In brief, my reasons for opposing conflation of open access and open licensing is that open licenses are not sufficient, necessary, or always desirable for open access.
Not sufficient: there are two reasons why open licenses are not sufficient. One is that there is nothing in CC licenses that obligates any copyright holder or downstream re-user to continue to make a work available at all, never mind free of charge. For example, an obvious beneficiary of works made available for commercial downstream re-use is Elsevier through their toll access search service Scopus. If we consider “free of charge” to be an essential element of open access (I do), CC licenses allowing downstream commercial use are not enough. The second reason is that scholars will always need to study and draw from works that are beyond the scope of research, and for this reason we need strong fair use / fair dealing provisions in copyright. For example, while PLOS is a model for open licensing with respect to articles published, as a scholar in the area of open access economics, I need to be able to quote language from the PLOS website in this area, and the PLOS website per se is All Rights Reserved; my work requires fair dealing rights. PLOS is not unusual in this; differential licensing is common for “CCBY by default” publishers.
Not necessary: works that are online, free to read and free of most technological restrictions on re-use are in effect sufficient for most of the intended purposes of open licensing. Consider what Google is able to do with internet-based works without having to restrict searching to works that are openly licensing. A work in HTML or XML with no technological protection measures (TPM) and no copyright statement (automatic All Rights Reserved copyright in any Berne country) can be used for text mining and portions of the work can be copied, with attribution, under fair dealing. In contrast, a work with an open license that is produced in a format that includes TPMs is less available for the purposes intended by open licensing than many works that are openly licensed. It is important to understand that TPMs are used not only to protect copyright, but also to protect the integrity of works, for example to look and feel of graphics as well as their position with respect to text.
Not necessarily desirable: open licensing, I argue, is not always desirable. For example, researchers who work with human subjects (very common in the social sciences) have a primary ethical duty to protect their subjects from harm. There is a wide range of sensitivity of information shared with researchers, ranging from quasi-public to extremely sensitive. Material such as stories and images shared with researchers for the purposes of advancing knowledge should not be made available on a blanket basis for re-use including commercial purposes. In developing policy attention should be paid to common commercial uses of this kind of material, particularly in the area of social media. Decisions about open licensing are in effect decisions about balancing the benefits of open licensing and our ethical duty to protect human subjects. I argue that our ethical duty to protect human subjects requires a conservative approach, in individual research projects, research support services, and policy-making.
This post is an excerpt of a recent open peer review, presented by way of explanation of why I am posting an open peer review in a journal with a default license of CC-BY under All Rights Reserved copyright. The remainder of the sections of this open review that are relevant to copyright are posted below.
An open peer review of “Few open access journals are Plan S compliant”: third and final round by Dr. Heather Morrison, Associate Professor, University of Ottawa School of Information Studies, and Principal Investigator, Sustaining the Knowledge Commons, a SSHRC Insight Project. Copyright Dr. Heather Morrison, All Rights Reserved (explanation below)…
Copyright Dr. Heather Morrison, All Rights Reserved: explanation The default license for MDPI’s Publications is CC-BY. From the perspective of many open access advocates, open licensing is an inherent part of open access. As discussed by the authors, this assumption forms part of the Plan S compliance criteria; compliance requires CC-BY, CC-BY-SA, or CC-0 licensing, with recognition that funded researchers cannot impose open licensing on third party copyright owners whose works are include in Plan S funded researchers’ works. I argue that conflating open access and open licensing is a major strategic error for the open access movement, and that it is important for open access advocates to understand that arguments opposing open licensing requirements can reflect a strong position in favour of open access. It is a mistake to think that because traditional subscription-based publishers oppose open licensing for business reasons that this is the only reason for this opposition. Oxford University Press is currently imposing differential fees for authors requiring CC-BY, according to my research team that is gathering information on APCs. I oppose CC-BY requirements, but not for the same reason as Oxford. (in the original, from here go to the top of this post).
I have posted similar arguments in the series Creative Commons and Open Access Critique on my original scholarly blog, The Imaginary Journal of Poetic Economics. I plan to republish some of the content on this blog here and/or in other venues as there are some reports that people are having difficulty accessing the blog (hope this is temporary).