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. The publisher 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 user. 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
Physical objects are scarce or rivalrous. This means that there are a limited number and using one decreases the total amount that can be consumed. For example, if I buy a bicycle, there is one less bicycle that can be enjoyed by another.
Digital resources, on the other hand, are nonrivalrous. This means they may be shared by unlimited numbers of people without decreasing in number. An idea is nonrivalrous: when I tell you something, I do not forget it, but you gain it also.
Copyright laws have historically been written to govern rivalrous goods. Some argue that the introduction of digital nonrivalrous goods means copyright law should change. 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 explain some of these alternative approaches.
Free Software Licenses
Most commercial software programs are distributed under restrictive terms of use. Moreover, their source code - the code which makes the program run - is closed, or unavailable to developers. Developers cannot study them to understand how they work, to fix bugs or to customize them to their needs.
A radically different approach to software was first developed by Richard Stallman, a researcher at MIT. Stallman became angry when he could not modify the software for a printer in his office that was not working properly. 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.” Others distinguish using the French libre (meaning freedom) vs. gratis (meaning no cost). Nevertheless, free software is commonly both libre AND gratis.
There are many incentives that drive the creation of gratis software. A developer might find it entertaining to do so. She might be driven by a desire to contribute to the public domain. She may want to build her reputation as a programmer. She may distribute the software for free but charge users for help customizing it to their needs. 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. It was founded and led for long time by renowned cyberlaw scholar Lawrence Lessig.
Creative Commons provides authors convenient ways to authorize specific uses of their works, while retaining control over other uses. In other words, it allows them to easily create their own licenses, minimize the orphan works problem, and contribute to culture and free expression.
The license options
Creative Commons offers a set of six licenses among which authors and artists can choose online.
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. Attribution is required for all Creative Commons licenses.
- 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. SA is used to prevent people from taking something from the commons and then locking it up in a more restrictive license.
These four elements can be combined into any one of the following six licenses that authors may attach to their works:
- 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 open license and allows others the greatest creative freedom in using your work.
- 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.
The Creative Commons website provides a simple quiz asking creators what freedoms they'd like to allow with their work. It then assigns the appropriate license to the author. She attaches this license to copies of 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.
Creative Commons Licenses Formats
Each of the CC licenses is available in three formats for online use:
- The machine-readable, or digital code, which is embedded in the logo and informs other computers of the license.
- The human readable code, or common deed (a summary explaining the main rights and freedoms, 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.
Creative Commons licenses can be used for works made and distributed offline as well. For instance, a work created in the physical world might have a physical license attached that reads: "This work is licensed under the Creative Commons BY-SA License. To view a copy of this license, visit the Creative Commons website." Unfortunately, offline works cannot be included in the Creative Commons search engine that catalogs freely available works on the website.
Creative Commons Licenses Main Clauses
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 the use is noncommercial. The 6 different licenses specify whether a work may be used for a commercial purpose, whether it may be adapted or transformed, and whether it must be incorporated into a work with the same open rights.
All Creative Commons licenses include the Attribution clause.
The license terms, “Non Derivative” and “Share Alike,” are not compatible and cannot be found in the same license. This is because it doesn't make any sense to tell people they should incorporate your work and share it alike while also telling them they may not make derivative copies of it.
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. In this way a songwriter might release her music for free on the Internet and still charge a company for using it in a commercial.
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.
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 online for free, for instance 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: http://www.sherpa.ac.uk/romeo/ 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.
Quick Access
The textbook modules are available both on Connexions and on this wiki