Chapter 8: Using copyright law to enable open access
8.3 Open content licensing and Creative Commons
What are open content licences?
Wikipedia defines “open content license” as “a license designed for distribution of open content material.”299 It defines “open content” as:
Open content...describes any kind of creative work published in a format that explicitly allows copying and modifying its information by anyone, not exclusively by a closed organisation, firm or individual...Technically, open content is royalty free, share alike, and may or may not allow commercial redistribution. Content can either be in the public domain or under an open licence, such as one of the
298 Note that if your institution has in place a deposit mandate, you will be obligated to grant these rights to your institution (usually in a Repository Deposit Licence). If your institution has in place a permission mandate, you may have already granted these rights in a University Licence and will need to inform your publisher of this pre-existing licence. For more information on University Licences, see Thinh Nguyen and others, Open Doors and Open Minds: What Faculty Authors Can Do To Ensure Open Access To Their Work Through Their Institution, A SPARC/Science Commons White Paper, April 2008 http://www.arl.org/sparc/publications/guides/opendoors_v1.shtml accessed on 8 May 2008.
299 http://en.wikipedia.org/wiki/Open_Content_License accessed on 10 March 2008.
Creative Commons licenses.300
Note that under Creative Commons licences, “share alike” is an optional term (see below).
Professor Anne Fitzgerald explains open content licensing particularly well:
The development of open content licensing models has made it easier for copyright owners to licence their material to a wider range of people, particularly over the Internet. Open content licensing involves making copyright material available on liberal terms, to ensure that it is readily accessible and available for re-use. A central feature of open content licensing is that while copyright is asserted in the material, the copyright owner exercises their rights to ensure ready accessibility and to permit re-use while still reserving some rights for their sole benefit (for example, to be attributed as the creator of the material).
Importantly, open content licences grant rights to users to do acts that fall within the scope of the copyright owner’s exclusive rights and do not impose further (i.e. non-copyright related) obligations on the users of the copyright material. Open content licences differ from many traditional information licences which seek to impose contractual obligations or constraints on users (for example, restrictions on further dissemination of information or confidentiality obligations).301
What are Creative Commons licences?
Creative Commons licences are a type of open content licence. They were developed by the Creative Commons project, which was established in 2001 by Professor Lawrence Lessig and others. The aim of the Creative Commons project is to increase access to creative works by providing flexible copyright options for creators.302 It is premised on a “some rights reserved” system (as opposed to the traditional
“all rights reserved”), which allows creators to retain copyright ownership of their work but at the same time licence its use to others on liberal terms.
Under a Creative Commons licence, all people who use the work in reliance on the Creative Commons licence are licensees. Therefore, potentially everyone in the whole world is a licensee. The rights granted to licensees under all Australian Creative Commons licences are the rights to copy, publish, communicate to the public, distribute copies or records of the work, exhibit or display publicly and digitally perform the work, and also the right to make verbatim copies of the work into another format.303
All Creative Commons licences carry the condition of attribution, so that whenever a work is copied, reused or shared in reliance on a Creative Commons licence, credit must be given to the original creator (i.e. you as author).304
In addition, there are three other conditions that may be imposed on licensees under a Creative
300 http://en.wikipedia.org/wiki/Open_content accessed on 10 March 2008.
301 Dr. Anne Fitzgerald and Kylie Pappalardo, Building the Infrastructure for Data Access and Reuse in Collaborative Research: An Analysis of the Legal Context, OAK Law Project and Legal Framework for e-Research Project, June 2007, 146, available online at http://www.oaklaw.qut.edu.au/node/33.
302 Damien O’Brien and Dr Anne Fitzgerald, Copyright Guide for Research Students: what you need to know about copyright before depositing your electronic thesis in an online repository, OAK Law Project, May 2007, available online at http://www.oaklaw.qut.edu.au/publications.
303 See http://www.creativecommons.org and http://www.creativecommons.org.au. Note that the rights granted will differ slightly between US and Australian Creative Commons licences – see footnote 294, 295 or 297 above.
304 See http://www.creativecommons.org and http://www.creativecommons.org.au.
Commons licence:
Non-Commercial – the work (and derivatives based upon the work) may be used for non-commercial purposes only;
No Derivatives – users may only use and distribute exact copies of the work (i.e they may not make derivative works based upon it); and
Share Alike – users may create and distribute derivative works, but only on the same licensing conditions that apply to the original work (in other words, they must licence their derivative works under the same Creative Commons licence or other licence with the same terms).305 The Share Alike term is intended to ensure that the work always remains freely available to the public.
The above licensing conditions can be combined in different ways to create a number of different licences. The six core licences are:
Attribution (BY) – this is the most liberal of the Creative Commons licences. It allows others to make any use of the work for any purpose, as long as the original creator is credited;
Attribution Non-Commercial (BY-NC) – allows any use of the work for any non-commercial use, provided the original creator is attributed;
Attribution Share Alike (BY-SA) – allows any use for any commercial or non-commercial purpose, as long as the original creator is credited and all derivative works are licensed under identical terms;
Attribution Non-Commercial Share Alike (BY-NC-SA) – allows use for all non-commercial purposes, provided the original creator is attributed and all derivative works are licensed under identical terms;
Attribution No Derivatives (BY-ND) – allows use of the work in its current form for commercial or non-commercial purposes as long as the original creator is attributed, but does not allow derivative works to be created (i.e. the work cannot be altered in any way); and
Attribution Non-Commercial No Derivatives (BY-NC-ND) – this is the most restrictive of the Creative Commons licences. It allows use of the original work for non-commercial purposes only, provided the creator is attributed, and does not allow derivative works to be created.306 Note that the Share Alike and No Derivatives terms are incompatible in the same licence, as the Share Alike term only applies to derivative works.
Remember that applying a Creative Commons licence to your work does not limit the other kinds of licences that you can grant. For example, you may want to allow the entire world to use your work non-commercially. Therefore, you may attach a Creative Commons Attribution Non-Commercial licence to your work. This does not then prevent you from granting a separate licence to a commercial publisher to publish your work commercially.
The other baseline features of Creative Commons licences are:
they operate worldwide;
they apply for the entire duration of the copyright term;
they are irrevocable (cannot be taken back);
305 See http://www.creativecommons.org and http://www.creativecommons.org.au.
306 Ibid.
licensees cannot use technological protection measures to restrict access to the work; and
every copy of the work should maintain a link to the licence.307
It is important to take note of the third feature listed above – namely, that the licences are irrevocable.
This means that once you have granted a Creative Commons licences, you can never take it back. You may only terminate the licence on an individual basis if a user has breached the terms of the licence. It also means that if you have granted wide rights under a Creative Commons licence, you cannot then change that licence to limit the rights granted. For this reason, you should:
think carefully about what rights you want to grant to users before you apply a Creative Commons licence; and
be sure that you are satisfied for these rights to be granted to users and potential users for the entire duration of copyright.
How do you apply a Creative Commons licence to your work?
It is very easy to apply a Creative Commons licence to your work. You simply need to visit the Creative Commons website at <http://www.creativecommons.org> (or the Australian website at http://www.creativecommons.org.au>). There, you select which rights you want to grant to users and if you are using the general website, the jurisdiction (country) in which you reside (e.g. Australia). A Creative Commons licence is then automatically generated for your use. You are provided with:
a pictorial “badge” that you can place on your work to clearly advertise to users which licence applies to your work;
a link to the “human-readable” (easy to understand) version of the licence;
a link to the “lawyer-readable” full legal code of the licence, which sets out the rights and obligations under the licence more comprehensively; and
a “machine-readable” code so that your work can be searched for online on the basis of its licence conditions.
For graphical examples of this process, see the Copyright Toolkit in Appendix One.
There are also Creative Commons Add-ins available for Microsoft Office and OpenOffice.org, which allow Creative Commons licence information to be embedded in Microsoft Word, Excel and PowerPoint documents, and in OpenOffice.org Writer, Impress and Calc documents. To download the
Add-ins, and for instructions on how to use them, see
http://wiki.creativecommons.org/Microsoft_Office_Addin for Microsoft Office or http://wiki.creativecommons.org/OpenOfficeOrg_Addin for OpenOffice.org.
Where are Creative Commons licences already used?
Some open access journals release their content under a Creative Commons licence. Examples are discussed in Chapter 5. Also see the Directory of Open Access (& Hybrid) Journals (DOAJ) at http://www.doaj.org.
307 For more information, see http://www.creativecommons.org and http://www.creativecommons.org.au.
Some institutional repositories also give depositors the option of releasing their work under a Creative Commons licence, by including this option in the deposit process when an academic deposits their work into the institutional repository. This may be a useful way to apply a Creative Commons licence to your work, but before you do, read the section below to ensure that you are not breaching any legal obligations to your publisher.
Will your publisher allow you to attach a Creative Commons licence to your article?
If you intend to apply a Creative Commons licence to your work before entering into negotiations with a publisher, consider carefully whether applying the Creative Commons licence will prevent you from being published with your publisher of choice. Some publishers will not agree to publish a work that has already been licensed to the general public so liberally. However, some publishers will be happy to publish a work that is under a Creative Commons licence. Each publisher's position will be different.
Therefore, it is important to talk openly with your publisher about what actions you have already taken with your copyright and what actions you intend to take.
Explain to your publisher how the Creative Commons licence will or will not affect their interest in your work. The publisher is still free to include the article in their journal, regardless of the Creative Commons licence, and will still be free to sell copies of the journal to libraries, academic institutions and individuals.308 However, the publisher should be aware that the article may also be found elsewhere, such as on the internet.
If you have already assigned copyright to your publisher, you will need to obtain permission from your publisher to attach a Creative Commons licence to your work. Explain to your publisher which Creative Commons licence you wish to use and why. Some publishers will allow you to apply a more restrictive Creative Commons licence to your work (such as a Non-Commercial No Derivatives licence), though few will allow the more liberal Creative Commons licences (such as Attribution only).
Negotiations about Creative Commons licences may occur in the same way as negotiations about other licences. For example, a publisher may permit you to apply a Creative Commons licence, but only after an embargo period.309
If your publisher is unwilling to allow you to apply a Creative Commons licence to your article, they may instead agree to a different licence, the terms of which are reached by agreement between you and your publisher. If this is the case, you may find the mechanisms addressed in Chapter 9 and the Copyright Toolkit in Appendix One useful.
If you are still the copyright owner of your work and have only granted a Licence to Publish to your publisher, then you should be free to apply a Creative Commons licence to your work. However, this freedom will be limited if you have granted an exclusive licence to your publisher (see 8.1 and 8.2, and Chapter 3).
308 Note that if you have attached a non-commercial Creative Commons licence to your work, you will need to grant another licence to your publisher to publish and sell your article commercially (they cannot rely on the Creative Commons licence).
309 Some publishers will allow material to become openly accessible after a certain period of time, called an embargo period.
An embargo period is most commonly 6 to 12 months, which accords roughly with the period of time during which the publisher has an immediate commercial interest in your work.