Open access and Creative Commons licensing: copyrights, moral rights and moral panics | Impact of Social Sciences

" ... What exactly is the source of this confusion? Much of it stems from the fact that four distinct but overlapping regimes of authors’ ‘rights’ are invariably implicated by the act of publishing a scholarly article. One is the general law of copyright, which reserves the right to control e.g. copying, distribution and online transmission to the copyright holder but also exempts from liability certain acts done in relation to a work, including ‘fair’ uses for the purpose of e.g. private study and non-commercial research. The exceptions are currently being ‘modernised’, with e.g. a new exception to facilitate data analysis for the purposes of non-commercial research likely to be introduced in the near future. Another is the law (yes, the law) of ‘moral’ rights, which protects certain non-pecuniary interests authors are deemed to have in relation to their works: interests in being identified as author, and in being able to object to false attribution of a work to oneself and to ‘derogatory treatment’ of one’s work. A third regime is that instituted when a copyright work is licensed: a licence permits use of the work in ways otherwise exclusively reserved to the copyright holder by the general law of copyright, but that law continues to apply to the licensee except insofar as the licence effectively excludes it. There is a fourth regime as well, but unlike the other three it doesn’t have the force of law: this is the regime of social norms governing academic authorship which is collectively recognised by the ‘community of scholars’ – norms against plagiarism, for example. Some activities that these norms would define as unethical don’t count as instances of copyright infringement at all, yet they are still sanctioned (extra-legally) by the academic community ... The consternation adverted to above is mainly focused on the licensing regime that RCUK now requires for much RCUK funded research. This regime is framed by theCreative Commons (CC) ‘BY’ licence, the most permissive of the CC suite of model licences. CC-BY allows anyone to copy and modify (abridge, add to and generally alter) the licensed work and distribute copies and modified versions, for commercial as well as non-commercial purposes, as long as attribution is given to the author(s) of the original work and any copyrights in third-party material included in the original are not themselves infringed. Since April 1, CC-BY has been the copyright licence under which articles resulting from any RCUK-funded research must be published in peer-reviewed journals when RCUK’s block grants are used to pay APCs to the publisher.  Many of the concerns about CC-BY are directed at the absence of a ‘ND’ (no derivatives) clause from this licence. There are worries that CC-BY not only permits acts that would otherwise breach copyright (e.g. translations) but also acts that would in addition breach moral rights (e.g. sloppy abridgements) and acts that wouldn’t necessarily be unlawful but would flout the conventions of good academic practice (e.g. embarrassing re-contextualisations not specifically endorsed by the author, plagiarism). But these concerns are misplaced. Just because the concept of open access requires the third of the four regimes to be permissive for users of published research doesn’t mean that it requires the other regimes to be permissive too ..."