Roger Clarke **
Notes of 27 September 2004, revs. 29 Sep, 1 and 2 Oct 04
© Xamax Consultancy Pty Ltd, 2004
Available under an AEShareNet licence
Prepared for presentation as part of a seminar on 'Open Content Licensing' for the ANU Department of Computer Science on 29 September 2004
See also slides 24-31 of the slide-set supporting the presentation
This document is at http://www.anu.edu.au/people/Roger.Clarke/EC/OCLRPP0409.html
It is vital to the progress of any discipline that reports on research be readily available to all interested parties. During the 1990s, conditions arose that threatened the achievement of that aim. Refereed journals greatly increased in number, and became increasingly expensive; and libraries were forced by budget constraints to reduce their holdings.
Many journal publishers, primarily large, for-profit corporations, require authors to assign their copyright to the publisher, and many of them grant no licence to the author to make copies available to colleagues. (Some, particularly professional associations such as ACM and IEEE, require assignment, but grant a licence back to the author).
To redress the imbalance, a movement arose, commonly referred to as 'Open Access' and 'ePrints', associated with Stevan Harnad at the University of Southhampton and well-documented by Peter Suber at Earlham College. This movement:
There remains, however, a gap in the fabric of the Open Access initiative.
The papers that are published in ePrints archives are copyright works. The author retains copyright in them at the time they are published there. Later, however, if the paper is accepted for publication in a journal, the copyright in that paper, or in an adaptation or derivative work, may be assigned by the author to the journal's publisher.
Meanwhile, the (Pr)ePrint has generally been discovered and accessed by a variety of people. Each of those people has an implied licence from the author and copyright owner (because that is how copyright law works). The problem is that the terms of the licence granted to people who access (Pr)ePrints are not clear. The only way in which the terms could be established would be by litigation in the courts. The outcome would be highly uncertain, and in any case litigation on such matters is highly undesirable.
It is proposed that a particular form of open content copyright licence be developed, promoted to all operators of ePrints archives, and made available to researchers generally.
One expression of the situation is as follows: ""When copyright holders consent to [Open Access], what are they consenting to? Usually they consent in advance to the unrestricted reading, downloading, copying, sharing, storing, printing, searching, linking, and crawling of the full-text of the work. Most authors choose to retain the right to block the distribution of mangled or misattributed copies. Some choose to block commercial re-use of the work. Essentially, these conditions block plagiarism, misrepresentation, and sometimes commercial re-use, and authorize all the uses required by legitimate scholarship, including those required by the technologies that facilitate online scholarly research" (Suber P., in 'Open Access Overview').
The licence needs to be devised so as to address the specific intentions of research authors relating to their (Pr)ePrints. It is possible that one of the few currently available open content licences may fit the need, in particular one of the variants of the Creative Commons licenses (US) / licences (UK, Australia, etc.). A draft specification is below.
This section presents the requirements of an open content copyright licence. The authors of research papers electronically publishes a preprint or eprint. The people who access that (pr)eprint would be granted this licence, which stipulates what they can and cannot do with the copy they download.
Copyright law is complex, because it addresses a wide variety of contexts and contingencies. This specification works through the relevant factors, and constructs a collection of settings intended to reflect the intentions of the Open Access / ePrints movement, and the interests of the authors of research papers. It is envisaged that it would be implemented by means of a special licence within the Creative Commons family.
Nothing precludes the copyright-owner granting other kinds of licences as well. Nothing requires an author to use this form of licence. Anyone who wants to do something that is precluded by this licence needs to contact the copyright-owner (initially the author, but perhaps subsequently a publisher), and request permission.
By granting a licence, the copyright-owner does not lose the right to grant licences to other people (i.e. the copyright licensee gets a non-exclusive right to make a copy).
The licensee is not granted any power to issue copyright licences in the work (i.e. if a copy downloaded by a licensee were to be republished to another person, that third person would not get a licence from the downloader, but would have to get a licence from the copyright owner).
All reproductions made by the licensee must be of the complete paper, not part of it. The purpose of this is to ensure that the reader does not access the information out of its intended context.
All reproductions made by the licensee must carry the copyright notice with it. The purpose of this is to communicate to any reader the constraints on the use of the document.
The licence grants permission to the licensee to make a copy of the work. This is necessary for the purposes of download, display and printing. It extends to the making of further copies for personal use (e.g. a further printout to read on a train or plane, or a soft-copy to put on another workstation used by the same person). It is silent on the question of backup copies, cache, proxy-servers, search-engines, and other network paraphernalia (because those are broader issues that need to be addressed elsewhere).
The licence grants permission to the licensee to make a copy of the work in any format, on any medium.
The licence precludes the use of the copy for any commercial purpose. It permits only personal and not-for-profit use. (Copying and reading by a person who is employed by a for-profit organisation is not commercial use, and is permitted).
The licence permits publication only if all of the following conditions are satisfied. Publication encompasses inclusion in a compilation such as a book of readings:
[Note: The first draft precluded republication in any manner, and forced all readers back to the original source. This is impractical, and may be overkill anyway. The alternative approach adopted in the current draft is to ensure that all readers are subject to this licence, irrespective of where they get the copy from]
The licence precludes adaptation of any kind. This precludes, for example, editing (even for corrections of apparent errors), annotation, and translation into another language.
The licence is not restricted in any manner according to such factors as geographical location, legal jurisdiction, the purpose of the download, the type of person who can acquire such a licence, or the field of endeavour in which the person works.
The licence is non-revocable. In particular, the licence survives assignment of the copyright to another party, such as a commercial publisher.
The copyright-owner provides no warranties or indemnities to the licensee, other than any that may be imposed by law.
The licence is granted gratis, free of both one-time fees and repetitive fees of any kind.
I've exposed this document to a select group of people, specifically those know to me to be active in the open content, Open Access and Creative Commons movements. I'll add feedback here as it comes to hand. Some feedback is likely to result in prompt changes to the text (i.e. this is a 'living document', without formal versioning or archival management ...). My reactions are shown in parentheses.
Brendan Scott, a Sydney copyright lawyer active in the area, expressed concern about the narrowness of the terms, in particular the non-commercial, the no sub-licensing, and the copy in entirety terms. (I think they reflect what research authors want; but am seeking feedback on this point). He also commented that non-revocability would not be enforceable unless the licence was expressed as a deed, due to lack of consideration offered by the downloader.
Hal Abelson at MIT, and a member of the Creative Commons (CC) Board, felt that the requirements were "pretty much the CC license with the non-commercial, no derivatives option; except for the part about prohibiting redistribution". (Once the requirements of research authors are clarified, it would be excellent if a CC licence could be used as the vehicle for implementing it).
Jan Newmarch at Monash Uni. asked what about copies made as part of the operation of the Internet, e.g. proxy-servers, backup copies by individual users and by systems administrators, and search-engine caches. (My tentative answer is that they have - or possibly haven't! - an implied licence; but they're not the focus of this endeavour and the challenges that they present simply aren't addressed here).
Ian Oi of Blake Dawson Waldron in Canberra (who, working with QUT's Tom Cochrane and Brian Fitzgerald, is the primary author of the Australian version of the Creative Commons licence) agreed with Hal Abelson that this appears to require only minor variation to one of the CC licences. But he expressed concern that "the concept of prohibited 'republication' poses many practical and drafting issues". He also suggested that the draft should avoid treating compilations as though they were a sub-category of adaptation.
Peter Suber of Earlham College in Indiana, and a major contributor to the Open Access movement, said "I completely agree that open-content or open-access licenses are needed. Open access for copyrighted works depends on the copyright-holder's consent. We need licenses partly to formalize that consent (so that everyone knows what is permitted) and partly to signal users so that they are spared the inconvenience and delay of asking for permission that has already been granted".
Suber P. 'Open Access Overview', at http://www.earlham.edu/~peters/fos/overview.htm
eprints.org, "dedicated to opening access to the refereed research literature online through author/institution self-archiving", at http://www.eprints.org
Registry of Institutional Archives, at http://archives.eprints.org/
GNU EPrints Archive Software, at http://software.eprints.org/
Open Archives Initiative, at http://www.openarchives.org/
ANU ePrint Repository, at http://eprints.anu.edu.au/
Sherpa 'Publisher copyright policies & self-archiving', at http://www.sherpa.ac.uk/romeo.php?all=yes
Harnad S. Publications on Online Research Communication and Open Access, at http://www.ecs.soton.ac.uk/~harnad/intpub.html
Suber P. 'Timeline of the Open Access Movement', at http://www.earlham.edu/~peters/fos/timeline.htm
Newmarch J. (2000) 'Open Content Licences', June 2000, at http://jan.netcomp.monash.edu.au/opendoc/paper.html
Newmarch J. (2001) 'Lessons from Open Source: Intellectual Property and Courseware' First Monday 6, 6 (June 2001), at http://firstmonday.org/issues/issue6_6/newmarch/
Creative Commons, at http://creativecommons.org/
Creative Commons Australian licence, at http://creativecommons.org/projects/international/au/
'A Backgrounder on Copyright', in Clarke (1999a)
Clarke R. (1999a) 'Electronic Trading in Copyright Objects and Its Implications for Universities' Proc. Austral. EDUCAUSE'99 Conf., Sydney, 18-21 April 1999, at http://www.anu.edu.au/people/Roger.Clarke/EC/ETCU.html
Clarke R. (1999b) 'Freedom of Information? The Internet as Harbinger of the New Dark Ages' First Monday 4, 11 (November 1999), at http://www.anu.edu.au/people/Roger.Clarke/II/DarkAges.html
Clarke R. (2003a) 'Open Source Licensing' Xamax Consultancy Pty Ltd, June 2003, at http://www.anu.edu.au/people/Roger.Clarke/EC/OSLic.html
Clarke R. (2003b) 'Copyright: The Spectrum of Content Licensing' Xamax Consultancy Pty Ltd, June 2003, at http://www.anu.edu.au/people/Roger.Clarke/EC/CCLic.html
Clarke R. (2004) 'Open Source Software and Open Content As Models for eBusiness' Proc. 17th Int'l eCommerce Conf., Bled, Slovenia, 21-23 June 2004, at http://www.anu.edu.au/people/Roger.Clarke/EC/Bled04.html
Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the E-Commerce Programme at the University of Hong Kong, Visiting Professor in the Baker & McKenzie Cyberspace Law & Policy Centre at the University of N.S.W., and Visiting Fellow in the Department of Computer Science at the Australian National University.
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Created: 11 August 2004
Last Amended: 27 September 2004, revs. 29 Sep, 1 and 2 Oct 04
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