Open? When Site Restrictions and Clauses Undermine Open Access – Authors Alliance

"Open access publishing has transformed the way research circulates. In principle, open access means that anyone, anywhere, can read and reuse scholarly work without financial, legal, or technical barriers. But in practice, many works labeled as “open” are quietly constrained by restrictions that limit how they can be used, especially by machines. Some of these restrictions are well known –  “NonCommercial” and “NoDerivatives” terms that limit downstream uses. But they also increasingly include fine-print Terms of Service that bar uses like text and data mining (TDM) or AI training. These additional constraints dilute the value of openness and conflict with its foundational definitions.

Creative Commons licenses have become the standard way to mark open works. But not all CC licenses support the same freedoms. Some publishers such as Taylor & Francis and MIT Press frequently apply CC BY-NC-ND licenses to books or articles described as “open.” This license restricts others from adapting the work or using it commercially without permission, even though in some cases limited reuse or transformation could qualify as fair use under copyright law. For instance, a CC BY-NC-ND article generally cannot be translated, remixed, or used to train a machine learning model without separate authorization, though some research-driven applications might nonetheless fall within fair use.

A longstanding debate in the open-access community centers on exactly how “open” one must be to be “open access,” and many authors who choose NC/ND terms do so for compelling reasons – such as maintaining integrity of expression, avoiding commercial exploitation, or protecting sensitive material. Some NC/ND-licensed works still achieve substantial openness in access and impact. For example, MIT Press’s Direct to Open titles and UC Press’s Luminos series include CC BY-NC-ND books that are freely available online, widely cited, and used in classrooms, even if reuse is limited. These examples show that openness is not always all-or-nothing: access alone can meaningfully expand a work’s reach, though broader reuse remains constrained....

More recently, a growing number of publishers have started imposing restrictions not through licenses, but through website Terms of Service...."