Module 6: Creative Approaches and Alternatives

By Melanie Dulong de Rosnay and William Fisher

Learning objective

Traditional rights management often involves an exclusive assignment of all the rights associated with a copyright from the author to a publisher, who then makes copies and distributes the work to the public for a fee. By contrast, free, libre and open access models disseminate works at no cost for the public. This module describes these alternative approaches, focusing on Creative Commons licensing and Open Access policy for scientific publications.

Case study

“A professor at our university is the author of one of the articles I want to include in the course pack. However, when I contacted him to request his permission, he answered that he had already transferred all his rights to a publisher and thus wasn’t able to allow me to copy his work. How can it be possible that someone can’t even authorize use of her own work? What could be done to avoid this situation in the future?”

Introduction: physical and digital commons

While physical objects are scarce, digital resources are non-rivalous goods, which may enjoyed and shared by unlimited numbers of people. Digital technologies are making such sharing easier. Unlike the traditional “all rights reserved” approach, new licensing schemes have been developed to accompany the possibilities offered by the information age in terms of collaboration and creativity. This module will present some of them.

Free software licenses

Most commercial software programs are distributed under restrictive terms of use. Moreover, their source code is not available, so developers cannot study them to understand how they work, to fix bugs or to customize them to their needs.

A radically different approach to disseminating software was first developed by Richard Stallman, a researcher at MIT, who could not obtain permission to modify the software of a printer which was not working properly but which could have been fixed easily. Provoke by this and other experienced, Stallman created the GNU-GPL license, which allow the users to run, copy, distribute, study, change and improve the software to which it is applied – specifically by granting users four kinds of freedoms:

- “The freedom to run the program for any purpose (freedom 0).

- The freedom to study how the program works, and to adapt it to your needs (freedom 1). Access to the source code is a precondition for this.

- The freedom to redistribute copies so you can help your neighbor (freedom 2).

- The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this”: modifications must be shared with the same degree of freedom.

Adoption of this approach does not mean that the price of the product must equal zero. Stallman intended the term “free software” to connote “free speech,” not “free beer.” Nevertheless, free software often is free in the usual sense.

What then are the incentives to create software that is released under this license? There are several: fun; altruism (a desire to contribute to then public good); the pleasures of belonging to a community of similarly minded creators; the ability to build one’s reputation as a programmer (and thereby obtain premier programming jobs); and the ability to charge clients for support services and personalized developments. Economists continue to discuss whether incentives of these various sorts are sufficient to sustain a viable business. Meanwhile, businesses relying on this approach are flourishing.

Creative Commons

Introduction

Creative Commons is a non-profit organization created in 2001 by a group of scholars and activists. The intellectual and organization leader of the organization was Lawrence Lessig, a law professor who litigated the case Eldred vs. Ashcroft, as it was discussed in Module 3: The Scope of Copyright Law.

Creative Commons provides authors convenient ways to authorize specific uses of their works, while retaining control over other uses.

The license options

Creative Commons offers a set of six licenses, which authors can select online by answering to the following questions on a license selection interface:

As described at http://creativecommons.org/about/licenses/:

The CC licenses are a combination of one, two or three of the following four elements:

- Attribution (BY): You let others use your work but only if they give credit the way you request.

- Non-Commercial (NC): You let others use your work but for noncommercial purposes only. It does not mean that works cannot be used for commercial purposes, but that a separate license should be negotiated for commercial rights.

- Non Derivative (ND): You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. The right to make adaptations can be licensed under a separate agreement.

- Share Alike (SA): You allow others to make derivatives from your original work but they should distribute derivative works only under a license identical to the license that governs your work.

The combination of the above elements produces the 6 following licenses:

- Attribution (BY)

This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution.

- Attribution Share Alike (BY SA) This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.

- Attribution No Derivatives (BY ND) This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

- Attribution Non-Commercial (BY NC) This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

- Attribution Non-Commercial Share Alike (BY NC SA) This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature.

- Attribution Non-Commercial No Derivatives (BY NC ND) This license is the most restrictive of the six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

By answering the questions on the license selection interface, an author will be directed to the license that best matches his or her preferences. He or she attaches this license to copies of his or her work, thus alerting users to what they can and cannot do. If the work is (or is offered through) a website, the author can do this by adding to the site a piece of html code generates a button with the Creative Commons logo containing a link to the license at issue. An example:

Creative Commons licenses formats

Each of the CC licenses is available in three formats:

- The machine-readable, or digital code (the metadata embedded in the logo),

- The human readable code, or common deed (a summary explaining the main clauses, with icons corresponding to the elements which have been selected), available from the link embedded in the logo,

- The legal code (a license of several pages written in legal language, detailing the clauses, which are represented by the icons), available from a link at the end of the human readable code.

The owners of the copyrights in works made available through channels other than the Internet can provide potential users similar information, but marking their works with statements like the following: « This work is licensed under the Creative Commons [insert description] License. To view a copy of this license, visit [insert url] ». Offline works do not contain the metadata, and are not identifiable by the Creative Commons search engines.

Creative Commons licenses main clauses

As indicate above, all Creative Commons licenses authorize the public at least to copy, perform, and distribute the work for free, provided that the original author is properly attributed and that no direct remuneration is received in exchange for the work. License options specify whether a work can or cannot be used for commercial purposes, and if the work may be adapted or only used without modification.

The Attribution license element is not optional; it is included by default in all the licenses. (It was optional in the first version of the licenses, but almost 98% of the users were selecting it on the interface, so Creative Commons decided to make attribution standard, thus reducing the number of licenses.)

The license terms, “Non Derivative” and “Share Alike,” are not compatible and cannot be found in the same license.

All of the licenses are non-exclusive. In other words, authors are free to enter into other agreements with specific users. For example, it is possible for copyright owners who have issued CC licenses to enter into fee-bearing licenses for rights to engage in activities not covered by the CC license in question.

Creative Commons, like the copyright regime as a whole, has no registration system; it merely provides information for authors who wish to license their works on nontraditional terms.

Best practices for marking and crediting works in different formats are available at: http://wiki.creativecommons.org/Marking

Creative Commons other projects

The Creative Commons International (CCi) team coordinates the process of translating the creative commons licenses into other languages and adapting them to other legal systems – a complex and challenging process. The internationalization process also provides local teams who work in their countries with user communities and governments to increase understanding and use of the system. The local teams also work closely with CC staff to improve the license clauses and material.

Two other divisions of Creative Commons also engage in specialized work: ccLearn for open educational resources and Science Commons for open access to science.

In addition to the licenses, two protocols have been recently developed: CC+ and CC0.

CC+ (CC “Plus”) is not a license, but technologies for offering users rights beyond the CC license grant -- for instance commercial rights, or additional warranties.

CC0 (CC “Zero”) is a universal waiver of copyright, neighboring and related rights, and sui generis rights. CC0 thus enables authors to place their works in the public domain. CC0 is sometimes known as the “no rights reserved” option.

A possible implementation model for digital libraries would be to propose a combination of: - CC licenses for works created by librarians: abstracts, comments, photographs, maps, other copyrightable elements of the editorial structure;

- CC licenses for works created by patrons: comments, abstracts, critics, blog posts;

- CC0 licenses for databases of public domain works to which the libraries have added potentially copyrightable material.

Implications for authors and for users

Authors must consider various questions before deciding to apply Creative Commons licenses to their creations. The licenses are based on copyright, and are thus applicable only to copyrightable works. Authors also should be sure that they have the authority to issue the licenses; they may be obliged to check first with co-authors, authors of pre-existing works, or employers. In many countries, collecting societies require their members to assign all their rights in present and future works to the societies. Thus, members cannot use a Creative Commons licenses, even for some of their works or some of their rights. Many authors do not understand why both systems are not compatible, especially in the music industry. They would like to license their non-commercial rights for free under a Creative Commons license, and assign the management of their commercial rights to a collecting society. This model is possible for some collecting societies in some countries, such as the United States, the Netherlands or Denmark. But other collecting societies do not use the same legal categories as Creative Commons. (For instance, they may not recognize the distinction between commercial and non-commercial uses.) In those countries, authors are currently forced to choose one system or the other.

Creative Commons staff and international affiliates have been talking with collecting societies in hopes of resolving this incompatibility, but some collecting societies and other copyright stakeholders are skeptical of Creative Commons licenses and are thus reluctant to move forward. Here are their principal criticisms:

· The Creative Commons system does not provide creators a way to collect money; creators thus must organize for themselves a way to charge for activities that fall outside the CC license terms. · Creative Commons does not track infringements and is not authorized to represent licensors in lawsuits or help them enforce the licenses. · Creative Commons licenses are non-revocable, and the license grant is perpetual. Authors who employ CC licenses thus cannot later change their minds. They can, of course, cease distributing the works or distribute them under different conditions, but this will not affect the rights associated with the copies that are already in circulation. · There is no central registry or authority to verify that licensors have all the rights they need to use a CC license. · Determining what does and does not constitute a commercial use is a difficult question; answers may vary among individuals and user communities. · It is questionable whether jurisdiction-specific licenses, which have been adapted to national legal systems, are really compatible with each other. For instance, some versions of the CC licenses include moral rights or database rights; others do not.

The Open Access movement

The Open Access (OA) movement proposes to adapt scholarly publishing culture to the web. The movement was provoked by a rapid rise in the price of scientific journals, leading many libraries to cancel journal subscriptions. The movement claims that authors should be able to access freely their colleagues’ research for the benefit of science and the general public. The Budapest Open Access Initiative provides an influencial definition for OA. The most complete and up-to-date resource on Open Access is Peter Suber’s Open Access News.

OA journals offer articles to the public under a Creative Commons “Attribution” license. This is sometimes known as “Gold Open Access.” Such journals typically are accessible for free online. Because they forgo traditional sources of revenue, OA journals must devise alternative business models. Some charge authors. Others rely entirely on voluntary work. A Directory of Open Access Journals (DOAJ) can be found at http://www.doaj.org/

Some journals are not Open Access journals, but authorize the authors of the articles they publish the option to archive versions of their articles in Institutional Repositories set up by their universities. This is sometimes called “Green Open Access.” Journal copyright policies regarding self-archiving are analyzed by the project Sherpa RoMEO: http://www.sherpa.ac.uk/romeo/. More than 50% of pay-journal policies allow their authors to archive their pre-print articles in open access repositories.

Authors who contribute articles to journals that do not routinely allow authors to self-archive their articles on their own websites or in institutional repositories, sometimes request that the journals agree to an addendum to the publishing contract (read more about this on Module 2: The international framework, contracts section), pursuant to which the authors reserve rights needed to self-archive. Several addendum models are available. The Science Commons Scholars’ Copyright Addendum Engine generates one such form.

Funding institutions can facilitate or compel use of one or more of these strategies – by encouraging or requiring grant recipients to make fruits of their projects publicly available. Currently, the National Institutes of Health in the United States, the European Research Council, and the Wellcome Trust in the UK underwrite in various ways the OA approach.

Universities can also help. Harvard University has led the way on this issue. Starting in 2008, the faculties of some schools within Harvard have adopted policies providing that faculty members automatically provide to the university non-exclusive, irrevocable, worldwide license to distribute their scholarly articles for non-commercial uses. A faculty member can override this default rule by obtaining a waiver for a specific article. How many will do so remains to be seen.

Back to the case study

Angela complains to Nadia that she cannot include in her course pack the article from a colleague because he transferred his rights to the publisher. Nadia informs Angela that some publishers have very strict policies, but that sometimes publishing contracts are in fact less restrictive than some authors may think. Together, they will search for the journal policy to see whether the article could be included and, if so, on what basis. If rights have been exclusively assigned for the publisher’s post-print PDF, perhaps the pre-print or the submitted version can be reused. Together, they will browse the SHERPA/RoMEO site [link] that “provides a listing of publishers' copyright conditions as they relate to authors archiving their work on-line.”

Assignment and discussion questions

Round 1 questions

Choose one of the following:

Question 1. Works from your country are probably available under a Creative Commons license. Use search engines and other directories to locate some documents available under CC licenses that you could help promote and re-distribute.

Question 2. Determine if there are any OA journals published in your country. Make a list suitable for distribution to your patrons.

Question 3. Prepare slides or a one-page handout in your language that you could use to educate librarians and academics concerning the Creative Commons system and OA options. Publish your document online with the Creative Commons license of your choice and send the link to the group. If your library doesn’t have a website, you may use http://www.slideshare.net/

Question 4. How would you design and implement an OA policy in your country?

Round 2 question

Comment on strategies proposed by your colleagues in response to Round 1 question 4.