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Open Access and Creative Commons – Are they Separable?

Can a journal be open access without using a Creative Commons License?

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Picture the scene, a publisher is giving a presentation on new approaches to journals at a large conference. He touches on content innovation, linking to datasets, enhancement of peer review and open access. There is a question from the audience: “Are you using Creative Commons licenses on your open access journal?” The publisher replies: “No, we offer a range of licensing options,” to which the audience member responds: “Then it’s not really an open access journal is it?”

There is a common perception that a journal cannot be open access unless it utilizes a Creative Commons License, but is this really the case?

Creative Commons – the lowdown

Creative Commons licenses are designed to allow authors to permit others to copy, distribute, and make some uses of their work — and if applicable to indicate whether this can be used in a commercial environment. Creative Commons licenses also try to ensure that authors get the credit for their work. There are multiple versions of these licenses – in total there are four major condition modules, which form six major license options - which can sometimes complicate their use.

The Creative Commons licenses and the icons for them are widely used for open access publishing and so there are benefits to using them. There are some challenges too. From a legal perspective, it is not entirely clear how the Creative Commons licenses would be interpreted in all countries. They are also generic and so do not explicitly address all the issues that matter to our customers, authors and readers. This is a challenge because Elsevier needs to communicate very clearly with these users as each group has its own specific needs. We really like the machine readable versions of the Creative Commons licenses, but wish they could be conveyed in a more accepted communication standard.

Our approach to licensing

In addition to the journal publishing agreement, at Elsevier we are experimenting with a wide array of approaches.  Sometimes we use a Creative Commons license, other times we use a straightforward publishing license we have developed that enables the various groups to use the open access articles.

One key element to consider is that there are many perspectives when thinking about licensing: for example, the author perspective, where agreement between author and publisher is enabled through copyright transfer or license to publish; and the user perspective, where a license or statement is needed to clearly convey what can be done with the article in question and ensure that credit, authority and commercial use are correctly assigned and the moral rights of the author are protected. There is often a blurring of these elements and, indeed, a journal can be open access using copyright transfer for an author agreement and a suitable user license to determine usage – this does not need to be Creative Commons. There are many facets to consider when developing responsible, adequate and protective publishing models to ensure the use of the journal articles by the various groups, the validity of the journal article and to protect the intellectual property of the author.

Author Biography

Victor HenningJan bij de Weg
DEPUTY GENERAL COUNSEL
Jan studied law at the universities of Groningen and Stockholm and oversees the team of attorneys responsible for all aspects of Elsevier's legal affairs in Europe, the Middle East, Africa and Latin America. This includes putting the right legal tools and guidelines in place for the appropriate Elsevier staff, editors and authors to use. Jan started his career at a law firm in France and worked for four years as a legal advisor at Akzo Nobel before joining Elsevier. Before taking on his current role, he was an Associate General Counsel based in New York. He is a member of the copyright committee at the Dutch Publishers Association and is a member of the International Publishers Rights Organization (IPRO) board.

Archived Comments

Timothy Vollmer says: February 7, 2013 at 10:24 pm

Thank you for writing this article about Creative Commons and we hope that Elsevier continues to explore options for allowing authors to utilize Creative Commons licenses to share their scholarly articles. However, we’d like to provide a few clarifications to the blog post. The post says that CC licenses “try to ensure that authors get the credit for their work.” CC licenses are much stronger than this, as all the licenses require attribution to the author (or appropriate rightsholder, such as a publisher) as a condition of the license itself.

The post claims that CC is confusing because there are multiple licenses (there are six in total). We don’t feel that the six licenses are confusing, and we attempt to ensure that the decisionmaking process is easy and intuitive (http://creativecommons.org/choose/). And, the various license options give authors choice to communicate the freedoms and permissions they want to carry with their work.

Your article notes that “from a legal perspective, it is not entirely clear how the Creative Commons licenses would be interpreted in all countries.” The licenses have been drafted with the help of international copyright experts to be enforceable around the world, and have been enforced in court in various jurisdictions (see http://wiki.creativecommons.org/Case_Law). To CC’s knowledge, the licenses have never been held unenforceable or invalid. The licenses have also been ported (legally and linguistically) to individual countries (see http://wiki.creativecommons.org/Jurisdiction_Database).

The blog post says that the CC licenses “are generic and so do not explicitly address all the issues that matter to our customers, authors and readers.” Creative Commons licenses are standardized public copyright licenses that grant certain rights to the public while retaining others, such as the right of attribution, to the author of the article. CC licenses are understandable and widely recognized and used throughout the world. CC licenses do not claim or attempt to license rights not held by the author, for example third party rights, publicity rights, trademark rights, etc.

The post praises the machine readable versions of the CC licenses, but wishes that the licenses “could be conveyed in a more accepted communication standard.” CC has developed the CC Rights Expression Language (CC REL) (http://wiki.creativecommons.org/CC_REL), a specification describing how license information may be described using RDF and how license information may be attached to works. This is a widely accepted specification for conveying rights information to be consumed by search engines and other software.

The article say that sometimes Elsevier uses a CC license while at other times uses a “straightforward publishing license we have developed that enables the various groups to use the open access articles.” It is widely accepted that for an article to be called open access it should be “digital, online, free of charge, and free of most copyright and licensing restrictions” (see http://legacy.earlham.edu/~peters/fos/overview.htm). The most common way articles are made open access is that they are licensed under a worldwide, irrevocable public copyright license that allows the public to freely reuse, distribute, and create derivative works based upon the work for any purpose. The BOAI10 Expert Group on Open Access recommends CC BY as the preferred license for open access publication (see http://www.opensocietyfoundations.org/openaccess/boai-10-recommendations).

Jan bij de Weg, General Counsel Europe & APAC, Elsevier says: February 14, 2013 at 3:32 pm

Thank you for responding to our article.  Elsevier is keen to ensure that the terms and conditions of use for our published content are easy to access and offer clarity to users, and we certainly see a role for Creative Commons licenses here.

We are currently trialling the use of a number of different Creative Commons licenses, in addition to our own simple user terms which can be viewed at [insert link] and which permit non-commercial use in any medium, provided the original authors and source are credited.  By offering a choice of different user licenses to our authors we hope to be able to better understand authors’ behavior and consequently tailor our approach for the future in a way that takes account of author preferences. This approach is in line with Elsevier’s continued commitment to provide a choice to the researcher on how their work is disseminated and used. This is also connected to Elsevier’s ongoing engagement with funding bodies which aims to ensure that authors can publish in Elsevier journals and comply with requirements and policies from their funders and institutions, as well as their publisher’s license terms.

Since the CC licenses were not designed specifically for content that is of an STM or Social Science Arts and Humanities nature, from Elsevier’s perspective there are certain areas where some of the CC licenses are not always entirely suitable to our needs or those of our authors, for example  where there are concerns about scientific integrity and plagiarism, or where we need to prohibit the association of commercial advertising with content without authorisation.  The International Association of Scientific, Technical and Medical Publishers (STM), of which Elsevier is a member, is working constructively with Creative Commons to assess how best to deploy Creative Commons licenses in the STM space and how to develop some tailor-made licenses within the Creative Commons framework.

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