Open Licensing and the Open Library of Humanities
Posted by Martin Paul Eve on 2022-01-25
In the humanities disciplines, Creative Commons licensing has been among the most contentious aspects of open access. Historians have raised concerns about the re-contextualisation of their scholarship by extreme political groups and art historians have been worried about the potential implications for the re-use of third-party material. There have also been instances of CC BY work being reprinted by third parties and made available for sale in ways that are objectionable to authors (although one could argue that this is a feature of the license, not a problem.).
To date, OLH has steered authors towards more liberal Creative Commons licenses (i.e. CC BY) but has allowed editorial teams some latitude to allow more restrictive clauses (CC BY-ND). Recently, the Directory of Open Access Journals, the central indexer and quality verification service for open-access journals, wrote to us noting that CC BY-ND is incompatible with titles having the “DOAJ seal”. The DOAJ Seal “is awarded to journals that demonstrate best practice in open access publishing”. The Seal is an important mark in many ways for the libraries that support OLH because it guarantees a set of technical standards and integrations that are helpful. We would like our titles to have the DOAJ Seal where possible.
That said, we face some challenges. While many authors are happy with the more liberal licenses – or, perhaps more worryingly, do not understand the full implications of those licenses – the re-use of third-party material remains extremely difficult for us. Galleries, Libraries, Archives, and Museums (GLAMs) are often extremely poor at understanding the conditions under which we need to license material and insist that the licensed material remains under an all rights reserved status. The inclusion of this material is not optional. It would be the equivalent, in a citation, to saying: “As Eve et al. note: [see their article, p. 35, where they describe the processes of peer review]” or similar. The utility of the article is severely degraded.
The argument that we have had back is that we should include such material in the article and mark it as excluded from the CC BY license. That is, we should distribute a PDF that has image captions that read “This image is excluded from the CC BY license”. But here’s the problem: as a result, this means that the provisions of the open license cannot be exercised on the PDF as a whole. Downstream redistribution of the PDF, which contains third-party material with all rights reserved, would violate that copyright provision. Hence, it doesn’t matter if we release the PDF object under a CC BY license – you can’t, technically, exercise the rights associated with that license on that document. (Although you could re-use and re-distribute the majority of the article, just not the file object itself.)
There isn’t an easy answer for us to this question. We continue to believe that open licensing confers benefits on open-access publications in terms of downstream preservation, distribution, and re-use. However, we also face the need to retain some flexibility in specific cases, particularly where third-party material is involved. There seems little use to us in labelling a PDF as CC BY if the user cannot, in legal terms, actually use that on the file, even if they can on the majority content (and our platform has no way to signal the license distinction between a file and text content within a file).
As a result, we will be writing to our Editors in the near future to discuss a proposed policy: our default is CC BY but if required we will retain the ability to publish under more restrictive licenses to accommodate third-party material. This may mean that some OLH journals will lose the DOAJ Seal, which seems a shame, but may be unavoidable in the service of pragmatism.
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