Open access, copyright and licensing: basics for open access publishers
Case Report | Volume 6 | Issue 1 | JOCR Jan-Mar 2016 | Page 1-2| Heather Morrison, Lisa Desautels. DOI: 10.13107/jocr.2250-0685.360
Authors: Heather Morrison, Lisa Desautels
 University of Ottawa. Canada. Email: Heather.Morrison@uottawa.ca
The purpose of this editorial is to cover as succinctly as possible the basics of copyright and licensing that open access publishers need to know, and to provide some guidance in making decisions in this area.
In every country that has signed the Berne Convention (World Intellectual Property Organization, 1995 ) author copyright is automatic, extends 50 years after the life of the author, and involves a bundle of rights, including both moral and economic rights. Under Berne, moral rights are not transferred even when authors transfer all economic rights. Berne covers some user rights (for e.g. the right to translate, the right to transform the work through adaptations or arrangements, the right of public performance, the right to recite in public, the right to communicate the performance of works to the public, the right to broadcast, the right to reproduce and the right to use the work as a basis for an audiovisual work), but leaves much to the discretion of each country. For this reason, user rights are variable from one country to another, so it is important for open access publishers to clarify user rights.
Although copyright is vested in the author, an author can grant all the rights that a publisher requires through licensing. Copyright transfer is not necessary. A license to publish can be implicit or explicit. An implicit license means even without a contract, when an author has submitted an article for publication and subsequently sent revised drafts after peer review, approved copyedited drafts, etc., the author has implicitly granted a right to publish. However, a simple explicit license clarifying how rights are shared between the author and the publisher is good practice to avoid potential confusion – and is necessary even with Creative Commons licensing.
The terms of an author – journal license should address the requirements of both parties. Following are some things that publishers and/or authors commonly look for in scholarly publishing and/or should think about, loosely based on the elements of the Creative Commons (2015) licenses .
Attribution: it is common for both the journal and the author to want to be appropriately acknowledged and cited for their work. This can be confusing in the case of Creative Commons licenses, which were originally designed for individual creators. It is good practice to clarify this in the author – journal agreement. An example of wording would be: “both parties agree to the attribution of this article as follows: journal x agrees to acknowledge the author(s) [insert how authors would like to be cited]and the author agrees to acknowledge journal x as the site of original publication of the article [insert details of how the journal would like articles to be cited]. Note that it is common for third party works to be included in other scholarly works; these works require separate attribution. This should be noted in the work, for example indicating the copyright and attribution of the third party along with explanatory notes about rights, e.g. “copied with permission of [x]. All rights reserved.” Information about the license of an article should be in close proximity to a caveat that the article’s own license does not include third party works.
Commercial / noncommercial: there is no clear legal definition of what constitutes commercial use. We argue that with respect to copyrighted works this traditionally has a very limited meaning, either selling the work or making use of the work itself for advertising purposes (to be distinguished from search engine using their search services for advertising purposes). Many open access journals use the most open license available, CC-BY.
Retaining commercial rights using the Noncommercial (NC) element:
Journals may wish to retain exclusive commercial rights, so that competitors cannot simply take the works and sell them or copy the whole journal and sell advertising in competition with the original publisher. If this is the case, the author-journal agreement should specify either that the author and the journal both have exclusive commercial rights (so that the author can re-publish, for example as a chapter in a book for royalties), or that just the journal has exclusive commercial rights. If Creative Commons licensing is used the Noncommercial (NC) element should be included. The rights to exclusive commercial rights can belong either to the journal, or to the author (with limited commercial rights granted to the journal through the author-journal agreement).
Adaptations or Derivatives: the Creative Commons licenses provide a means to grant blanket downstream rights to create adaptations or derivatives. An example is a translation. If a CC license allows derivatives, anyone can translate the work and publish the translation without requesting permission. The full scope of potential derivatives has not been articulated at this point in time. Authors who grant rights for adaptations or derivatives still have moral rights and may object to the derivative or request that the attribution be removed. To address this, authors can specify additional permissions if required.
NoDerivs and CC+ :
If authors or journals are not comfortable with a blanket grant of adaptations or derivatives, the NoDerivs element should be used. There is an option to grant permissions above and beyond what the license allows, such as allowing licensees to translate ND-licensed material. In this case, consider using CC+ to indicate the additional permissions offered (Creative Commons, 2013 ).
Sharealike or SA is a CC license element that requires anyone who creates an adaptation or derivative to use exactly the same CC license for the adapted work. Note that this is not the same as the commonsense understanding of “share alike” as in “share like I do”. For example, if a derivative is created from a CC-BY-SA work that was posted for free access on the web, the derivative could be made available behind a paywall or to a limited audience, as long as the creator uses a CC-BY-SA license. Although SA is commonly considered a copyleft license we argue that this is an indication of a limitation of all of the CC licenses. Unlike OA per se, none of the CC licenses necessarily implies free-of-charge.
An alternative to Creative Commons
The CC licenses are useful for open access journals, but may not be optimal. For this reason we recommend that authors and journals continue to explore new approaches to licensing. Here is one alternative approach, inspired by the following text: “The content of this book may be reproduced without the authors’ permission in part or in its entirety provided it is distributed and made available to the reader for free, without service charges or any other fee. The authors further stipulate that the editors, individual writers, and visual artists all be credited for their work” .
For open access journals, this approach might be translated into the following user license and author-journal license.
The content of this work may be reproduced without the authors’ permission in part or in its entirety provided it is distributed and made available to the reader for free, without service charges or any other fee. The authors further stipulate that the editors, individual writers, and visual artists all be credited for their work.
The author grants to the journal the right to publish [this work], [and exclusive commercial rights if desired], on the condition that the work will be published under the terms of this user license [insert user license above].
This approach could be developed into an online click-through license. Note that this would need to provide some flexibility. For example, not all authors would be able to agree to exactly the same terms. In the U.S., for example, federal government employees are required to publish their work as public domain. Other authors must comply with funding agency requirements such as a CC-BY license, or may have employers with other conditions of publication that must be met.
1. World Intellectual Property Organization (WIPO). (1995). Berne Convention for the Protection of Literary and Artistic Works: Paris Act of July 24, 1971, as amended on September 28, 1979. Geneva: World Intellectual Property Organization.
2. Creative Commons. (2015, November 23). About the licenses. Retrieved from http://creativecommons.org/licenses/
3. Creative Commons. (2013, November 20). Considerations for licensors and licensees.Retrieved from
4. van der Zon, M. (2010). Excerpt from the copyright page from Langlois, Sakolsky, & van der Zon (2010) Islands of Resistance (Vancouver: New Star Books, 51 – 70), as cited in Elliott & Hepting (eds.), Free Knowledge: confronting the commodification of human discovery: University of Regina Press, 2015. P. 114. http://www.uofrpress.ca/publications/Free-Knowledge
|How to Cite This Article: Morrison H, Desautels L. Open access, copyright and licensing: basics for open access publishers. Journal of Orthopaedic Case Reports 2016 Jan – Mar;6(1):1-2. Available from: http://test.jocr.co.in/2016/01/02/2250-0685-360-fulltext/|
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