There are many more opportunities to make a publication with a Creative Commons licence available than through traditional publishing routes. However, there are certain issues around the idea of sharing and free use and re-use that have been subject to a great deal of discussion.
The issue of third party rights, that is, permission for text or images to be republished under a Creative Commons licence has been raised in specific relation to the humanities and social sciences, however, open access publishers in the sciences have been successfully dealing with this challenge for some time.
Essentially, if an author wants to use images, text, graphs or diagrams that are not published on open access, they need to get permission. In reality, there is no difference in clearing third party rights for a work published in the tradition manner and that published through Creative Commons. In fact Creative Commons licences actually make it very easy to include third party content by allowing exclusions in the licence. Authors clearly mark third party content to ensure that users understand the different licence conditions which apply to that content. An example from the Creative Commons wiki illustrates this
Example of marking your own work:
Except otherwise noted, this blog is © 2009 Greg Grossmeier, under a Creative Commons Attribution-ShareAlike license: http://creativecommons.org/licenses/by-sa/3.0/.
Example of marking the differently licensed item:
The photo X is © 2009 Jane Park, used under a Creative Commons Attribution-Noncommercial license: http://creativecommons.org/licenses/by-nc/3.0/.
By clearly marking the excluded elements in the text and stating the terms under which third party content has been made available means that anybody who reuses that content without permission from the original rights holder will be in breach of copyright, even if they found the content in an open access article.
However, the aim of open access is to ensure that more people can read academic publications. So even though exclusions may ensure that third party material is protected, there will be a much bigger audience for that material, and therefore a perception on the part of third party rights holders that there are more opportunities for illegal misuse. The issue here is really about enforcement rather than open access or the licence used.
If authors are unable to get agreement from the rights holders to include content in a publication with a Creative Commons licence they would have to choose alternative content, again this is no different from the traditional publishing route, however, concerns of the third party rights holders may be greater as described above.
A CC BY licence means that anyone can reuse an author’s work, but they must abide by certain conditions, such as article 6bis of the Berne Convention.
All Creative Commons licences since version 2.0 require attribution, this means that the author must be attributed unless it has been specifically stated that the author does not want their work attributed – if the author does not want to be attributed the user must comply. This addresses concerns of authors who do not want their work being used to advertise or endorse another work without permission. Although a CC BY licence does not stop the work being used in such a way, there are still traditional methods for the original author of the work to object, e.g. using comments or letters to the editor, or publishing a follow up article. Once again, there is little difference in reacting to a CC BY licenced work than a traditionally published output. Therefore, as Creative Commons licences require attribution, there is no effect on moral rights in any way for the author’s right to attribution.
Users must clearly mark any changes they have made to the original work, so that these are not associated with the original author. Reuse must not imply that the author endorses or supports the changes that have made or the new work that has been produced.
Concerns have been raised about use of a work that the author does not condone or support. However, the author does have the right to object and is protected by a Creative Commons licence.
If a work is adapted or used in a way that the author does not agree with, for example, because it is incorrect, or because the author does not support the stance of the users, there are several options. The simplest is to waive the right to attribution for that specific instance of use: as stated above the user must remove the attribution or they will be in breach of the Creative Commons licence.
Creative Commons licences all contain a ‘no endorsement, no sponsorship’ clause, which explicitly says that users may not imply that the original author supports or endorses their reuse of the work. If they violate this clause, they are in breach of the Creative Commons licence. Users must also be very clear about any changes they have made to the work – for example, removing words – or they will be in breach of the Creative Commons licence.
As with plagiarism, misuse of academic research is a longstanding and recognised problem. Nothing in the Creative Commons licence makes it acceptable for a user to misrepresent or misuse an author’s work. But with open access, more people will be able to find academic content because it is no longer behind a pay wall. Unfortunately, some of these people may put the content to uses that are not acceptable to the original author. The issue is again one of enforcement.
Moral rights vary by jurisdiction, but usually include the right to be identified as the author of the work, the right to have a work published anonymously, and the right to the integrity of the work. However, it is interesting to note that despite being a signatory of the Berne Convention, under United States copyright law only authors of visual work are protected under against the two moral rights described above.
Organisations such as CrossRef are investigating ways to help researchers understand which version of an open access publication they are using – see Section 3: Standards
5.1 Creative Commons licences
5.2 Institutional polices and copyright
5.3 Funder mandates
5.4 Third Party rights and author rights
5.5 Commercial Use Questions
5.6 Benefits of publishing with a Creative Commons licence
This work is licensed under a Creative Commons Attribution 3.0 Unported License.