Comments from researchers and colleagues have indicated some disquiet about the Creative Commons (CC-BY) licence in some areas of the academic community. However, in conversation with some legal people and contemporaries at other institutions (some of these exchanges are replicated at the end of the blog) one of the observations was that generally academics are not necessarily cognizant with what the licences offer and indeed what protections are available under regular copyright.

To try and determine whether this was an education and advocacy problem or if there are real issues we had a roundtable discussion on 29 February at Cambridge University attended by about 35 people who were a mixture of academics, administrators, publishers and legal practitioners. The discussion centred on some of the objections raised in the information circulated before the meeting (which is summarised at the end of this blog). For ease of description each objection is addressed in turn.

Background

Creative Commons provide a series of licences that people who create work can add to their work which tell users what they can or cannot do with it. There are a range of licenses that run from no restrictions at all CC-0 to fairly restrictive CC-BY-NC-ND-SA* where the user must attribute the author, not amend the work, cannot make any financial gain from it and must put the same licence on anything they produce using this work.

There are increasing requirements from funders such as the Wellcome Trust and RCUK in the UK that any work published open access must have a Creative Commons Attribution (CC-BY) licence attached to it. The rationale behind this is that research needs to be available for other researchers to both read and reuse, but also to text and data mine without fear of copyright breaches. Work that is available under a CC-BY licence can be easily incorporated into course reading lists without copyright complications.

* Note added 8 March – a comment has been sent through is that the CC-BY-NC-ND-SA is impossible to apply because the share-alike and no derivatives clauses are mutually exclusive and cannot be applied together. See this explanation.

Summary of the discussion

The general feeling in the discussions was that academics do want to share their work but they don’t want things to be used incorrectly. The outcome of the discussion was that while there are some confusions in this area, and we could do some work on advocacy and educational materials there are also some specific cases where CC-BY has the potential to cause issues.  In a small number of cases issues have actually occurred.

Is CC-BY a problem? For whom?

We should note here that CC-BY only affects a proportion of research published in the UK. While all research is potentially affected by the HEFCE requirement to make work available, the route preferred is through placing a copy in a repository. So this discussion affects only those researchers who have a specific grant from the Charities Open Access Fund (Wellcome Trust) or the RCUK. Humanities researchers tend not to hold grants, and for those that do, it is their articles, not their monographs that are affected by this requirement.

While there are some actual concrete examples of issues for researchers in the Arts and Humanities, many of the problems discussed here are what could happen. There was a comment from a scientific publisher that the sciences also had some concerns about CC-BY when it was first introduced, but none of the concerns have actually come to fruition. Another person noted there have been hundreds of thousands of pieces of content published under CC-BY licences, with very few known problem cases or harm. This is telling. The question was raised: Are we just repeating myths?

On the other hand, just because issues haven’t happened yet does not mean that it would not be a serious problem should they did occur. One of the questions at the end of the discussion was: “Are the ethical norms of society strong enough to stop these concerns happening?” It would appear that to date they have been in the sciences.

Moral rights

CC-BY is an attribution licence. This means the moral right for the originator of the work to be identified is retained. However the moral right for the integrity of the research is not protected. The discussion centred around this.

If someone uses work under a CC-BY licence and makes alterations to it, they do need to indicate they have changed a work but not how they have altered it. The concern in the group was that the work could be altered so the meaning is entirely changed and it would still be attributed to the original author.

Authors can object to the derogatory treatment of their work. The recourse of being able to ask to have the originator’s name taken off the work was not seen as satisfactory because then the person who has adapted the work is potentially able to publish the work, which is based substantially on someone else’s work, as their own.

That said, one comment was that academic works are always open to interpretation, whether quoted or not and whether available under a CC-BY licence or not.

Translation

The area of translations does appear to have some concrete examples of problems caused by CC-BY for Humanities & Social Science authors. One of the issues is it is very difficult to check a translation unless the original author can read the language into which their work has been translated.

Plagiarism

Of all of the areas of discussion, plagiarism raised the most opinions. The accusation that CC-BY somehow ‘encourages’ plagiarism is often levelled. Some arguments are that making work available under a Creative Commons licence protect authors against plagiarism rather than encourage it. Works available in the public domain are far more easily identified as the original work than something published on paper and held on a library shelf, for example.

There was a debate about what actually constitutes plagiarism. One opinion was that ‘It’s plagiarism unless it’s in quotes’. However while the use of quote marks would protect the integrity of the work, there is nothing legally wrong with a derivative use of a work that is available under CC-BY – legally this is not plagiarism.

Nothing about the CC-BY licence overrides UK law about fair dealing. One of the lawyers present noted that academics don’t understand the details of copyright. Academics want full protection but also full sharing. In the world of the internet there’s a free-for-all – people copy-and-paste from wherever they want. No-one respects licences, so an academic work is not necessarily protected under current rules.

It was noted that plagiarism occurs all the time, even when articles are all rights reserved and under traditional copyright. And while Open Access publishing does make plagiarism easier (regardless of the licence), it doesn’t change the underlying principle that it’s unethical. Ethical behaviour in academia sits separately from copyright law.

Sensitive information

The area of sensitive information seems to have the strongest case for not using a CC-BY licence. Researchers working in areas that might contain sensitive information – such as medical or criminal areas – spend a great deal of time ensuring that their findings are presented sensitively and ensuring their distribution is appropriate. The concern with CC-BY licences mean that these findings can be misconstrued which would be damaging to the researcher and could go back to the participants and affect them. If presented in the wrong way, altered research outputs could affect not just their research but also participants.

There is an issue about the dialogue between the people that are being studied and if they have any moral rights about how the information is being used.

An example that was given was in anthropology, working with a community of Native Americans in northern California, who released sensitive data and stories from their cultural past which they want to be accessed. However because they have been exploited in the past they wanted some form of restriction on how these things can be reused. This is an example where a CC-BY licence would not be appropriate.

An oral historian discussed the type of work they do with subjects talking about traumatic periods of their life. In these cases the researcher enters in a covenant with them about how their work can be used. This would not be able to be dealt with ethically under a CC-BY licence. The issue is about subsequent control over reuse of research, with concern about it being co-opted and used in another context.

The question about ethical use of material was raised again, with someone noting that no matter what licence it is available under you can’t control what people do with your work if they disagree with you.

Items containing third party copyright

Being required to publish work under a CC-BY licence does cause problems for people whose work contains a large amount of 3^rd party material. This is because the burden on the author to obtain permissions for all of the works would be both time consuming and expensive. May researchers have raised questions about whether they can even do their work if they’re required to publish under CC-BY.

That said, if researchers are themselves using CC-BY works this issue is mitigated because they automatically have permission to use the material. This raises the question; does CC-BY make it more difficult or easier?

Commercialisation

There were some examples raised where a series of works that were freely available had been packaged up and sold. This raised the question: Who is being harmed in commercial exploitation of academic works?

Academics do not publish in journals for money, so the originator of a work that is subsequently sold on is not personally losing a revenue stream. There was a distinction between the academic and non-academic publishing environment. It was agreed that the person buying these works are being scammed. The concern is that people are being exploited by being made to pay for things that should be freely available.

The discussion moved to whether a Non Commercial licence would solve this problem. The issue here is the confusion over the definition of ‘commercial’ in this context. An institution that has a revenue stream from student fees could be seen to be commercial and therefore unable to include CC-BY-NC items on their reading lists.

It was noted that CC-BY–NC-ND is extremely restrictive about ways works can be used.

Academic freedom

The discussion several times touched on the broader issue of the government putting an increasing number of requirements against researchers. The questions raised were: “Does someone who is fronting up with the money have the rights to enforce a particular licence? What about the subjects of a study?”

There is supposed to be arms length between funders and universities but a concern is that funding bodies want to have more power to tell academics what to work on.

Next steps

In summary, the discussion indicated that CC-BY licences do not encourage plagiarism, or issues with commercialism within academia (although there is a broader ethical issue). However in some cases CC-BY licences could pose problems for the moral integrity of the work and cause issues with translations. CC-BY licenses do create challenges for works containing sensitive information and for works containing third party copyright.

There is an expectation amongst the academic community that people behave ethically and within cultural norms.

As agreed with the group we have published this blog post which summarises the discussions held this week. In discussions about the Open Access Policy Framework for the University it would be helpful to include a statement that there is concern about CC-BY licences for some disciplines and types of research.

Background information sent to participants prior to the discussion

Commentary on CC-BY in published reports

The issue of the CC-BY licenses was a recurrent theme in A review of the RCUK review of implementation of its OA policy (March 2015). Many arts, humanities and social science disciplines hold ‘principled and practical objections to the use of CC-BY licences’ (p18). This is partly because work under a CC-BY license ‘could be both used commercially in ways of which the author does not approve and also might not be properly acknowledged as their work’ (pp19-20).

The Royal Historical Society evidence to the RCUK review noted that humanities scholars have particular objections to certain kinds of ‘derivative use’ that amount to the encouragement of plagiarism. Because the ‘attribution’ requirement in CC BY is very loose, it is possible for a reuser of a humanities article to alter it and reissue it under their own name, specifying only that it is an adaptation of the original, but without specifying how it has been adapted. In this way reusers may adopt the style, argument and ‘personality’ of the original work under their own name (and even copyright it). This represents a violation of the specific moral right of the author to the integrity of the work, and the only recourse offered to the author by CC BY is to have their name removed from the attribution (which makes the violation worse). This kind of re-use is as likely to degrade as to enhance the public benefit of the research.

The British Academy’s response to the Commons Select Committee (2013) noted that many articles in HSS subjects are the product of single-author scholarship, where there is more of a claim on ‘moral rights’ that are not adequately protected under an unrestricted CC-BY licence. There were also concerns about commercial reuse of work that contains third party copyright, involving complicated permissions. The response suggests that it should be possible to vary Creative Commons licences according to the usages and requirements of different subject areas – and that an ‘Attribution-NonCommercial-NoDerivs’ licence (CC-BY-NC-ND) may very often be more appropriate

Notes on an April 2013 Royal Historic Society position changing workshop on CC-BY and Humanities (chaired by Peter Mandler) noted that the editors of a number of history journals have suggested that the CC-BY licence facilitates and promotes commercial re-use and uses akin to plagiarism; that the licence therefore amounts to an infringement of authors’ moral and intellectual property rights; and that it is likely to damage the quality of education.

The HistoryUK Submission to the 2013 Business, Innovation and Skills Committee Enquiry on Open Access Publishing raised issues about the loss of protection of intellectual property, the dangers associated with allowing derivative works in sensitive areas of research, and the possible increased costs or embargos publishers may feel compensate for the transfer of a commercial asset to a third party.

Comments from researchers and administrators

In preparation for the round table, Danny Kingsley asked her community across the sector what kinds of objections different people in an administrative or library role had heard from researchers. These are summarised below.

English researcher at Cambridge – “I would prefer not to make my work, produced with the benefit of public funding, available in a form that would allow others to exploit it commercially, as the simple CC-BY licence does. My preference would be for the CC BY-NC-SA licence.”

Research Information Specialist – One question to ask here is whether traditional publishing models – such as signing over copyright itself – are really more beneficial to authors, and of course to weigh the risk of a negative CC experience against the benefits of positive ones.

Concerns raised in discussion with academics in the Humanities (reflected in two responses)

1. A belief that CC BY encourages plagiarism
2. That content licenced under CC BY is not monitored for copyright and other infringement to the same extent as more restrictive licences (a misguided belief that publishers actively monitor use and reuse of content I think)
3. I have also heard the more vague concern about ideas being manipulated or twisted in some way and then re-published under the author’s name
4. That encouraging reuse, especially derivatives, means the author has no control over what people do with the information (and therefore are associated with something that they would rather not be)

Advice provided on Creative Commons and licensing

• Guide to Creative Commons for Humanities and Social Science monograph authors from OpenUK.
• Guide to OA Monograph Publishing for arts, humanities and social science researchers
• Royal Historical Society ‘Open access advice for ECRs’ written by historian Peter Mandler

Published 3 March 2016
Written by Dr Danny Kingsley, with thanks to Dr Philip Boyes and Dr Joyce Heckman for their notes.