Copyright and Licensing – Part 3

In 2016, we published 2 blog posts on copyright and licensing: Part1 and Part 2In these posts we explained and illustrated that copyright and licensing are two different things linked by the fact that licenses can only be granted by copyright holders. Here is Part 3, a guest post by our Editor-in-Chief, Tom Olijhoek.

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In this post I want to discuss the practice by some open access publishers of not using Creative Commons licenses but using their own constructions for publisher specific licenses. A reason for this may be, for example, that the government of the country of the publisher does not recognise the (American company derived) Creative Commons licensing.

DOAJ accepts journals that do not use CC licensing ONLY if the specifics of the publisher licenses match the conditions of Creative Commons licenses. That is to say that licenses need to be compliant with the BOAI conditions of Open Access and need to allow for immediate access to all materials, with implicit permission to download , share, distribute and use the material for lawful purposes.

To better explain what DOAJ will and will not accept, I want to highlight some real life examples.

Example 1:  Copyright transfer agreement in conflict with open access

Let’s have a look at a case where the publishers use a copyright transfer agreement conflicting with the conditions of the Creative Commons License applied to the same work.

Publisher [x] has a copyright transfer agreement (CTA) saying:

The Author(s) agree that all copies of the Work made under any of the above rights shall prominently include the following copyright notice: “© XXXX [year] X. One print or electronic copy may be made for personal use only. Systematic reproduction and distribution, duplication of any material in this paper for a fee or for commercial purposes, or modifications of the content of this paper are prohibited.”

This is in clear conflict with the conditions of BOAI Open Access and also with the use of the CC BY-NC license used by the very same journal.

After discussions with the publisher, two passages in the CTA now read:

[x] shall make the final, published version of the article freely available on the [x] Publishing platform without charge to the user or his/her institution. Users are allowed to read, download, copy, distribute, print, search, or link to the full text of the article, or use them for any other lawful purpose, without asking prior permission from the publisher or the Author(s). This is in accordance with the BOAI definition of open access
Copyright Notice The Author(s) agree that all copies of the Work made under any of the above rights shall prominently include the following copyright notice© XXXX [year] [x] Users may use, reuse, and build upon the article, or use the article for text or data mining, so long as such uses are for non-commercial purposes and appropriate attribution is maintained. All other rights are reserved.

I also want elaborate on the point that publishers often demand a copyright transfer agreement with a range of arguments like:

[x] needs copyright for an article because, as publisher, [x] is in the best position to defend the article legally. In addition, transfer of copyright assures [x] that the work in question is entirely the author’s own. Once again, the purpose of transfer of copyright is not to prevent the author from reuse of his or her own work, as long as this doesn’t involve republication in a competing journal or other competing resource.

DOAJ holds the policy that leaving the copyright with the author is best practice. The publisher will only need publishing rights. For this reason journals of publishers who leave the copyright with the author are eligible for the DOAJ Seal.

Example 2: Copyright statement in conflict with open access:

© Copyrights of all the papers published in Journal of XXX are with its publisher, [x] [Country]. Users have the right to read, download, copy, distribute, print, search, or link to the full texts of articles in the journal, and that users can use and reuse material in the journal as long as attribution is given when appropriate or necessary. No part of this publication may be reproduced in any form or by any means without the prior written permission of the publisher.

Example 3: License in conflict with open access:

You may read, download, print, copy, search, link to the full text, or use them for any lawful purpose not otherwise prohibited here. You may not modify, create derivative works from, participate in the transfer or sale of, post on the World Wide Web, or in any way exploit the Site or any portion thereof for any public or commercial use without the express written permission of [x]

Example 4: License  in conflict with open access:

Reproduction, posting, transmission or other distribution or use of the article or any material therein, requires credit to the article author as copyright holder. Permission does not need to be obtained for downloading, printing, or linking to [Repository] content. Individuals have the right to read, download, copy, distribute, print, search, or link to the full texts of articles in the Journal XXX and to use them for any other lawful purpose…

/// same document:
Libraries interested in printing a paper from Journal of XXX for their permanent collection should contact the journal editors responsible for posting the paper. The requesting library can then gain copyright clearance from the paper’s author(s). People seeking an exception, or who have questions about use, should contact the editors.

It may be evident from the statements above that the use of non-Creative Commons licenses and the use of copyright transfer agreements make the evaluation of open access  journals on acceptable copyright and licensing conditions difficult and time consuming. At the same time the different conditions created by publishers in these cases make it very confusing for authors and users to know their rights.  I realise that the issue of copyright and licensing ranks among one of the most difficult issues of open access publishing. Therefore I strongly recommend that publishers make use of the excellent Creative Commons licensing schemes and also leave copyright for published works with the authors. Again, these conditions are the key requirements for obtaining the DOAJ Seal of Excellence in open access publishing.

I sincerely hope that the number of DOAJ Seal journals in DOAJ will continue to rise!

Tom Olijhoek
Editor-in-Chief

(Copyright and licensing information specific to completing an application is also available.)

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