Informed consent in the context of open licensing: some questions for discussion

The purpose of this post is to encourage sharing of knowledge and ideas on the topic of modifying informed consent when working with human subjects to accommodate open licensing. Questions can be found at the end of the post.

Researchers who work with human subjects, as is common in disciplines such as health sciences, education, and social sciences, are expected to obtain informed consent from subjects prior to starting research for ethical and legal reasons.

To obtain informed consent, researchers must explain what will happen with the subject’s information and material (if applicable) and the potential consequences for the subject (beneficial and potential harm).

Consent in the context of traditional publishing meant consent to publish in one specific venue, typically under All Rights Reserved copyright. Policies and procedures for informed consent developed in this context will need to be modified in order for authors to publish using open licenses that actively invite re-use (and sometimes modification) through human and machine-readable licenses, in some cases for commercial use.

To illustrate the difference: an educational researcher might wish to obtain and use a photo of schoolchildren in a publication. In the traditional context, this permission involved publication in one venue (one journal or one book), with re-publication requiring permission from the copyright owner (publisher and/or author). Until recently, such material, while not forbidden to the general public, would usually only be found in an academic library. This is still the case with journals and books that are not yet open access. Open access per se expands access to anyone with an internet connection, but free access on the Internet is automatically covered by copyright in all countries that are signatories to the Berne Convention. Open licensing goes beyond expanding access to inviting re-use. In the case of Creative Commons licensing, the invitation is extended via a human readable form that is designed to facilitate easy understanding of permitted uses, a machine readable form that can be used by searchers to facilitate limiting searches to content by desired use, and a legal license that most people are not likely to read.

For example, publication under a CC-BY license would include traditional uses, and other beneficial uses such as re-use by another researcher building on the work of the original. CC-BY would also invite uses that could be harmful to the subjects, such as targeted commercial social media advertising or use of a modified photo in a video game (schoolkid becomes loser kid, perhaps target practice).

This does not mean that such uses would necessarily be legal, rather that open licensing is an invitation that makes such uses more likely to occur. The harmful uses described above are likely a violation of moral rights under copyright, privacy and/or publicity rights. There are potential legal remedies, but these can only be pursued after the harm is done and discovered by a subject with the means and incentive to pursue legal remedies.

The Chang v. Virgin Mobile case is an illustration of what can happen with sensitive material and lack of understanding of the implications of licensing. In brief, a photographer took a photo of a minor girl (family friend) and posted it to Flickr under a CC-BY license. Virgin Mobile interpreted the license as an invitation to use the girl’s photo in an ad campaign. The girl’s family sued Creative Commons (dropped this one) and Virgin Mobile. The case was eventually dropped for jurisdictional reasons (girl in Texas, company in Australia). Lawrence Lessig wrote about the case, arguing that Virgin’s interpretation of copyright was correct, but that the girl still has privacy rights as minor. A bit more on this here:

https://wiki.creativecommons.org/wiki/Chang_v._Virgin_Mobile

The Committee on Publication Ethics has published guidance for journals with respect to one type of particularly sensitive material, medical case reports. Excerpt of their General Principles on this topic:

  • Publication consent forms should be required for any case report in which an individual or a group of individuals can be identified. This requirement also applies when a report involves deceased persons. Examples of identifying information are descriptions of individual case histories, photos, x-rays, or genetic pedigrees. A list of 23 potential identifiers has been published in BioMed Central’s Trials.
  • Journals should not themselves collect the signed consent forms, because the receipt and storage of confidential patient information could subject them to cumbersome security requirements and potential legal liability under applicable privacy or patient information laws, such as the Health Insurance Portability and Accountability Act of 1996 in the USA.

from:

https://publicationethics.org/resources/guidelines/journals%E2%80%99-best-practices-ensuring-consent-publishing-medical-case-reports

These principles are designed to protect journals and their publishers, and only speak to one particular type of sensitive material. For me, this raises some questions. If anyone on the list has answers or ideas, I would love to hear them, on or off-list or as blog comments. If you reply off-list or on the blog and would prefer to be anonymous, please let me know. If warranted, I will summarize responses.

Questions:

  1. COPE’s guidance is for the education and protection of journals. Is anyone aware of efforts for the education and protection of authors and their institutions on the topic of informed consent for open licensing?
  2. Do other publishers or organizations serving publishers have policies, guidance, sample forms, etc. to deal with informed consent and open licensing?
  3. Have any research ethics boards (or similar bodies) revised their guidance to accommodate informed consent and publication under open licenses?
  4. Is anyone aware of cases or analysis of potential implications of licensing for re-use for other types of material involving human subjects besides case reports?
  5. Do you have any other ideas or insights on this or closely related topics that I haven’t asked about?

 

 

Publisher: N/A, or the complexity of understanding “the publisher” (method notes)

This is a note on method arising from work on the OA APC longitudinal trends study that may be of broader interest to those studying scholarly communication and open access as it is important to understand the role of “the publisher”. A story approach seems the best means to explain. One publisher name in DOAJ is N/A. This is not an error; the publisher of the Journal of Peer Production is N/A, that is, there is no “publisher”, just the journal. There are many journals for whom the “publisher” is the title of the journal, the name of the editor, or the university that hosts the journal, even if there is no university press so no formal publishing by the university.

Not-for-profit university and society publishing is very much evident in the open access landscape. As reported at ELPUB (Morrison, 2018), as of 2017 there were over 7,300 active fully open access journals published by universities or societies with no publication fees. This was the majority of the sample. The full sample includes journals with publication fees, journals for which publication fee status is unknown, and ceased journals. While 2019 full analysis will have to wait until data collection and quality analysis is complete, a visual check indicates that university and society publishing continues to be a large part of open access publishing.

Identifying a university “publisher” is more complicated than one might think. Universities may have a university press as well as another publisher such as a library outside of the press. University journals’ publishers may be indicated by names of regional campuses. A single University publisher may have two different names based on language. This is the case for my own University; both the University of Ottawa and Université d’Ottawa are listed as publishers in DOAJ.

Commercial publishers often have variations in names, sometimes simply name variations and at other times reflecting mergers and acquisitions or different brands of a single publisher. For example, SpringerNature’s open journals are listed under SpringerOpen, Nature, and BioMedCentral. DeGruyter publishes open journals under both DeGruyter and Sciendo. To understand the nature of such publishers, it is necessary to have some knowledge of the underlying business.

Many journals are published by societies, universities or governments, in partnership with commercial publishers. The nature of such partnerships (who does what) can vary, including attribution as publisher. The not-for-profit sponsor or the commercial publisher, or both, can  be identified as the publisher.

There is also journal publishing software and platforms whose functions are part of the publishing process, and to a greater or lesser degree. In Canada, érudit is closer to the classic definition of publisher while Open Journal Systems is an open source journal publishing software but also an organization also offers journal hosting and may be used as the publishing platform for another publisher.

Method notes (for 2019 dataset and analysis in progress)

To prepare for fall 2020 data collection from “publisher” websites, I created an excel pivot table of publishers from the OA Main spreadsheet.The purpose of this exercise is to determine publishers by size to make decisions on sampling.

This spreadsheet starts with and includes DOAJ metadata, but goes beyond. The purpose of the pivot table was to watch for duplication of publisher names. This can easily happen due to variation in publisher names, sometimes reflecting acquisitions (e.g. Medknow, Wolters Kluwer Medknow) and sometimes reflecting slight variations in the name such as presence or absence of accents, typos, inclusion or exclusion of an acronym. The original pivot table included over 8,500 publisher names. The method involves manual checking, a tedious process and sometimes uncertain as it is not always clear whether a variation actually reflects a different publisher. 407 duplications of publisher names were found and eliminated in this process. Errors in the remaining data are quite possible, with failure to identify duplicates (e.g. for reasons of language or lack of understanding of the nature of a university system in a foreign country) being most likely, and minor risk of incorrect duplication of separate publishers. It would be difficult to calculate an accurate count of the number of open access journal publishers from this data for the reasons explained above. The number is clearly in the thousands, but how many thousands would depend on how a publisher is defined and accurate identification of such “publishers”.

In this context, publisher: N/A is both a unique anecdote and an idea worthy of consideration. The idea that every journal has, or has to have, a “publisher” may be a myth.

Reference

Heather Morrison. Global OA APCs (APC) 2010–2017: Major Trends. ELPUB 2018, Jun 2018, Toronto, Canada. ⟨10.4000/proceedings.elpub.2018.16⟩. ⟨hal-01816699⟩

To cite this post:

Morrison, H. (2019). Publisher: N/A, or the complexity of understanding “the publisher” (method notes). Sustaining the Knowledge Commons August 22, 2019. https://sustainingknowledgecommons.org/2019/08/22/publisher-n-a-or-the-complexity-of-understanding-the-publisher-method-notes/

Title not found: room for improvement in maintaining access to articles when journals disappear

Update July 3: 11 “titles not found” have been added, 9 for BioMedCentral and 1 for Springer Open, for a total of 15 titles so far.

Some open access journal publishers and services may not have much experience in the complexities of keeping track of journals and articles as journals change over time. The purpose of this post is to highlight the loss of ready access that occurs when a journal ceases publication and is removed from DOAJ, and sometimes from the publisher’s website as well. It is understandable that DOAJ wishes to focus on and encourage active open access journals, however removing content when journals cease is a disservice to readers and authors alike.

Recommendations

Authors: always post a copy of your article in an open access archive, even if you have published in an open access journal.

Open access journal publishers: if a title ceases to exist, do not remove the title from your website (unless it had no articles at all). If the journal has changed title, add a link to help the reader make the connection. If the title has ceased, include a note to that effect.

DOAJ: indicate that journals have ceased rather than removing them from DOAJ. Include a field to indicate whether journals are active or not. There is an “end date” in DOAJ which seems like a good candidate to use for that purpose.

Examples of title not found

These 9 titles were on the BioMedCentral website in 2014, but have disappeared as of May 2015:

BMC Medical Physics
Cough
Genome Integrity
International Archives of Medicine
Journal of Brachial Plexus and Peripheral Nerve Injury
Journal of Molecular Signaling
Longevity & Healthspan
Microbial Informatics and Experimentation
Nuclear Receptor Signaling

These titles were on the Libertas Academica website in 2014, but have disappeared as of May 2015:

      • Autism Insights
      • Cell Biology Insights
      • Clinical Medical Insights: Dermatology
      • Immunotherapy Insights
      • Particle Physics Insights

Sciedu Press

  • Journal of Haematological Malignancies – last issue appears to be 2013. Still listed in DOAJ, not included on publisher’s website.

From Springer Open, 1 title on the website in 2014 disappeared in 2015:

Scalable Computing

These 4 journals were from the sub-sample of 139 journals we surveyed last year published by publishers with 9 or fewer journals – a 3% attrition rate for this sub-group:

  • American Journal of Oil and Chemical Technologies
  • International Journal of Phytomedicine
  • International Journal of Marketing Practices
  • Journal of Emerging Trends in Economics and Management Sciences

This post is part of the Tech Tips series