By Joanna Wild & Rowan Wilson
A number of the enquiries to the Open Access Enquiries mailing list have asked us how the various types of Creative Commons licence specifically relate to scholarly articles. So, in this blog post we explain the rights that the CC BY licence grants to the reader (i.e. the licensee).
The RCUK policy currently mandates use of the Creative Commons ‘Attribution’ licence (CC BY) when an Article Processing Charge (APC) is levied. This licence allows others to distribute, remix, tweak, and build upon the licensed work, including for commercial purposes, as long as the original author is credited. It is the most liberal of the six Creative Commons licences in comparison with, for example, CC BY-ND (no derivatives, no modifications) and CC BY-NC (no commercial use).
But what does ‘remixing, tweaking, and building upon the licensed work’ mean in relation to scholarly articles? After all, academic practice has been dealing with similar situations for decades. The ‘criticism and review’ fair dealing exception within current UK copyright law allows you to quote material that you are directly criticising. Standard citation allows you to reference entire works that inform your own work. Many academics might feel uncomfortable granting the right to have their work adapted by others.
So does the CC BY licence actually enable any additional useful activities? The truth is that, for many purposes, it does not. However, it does allow the copyright holder to give blanket permission for various actions that a reader/licensee might want to do. It also gives the reader/licensee clarity about what they can do with the article without having to deal with the complexities of ‘fair dealing’ exceptions to copyright.
Fair dealing = limited purpose
‘Fair dealing’ permitted under copyright law is the limited reuse of copyright material for certain fixed purposes. One example is the ‘criticism and review’ fair dealing exception. That is, if you wanted to write a critique of some copyright material you could reproduce a section of it under ‘fair dealing’ in order to illustrate what you were criticising, and then distribute the resulting work. There are many other fair dealing exceptions covering activities such as teaching, setting examinations, and news reporting. However, the bottom line under copyright law is that you always have to check carefully whether your particular purpose falls under one of the fair dealing exceptions. If it doesn’t, then you need to obtain permission from the copyright holder to use the material in your work.
CC BY = any purpose
In contrast, if an article has been published under a CC BY licence you can, as a reader/licensee, include a figure, table or photograph from that article in your own work (e.g. a paper or teaching materials that you will release online) without having to check whether you fall under one of the ‘fair dealing’ exceptions or having to obtain any additional permission from the copyright holder. All you have to do is to ensure that you acknowledge the original source.
But why choose the most liberal of the CC licences? Why not opt for CC BY-NC (non-commercial use) or CC BY-ND (no derivatives, no modifications to the original work)?
When choosing a CC BY-NC licence you might think that you only prevent use within the for-profit sector. This is not entirely true: you may actually prevent use within the public and non-profit sectors as well (Friesen 2013, p. 83). For example, CC BY-NC prohibits someone from using a figure or table from your paper on any website (even a scholarly blog) that carries advertisements. Since the definition of non-commercial is ambiguous, the CC BY-NC licence can therefore lead to confusion.
Now, what does CC BY allow that CC BY-ND does not? Allowing derivative works, as CC BY does, opens up new ways of representing scholarly articles through text-mining and visualization techniques. It also allows an article to be translated into other languages and into Braille. Another benefit is that you can compile ’bespoke’ textbooks for your students by bundling your own ‘CC BY’ papers together with other ‘CC BY’ papers.
Finally, CC BY enables onward reuse. While your quotation of a section of someone else’s work might fit within a fair dealing exception, it’s possible that a third party might want to use the quotation in a different way which does not fit the exception. If the quoted material were licensed as CC BY, this would not be a problem.
CC BY protects the author too
One question that frequently crops up regarding the CC BY licence is whether adaptation or modification of a covered work might affect the original author’s reputation, perhaps by altering their argument or providing incorrect examples. This might be an infringement of the author’s so-called ‘moral rights’ here in the UK. In fact, Creative Commons licences require that all modifications to material they cover should not ‘be prejudicial to the Original Author’s honor or reputation’ (http://wiki.creativecommons.org/Frequently_Asked_Questions).
Academic code of good conduct above all
There is the legal side of publishing, but there is also the academic code of good conduct: more things might be legally possible than what counts as good academic practice. CC BY licence requires that the credit you give to the author is reasonable to the medium. It does not release the reader/licensee from having to meet the expectations that come with the academic publishing format and medium chosen. Unmarked literal quotes and missing references in a conference paper, for example, are clear cases of plagiarism and lacking originality.
CC BY is not essential for Open Access. However, making a paper Open Access without the CC BY licence, or with a more restrictive type of Creative Commons licence (e.g. CC BY-ND or CC BY-NC), may mean that a reader must still obtain your specific permission to adapt the work and/or use it for commercial purposes.
The different flavours of CC licence enable you to be more restrictive if you want to be, but obviously the Government/RCUK wants its publicly funded research to be as unrestricted as possible.
CC BY just gives a more liberal blanket permission for some actions.
This blog post is licensed under a Creative Commons Attribution 3.0 Unported License
Friesen, N., (2013) Realising the Open in Open Educational Resources: Practical Concerns and Solutions, In. R. McGreal, W. Kinuthia, S. Marshall, S. (Eds) Open Educational Resources: Innovation, Research and Practice, Commonwealth of Learning and Athabasca University, Vancouver, 2013 (pp.79-90): https://oerknowledgecloud.org/sites/oerknowledgecloud.org/files/pub_PS_OER-IRP_web.pdf