In our last post, on the author agreement, the Creative Commons License referred to was the “Attribution-Noncommercial-No Derivative Works License”. But maybe that is not the right license to use. Maybe, we should use the “Attribution-Noncommercial License”. The issue is whether the license should prohibit “derivatives”. Does “true open access” mean that readers can freely use an article to create derivative works (with proper attribution to the original author)? Isn’t “fair use”, which is allowable anyway, enough?

The Budapest definition of open access reads as follows:

By “open access” to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. 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.

The Bethesda definition says:

An Open Access Publication is one that meets the following two conditions:

1. The author(s) and copyright holder(s) grant(s) to all users a free, irrevocable, worldwide, perpetual right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship [Community standards, rather than copyright law, will continue to provide the mechanism for enforcement of proper attribution and responsible use of the published work, as they do now], as well as the right to make small numbers of printed copies for their personal use.

2. A complete version of the work and all supplemental materials, including a copy of the permission as stated above, in a suitable standard electronic format is deposited immediately upon initial publication in at least one online repository that is supported by an academic institution, scholarly society, government agency, or other well-established organization that seeks to enable open access, unrestricted distribution, interoperability, and long-term archiving (for the biomedical sciences, PubMed Central is such a repository).

The Berlin definition says:

Open access contributions must satisfy two conditions:

1. The author(s) and right holder(s) of such contributions grant(s) to all users a free, irrevocable, worldwide, right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship (community standards, will continue to provide the mechanism for enforcement of proper attribution and responsible use of the published work, as they do now), as well as the right to make small numbers of printed copies for their personal use.

2. A complete version of the work and all supplemental materials, including a copy of the permission as stated above, in an appropriate standard electronic format is deposited (and thus published) in at least one online repository using suitable technical standards (such as the Open Archive definitions) that is supported and maintained by an academic institution, scholarly society, government agency, or other well-established organization that seeks to enable open access, unrestricted distribution, inter operability, and long-term archiving.

So, the Bethesda and Berlin definitions make allowing derivative works part of the definition, while the Budapest definition does not. An article in PLoS Biology forcefully argues that open access should allow derivatives.

What is meant by “derivatives”? Perhaps, the most important kind of derivative at this time are translations. Wouldn’t an author who wants her work read by as many colleagues as possible welcome a translation into French (for example)? And wouldn’t it be better if that could happen without an additional permission process? Beyond translation, the PLoS Biology article just referenced argues that going forward, we don’t know what kind innovative uses could arise and that we don’t want to limit innovation.

We strongly invite discussion of this issue. We were hoping for guidance from an LSA working group on scholarly copyright but we don’t know when that might actually happen. So, we would appreciate it if potential S&P contributors and readers helped us figure this out.