April saw lots of activity on the open science front in the European Union. On April 19, the European Commission officially announced its plans to create an “Open Science Cloud”. Accompanying this initiative, the Commission stated it will require that scientific data produced by projects under Horizon 2020 (Europe’s €80 billion science funding program) be made openly available by default. Making open data the default will ensure that the scientific community, companies, and the general public can enjoy broad access (and reuse rights) to data generated by European funded scientific projects. The Commission’s actions in support of open science contrasts with the approach taken by the Member States, who—although none deny the momentum to push for “open by default”—are being much more cautious in developing and publishing open science policies.

Also in April, the Dutch EU Presidency hosted an open science conference in Amsterdam. One outcome of the conference was a collaboratively developed document called the Amsterdam Call for Action on Open Science. The call for action advocates for “full open access for all scientific publications”, and endorses an environment where “data sharing and stewardship is the default approach for all publicly funded research”.

The 12 action items laid out in the document push to increase support for open science in Europe. We offered suggested improvements to a few of the proposed actions. First, in response to the item to facilitate text and data mining of content, we said that text and data mining (TDM) activities should be considered outside the purview of copyright altogether. In other words, text and data mining should be considered as an extension of the right to read (“the right to read is the right to mine”). However, as others have pointed out, the fact that the InfoSoc and Database directives have not been implemented uniformly across all Member States indicates a need to adopt a pan-European exception in order to provide clarity to those wishing to conduct TDM. We noted that any exception for text and data mining should cover mining for any purpose, not just “for academic purposes.” In addition, a TDM exception should explicitly permit commercial activity. Finally, we said that terms of use, contractual obligations, digital rights management, or other mechanisms that attempt to prohibit the lawful right to conduct TDM should be forbidden.

Second, we questioned why the item to improve insight into IPR and issues such as privacy needs to take into consideration activities that “will ensure that private parties will still be able to profit from their investments.” We noted that all of the proposed actions are supposed to serve the identified pan-European goal of full open access to all scientific publications.

Third, we commended the action to adopt open access principles. However, we suggested that any principles developed should tackle a wider set of issues than those identified: “transparency, competition, sustainability, fair pricing, economic viability and pluralism.” We said that open access principles should take into account the long-standing principles described by the Budapest Open Access Initiative, and its 10-year update, which includes recommendations on public policy changes, licensing, infrastructure support, and advocacy. In addition, we said that the stakeholders involved in the development of any principles should include researchers, students, and the public.

Finally, on the item of how to involve researchers and new users in open science, we urged researchers to actively engage with other scientists, citizens, and non-traditional audiences. Part of this change means that academics and policymakers need to stop characterizing these other groups as “users [who] might get lost in their search for information, or draw wrong conclusions.” If we presume a default of open, we need to get comfortable with sharing—which sometimes means giving up some control—so that others can benefit. With openness in policy and practice, the communication of science can benefit not only its intended audience, but promote novel and interesting types of re-use across disciplines and and by unconventional users.

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On Monday, January 25th COMMUNIA organized a Public Domain Day celebration at the European Parliament. COMMUNIA advocates for policies that expand the public domain and increase access to and reuse of culture and knowledge, and consists of many organisations including Creative Commons, Kennisland and Centrum Cyfrowe. The event, which focused on showcasing creators who have chosen to donate their output to the public domain, was hosted by MEP Julia Reda.

Julia Reda at the Public Domain Day Celebration by Sebastiaan ter Burg; CC0

Highlighting creators sharing in the public domain

COMMUNIA invited creators such as Kenney Vleugels, who makes game assets available to other game developers under the the CC0 Public Domain Dedication, Alastair Parvin of WikiHouse.cc, who is developing an open source approach to sustainable housing, Femke Snelting of Constant, who is publishing public domain magazines, Eric Schrijver, who is writing a sharing guide for artists, and Thomas Lommee from Open Structures, a standardised open design system. The lunch discussions focused on the artistic and design practices of these creators and the challenges they run into. A recurring theme was the legal uncertainty created by overly complex copyright laws, and the excessive length of copyright protection.

The public domain is traditionally seen as a body of works that are no longer under copyright because the terms of protection have expired. Public Domain Day celebrates this very moment, when the period of copyright protection ends for works of certain authors. But the public domain is not simply a dusty collection of old works. During the event COMMUNIA highlighted the fact that the public domain is a modern phenomenon—it is alive. We celebrate the practice of authors contributing to the public domain long before their copyright expires. From this perspective, the ongoing policy debate on European copyright will structure the shape and scope of our collective public domain for years to come.

Public Domain Day Celebration at the European Parliament by Sebastiaan ter Burg; CC0

Copyright debate in Europe should support the public domain

The European Commission is in the process of proposing changes to the copyright rules in the EU. It laid out some of its ideas through a Communication in December 2015, and will present concrete legislative proposals in June 2016. In 2016 and beyond COMMUNIA will advocate for specific points, including the three below. You can read more here.

1. Ensure that the mere digitisation of public domain works does not create new rights over them. Some member states would like to allow anyone who digitized a public domain work to claim new exclusive rights. This creates legal uncertainty and undermines the concept of the public domain.
2. Introduce a mandatory and strong exception to copyright for educational use. We need to ensure that education is not burdened by copyright-related barriers. To ensure this, we need a broad, harmonised exception. It should cover all types of uses, including digital and online activities, both inside and outside of the classroom.
3. Allow cultural heritage institutions to make out-of-commerce works available online. Vibrant and diverse cultural heritage institutions are one of the defining features of our European culture. In order to remain relevant, they need to show their collections online. A new exception should allow these institutions to make available online the out-of-commerce works in their collections.

COMMUNIA is following the events in Brussels closely, and is sharing the advantages of a strong public domain and a flexible copyright to policy makers. You can see photos from the Public Domain event here (all CC0, created by Sebastiaan ter Burg). If you want to stay informed on the changes in European copyright, you can follow the developments on the COMMUNIA blog. If you are interested in the area where copyright and education clash, please have a look at our Medium series on it: Copyright Untangled.

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In October we wrote that the U.S. Department of Education (ED) is considering an open licensing requirement for direct competitive grant programs. If adopted, educational resources created with ED grant funds will be openly licensed for the public to freely use, share, and build upon.

The Department of Education has been running a comment period in which interested parties can provide feedback on the proposed policy. Creative Commons has drafted a response, which discusses the open licensing policy and other questions proposed by ED. You too can share your thoughts with ED–here’s a guide about how to do it. The deadline is December 18. Submit your comments now!

We think the adoption of an open licensing requirement is useful because it clarifies the rights of the public in how we may all access, use, and adapt ED-funded resources.

The license must be worldwide, non-exclusive, royalty-free, perpetual, and irrevocable, and must grant the public permission to access, reproduce, publicly perform, publicly display, adapt, distribute, and otherwise use, for any purposes, copyrightable intellectual property created with direct competitive grant funds, provided that the licensee gives attribution to the designated authors of the intellectual property.

We think ED should include a specific mention that the open license definition they provide most closely aligns with the permissions and conditions of the Creative Commons Attribution International 4.0 license (CC BY). This way, it will be clear to grantees which open license ED requires them to use.

It’s good to see the Department of Education proposing a similar rule that the Department of Labor introduced several years ago with their community college and career training grant program. That $2 billion grant pool required that educational resources created with Department of Labor grant funds be licensed under the CC BY license. By doing so, the Department of Labor made sure that the resources created with its grant funds can be easily discovered and legally reused and revised by the public.

How to submit a comment

Submit comments here

Update (January, 7, 2016)

• Creative Commons submitted response to Department of Education open licensing policy.
• OER coalition response signed by 26 allied organizations.
• A total of 147 (134 non-duplicate) public comments were submitted, most of which show overall support for the policy.

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Elsevier’s new policy, announced 30 April 2015, is detrimental to article authors as well as those seeking access to these research papers. The policy imposes an embargo of at least 12 months before authors can self-archive their final manuscripts in an institutional repository–with the option of these embargoes being as long as 48 months. Beforehand, Elsevier allowed immediate deposit of the articles in repositories. The new policy also restricts access once the embargo expires by requiring that articles be shared under the most restrictive Creative Commons license–CC BY-NC-ND–which prohibits commercial use and the creation of derivative works.

From the letter:

This policy represents a significant obstacle to the dissemination and use of research knowledge, and creates unnecessary barriers for Elsevier published authors in complying with funders’ open access policies. In addition, the policy has been adopted without any evidence that immediate sharing of articles has a negative impact on publishers subscriptions.

Kevin Smith, Director of the Office of Copyright and Scholarly Communication at Duke University, calls their updated embargo policies “both complicated and draconian,” and criticizes the requirement that authors apply a restrictive license to their works at the expiration of the embargo period:

This, of course, further limits the usefulness of these articles for real sharing and scholarly advancement. It is one more way in which the new policy is exactly a reverse of what Elsevier calls it; it is a retreat from sharing and an effort to hamstring the movement toward more open scholarship.

Elsevier should reconsider these policy changes in order to support the rights and wishes of academic authors, and to support better access to the research that they publish.

The letter is available here. It has been signed by the following groups, and you can add your organization to as well.

COAR: Confederation of Open Access Repositories
SPARC: Scholarly Publishing and Academic Resources Coalition
ACRL: Association of College and Research Libraries
ALA: American Library Association
ARL: Association of Research Libraries
Association of Southeastern Research Libraries
Australian Open Access Support Group
IBICT: Brazilian Institute of Information in Science and Technology
CARL: Canadian Association of Research Libraries
CLACSO: Consejo Latinoamericano de Ciencias Sociales
COAPI: Coalition of Open Access Policy Institutions
Creative Commons
Creative Commons (USA)
EIFL
Electronic Frontier Foundation
Greater Western Library Alliance
LIBER: European Research Library Association
National Science Library, Chinese Academy of Sciences
OpenAIRE
Open Data Hong Kong
Research Libraries UK
SANLiC: South African National Licensing Consortium
University of St Andrews Library

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Vancouver Foundation has announced that it will adopt an open licensing policy by January 2017. The foundation will require that all projects and research funded through community advised grant programs be licensed and shared under the Creative Commons Attribution 4.0 International license (CC BY). In addition, the foundation has pledged to license their own intellectual property–such as reports and publications–under CC BY.

Vancouver Foundation is one of the largest foundations in Canada, with over $1 billion in assets, and funds projects across British Columbia in areas such as arts and culture, education, children and youth issues, environment, animal welfare, community health, and social development. With the new open licensing policy–which is the first for a Canadian foundation–the organization aims “to advance transparency and accessibility of materials to drive greater innovation and creativity in BC and beyond.”

The open licensing policy will take effect in January 2017, and in the interim the foundation will work on the development, testing and implementation of the policy to explore and address the needs of those grantees who have a persuasive reason to choose alternative licenses or conditions.

“Vancouver Foundation is excited to join a growing international movement among foundations to increase access to a wide range of content funded to create public benefits,” said Foundation President and CEO, Kevin McCort. “We do this not only to share the products of our own community investments, but to encourage and support other foundations who want to join us.”

Ryan Merkley, CEO of Creative Commons, said, “Vancouver Foundation joins several leading philanthropic grant making organizations who have adopted Creative Commons licensing policies for the outputs of their charitable giving, unlocking billions in resources for everything from research to digital education materials, and data.”

Read the press release of the announcement here. Congratulations to Vancouver Foundation for their leadership and commitment to sharing research, educational materials, and data for the public benefit in the global commons.

The post Vancouver Foundation announces first CC BY policy for a Canadian foundation appeared first on Creative Commons.

Today Creative Commons joins over 50 organizations in releasing the Hague Declaration on Knowledge Discovery in the Digital Age. The declaration is a collaboratively-created set of principles that outlines core legal and technical freedoms that are necessary for researchers to be able to take advantage of new technologies and practices in the pursuit of scholarly research, including activities such as text and data mining. The drafting of the declaration was led by LIBER, the Association of European Research Libraries. It was developed through contributions from dozens of organizations and individuals, including several experts from the CC community. Creative Commons is an original signatory to the declaration.

One of the key principles recognized in the declaration is that intellectual property law does not regulate the flow of facts, data, and ideas–and that licenses and contract terms should not regulate or restrict how an individual may analyze or use data. It supports the notion that “the right to read is the right to mine”, and that facts, data, and ideas should never be considered to be under the protection of copyright. To realize the massive, positive potential for data and content analysis to help solve major scientific, medical, and environmental challenges, it’s important that intellectual property laws and private contracts–do not restrict practices such as text and data mining.

The Hague Declaration also lays out a roadmap for action in support of these principles. The roadmap suggests the development of policies that provide legal clarity that content mining is not an infringement of copyright or related rights. It’s important for advocates to champion this notion, especially as there have been increasing suggestions from rights holders who are attempting to develop new legal arrangements and licenses that require users to ask permission to engage in practices such as text and data mining.

In addition to supporting the notion that the right to read is the right to mine–free from additional copyright-like rights, license, or contractual arrangements–the declaration also suggests that if funding bodies are considering adopting open licensing mandates as a component of receiving grant funds, they should aim to adopt policies that champion a liberal licensing approach. Specifically the declaration states that research articles created with grant funds should be published in the global commons under a liberal license such as CC BY, and that research data should be shared in the worldwide public domain via the CC0 Public Domain Dedication.

The Hague Declaration is an important set of principles and recommended actions that can aid the speed and effectiveness of scholarly research and knowledge discovery today. You can read the LIBER press release here. To show your support, you can sign the declaration.

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 This situation has sparked a debate among supporters of Open Access about whether or not Elsevier violated the terms of the BY-NC-ND license, and whether articles that are intended to be distributed freely can end up locked behind paywalls. This isn’t the first time this has happened; Peter Murray-Rust documented another instance of it last year. This kind of situation can leave researchers questioning why they should invest in ensuring that their research is distributed for free if another publisher can simply turn around and sell it – especially if the article carries a Creative Commons license that is supposed to restrict commercial use. Mounce complained to Elsevier about the arrangement, and as of March 9, they’ve removed the pay from the article and promised Mounce a refund. A representative from Elsevier claimed “there was some missing metadata for some of the OA articles,” thus apparently allowing for users to be charged for access to those openly licensed articles. Elsevier said it will investigate and reimburse others who purchased access to those articles on the Elsevier site during the time that the paywall was up. At the same time, Elsevier has hinted that it has the right to sell access to BY-NC-ND articles it holds because of a separate license they get from the author.

So, what is really going on here?

A fundamental feature of copyright law is that authors hold the copyright in any work they create. Authors have control over the permissions they grant beyond “all rights reserved” copyright. For example, an author could grant certain permissions by offering the work under a Creative Commons license (some rights reserved), or even place the work in the public domain (no rights reserved) using the CC0 Public Domain Dedication. And since the CC licenses are non-exclusive, an author can both share a work with a CC license, and also enter into a separate agreement that would allow a publisher to sell it.

It is common for an author to sign a publication agreement with a publisher that may grant additional rights to the publisher independent of a CC license. And if an author agrees to a particular set of separate permissions for the publisher, then the publisher could offer the author’s article on those terms–for example, the ability to sell access to a work–even if the work was originally made available under a noncommercial open license. The authors of the article in question may have signed an agreement like this when the article was originally accepted for publication with Wiley. If this is the case, then Wiley would likely have been able to transfer or sell those rights to Elsevier when Elsevier acquired the article. However, there is no way to know for sure that this is what happened without seeing the publication agreement the authors signed with the publisher.

The question really boils down to: Who owns the copyright to the article? And did the copyright holder grant permission to Elsevier for commercial use?

According to the copyright notice in the article, the copyright belongs to the authors. Mounce contacted the lead author earlier this week. The author said he was not aware that Elsevier was selling the article, and had not granted Elsevier permission to do so. If Elsevier was relying solely on the BY-NC-ND license for its use of the article, it seems likely that their action would have violated the noncommercial restriction by charging for access to the work on the Elsevier site.

Elsevier’s own policies raise one additional question. For the majority of articles they publish, Elsevier retains “the exclusive right to publish and distribute an article, and to grant rights to others, including for commercial purposes.” But their copyright terms state that for open access articles, “Elsevier will apply the relevant third party user license where Elsevier publishes the article on its online platforms.” Since the Wiley article came to Elsevier already as “open access” (let’s set aside for a moment the fact that many do not consider BY-NC-ND to qualify as “open access”), you would think that Elsevier would retain the existing CC license from Wiley. Therefore, Elsevier would not be in a position to charge for access to the article because of the noncommercial condition in the CC license. But it’s not clear whether Elsevier applies this reasoning to articles they acquire versus articles originally published on their platform.

So where does all this leave us in understanding what is going on with how these sorts of publishing agreements intersect with open licenses? There still seems to be some outstanding questions that perhaps Elsevier could help answer. Elsevier should share publicly its author’s publishing agreement so that prospective authors and the public can better understand the terms of Elsevier’s license (and as Mounce suggests, publishers should “print the terms and conditions of the author-publisher contract within each publication itself…”). In addition, Elsevier should clarify its copyright policy with regard to when they hold an exclusive right to publish and distribute and when they will adhere to the open license provided with an article.

The post Are commercial publishers wrongly selling access to openly licensed scholarly articles? appeared first on Creative Commons.

Today the Ford Foundation announced an open licensing policy for all of their grant-funded projects and research. The new arrangement came into effect February 1, 2015 and covers most grant-funded work, as well as the outputs of consultants. The Ford Foundation has chosen to adopt the CC BY 4.0 license as the default for these materials. Grant agreements will now include a paragraph requiring the grant recipient to broadly share all copyrightable products (such as research reports, photographs, videos, etc.) funded by the grant under CC BY. And the Ford Foundation is leading by example by adopting CC BY for all materials not subject to third-party ownership on their own website.

Darren Walker, president of the Ford Foundation, said, “This policy change will help grantees and the public more easily connect with us and build upon our work, ensure our grant dollars go further and are more impactful, and – most importantly – increase our ability to advance social justice worldwide.”

“We’re incredibly pleased to see the Ford Foundation adopting a Creative Commons licensing policy for a wide range of grant-funded works, promoting openness and re-use of content produced through its philanthropic grantmaking,” said Ryan Merkley, CEO of Creative Commons. “The Ford Foundation joins a growing movement of foundations and governments adopting policies that increase access to and re-use of digital education materials, research articles, and data using Creative Commons.”

The Ford Foundation is an independent, nonprofit grant-making organization created in 1936. Its mission is “to strengthen democratic values, reduce poverty and injustice, promote international cooperation, and advance human achievement.” In 2013 the Ford Foundation granted almost $570,000,000 to projects and organizations around the world.

The Ford Foundation joins several other philanthropic grantmaking organizations who have adopted Creative Commons licensing policies for the outputs of their charitable giving. We’ve highlighted several over the last few months, including the William and Flora Hewlett Foundation (who also now require CC BY for all their project-based grantmaking) and the Bill & Melinda Gates Foundation (who adopted a CC BY open access policy for published grant-funded research and data). Releasing grant-funded content under permissive open licenses like CC BY means that these materials can be more easily shared and re-used by the public. And they can be combined with other resources that are also published under an open license.

Congratulations to the Ford Foundation on adopting an open licensing policy that will encourage the sharing of rich content and data in the digital global commons. Creative Commons continues to urge other foundations and funding bodies to emulate the ongoing leadership of the Ford Foundation by making open licensing an essential component of their grantmaking strategy.

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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic is about supporting fair use, a legal doctrine in the United States and a few other countries that permits some uses of copyrighted works without the author’s permission for purposes such as parody, criticism, teaching, and news reporting. Fair use is an important check on the exclusive bundle of rights granted to authors under copyright law. Fair use is considered a “limitation and exception” to copyright.

One area of particular importance within limitations and exceptions to copyright is the practice of text and data mining. Text and data mining typically consists of computers analyzing huge amounts of text or data, and has the potential to unlock huge swaths of interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel scholarly discoveries and critical scientific breakthroughs. Because of this, text and data mining is increasingly important for scholarly research.

Recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from copyright. And as the European Commission conducts their review of EU copyright rules, some groups have called for the addition of a specific text and data mining exception. Copyright for Creativity’s manifesto, released Monday, urges the European Commission to add a new exception for text and data mining, in order to support new uses of technology and user needs.

Another view holds that text and data mining activities should be considered outside the purview of copyright altogether. The response from the Communia Association to the EU copyright consultation takes this approach, saying “if text and data mining would be authorized by a copyright exception, it would constitute a de facto recognition that text and data mining are not legitimate usages. We believe that mining texts and data for facts is an activity that is not and should not be protected by copyright and therefore introducing a legislative solution that takes the form of an exception should be avoided.” Similarly, there have been several actions advocating that “The right to read should be the right to mine.”

Whether text and data mining falls under a copyright exception or outside the scope of copyright, it is clearly an activity that should not be able to be controlled by the copyright owner. But unfortunately, that is exactly what some incumbent publishing gatekeepers are trying to do by setting up restrictive contractual agreements. One example we’ve seen of this practice is with the deployment of a set of “open access” licenses from the International Association of Scientific, Technical & Medical Publishers (STM), many of which attempt to restrict text and data mining of the licensed publications. In jurisdictions such as the United States, users do not need to ask permission (or be granted permission through a license) to conduct text and data mining because the activity either falls outside of the scope of copyright or is squarely covered by fair use.

Ensuring that licenses give copyright owners no more control over their content than they have under copyright law is a fundamental principle of CC licensing. That’s why the licenses explicitly state that they in no way restrict uses that are under a limitation or exception to copyright. This means that users do not have to comply with the license for uses of the material permitted by an applicable limitation or exception (such as fair use) or uses that are otherwise unrestricted by copyright law, such as text and data mining in many jurisdictions.

Today’s topic of fair use rights reminds us that “for copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.” To liberate the massive potential for innovation made possible by existing and future types of text and data mining, we need user-focused copyright policy that enables these new activities.

The post The Limits of Copyright: Text and Data Mining appeared first on Creative Commons.

SPARC reports that the public access language has been included in the fiscal year 2015 spending bill (PDF), which appears on p. 961-962:

SEC. 525. Each Federal agency, or in the case of an agency with multiple bureaus, each bureau (or operating division) funded under this Act that has research and development expenditures in excess of $100,000,000 per year shall develop a Federal research public access policy that provides for— 1) the submission to the agency, agency bureau, or designated entity acting on behalf of the agency, a machine-readable version of the author’s final peer-reviewed manuscripts that have been accepted for publication in peer-reviewed journals describing research supported, in whole or in part, from funding by the Federal Government; (2) free online public access to such final peer reviewed manuscripts or published versions not later than 12 months after the official date of publication.

Alongside the federal spending legislation, there were references included in accompanying reports (see Departments of Commerce, Justice, Science report at p. 30 and Department of Interior report at p. 32) that point to President Obama’s Directive requiring agencies to increase access to the results of federally funded scientific research. The appropriations language passed for 2014 and 2015 echoes the language of the White House Directive, issued in February 2013. It directs “Federal agencies with more than $100M in R&D expenditures to develop plans to make the published results of federally funded research freely available to the public within one year of publication and requiring researchers to better account for and manage the digital data resulting from federally funded scientific research.” The agency plans were due in August 2013, and according to the Office of Science and Technology Policy (OSTP), all agencies have submitted at least a draft plan (PDF). Those plans are now being reviewed by OSTP.

Progress has been slow, but public access to publicly funded research remains on the table in the United States.

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