Copyright and Licensing. Not always compatible and yet we see these two thrown together in incompatible ways all the time.
This is the first of two posts on this subject. In this post, I’ll illustrate DOAJ’s experience in this murky area, showing you the sorts of conundrums we come up against every day in the applications we receive, how it is clear to us that there is little understanding in this area; then I’ll explain what DOAJ is looking for in its application form sections ‘Content licensing’ and ‘Copyright and permissions’, how these two sections illustrate differences between copyright and licenses and how we look for compatibility.
The second post, Part 2, is a guest post from our Editor-in-Chief, Tom Olijhoek who, together with a colleague from the Netherlands, has written a Help document illustrating instances of incompatibility between copyright and a license. It lists a variety of permutations and highlights the instances where signing away copyright directly contradicts the terms of a license.
[Both of these posts are now available in Croatian, thanks to the fantastic translation efforts of Lovorka Caja, librarian at Rudjer Boskovic Institute and Jadranka Stojanovski, Assistant Professor at University of Zadar.]
Licensing is a form of copyright known as ‘public copyright licensing‘. There are many types of public copyright licensing but the best known are those licenses created by the Creative Commons (CC). The Creative Commons licenses exist to allow the creator/author/originator of a work to show how that work can be used by others. In the words of CC themselves:
‘The Creative Commons copyright licenses and tools forge a balance inside the traditional “all rights reserved” setting that copyright law creates.’ 
As we go through journal applications at DOAJ, we see a lot of confusing and conflicting information on journal web sites. We see and hear examples of authors blithely signing away their copyright to the publisher because their paper has been licensed with a Creative Commons license and they do not check, know how to check, care to check for license/copyright compatibility with the publisher’s copyright form they have signed. It can happen that the terms of the copyright cancel out any licensing terms that allow reuse, distribution and reworking. More commonly, we see CC licenses applied to works which, when combined with the publisher’s copyright, actually exclude the author.
CC licenses can work with commercial licensing arrangements as long as those commercial licenses are not exclusive.
Should it even be the author’s responsibility to check for compatibility? Authors, or librarians working on the authors behalf, look to a journal’s site for information on the terms and conditions of publication but if the information on the site is unclear, then what an author is allowed to do with his/her article and what others are allowed to do with that article becomes a bag of confusing messages, often hidden in the small print.
It is common on journal web sites to see this:
© [Publisher Name]. This work is licensed under a Creative Commons License and all rights remain with the author.
but this may well be a copyright law oxymoron upon closer inspection and, at DOAJ, we do see many of these instances. Also, we see examples where, being asked for the URL of their licensing terms in our application form, publishers provide a link to the copyright line of their web site; we have a problem. While it could be suggested that some publishers deliberately mix copyright terms with licensing conditions in an attempt to hoodwink authors and readers we tend to think that the publishers are, unfortunately, as confused as anyone else.
One of DOAJ’s aims is to persuade journal publishers to state clearly, and in plain language, the terms and conditions of using and publishing in the journal. We want to persuade publishers to adhere to best practices and standards that are universally recognised. We believe that an author, a librarian, a researcher or a user should be able to find all the information that they need to make an informed decision about how they use the journal. This isn’t limited only to copyright and licensing terms but to archiving, APCs, the editorial review process, the instructions for authors, the ownership of the journal and so forth. We believe that all this information should be easily accessible from the journal’s—not the publisher’s—home page and should be presented clearly and always be up-to-date. These “information pages” are often presented, with the best intention in the world, in more than one language yet the translated versions are sometimes inferior in quality and are incomplete. But I digress…
DOAJ’s application form has two very distinct sections for licensing and copyright and asks questions that tease out any licensing terms from those of traditional copyright. Let’s take each section in turn:
This section deals exclusively with how a work can be used, post publication, by anyone who accesses it. Depending on the type of license applied, these terms govern the creator or author of the work too.
Question 45 asks whether or not an article’s license terms are embedded in the content. The importance here isn’t so much on HOW the terms are embedded but that the terms are cemented to the content so that, should the article be read as a solitary item, it is immediately clear to the reader what licensing terms the content has. When up to 75% of a journal web site’s traffic surfs directly to an article from Google, a reader may be totally unaware of a journal’s name, who the publisher is or which volume or issue the article appears in. In an open access journal, the PDF might be downloaded immediately after which the user leaves the site. We believe that the license terms should be available in the content as a clear statement from the publisher to the user. Some good examples of embedded article metadata:
The Creative Commons web site has an excellent interactive graphic on their site explaining machine readable licenses and how they can be applied. See the ‘Three “Layers” of Licenses’ section.
Question 47 asks if the journal licenses its articles using CC licenses. The form only allows one license to be chosen per journal so if a journals offers more than one license, we ask that the applicant enters the most restrictive. We are seeing more and more examples from publishers where different licenses are available at the article level; we will tackle this in a future update to the application form.
Question 48 asks about other types of licenses that might be available for the journal and only appears if ‘Other’ was selected in Question 47. This is our attempt to capture information about licenses that may have all the attributes (Pardon the Pun!) of a CC license but are not CC licenses by name: some publishers prefer their own licenses and indeed, in some countries, CC licenses are yet to be officially recognised. We consider CC licenses to be the gold standard.
The wording in Question 50 is taken directly from the Budapest Open Access Initiative’s definition of Open Access and forms the backbone of the DOAJ. The words ‘read’, ‘download’, ‘copy’, ‘distribute’ and ‘print’ are also often keywords in public copyright licenses. If a journal does not allow these basic functions, along with printing and linking, then the journal will not be accepted into DOAJ.
Question 51 asks for information on whether or not the licensing terms are registered with a repository that records the policy for the journal. This is a useful thing to do because not only does the journal publicise its licensing terms in a public place but the repository acts as a reference point for authors, librarians and users.
Copyright and Permissions
We have deliberately kept this section short. We are interested in two things only: does the author retain copyright and publishing rights. These questions and their answers are simple and require no further explanation except in the context of the previous section.
Question 52 asks whether the author retains the copyright of his/her work without any restrictions. A simple Yes or No suffices. (We will soon remove the ‘Other’ option as it is redundant.) However, some answers in the licensing terms from the previous section automatically infer that an author retains copyright so why do we ask this again? Because we see incompatible conditions applied to authors’ works and we want to be absolutely certain that this vital piece of information is called out and displayed alongside a journal’s entry in DOAJ. In fact, we think that this question is so important that we have added it as a 7th criteria to our list of Seal criteria. The transfer of copyright is, in our opinion, completely unnecessary and can be a potentially harmful action only serving the purpose of enabling publishers to use these obtained rights to restrict open access in all kinds of innovative ways. To put a barrier against actions that potentially undermine the very principles of Open Access, we decided to add this criteria as a requirement for the DOAJ Seal.
The same goes for Question 54 where conflicts can arise between the terms of a license and the reprints rights of an article. Many publishers make money from reprints and permissions which is why this right is sometimes removed from the author.