In his blog Common Knowledge, John Wilibanks suggests that
If you don't use a permissive copyright license you are not an Open Access publisher. JoVE was never OA. They simply weren't charging for their publications. JoVE was shareware, and the bill's come due.
Now, by permissive he appears to mean that the user can use the content in any way s/he wishes, but quotes in support of this proposition the Budapest Open Access Initiative statement that
The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.
However, giving the author these rights, does not imply that the user should have the total right to do whatever s/he wishes with the content. If the author retains copyright, as Information Research authors do, it is up to the author to determine what should be done with his or her work. A journal publisher cannot allow the author to retain copyright and then encourage infringement of this copyright by suggesting that users of the material may do whatever they wish with it. (Slightly revised 17 Apr 2009)