'Adaptation' and 'derivation' in Creative Commons' licences

SPARC Europe is cooperating with the Directory of Open Access Journals DOAJ) in the promotion of a 'Seal of approval' for OA journals. There is nothing about this, at the moment, on the SPARC Europe Website but it seems that the award of the 'Seal' will depend upon the journal using the Creative Commons BY licence and supplying DOAJ with metadata for the papers. The CC-BY licence is suggested as being the most 'open' of the licences allowing for 'derived works' and, by implication, it would seem, allowing archiving, text-mining, etc.

Originally, Information Research used the CC-BY licence (or its equivalent at the time I adopted the licence) but I found that the situation was rather ambiguous, since the full licence contains no full definition of 'derived work'. Rather, it defines 'adaptation' and mentions 'derivative work' as part of that definition. Nothing in the full licence says anything about archiving, text-mining or any other post-publication use of OA papers. The definition of 'adaptation' suggests why this is the case:

'Adaptation' means a work based upon the Work, or upon the Work and other pre-existing works, such as a translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or phonogram or performance and includes cinematographic adaptations or any other form in which the Work may be recast, transformed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered an Adaptation for the purpose of this License.

From this, we understand why the "Creative" Commons is so called - it is a licence for creative products in the sense of literary, musical and artistic works, which may undergo various forms of adaptation, a novel into a radio programme, a work of art into an advertisement, etc. - it is does not appear to be designed for works of academic scholarship.

The key questions for scholars are, 'What is meant by derivative work', and 'What kind of derivative work is permitted under this licence?' and I cannot imagine many academics being happy with the idea that their work can be 'built upon' other than in the way we normally think of that, i.e., someone taking an author's ideas as expressed in a work, using those ideas, building upon them to produce a novel work of scholarship with quotation, citation and referencing. Any other form of 'adaptation' that brings about a new product surely deserves the original author to be treated as joint author of the new production.

It should also be noted that the CC-BY licence permits commercial re-use of an author's work and I would find this completely unacceptable for Information Research for the simple reason that the journal is genuinely 'open', i.e., not closed at the input end through author charges, and neither I nor any of the Associate Editors, nor Lund University Libraries (which hosts the journal) receives any financial support for its publication. The notion that any commercial organization could then take the papers and use them for commercial purposes is a complete anathema to me, and I imagine, to the authors whose work would be used in such a way.

My conclusion after exploring this issue is that the present Creative Commons' licences do not properly protect scholarly work, if a BY (or 'attribution') licence is adopted. I turned to Science Commons to see what happens there, but that organization simply uses the CC licences and has not produced a separate licence for scientific works.

At present the only sensible licence for scholarly works is the "Attribution-Non Commercial-No Derivs" (or BY-NC-ND) licence, which allows open access and anyone may:

a. ...Reproduce the Work, to incorporate the Work into one or more Collections, and to Reproduce the Work as incorporated in the Collections; and,
b. ...Distribute and Publicly Perform the Work including as incorporated in Collections.

Perhaps it is time for a new 'Scholarly Commons' licence, which makes clear what a 'derivative work' is and removes the present ambiguity and uncertainty.

Odds and ends

Peter Suber's excellent Open Access news Weblog has been mentioned frequently here and recently he's had a couple of particularly interesting (to me) posts. One relates to Eric von Hippel's making available a couple of his books, with the agreement of the publishers, as open access e-books. The interesting thing is that sales exceeded expectations in both cases. As von Hippel says, this is counter-intuitive for publishers, but it simply shows that publishers have not thought through the logic. They know that, for example, for every thousand mailings of a publicity shot they're likely to get only 2% or 3% response - or even less - so they ought to understand that publicity in the form of open access, which reaches millions of people, rather than a few thousand, is going to increase sales, even if only one or two percent of the downloaders actually buy the book. I could also see benefits if publishers make books OA when the main sales have been made and the order stream is reduced to a trickle: this could give a boost to sales well beyond what would have been anticipated.


The second item is somewhat more esoteric and legalistic. Peter has been engaged in a debate on whether or not real OA includes the right to make 'derivatives' of the work in quetion - referring to the Creative Commons' licences. There are those who hold that the right to make derivative works is a required characteristic of OA works and those who protest the opposite. What is not clear for me is what constitutes a 'derivative work': if someone uses my work to create something related, using, for example, a theoretical model and quoting from my work, I don't see that as 'derivative' in any way other than all scientific work is 'derivative', in that it builds on the earlier research. To be truly 'derivative' in my book means taking my work and re-working it, using the text and the arguments, along with new insights and ideas to create something closely associated and 'derived' from my work. In that kind of work - and I know of none - I would be, in effect, a silent collaborator and I think I would be justified in claiming to be the joint author! So I think the debate may be about two different things: creating a work that simply refers, textually and otherwise, to my own, and creating a composite work, based on my ideas, but extending, etc. I would be perfectly happy with the first form of 'derived' work, but I think that for the second I would deserve a stronger form of acknowledgement than mere citation. Should I, therefore, adopt the 'no derivatives' form of the CC licence?


While pursuing this at the CC site another question occurred to me. The CC licence has a 'no commercial use' element, which simply means that, you cannot use my work for commercial gain. However, if you publish through a toll access publisher, who is in the business of making a profit, can the publisher profit from the inclusion of my work in yours? I think I shall have to watch this carefully in future, since I get numerous requests to use the diagram of my 1996 'General Model of Information Behaviour' - in the past, I've given permission without question, but now perhaps I should say - fine, if you publish in a true (Platinum Route) OA journal, but, if not, your publisher will have to pay.