We launched a new website, dedicated to reviewing the implementation of these policy recommendations. 10 years on, it is possible to see that half of our recommendations have been implemented – fully or partially -, and the other half remains unfulfilled. Most importantly, almost all of the recommendations are still relevant.

Where victory can be claimed: freeing digital reproductions of public domain works and giving access to orphan works

One of COMMUNIA’s main objectives since its foundation has been to promote and protect the digital public domain. Therefore, when the EU Parliament decided to follow our Recommendation #5 and proposed the introduction of a provision in the new Copyright Directive, preventing Member States from protecting non original reproductions of works of visual arts in the public domain with copyright or related rights, we were exhilarated. Article 14 not only reconfirms the principle that no one should be able to claim exclusive control over works that are in the public domain; it’s also the first EU piece of legislation to expressly refer to the concept of “public domain”.

Getting the “public domain” to enter the EU acquis lexicon was a major victory for user rights, but for sure more measures are needed to effectively protect the Public Domain. Our Recommendation #6, which called for sanctioning false or misleading attempts to misappropriate or claim exclusive rights over public domain material, has not been implemented and is more relevant than ever, particularly on online content sharing platforms. Here, a false ownership claim can easily lead to the false blocking of public domain material, as a result of the use of automated content recognition systems combined with the lack of public databases of ownership rights (that’s why the German legislator has recently adopted measures against this type of abuse, setting a new standard for the protection of the Public Domain).

Another victory coming out from the recent EU copyright reform relates to the creation of an efficient pan European system that grants users full access to orphan works (Recommendation #9). The first attempt of the EU legislator to address this issue, through the Orphan Works Directive, is widely considered a failure, since the Directive only works for a small number of cinematographic works. However, the provisions on the use of out of commerce works in the DSM Directive provide a comprehensive solution for the problem of orphan works (by definition orphan works are also out of commerce and so these provisions also apply to them) (cf. Articles 8-11).

Where major advances have been made: mandatory exceptions to copyright and open access to publicly funded resources

Recommendations #3, #9, #10, #12 all asked for the creation and harmonization of exceptions and limitations to copyright, and we have seen major advances on this topic in recent years. Cultural heritage institutions now benefit from a set of mandatory exceptions regarding uses of orphan works and of out-of-commerce works, and for preservation purposes. There is a new exception for the benefit of persons who are blind, visually impaired or otherwise print-disabled, and the Commission has recently concluded a consultation on the availability of works for persons with other disabilities, which might lead to further developments in this field. The fields of education and research were also considered in the recent EU copyright reform, with the approval of new exceptions for text and data mining, and for digital and cross-border teaching activities. New mandatory exceptions for quotation, criticism, review, caricature, parody or pastiche on certain online content-sharing platforms are also part of the Article 17 package. Finally, the CJEU has recently indicated that the exceptions and limitations of the Copyright Directive that are aimed to observe fundamental freedoms might be mandatory for Member States (cf. the judgments of 29 July 2019 Funke Medien, C-469/17, para. 58; Pelham, C-476/17, para. 60; and Spiegel Online, C‐516/17, para. 43), which means that there is a possibility of further harmonization of exceptions in the coming years through judicial development.

Certainly, more progress is needed in the area of exceptions and limitations, particularly after the massive shift of education, research and cultural activities to the online environment, following the pandemic closure of institutions. Not only do we need a higher level of harmonization among Member States, but also flexibility to adapt this legal framework to rapid societal and technological changes. Therefore, our recommendation #3 to harmonize exceptions and open up the exhaustive list of user prerogatives is still highly relevant.

In the past decade, we have also seen great advancements on the issue of open access to public funded resources. Recommendations #11, #12 and #13 asked for publicly funded digitized content, research output, educational resources and public sector information to be made publicly available free from restrictions. Over the past years the idea that publicly funded resources need to be available to the public has gained traction not only among policy makers but also within the vast majority of cultural heritage and research institutions. Initiatives from public research funders have led to the increasing adoption of open access policies within the academic research sector. In 2013 the scope of application of the PSI Directive was extended to libraries, museums and archives. Also, Member States are required to ensure that documents on which those institutions hold intellectual property rights shall be re-usable for commercial or non-commercial purposes  under the Open Data Directive. This means that this set of recommendations has been partially implemented; the principle that public money should result in public access has not, however, yet been universally accepted.

Where nothing has changed: terms of protection, registration, technical protection measures, and alternative reward systems 

The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture. Therefore, a decade ago, we recommended reducing the terms of copyright protection (Recommendation #1). Unfortunately the trends in the past decade have gone in the opposite direction. The proposed term extension for performers and sound recordings, which we had recommended not to be adopted (Recommendation #2), was approved by Directive 2011/77/EU. Furthermore, the rules for establishing the duration of the term of protection of individual works remain fragmented and highly complex, contrary to our Recommendation #4.

On the issue of formalities, while our Recommendation #8 to grant full copyright protection only to works that have been registered by their authors has not been implemented, it has become increasingly clear that, for the copyright system to continue to function, registration of works will become ever more important. Over the past year the EU legislator has been making a number of baby steps towards systems to reserve or claim rights. These have been mostly as a condition to expand exceptions and limitations further, with rightholders being given the right to opt out from certain permitted uses of their works if they express such intention by specific means: this is the case of some text and data mining activities, where rightholders have the right to prevent those activities provided that they expressly do so “in an appropriate manner” (cf. Article 4(4) of the DSM Directive), and it is also the case in the context of the use of out-of-commerce works by cultural heritage institutions (cf. Article 8(3) of the DSM Directive), where rightholders are allowed to opt-out through the EUIPO Out of Commerce Works Portal. Yet, the new Commission’s Intellectual Property Action Plan reveals the intention to look deeper into how “to promote the quality of copyright data and achieve a well-functioning “copyright infrastructure” (e.g. improve authoritative and updated information on right holders, terms and conditions and licensing opportunities)”.

Another area where there were barely any changes to the EU policy is the area of technological overrides of exceptions and limitations. The only improvement we have seen in the new Copyright Directive is that the beneficiaries of the new exceptions have the right to require the technical means necessary to use TPM-protected works even when the work was acquired under contract and made available across the internet (something that was not the case under the InfoSoc legislation). However, the vast majority of EU Member States do not have mechanisms in place to grant users access to TPM-protected works. This means that technical protection measures can still significantly inhibit the use of works under exceptions and limitations. In other words, it is about time for the EU lawmaker to recognize this problem and implement our Recommendation #7, allowing users to circumvent TPMs when exercising rights under exceptions or when using public domain works.

Finally, our last Recommendation (#14), advising lawmakers to switch the focus of their policies from extension of copyright protection and enforcement of rights to alternative rewards systems and cultural flat rate models has also not been implemented.  Since we have issued this recommendation we have seen massive changes in the way cultural expression and exchange are taking place online, with the emergence of subscription services for creative content and new creator cultures that rely on advertising driven platforms. Copyright plays an important role in these business models but any real solution to ensure a fairer distribution of the economic benefits of these models likely requires intervention way beyond copyright alone.

The post 10 years of COMMUNIA, a decade of copyright reform: how far did we get? appeared first on COMMUNIA Association.

The report makes several recommendations that could be explored to support the continued development and adoption of AI in the UK, including improving access to data, training experts, and increasing demand for AI applications. Of particular interest to us are two specific recommendations:

“To improve the availability of data for developing AI systems, Government should ensure that public funding for research explicitly ensures publication of underlying data in machine-readable formats with clear rights information, and open wherever possible.

[and]

“To support text and data mining as a standard and essential tool for research, the UK should move towards establishing by default that for published research the right to read is also the right to mine data, where that does not result in products that substitute for the original works. Government should include potential uses of data for AI when assessing how to support for text and data mining.

It is clearly beneficial that governments require that the outputs of publicly funded research and data be made widely available in open technical formats that are consumable by computers. If the data is not made available in machine-readable formats, it will be impossible to efficiently conduct text and data mining across a large corpus of works. It’s also good that the report recommends that the UK push for an environment where “the right to read is the right to mine”—meaning that legal access to the underlying text or data should be sufficient for the user to conduct any further research techniques (such as TDM) and that no additional legal permissions or licenses should be  required in order to do so.

Text and Data Mining should not be dependent on (open) licenses.

But even though the recommendations mentioned above are on the whole encouraging, we should consider a few details that could make them even stronger in order to support a permissive legal environment with regard to artificial intelligence applications. For example, the first recommendation advocates that “clear rights information, and open wherever possible” should be attached to publicly funded research and data. This point is reasonable enough: if public sector bodies want to maximize the impact of the research they fund, it is wise to require that clear rights statements (such as permissive Creative Commons licenses or public domain dedications) are appended to these works.

This way, other scientists, AI researchers, and anyone else knows exactly how they may legally reuse the work for purposes related to artificial intelligence research. At the same time, when we view this recommendation in light of the following one, might they be somewhat at odds with each other?

Let me explain. The second recommendation calls for a liberal legal environment where no additional permissions should be required in order to use a work for research techniques related to artificial intelligence. By arguing that the right to read is the right to mine, a researcher wouldn’t need the underlying text or dataset to be made available under an open license, because by definition they would be granted those rights above and beyond whatever a CC (or similar) license says, typically through the adoption of a permissive limitation or exception to copyright.

This is exactly what TDM advocates are pushing in the current review of the EU copyright rules. In the proposal for a Directive on Copyright in the Digital Single Market, the Commission proposed a TDM exception would be available only to research organisations that operate on a not-for-profit basis or pursuant to a public interest mission as recognised by a Member State. The practical effect of this limitation means that the private sector will be excluded from the benefits of the exception. [Sidenote: this is essentially similar to the existing situation in the UK, where the national-level copyright exception for TDM only applies for noncommercial use].

EU copyright reform proposal would limit Text and Data Mining in the EU

Second, the Commission limited the purposes for which the TDM exception would apply. Their original proposal limited the scope of the TDM activity to “purposes of scientific research.” We noted that this constraint would decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”.

We recommended that the Directive should be amended to ensure that they achieve the goal of facilitating research and innovation across all parts of society by permitting anyone to engage in text and data mining. This means removing the limitation on research organisations as the sole beneficiaries of the proposed exception. We also urged that the exception should allow text and data mining for any purpose. This means removing the limitation on scientific research as the only purpose allowed for under the proposed exception.

So where does this leave us? We agree with the report that publicly funded research and data should be shared as open data under permissive open licenses (such as CC BY, or even put into the worldwide public domain using a tool like the CC0 Public Domain Dedication). The public sector should do this not because it is legally required in order to conduct text and data mining or other techniques related to artificial intelligence, but more generally in order to ensure an open, communicative, and generative environment where the public gets the access they deserve and need in order to be informed on current scientific research, learn about promising medical innovations, and collaborate to solve problems. And at the same time, we need to continue to advocate for a permissive legal system that protects and expands fundamental user rights, such as a broad copyright exception for text and data mining that applies to any user, for any purpose.

The UK independent report is a step in the right direction because it surfaces important issues and recommendations that could foster a sensible yet progressive environment for artificial intelligence research. But as explained above, there are some details that should be worked out in order to truly support a legal environment that, from a copyright perspective, best enables these interesting and innovative research methods and technologies.  

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During Open Access Week, we show our support for a variety of educational projects, publishing practices, and policy actions that push for open access to science and scholarship for everyone. In addition to advocating for the massive adoption of open access around the globe, we should also focus on protecting and expanding the fundamental user rights that permit access and reuse of copyrighted works.

Copyright law can boost or break new modes of research

We’re highlighting the importance of copyright law, which can either boost or significantly hinder Open Access. This year’s theme is “Open In Order To…”—an invitation to answer the question of what concrete benefits can be realized by making scholarly outputs openly available. We believe in the practice of being “Open in order to encourage new modes of research.” Creative Commons licensed publications and data can help realise the potential for scientific discovery because they are “open” for immediate access and reuse. CC licensed open access publications grant permissions that would otherwise be impossible under all-rights-reserved copyright schemes. But we know that everything will never be made available under an open license. That is why we strongly advocate for broad limitations and exceptions to copyright, especially for practices such as text and data mining.

Text and data mining (TDM) enables mechanical analysis of huge amounts of text or data, and has the potential to unlock interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel technological discoveries, critical scientific breakthroughs, journalistic endeavors, and new business analytics opportunities.

The Commission produced a lackluster proposal with regard to TDM. We recommended that the Directive should be amended to ensure that they achieve the goal of facilitating research and innovation across all parts of society by permitting anyone to engage in text and data mining. This means removing the limitation on research organisations as the sole beneficiaries of the proposed exception. We also urged that the exception should allow text and data mining for any purpose. This means removing the limitation on scientific research as the only purpose allowed for under the proposed exception.

Expanding the exception for text and data mining to apply to anyone for any purpose helps to create a more certain legal situation for users who wish to engage with research in new and interesting ways. From a technical perspective, research shows that full text search allows for better TDM than only searches across abstracts of scientific articles. From the report of the study:

Researchers analyzed more than 15 million scientific articles published in English from 1823 to 2016. After creating two databases of those articles—one of full-text and one of abstracts—the researchers directly compared the results of mining either. Text mining full research articles gave consistently better results than text mining abstracts. In one example test, the authors identified far more associations between genes and a variety of diseases from the full-text articles than the abstracts—potentially creating a treasure trove of ideas for future research targets.

What users need from a legal perspective is a progressive copyright exception that can empower new types of research made possible by advances in technology and computing power.

New rights for publishers will hinder Open Access

If we want to champion “Open in order to promote new modes of research,” one thing we don’t need is the gifting of additional rights for publishers to restrict access and use of scientific and scholarly research. But this is exactly what has been proposed by the Committee on Industry, Research and Energy (the committee supposedly responsible for policy relating to the promotion of scholarly research), which voted to extend the press publishers right to cover scientific publications.

As we’ve repeatedly pointed out, granting additional protection to academic publications (specifically excluded in the Commission’s original proposal) would mean that users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short snippets of a research paper in another publication. This type of arrangement is completely antithetical to longstanding norms in scientific research and scholarly communications. And any such new right to control and monetise use of snippets of academic articles would significantly limit the sharing of open access publications and data which currently are freely available for use and reuse in further scientific advances.

The post Open Access Week 2017: Open in order to…kickstart new types of research appeared first on COMMUNIA Association.

Communia Association is one of the signatories of this letter. We are urging other organisations, especially those active in the fields of Open Access and Open Science, to express their support by signing this letter. Additional signatures will be collected until 1st October – you can sign the letter using this form.

Ancillary copyright extended

Ancillary copyright for publishers, a new right to collect payments and to control the use of headlines and snippets of news articles, has been one of the most controversial parts of the Proposed Directive on Copyright in the Digital Single Market. Both the rapporteur in the JURI Committee and the Estonian EU Presidency currently support this flawed proposal . They do so despite heavy criticism – not just from civil society, academia and libraries, or digital economy companies, but even from some of the Member States.

Press and academic publishers have completely different business models, based on different value creation chains. While press openly publishes content on the Web, academic publishers sell the works of academics at a hefty price, and with a heavy markup. Angelika Niebler, Herbert Reul and Christian Ehler, ITRE members who proposed the amendment that extended the right to academic publishers, have provided no rationale for granting this new right also to academic publishers. They also failed to explain why they are supporting a regulation that will create burdensome and harmful restrictions on access to scientific research and data, as well as on the fundamental rights of freedom of information.

A threat to Open Access

A new right to control and monetise use of snippets of academic articles would significantly limit the sharing of open access publications and data which currently are freely available for use and reuse in further scientific advances. For example, researchers, students and other users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short quotations from a research paper in other scientific publications. The proposed ancillary right further conflicts with the Berne Convention’s Article 10(1), which provides a mandatory exception for quotation, as well as posing risks to freedom of speech.

Support our joint open letter for Open Access and Open Science

Signatories of the letter urge the Legal Affairs Committee to remove Articles 11 and 13 from the draft Directive. Furthermore, the Committee should ensure that Articles 3 to 9 support new forms of research and education and not work against them. Furthermore, we hope that the European Commission, the European Parliament and Member States will chose to uphold Europe’s commitment to Open Science and Open Access.

Please sign the open letter.

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The introduction of a new right for press publishers (aka the “link tax”) to extract fees from search engines for incorporating short snippets of – or even linking to – their content in article 11 is one of the most controversial issues of the proposed directive. Adopting this type of ancillary right at the EU level would have a strong negative impact on all stakeholders, including publishers, authors, journalists, researchers, online service providers, and readers.

We know that previous experiments with ancillary copyright in Spain and Germany have failed, a fact that was already known to the Commission because it is acknowledged in its impact assessment leading up to the release of the original proposal. We’ve argued that a new right for press publishers would undermine the intention of authors who wish to share without additional strings attached, especially creators that use Creative Commons licenses to share their works. We urged that the provision be removed from the directive.

In recent months there seemed to be an increasing focus on neutralizing this contentious provision. MEPs such as IMCO Rapporteur Catherine Stihler and former Legal Affairs Committee Rapporteur Therese Comodini had gathered support for deleting the press publishers right. Despite of this, last month the new right was retained in the opinion of the IMCO Committee. The opinion removes the clause of the Commission’s proposal which would retroactively apply the publishers right to anything published in the last twenty years.

Making a bad proposal even worse

In the votes last week in the CULT and ITRE committees, the press publishers right was also carried through – and even expanded. Both of the recent opinions remove the restriction that the right applies to digital uses only, meaning that if adopted it would cover all uses – both digital and in print. Even worse, ITRE – the committee responsible for policy relating to the promotion of research – voted to extend the press publishers right to cover scientific publications. Both additions contravene the Commission’s original reasoning for why the proposal aligns with the principle of proportionality. In the directive, the Commission states, “The proposal is proportionate as it only covers press publications and digital uses.” But with the proposed changes to the press publishers right, both the CULT and ITRE opinions expand the right from “digital uses” to all uses, and the ITRE opinion expands “press publications” to include academic publications. It’s unclear how these changes can be reconciled with both the letter and spirit of the proportionality rule.

Academic publishing: the original value gap

As we, and dozens of others, have pointed out before providing protection to academic publications (specifically excluded in the Commission’s original proposal) would mean that users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short snippets of a research paper in another publication. This type of arrangement is completely antithetical to longstanding norms in scientific research and scholarly communications. And it could affect how academic publications are discovered online within search engines like Google Scholar, or other types of aggregators related to scholarly outputs.

The inclusion of academic publishers in the scope of the press publishers right is not coincidence but the result of effective lobbying from academic publishers. On the day the Commission released its Directive on Copyright in the Digital Single Market, the International Association of STM Publishers released a statement urging for the extension of the new publishers right to scientific publications. Given the fact that academic publishing is already one of the most profitable businesses even though it is almost completely based on public inputs the fact that the European Parliament seems to be willing to grant these publishers even more rights seems outright scandalous.

It is not too late to stop the publishers right

It seems that by introduction an ill-considered right for press publishers as part of the directive that (at least in title) has the objective of modernizing the EU copyright framework to create a digital single market, the Commission has unleashed a force that will be very difficult to control. What is on the table by now is not proportionate to the original problem (press publishers facing difficulties in developing digital business models). A press publishers right on steroids that includes academic publishers will undermine open access publishing which has been a core element of public policies to keep higher education and research open and affordable. It is now up to the members of the JURI Committee, and member states (who have invested heavily in open access policies and ultimately pay the bills for access to academic publications) to call a halt to the publishers right.

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Last month, Diego was cleared of charges by the Bogotá Circuit Criminal Court. Yet only three weeks later the author of the paper, who in 2013 informed authorities and pressed charges, appealed the decision. The case, which has been ongoing for 4 years, will therefore continue in the appellate court. And Diego can still go to jail for sharing knowledge.

Disclaimer: Playback of the embedded video establishes a connection to YouTube and may lead to data being collected by and shared with third parties. Proceed only if you agree.

Diego is being supported by Fundación Karisma, the Colombian digital rights organisation. Karisma has launched an Indiegogo fundraising campaign to pay for legal expenses. As Communia, we are supporting the campaign and helping raise $40,000 for this case. Please consider joining the Compartir no es delito: Sharing Is Not A Crime campaign. It is time to end an unfair case that has been a burden for Diego for the last four years.

Timothy Vollmer notes on the Creative Commons blog that

“The prosecution of Gómez is an egregious example of copyright overreach where rights holders can unfairly leverage the law so that even a minor violation leads to major negative repercussions for both the individual involved, and society as a whole. Students shouldn’t be subject to lengthy and stressful lawsuits for sharing knowledge”.

Most troubling is the fact that criminal charges have been raised against Diego. A policy note on file sharing, prepared in 2011 by Prof. van Eijk from IVIT for the European Parliament’s JURI committee, notes that similar measures are available in Europe. Van Eijk notes that criminal law instruments are rarely deployed against individual users of file sharing. Nevertheless, they remain a loaded gun that can always be fired. Prof. Michael Carroll from American University in Washington, D.C. argues that a copyright system, in which file sharing becomes a criminal case, as a system that is broken. Last year, during consultations of the IPRED Directive, we argued against criminal prosecution of non-commercial file sharing.

We keep Diego’s case in mind as we advocate for a copyright system that creates more user freedoms, as well as clear rules and boundaries. We believe it’s imperative for our copyright system to support strong exceptions for research and education purposes, and not criminalise the use of content. As Carolina Botero declares in the video above, “we need to find legal mechanisms that allow us to prevent cases like Diego’s from happening again”.  We also need to actively oppose the rhetoric of copyright extremism, which asks for even more enforcement and penalisation of users.

We need a copyright law that has, as one of its tenets, a strong belief that Sharing is Not a Crime.

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The academic publishing system runs on reputation. Researchers gain reputation by publishing in reputable journals, which are more read and cited than other journals. The better the reputation of a journal, the more prestigious is it to review and serve as a member of the editorial board. Of course, the related reputation dynamic is self-stabilizing and highly path dependent because prestigious journals get more submissions, have higher rejection rates, more prestigious authors and reviewers, all of which contributes to being cited more often, which in turn is the key reputation metric in most disciplines (see a paper by Jakob Kapeller and myself on this issue for the field of economics).

The path dependence of journal reputation in contempary academic publishing is one of the reasons – if not the main reason – why new open access journals face a steep uphill battle against incumbent journals. The few open access journals that managed to acquire substantial prestige such as some of Public Library of Science (PLoS) journals did so mostly because of the very high prestige of founding editors, including nobel laureates. It is also the reason why simply calling for researchers to switch to open access outlets won’t work. Since careers and funding depend on the proven ability to publish in established “top journals”, researchers in general and early-career researchers in particular have strong incentives to avoid newly founded open access outlets.

But there are groups of people that could make a difference: journal editors and their editorial review boards. A huge part of a journal’s reputation is effectively derived from its editors. If the whole editorial board of a prestigious journal decided to collectivley leave this journal behind and open up a new one, it’s very likely that this new journal would outperform the journal they had left behind. And this is not just an abstract scenario but actually this is more or less what could happen in the case of Elsevier’s journal “Lingua“. When Elsevier had refused to make the journal open access, according to Inside Higher Ed, all six editors and 31 editorial board members resigned and plan to found a new open access journal.

How dangerous collectively acting editorial boards are for the traditional publishing model with its ridiculously overpriced subscription fees (see, for example, Harvard University Library’s “Memorandum on Journal Pricing“) could not have been better evidenced than by Elsevier’s response in the Lingua case. On the company’s blog, Elsevier Vice President and Head of Global Corporate Relations Tom Reller accused Lingua’s executive editor Johan Rooryck that he “wanted to take ownership of the journal” (in the meantime, the post has been corrected to “The editors of Lingua wanted for Elsevier to transfer ownership of the journal to the collective of editors at no cost”).

Reller further argued that Lingua were a “hybrid open access journal”, which means that individual authors can pay (usually prohibitively high fees) for an article to be available open access. Since only few authors can afford this and such open access charges do not offset an institution’s subscription fees, this is more of an additional revenue stream for Elsevier than something that deserves to be called “open access”. Finally, Reller claimed that Elsevier had founded the journal, which was debunked by Johan Rooryck on Facebook:

Lingua was founded in 1949 by Albert Willem de Groot (1892-1963) and Anton Reichling (1898-1986), two Dutch structuralist linguists. It was originally published by North Holland, a Dutch publishing house, that was purchased by Elsevier in the ninetiesearly eighties. Elsevier didn’t build that.

All in all, the whole episode shows that editors and editorial boards may be the best lever for moving academic publishing towards open access. It is them and not the publishing houses that possess the prestige that makes academic journals important and precious. For the overwhelming majority of journals, publisher’s reputation does not matter – and in the case of Elsevier, it would be an increasingly bad reputation anyway.

This post was originally posted at governance accros borders.

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Open access to publication and research data as either in the public domain or under an open license aligned with the Open Definition would help work towards the goals of Science 2.0. Such a policy would be especially important when public funds are expended for scientific research and publications. COMMUNIA policy recommendation #12 states, “all publicly funded research output and educational resources must be made available as open access materials.” Interest in text and data mining is increasing, and traditional gatekeepers of science scholarship (namely commercial publishers) are attempting to restrict this activity through the adoption of custom licenses and/or contractual terms. We think that text and data mining should be considered as outside of the scope of copyright protection, and instead should be considered as an extension of the right to read (see “Right to Read is the Right to Mine”). Text and data mining should not be treated with a contractual approach which would try to license for a fee this usage in addition to the right of access. Terms of use prohibiting the lawful right to perform data mining on a content accessed legitimately should be considered an abuse of exclusive rights.

Here’s our responses to the questionnaire. The Commission’s background paper on the Science 2.0 consultation is here.

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Today, COMMUNIA and 57 organizations from around the world released a joint letter asking the International Association of Scientific, Technical & Medical Publishers to withdraw its model “open access” licenses. The association ostensibly created the licenses to promote the sharing of research in the scientific, technical, and medical communities. But these licenses are confusing, redundant, and incompatible with open access content published under other public licenses. Instead of developing another set of licenses, the signatories urge the STM Association to recommend to its authors existing solutions that will truly promote STM’s stated mission to “ensure that the benefits of scholarly research are reliably and broadly available.” From the letter:

We share a positive vision of enabling the flow of knowledge for the good of all. A vision that encompasses a world in which downstream communicators and curators can use research content in new ways, including creating translations, visualizations, and adaptations for diverse audiences. There is much work to do but the Creative Commons licenses already provide legal tools that are easy to understand, fit for the digital age, machine readable and consistently applied across content platforms.

So, what’s really wrong with the STM licenses? First, and most fundamentally, it is difficult to determine what each license and supplementary license is intended to do and how STM expects them each to be used. The Twelve Points to Make Open Access Licensing Work document attempts to explain its goals, but it is not at all clear how the various legal tools work to meet those objectives.

Second, none of the STM licenses comply with the Open Definition, as they all restrict commercial uses and derivatives to a significant extent. And they ignore the long-running benchmark for Open Access publishing: CC BY. CC BY is used by a majority of Open Access publishers, and is recommended as the optimal license for the publication, distribution, and reuse of scholarly work by the Budapest Open Access Initiative.

Third, the license terms and conditions introduce confusion and uncertainty into the world of open access publishing, a community in which the terminology and concepts utilized in CC’s standardized licenses are fairly well accepted and understood.

Fourth, the STM licenses claim to grant permission to do many things that re-users do not need permission to do, such as describing or linking to the licensed work. In addition, it’s questionable for STM to assume that text and data mining can be regulated by their licenses. Under the Creative Commons 4.0 licenses, a licensor grants the public permission to exercise rights under copyright, neighboring rights, and similar rights closely related to copyright (such as sui generis database rights). And the CC license only applies when at least one of these rights held by the licensor applies to the use made by the licensee. This is important because in some countries, text and data mining are activities covered by an exception or limitation to copyright (such as fair use in the United States), so no permission is needed. Most recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from the reach of copyright.

Finally, STM’s “supplementary” licenses, which are intended for use with existing licenses, would only work with CC’s most restrictive license, Attribution-NonCommercial-NoDerivatives (BY-NC-ND). Even then they would have very limited legal effect, since much of what they claim to cover is already permitted by all CC licenses. As a practical matter, these license terms are likely to be very confusing to re-users when used in conjunction with a CC license.

The Creative Commons licenses are the demonstrated global standard for open access publishing. They’re used reliably by open access publishers around the world for sharing hundreds of thousands of research articles. Scholarly publishing presents a massive potential to increase our understanding of science. And creativity always builds on the past, whether it be a musician incorporating samples into a new composition or a cancer researcher re-using data from past experiments in their current work.

But to fully realize innovations in science, technology, and medicine, we need clear, universal legal terms so that a researcher can incorporate information from a variety of sources easily and effectively. The research community can enable these flows of information and promote discoveries by sharing writings, data, and analyses in the public commons. We’ve already built the legal tools to support content sharing. Let’s use them and not reinvent the wheel.

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The work of Communia is based on a set of 14 policy recommendations which aim to support policies that enable a rich and accessible Public Domain. In light of these recommendations, Communia welcomes the development of a strong Open Access (OA) policy at the European level around the following main ideas:

• All publicly funded research outputs and educational resources must be made available as open access materials (aligned with the Budapest Open Access Initiative).

• Notwithstanding the need to support OA policies, access to copyright protected material for education and research purposes must be improved by strengthening existing exceptions and limitations to copyright, and broadening these exceptions to cover uses outside of formal educational and research institutions.

Social and Economic Meanings of Open Access

Open Access is defined by the Budapest Open Access Initiative (BOAI) as the free availability and unrestricted access of research results, without financial, legal or technical barriers. According to the revised BOAI recommendations, research results should be made available:

• Without payment by the reader,

• Without contractual, legal, or licensing restrictions on use or reuse other than integrity and attribution of the author,

• Without technical restrictions which might prevent indexing, mining, searching, filtering and any other automatic processing making research more useful and likely to be connected with related results for the advancement of research,

• When possible, as “libre OA” (which combines free access as well as liberal open licensing) – preferably under a Creative Commons Attribution (CC BY) license or equivalent.

OA is beneficial for the research community, for the economy and for society as a whole. Researchers need to be able to access research results without having to pay expensive subscription fees. They should be able to read and use what they need to be able to perform their work effectively and efficiently. Universities and funding agencies are not able to sustain the rising prices of an oligopolistic journal publishing industry. Even the most well-funded libraries (such as Harvard University and the University of Munich) have had to cancel journal subscriptions because they cannot afford to continue paying the subscription fees.

Academic research is mostly financed through public funding. The current system oftentimes results in the government essentially paying for the research several times: first, when the governmental entity awards research grants; second, when the government subsidizes the salaries of the academics who serve as peer-reviewers; third, when the government pays for libraries in research universities that subscribe to the journals. The public should receive a better return on the investments being made for the research, development, and publication of publicly funded scholarship. OA provides an economic and social return on investment through higher dissemination to citizens, taxpayers, and researchers from other countries and other disciplines, OA fosters interdisciplinary cross-fertilization and international impact.

Open Access quick facts

1. OA is always free (“gratis”) for the reader

At the very minimum, every Open Access model assumes that content is available for free of charge (gratis) to the reader.

2. Two publications models

The two OA publication models, just like the traditional conventional (non-OA) model (with financial, legal or technical barriers), are sustainable ways of not only making knowledge available, but also of conducting business activity. OA requirements can be fulfilled through various publishing models combined with various business models:

• Green OA designates the self-archival by researchers of their publications in institutional or disciplinary repositories, free of charge to the reader. Most non-OA publishers already authorize an author to deposit in a repository, sometimes after an embargo period. For more than 20 years the discipline of physics has seen high levels of green OA deposit and has not lead to subscription cancellation of non-OA journals.

• Gold OA designates publishers or journals which distribute their publications free of charge for the reader under a liberal open license (such as the Creative Commons Attribution license).

Various business models can be employed to cover the costs of Open Access publications:

• Public funding, institutional subsidies, advertising, donations: 100% of scientific publications, both OA and non-OA, already rely on external funding and volunteers authors, referees and editors.

• Paid additional services, such as user statistics or other formats.

• Publication or a submission fee by the author, like in many non-OA journals. However those fees can be waived, depending on the origin of the authors, and cannot be understood as the only model for OA.

Gold OA is compatible with market and cost recovery. Some OA publishers are commercial and profitable. Online OA may increase the sales for printed journals.

3. OA respects research policy and Intellectual Property

A well-written OA policy:

• Is consistent with the rules of copyright, and allows the rightsholder to leverage open licensing to communicate a set of rights to downstream users.

• Does not interfere with the academic freedom of the author to publish in the venue chosen by them.

• Does not preclude rightsholders from pursuing the exploitation (such as through a patent) of the findings within the research paper before publishing the results.

• Is aligned with the current peer-review process. Peer review takes place before any publication, while OA focuses on distribution. Scholarship destined to be released as OA undergo the same peer review as Non-OA articles.

• Is impartial with respect to quality. Both OA and Non-OA publications can be of varied quality, and there is nothing about OA that suggests it is of lower quality; all articles should be judged on their merits.

• Operates in tandem with accepted academic integrity and ethics: OA articles are not more likely to contain plagiarism than Non-OA scholarship.

• Can increase the impact of a researcher’s work. The researcher may be able to receive more citations because articles in OA are more likely to be cited than non-OA papers. OA is beneficial for the career of all researchers as readers and as authors.

4. OA to data is indispensable

• In addition to OA to articles, OA to the data associated with the articles is important so that other researchers can confirm and reproduce the results.

• OA to data is compatible with both green and gold OA models: repositories and journals can host data in content management systems linked with publications. OA and non-OA journals are requiring the deposit of underlying data and code in order to assess submissions’ validity and quality.

COMMUNIA Recommendations

Communia Association calls the Members of the European Parliament to establish a clear OA policy:

1. OA mandate for all publicly-funded research output

All publicly-funded research outputs (including published articles, preprints or drafts prior to peer-review, books, scientific data, databases, archival records, software source code, conference presentations, audiovisual and teaching material, etc.) must be made available without financial, legal, contractual or technical restriction to access, use and reuse, as aligned with the Budapest Open Access Initiative, as soon as possible.

An OA mandate should require:

• Publications to be released under conditions compatible with a Creative Commons Attribution license.

• Data to be released in the public domain or using a tool such as the CC0 Public Domain Dedication.

• When publications and related data could not be released under those conditions, they should be made available at the latest at the moment of publication or immediately afterwards. An embargo of 6 months counting from the date of publication is acceptable.

A mechanism of incentives, control and sanctions should be devised and enforced for entities who do not comply with the policy.

2. Eliminate sui generis rights on databases

The 1996 Database directive, which imposes additional restriction to the use of data contained in databases, has not demonstrated any benefit and should be annulled.

3. Prevent unfair publishing agreements

Publishing agreements precluding authors to archive their research output in OA repositories or banning authors who are bound by an institutional OA mandate should be prohibited.

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