Editorial Note
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.
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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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There may be a good case for using CC-BY for Open Access humanities, but I don’t see it here.
First, rhetorically, Eve sets up opposing views as straw men and pillories them with emotion, not argument: “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…this is grossly misplaced.” I’d say that, from a tactical standpoint, here just a few sentences in one has likely repelled or alienated most people of differing views, if they even happened to come across this op-ed, and they’re probably not going to read further or be convinced, given how argumentation works.
Then, a long disquisition on how fair use may not be permissive enough for some purposes. True, but generally irrelevant since we are talking about why to use CC-BY over other Open Access licenses, all of which allow much more permissive use than fair use alone.
Then, on the crucial topic of NC restriction, which has been found to be widely preferred by default by non-science academics in many contexts, we have this guidance: “I’m torn but, in the end, would probably not go for the NC license; there are too many unknowns.” What’s unknown is whether the author has particularly considered why people tend to choose NC, or the arguments made for it, or thought through any compelling counter-arguments or counter-strategies. Given that his argument on this seems to be still in formation, Eve might also convene and consult with the Open Library of Humanities committee members, recently gathered in such haste and numbers, before pushing an individual and possibly non-representative position.
Then, Eve offers a detailed study of Attribution license clauses, which yes, were perhaps misunderstood by the Society of History editors and others. Well and good, but not something that necessarily distinguishes CC-BY licenses from NC or others, which I thought was the article’s point.
Entirely missing from this discussion too are, for example, well-known pragmatic arguments made by longtime OA advocate Stevan Harnad, that the primary goal of online reading access may be largely and indefinitely blocked by insisting absolutely on the purest, CC-BY case of licensing. It’s apparent to me that the science-affiliated, CC-BY-demanding, absolutist position has been so far largely a failure in convincing most humanities and social-science scholars to change their practices. Observing such a minimal degree of adoption, 12 years after the Budapest Open Access Initiative was launched, I think a strategic approach is to examine new approaches, not just repeat the same arguments more loudly.
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Tim McCormick
Stanford Media X
Founding Member, Open Library of Humanities
@tmccormick / http://tjm.org / Palo Alto, CA, USA
Thanks, Tim, for the spirited reply. I’ll get in touch with Martin to see if he’d like to respond to your arguments here.
I want to chime in here, as the director of an open-access [but also print-on-demand] academic press [punctum books], and say that, when making decisions about which CC license to endorse, carry, etc., that we should keep two ideals/questions in mind:
1. what leads to the most open, accessible commons of creative-intellectual goods [what, in other words, best serves public interests, especially as regards the flow of, and participation in, informational and cultural economies]?;
and,
2. what is best for the creator-author and her work [in other words, how best to SUSTAIN the work of thinking/writing/creating, especially in the humanities, in a way that contributes to the personal well-being and flourishing of humanists-artists]?
Like Tim McCormick, I disagree somewhat with Martin Eve’s commentary, characterizations, and arguments, but I won’t rehash that here, as I think Tim makes his points of disagreement clear and what is more important is that we spend more time asking ourselves and investigating what best responds to the questions I have outlined above [just my opinion, as both a scholar working in the humanities and as an editor-publisher]. As our work is flexible and varied, so should our publication licenses be! We don’t actually have to make one, unchanging choice; indeed, the wonderful thing about the CC licenses is that they are eminently adaptable to differing needs of both author-creators and publishers. At punctum books, we would actually be happy to have others “build upon” and even “alter” and “transform” our texts, and we are a non-profit publisher, but because we also want to allow individual authors to have some part in this decision, and because we don’t believe that we should give everything that is valuable to us away for free, especially when it still costs so much to produce, in terms of sweat but also actual dollars, we begin with the most restrictive license: BY-NC-ND [essentially: we ask for proper attribution, no commercial re-use, and no \"derivative\" works based on our texts], BUT: there is always room to bargain. This license does not STOP anyone from doing things with our texts that might be commercial or derivative; it just means they need our, and the author’s, permission. In most cases, we will say “yes,” and we certainly won’t make anything cost-prohibitive, as commercial academic publishers often do, saying, “well yes, you can republish that, but pay us $800 first,” etc. All of our texts are available in open-access form, so there is never a question of our not being 100% behind a completely open, public intellectual commons, and all of our authors have to agree to that: we are not in this for commercial profits, as it were; on the other hand, as a print-on-demand publisher, we remain dedicated to the book as a sort of art-object and everything we do costs money [although much of the work done for us is done by unpaid volunteers, including myself], so if we do end up creating something that makes some money, we want to use that to further the work of the press and if someone else wants to capitalize on that, we might certainly share profits with someone who wants to help extend the audience(s) for our authors [which is always a good thing], but in a way that helps everyone [us, the author, the new \"re-users\"] sustain our various enterprises, while also continuing to add new “goods” to the commons. punctum, for example, recently co-published a translation of a film studies chapbook by Australian film scholar Adrian Martin [which we originally published in English] with the Film Institute of the National Autonomous University of Mexico. They paid the translator fees and designed the cover, and we took care of formatting the interior and final copy-editing, and any profits from the print versions will be split 3 ways between the author, them, and us. This is an example of a hybrid share *and* profit economy at work, one that helps authors and publishers.
Yes, as Eve avers, we need “permissive licensing,” but that does not mean we and our authors should have no controls whatsoever at the “steering wheels” of our various publishing enterprises. Intellectual “property” is a very real entity, one we should value while not being stingy about it. You need to talk to creative artists about this more [musicians, painters, photographers, etc.], and we humanists are also creative artists of a sort, but we simply don’t “get” this issue the way creative artsists do who may not have institutional salaries to help keep them afloat. They need to try and live on the profits of the work itself. I want a robust public intellectual-creative commons, but many scholars have the luxury of having a “day job” [faculty appointments] that allow them to convince themselves that their salary “pays” for their publications, and that we can just therefore give it all away for “free.” None of what we do is really “free”–we just often have funny ways of accounting for the allocation of our “resources.”
And speaking of profits, no, as Eve points out, humanists are not necessarily producing “commercial” work, BUT we still need to talk about things like economic feasibility and sustainability. If you can get millions of dollars from a philanthropic foundation to keep an open-access publishing initiative afloat, terrific, but that can’t be the ONLY means of support; for one thing, that’s never a bottomless well. We have to devise smarter and more financially savvy ways to sustain our own publishing initiatives through things like share-economies, yes, but also through continued demands for institutional support, and also by actually making some money on our own products [not to line our pockets with extra cash to buy Prada loafers--haha--but to keep making even more intellectual products and to get them into the places they needs to be, so that they are more available to more persons in more places who might need, or desire, this sort of information]. After all, if a commercial academic publisher such as Palgrave or Ashgate can sustain a corporate infrastructure on the dime(s) [and free labor] of faculty, students, and institutions, why not sustain our own infrastructures of intellectual production, and use the “profits,” as it were, to expand our lists and reach? If we are not very, very careful, we will see institutions such as universities and libraries assuming that, now, with the digital tools we have, everything can just be open and free, and isn’t that great? The amount of labor to produce good scholarship and to present it in a fashion that is elegant and coherent has not and will not change, however. And we should still care about presentation–we like our “beautiful” things and building dedicated communities of readers around a particular field, journal, series of books, etc. takes some work, and you cannot undermine the “specialness” of certain venues and products to help build that community. Who is going to continue to do this work, and how, within the new digital interfaces and platforms?
On that note, I also want to point out that just because you can build a big-enough server and [maybe] direct everyone to upload their work there, that it would be wise to not underestimate the aesthetic aspects of the production of work within the humanities. Design still matters. Aesthetics still matter. At punctum, we embrace digital platforms for new work, but we also believe that authors and readers really desire work that is “packaged” a certain way, that is appealing in design, that is beautiful, as well as smart, as well as creatively conceptualized [and we work on this in both web-based as well as print platforms; see here, for example: http://geologicnow.com/. There is a lot of boredom and even information overload in many of our fields, and we need to think about that, too. But now I am also straying from the topic, so my bottom line point is: we don\'t have to pick one CC license over another; we can use them all [they were designed for their flexibility, after all, and not every work is the same]: why not let individual authors choose what they believe is best for them and their work? And stop pretending that the money does not matter, that “commercial” factors don’t apply to humanities publishing. It is precisely because we have believed that for so long, that we are in the predicament we are in right now [where we give all of our work for free and then have to pay to read it, review it, use it, re-use it, etc.!]. But perversely, if that is really true, then that is precisely why, right now, we should be demanding more vigorously then ever that the PUBLIC [i.e., the government, universities, etc.] should be funding new publishing initiatives, especially if research councils in the UK and elsewhere are going to insist that faculty have to publish in open-access outlets. Here is what faculty should do: take over the reins of their own production, and don’t give up on things like presentation. Never underestimate the unconscious desires of your market. I learned that from the commercial side of the business world.
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