What follows is the first guest post in a series we’ll call “Open Access and Scholarly Publishing: The State(s) of the Question.” Dr. Martin Paul Eve is lecturer in English Literature at the University of Lincoln. In addition to his work on Thomas Pynchon, modernism, and cultural theory, he has recently launched an initiative called the Open Library of the Humanities, which supports “a low cost, sustainable, Open Access future for the humanities.” You can learn more about it and, if interested, get involved here, and read a piece from the Chronicle of Higher Education about the initiative here. Other guest posters in this series will include Rebecca Curtin, a law professor at Suffolk University who writes and teaches on property, copyright, and IP issues; Stevan Harnad, a long-time advocate of OA in the scientific community who holds positions at Université du Québec à Montréal and the University of Southampton, UK; and Eileen Joy, a medievalist and theorist who is the co-founder of Punctum Books and other OA series and journals in the humanities. Look here for a handy guide to OA terminologies you’ll see coming up in these posts (e.g. Gold and Green OA). Suggestions (and, of course, self-nominations!) for additional contributors are always welcome.
You might think, as one of Beckett’s short pieces, Ohio Impromptu, puts it, that on the subject of open access, “little is left to tell.” There have, after all, been innumerable tracts and exchanges (often polarised into advocates and detractors) giving the lowdown on different aspects. Among the best of these on the advocacy front, although written in what I consider to be an extremely measured tone, is Peter Suber’s book, Open Access. I’d like to use the space given to me here, though, to address a specific aspect of open access that has not been given an appropriate treatment in the humanities: the removal of permission barriers. Indeed, much has been said by detractors–sometimes justified, sometimes not–about the removal of price barriers and the new economic model that full-scale gold OA entails. Often, though, humanists seem to use the Creative Commons Attribution License as a catch-all clause, bolted to the end of angry blog posts, to bolster their arguments. I’m going to argue here, though, that this is grossly misplaced.
Before any of the misunderstandings about the CC licenses can be dispelled, it is necessary to explore why the removal of permission barriers to scholarly works might be desirable. In fact, most can be brought to see the advantage of removing price barriers (even if they disagree with the new models that are brought to fund it) but still balk at the idea of increased permissiveness. Allow me to outline two possible use cases here: one concerning rigorous scholarly critique and one concerning a technical challenge.
Imagine, for a minute, that I wish to conduct a detailed, literally line-by-line critique of somebody else’s argument in a scholarly paper. Fair use provisions seem to imply (although, in the UK at least, I am unaware of such scholarly fair use laws being tested) that I may quote from the piece. However, there are limitations here. The US uses the following four factors to determine if use is fair:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.”
Let us consider each of these clauses under my hypothetical scenario.
- Clause 1: OK, so I am doing this for educational purposes. Let us say, though, that I submit my critical article to a commercial journal. Does this remain non-commercial? What about the university that pays my salary through asking students to pay tuition fees? Is this a “non-commercial” entity? There’s definitely some doubt here.
- Clause 2: Some problems arise here. Again, the work I am critiquing may be academic/educational but it is likely that the publisher will own the copyright (this is usually transferred at the time of publication) and thus it is a commercial work.
- Clause 3: I am severely limited in the amount I may quote. I cannot enact a literal line-by-line critique as this would infringe the entire document’s copyright.
- Clause 4: Although I might believe that there would be a kind of Streisand Effect in such a critique (i.e. that my angry critique would draw attention to the original), the market value of the original is theoretically destroyed; it is available for free, embedded within my response article. I am also unable to ensure, if I wanted to cite the piece, that all my readers will have access. As academic scholarship relies on being able to validate a piece, this could also pose problems.
In short: I can easily envisage scholarly cases where fair use is not enough and where the breaking down of permission barriers is needed.
Let us move on to case #2: the technological scenarios. It may seem odd to those unacquainted with this idea, but digital formats degrade. By this I mean not only that the media on which we store digital documents are subject to physical corruption (magnetic hard disks etc.) but that, as technologies become obsolete, it becomes impossible to open files on newer machines. Try opening files from AppleWorks. It’s a long-winded procedure involving workarounds and hacks. Fair use would not allow us to migrate older scholarly articles to newer versions and instead relies on publishers to do this, something that will cost them time and money to do (and so becomes unappealing).
It should also be noted that meta-studies of scholarly disciplines can greatly benefit from advances in text-mining technology. However, this is not necessarily permitted by fair-use law. Let us say that I want to examine the frequency of the term “colonialism” in regard to various statements of value across history journal articles from 1900 to present. For this, I would need the material to be available with permission to mine the text; another breaking down of permission barriers.
Assuming that, even if you wanted to undertake neither of these proposed example cases, I have persuaded you that cases might exist where this would be beneficial, let me move on to the Creative Commons licenses and ways in which these can help but also provide some assurances over their safety.
The Creative Commons License requires that, as a basic pre-requisite, you attribute the work to the original creator. The legal code is specified thus (with my additional bold highlighting for readability):
If You Distribute, or Publicly Perform the Work or any Adaptations or Collections, You must, unless a request has been made pursuant to Section 4(a), keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or pseudonym, if applicable) if supplied, and/or if the Original Author and/or Licensor designate another party or parties (e.g., a sponsor institute, publishing entity, journal) for attribution (“Attribution Parties”) in Licensor’s copyright notice, terms of service or by other reasonable means, the name of such party or parties; (ii) the title of the Work if supplied; (iii) to the extent reasonably practicable, the URI, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and (iv) , consistent with Section 3(b), in the case of an Adaptation, a credit identifying the use of the Work in the Adaptation (e.g., “French translation of the Work by Original Author,” or “Screenplay based on original Work by Original Author”).
In short, the Creative Commons Attribution License clearly states that “You must [...] provide [...] the name of the Original Author [...], the title of the Work [… and] the URL” at which the work may be found. In short: you must cite the work, as you would any other piece of academic prose.
Furthermore, the code stipulates that
You may only use the credit required by this Section for the purpose of attribution in the manner set out above and, by exercising Your rights under this License, You may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the Original Author, Licensor and/or Attribution Parties, as appropriate, of You or Your use of the Work, without the separate, express prior written permission of the Original Author, Licensor and/or Attribution Parties.
This portion negates the arguments that open access might mean that people’s publications are used to support neo-Nazism (I kid you not, somebody made this argument). Under the Creative Commons Attribution License,
- Nobody may use your work in a manner that implies that you endorse their activities. If they do, you may sue them, just as you currently can.
- Nobody may arbitrarily mangle your work in a manner that misrepresents you. Again, you will have legal recourse.
- Everybody must cite you if they use your work. They cannot plagiarise it any more easily under a CC-BY license.
On point #3, the Society of History editors’ statement, to which I have already responded but will re-affirm here, is entirely incorrect in the way it conflates copyright, licensing and plagiarism. Under Creative Commons Licensing:
- You will keep your copyright. This is not the case with most current scholarly publishing where you sign this away to the publisher.
- People may not plagiarise your work. Plagiarism is a term used within the academy and it is not something that is punished by law (that is copyright violation). If somebody posted your work without attribution, this would be a copyright violation (and you would have legal remedy) and/or they should be punished by the disciplinary plagiarism processes at their institution.
There have been other suggestions that less permissive forms of Creative Commons licensing might be a better way to go. I believe these are also misguided.
The Creative Commons Attribution Non-Commercial License sounds like a good choice for those who would rather that industry didn’t benefit from their labour. I’m less sure. As already mentioned, it is unclear how “commercial” academia actually is in the first place. Furthermore, the liberal principle of taxation would include industry in those who should benefit from taxpayer-funded research. I’m torn but, in the end, would probably not go for the NC license; there are too many unknowns and, regardless of how problematic industry and commerce may sometimes seem for the humanities, we lose very little in allowing them access.
The Creative Commons Attribution No-Derivatives License again sounds perfect to avoid the “neo-Nazi” (straw man) argument. It’s not needed, though, and would also prohibit the line-by-line analysis that I mentioned above and the transition to new formats.
The Creative Commons Attribution Share-Alike License appeals to me; it forces others to share under the same conditions. However, this may preclude uptake of the CC licenses and assumes a mass transition to CC. Although this is desirable, it is not a pragmatic solution.
In short, this is an argument for permissive licensing in the humanities. We do not know what technological tools will be available for processing scholarly texts in the future. Without these licenses, we might be unable to use them. It is also clear that fair use is not sufficient to cover all traditional scholarly use cases. It makes sense to ensure that we do not trip our fellow scholars up by signing away rights to publishers that then mean we are unable to fulfil our critical roles.
Please use Creative Commons Attribution Licenses on your work.
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