least allows the creators of works to have more say in how they’d like those works to be used, and may allow them to release some of their works openly to be used however others wish, with attribution, which may help them be able to sell others of their works–because they’ve gotten exposure. This is something I’ve personally benefited from, because I’ve been able to make videos and radio shows and podcasts with music from people like Kevin MacLeod, who release a lot of music CC-BY: http://incompetech.com/music/royalty-free/. If he can still make a living from his music, partly by getting exposure through the attribution, and yet give some of it away for free (no cost and reuse however you wish), this seems a win win to me.

      So yeah, I’m rather divided on issues of intellectual property and the desire for, ideally, as much free and open sharing as possible.

      • Well, I agree with Richard Stallman that the term ‘intellectual property’ ought never to be used, as the ‘property’ metaphor is deeply unhelpful and confusing when we speak of ideas, and the expression of ideas in the age of networked computers. He suggests that the term never be used, and prefers precise speech about copyright, patents, trademarks, and trade secrets as appropriate. I’m sure he’s right to do so.

        In my public shared bookmarks, I find seven recent articles are returned when I search on “intellectual property”: https://pinboard.in/search/u:juliusbeezer?query=intellectual+property ; all critical of the notion!

        Perhaps I am just in my own internet filter bubble; but on the other hand, it is pretty clear that the internet has very different properties from the printing press and other centralising media, so it wouldn’t be surprising if the culture and laws changed to reflect that. As Stallman said in a talk of his I transcribed way back in 2001, “[before networked computing, accepting money for promising not to make copies is] like accepting money for promising not to travel to another star. You’re not going to do it anyway… so you might as well… take the deal. But if I presented you with a starship, then you might not think that deal was such a good deal any more.” (http://www.carnall.demon.co.uk/stallman/all.html) And of course, for those of us interested in disseminating texts and knowledge as effectively as possible, the internet is just such a starship…

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