[open-science] [SCHOLCOMM] Re: Libre open access, copyright, patent law, and other intellectual property matters

Klaus Graf klausgraf at googlemail.com
Wed Mar 21 23:25:13 GMT 2012

I do not appreciate this CC-BY bashing. I do not think that we need a
copyright - at least in scholarly context - which gives an author the
absolute control over his text in order to prevent all uses he
dislikes. CC-BY is the only BOAI/Berlin/Bethesda compliant license.
Does anybody have an estimate how many scientists worldwide have
published at least one article in a CC-BY journal from PLoS, BMC etc.?
I would guess: more than 50.000.

People like Ms Morrison or Mr Thatcher have few understanding of the
CC license. May I remember my blog entry on the "Greener Journals" at
http://archiv.twoday.net/stories/64979561/ and the legal code of CC-BY
which reads: "Except as otherwise agreed in writing by the Licensor or
as may be otherwise permitted by applicable law, if You Reproduce,
Distribute or Publicly Perform the Work either by itself or as part of
any Adaptations or Collections, You must not distort, mutilate, modify
or take other derogatory action in relation to the Work which would be
prejudicial to the Original Author's honor or reputation."

Klaus Graf

2012/3/21 Sandy Thatcher <sandy.thatcher at alumni.princeton.edu>:
> Another possibility, which the CC-BY license does not protect against, is
> the republication of an article in a commercial anthology whose publisher
> may be using it for purposes, ideological or otherwise, that the author
> finds objectionable. As long as the article is properly attributed to its
> author, the author would have no legal grounds for preventing its use in
> such a context. This may be less of a concern to scientists (though some
> areas of science, like climate science, can be both very controversial and
> highly ideological), but it would be of great concern to authors of articles
> in the humanities and social sciences.
> Sandy Thatcher
> At 7:21 PM -0700 3/20/12, Heather Morrison wrote:
>> Klaus,
>> Many thanks for your comments and the pointer to your blogpost. Here is an
>> excerpt which I comment on below:
>> Klaus Graf, 2008:
>> "There are scholars and scientists outside the U.S. under more rigid
>> copyright regimes without Fair Use.
>>  Let's have a closer look on the German Copyright law:
>> http://www.gesetze-im-internet.de/urhg/__53.html
>> It is allowed to make copies for scholarly use if and only if
>> (i) there are good reasons
>> and
>> (ii) there is no commercial goal ("keinen gewerblichen Zwecken dient").
>> Your conclusion:
>> There is a simple solution (I will repeat it because it is important like
>> a mantra):
>> Comments: if German copyright law puts German researchers and businesses
>> at a relative disadvantage compared with other countries, the solution is
>> for Germans to change German copyright law. It is not appropriate to ask
>> every scholar in the world to give away their work for commercial purposes
>> to correct this problem. I argue that CC-BY, much as on the surface it
>> appears to match exactly the BBB definition of open access, is actually a
>> weak license likely to create problems for OA downstream.
>> My comments on this topic, from my response to the RCUK new draft open
>> access policy:
>> Kudos to RCUK for adopting a leadership position on libre open access.
>>  However, I would recommend against specifying the Creative Commons CC-BY
>> license. While many open access advocates understandably see CC-BY as the
>> expression of the BOAI definition of open access, my considered opinion is
>> that CC-BY is a weak license for libre OA which fails to protect OA
>> downstream and will not accomplish the Budapest vision of open access,. My
>> perspective is that the best license for libre open access is Creative
>> Commons - Attribution - Noncommercial - Sharealike (CC-BY-NC-SA), as this
>> protects OA downstream (recognizing that the current CC NC definition is
>> problematic, and noting that commercial rights should be retained by
>> authors, not publishers). As one example of where open access might need
>> such protection, because CC-BY allows for resale of open access materials:
>> if all of PubMedCentral were CC-BY, a commercial company could copy the
>> whole thing, perhaps add some value, and sell their version of PMC. They
>> could not legally stop PMC from providing free access. However, I very much
>> doubt that CC-BY could prevent such a company from lobbying to remove
>> funding for the public version. If this sounds ludicrous and unconscionable,
>> may I present as evidence that just such a scenario is realistic: 1) the
>> efforts a few years ago by the American Chemical Society to prevent the U.S.
>> government from providing PubChem on the grounds that this was competition
>> with a private entity; 2) the Research Works Act, and 3) the current
>> anti-FRPAA lobbying in the U.S., which, similarly to the Research Works Act,
>> claims that published research funded by the public is "private research
>> works" which should belong solely to the publisher.
>> Another reason for avoiding CC-BY is that while the contributions of
>> funders are very important, so are the contributions of scholar authors.
>> Many scholars do not wish to see others who have contributed nothing to a
>> scholarly work sell their work and pocket the money; I certainly don't. For
>> example, Peter Suber recently posted this note to the SPARC Open Access
>> Forum which expresses the distress of an author who published CC-BY in a BMC
>> journal and then found a bogus publisher selling her article for $3.
>> https://groups.google.com/a/arl.org/group/sparc-oaforum/browse_thread/thread/fc977cabd0d59bcc#.
>> The more work that is published CC-BY, the more I believe we can expect  to
>> see this kind of scam, and this risks turning researchers off OA. Also, when
>> faculty members develop their own open access policies (e.g. Harvard, MIT),
>> they insist that articles not be sold for a profit. Links to these and other
>> institutional repositories are available through the Registry of Open Access
>> Material Archiving Policies (ROARMAP) at http://roarmap.eprints.org/.
>> To illustrate how CC-BY does not necessarily result in the Budapest open
>> access initative's vision of "sharing of the poor with the rich and the rich
>> with the poor": those who give away their work for commercial purposes may
>> not be able to afford the results. For example, if a scholar from a poorer
>> area gives away their medical articles as CC-BY, images and other elements
>> from these articles could be used to develop point-of-care tools that could
>> be sold at prices that the health care professionals serving the scholar and
>> their families could not afford. That is, despite the best of intentions,
>> CC-BY could easily result in a one-way sharing of the poor with the rich.
>> This is one of the reasons why I strongly recommend that the developing
>> world avoid CC-BY.
>> I cover this topic in more depth in the third chapter of my draft thesis -
>> from the link below, search for open access and creative commons:
>> http://pages.cmns.sfu.ca/heather-morrison/chapter-3-open-access-as-solution-to-the-enclosure-of-knowledge/
>> My full response to RCUK can be found here:
>> http://poeticeconomics.blogspot.ca/2012/03/research-councils-uk-draft-new-open.html
>> best,
>> Heather Morrison
>> The Imaginary Journal of Poetic Economics
>> http://poeticeconomics.blogspot.com
>> On 20-Mar-12, at 5:34 PM, Klaus Graf wrote:
>>> I have written on this topic in 2008:
>>> http://archiv.twoday.net/stories/4851871/
>>> OA is a global movement and it isn't helpful to call European laws "odd".
>>> Klaus Graf
>>> 2012/3/20 Heather Morrison <hgmorris at sfu.ca>:
>>>> A post on libre open access, copyright, patent law, and other
>>>> intellectual
>>>> property matters. In brief, I argue that text and data mining materials
>>>> on
>>>> the open web does not require special permissions. This has implications
>>>> for
>>>> understanding what needs to happen to make libre open access a reality.
>>>> http://poeticeconomics.blogspot.ca/2012/03/copyright-for-expression-of-ideas.html
>>>> Comments welcome.
> --
> Sanford G. Thatcher
> 8201 Edgewater Drive
> Frisco, TX  75034-5514
> e-mail: sandy.thatcher at alumni.princeton.edu
> Phone: (214) 705-1939
> Facebook: http://www.facebook.com/sanford.thatcher
> "If a book is worth reading, it is worth buying."-John Ruskin (1865)
> "The reason why so few good books are written is that so few people who can
> write know anything."-Walter Bagehot (1853)

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