We must have licences for publications

I have written several times over the last few weeks about how important it is to clarify and protect the re-use of scientific data in publications (Open Data) and have, on several occasions, argued that the primary means that we currently have is the label “Open Access”. “Open Access” is precisely defined in three declarations (BBB) (see Open Access in WP) and I have consistently argued that this should be the touchstone of whether something is Open Access and how it can be used.
But the term has been muddied by sloppy usage and in many cases means seems to mean only only “free to read”. As I have pointed out the lack of clarity is extremely serious for data-rich and data-driven sciences where little enough data is published anyway and where it is essential that we have the access to and the right to re-use data.
I do not wish to become some logic-chopper or fundamentalist who monotonously intones “BBB” while the rest of the world gets on and develops the new information model. The problem is that without this emphasis we are killing data-driven science. We are walking into a world where the role of publishers is to stop people reading things and certainly to stop them using scientific data – this is already happening.
Bill Hooker has summed this up:

OK, but I still don’t want to see “Open Access” become the new “Low Fat”.

BH: Peter Suber commented on the last entry to clarify his position on the varying uses of the term “Open Access”:

PS: For me, OA in the strict sense removes both price barriers and permission barriers; all the major public definitions say so; and I’m only too glad to repeat this whenever it comes up. However, as a matter of word usage, the term now covers more territory than this and I’ve stopped fighting that fact. That is, the term is often used for content that is merely free-to-read.

BH: Peter goes into more detail in a recent entry on his blog:

…many projects which remove price barriers alone, and not permission barriers, now call themselves OA. I often call them OA myself. This is only to say that the common use of the term has moved beyond than the strict definitions. But this is not always regrettable. For most users, removing price barriers alone solves the largest part of the problem with non-OA content, and projects that do so are significant successes worth celebrating. By going beyond [I would say “outside” — BH] the BBB definition, the common use of the term has marked out a spectrum of free online content, ranging from that which removes no permission barriers (beyond those already removed by fair use) to that which removes all the permission barriers that might interfere with scholarship. This is useful, for we often want to refer to that whole category, not just to the upper end. When the context requires precision we can, and should, distinguish OA content from content which is merely free of charge. But we don’t always need this extra precision.In other words: Yes, most of us are now using the term “OA” in at least two ways, one strict and one loose, and yes, this can be confusing. But first, this is the case with most technical terms (compare “evolution” and “momentum”). Second, when it’s confusing, there are ways to speak more precisely. Third, it would be at least as confusing to speak with this extra level of precision –distinguishing different ways of removing permission barriers from content that was already free of charge– in every context. […]

BH: and in the Sept 2004 edition of the SPARC OA Newsletter:

One danger is the dilution of our term. That’s why [this newsletter discusses] the BBB definition and its place in our history. But another danger is the false sharpening of our term. If we thought that the BBB definition settled matters that it doesn’t settle, then we could prematurely close avenues of useful exploration, needlessly shrink the big tent of OA, and divisively instigate quarreling about who is providing “true OA” and who isn’t.The BBB definition functions as a usefully firm definition of “open access” even if it leaves room for variation. We should agree that OA removes some permission barriers (e.g. on copying, redistribution, and printing) even if it leaves different OA providers free to adopt different policies on others (e.g. on derivative works and commercial re-use). My personal preference, for example, is to permit derivative works and commercial re-use. But (as I wrote in FOSN for 1/30/02) I want to make this preference genial, or compatible with the opposite preference, so that we can recruit and retain authors on both sides of this question.

BH: I’ve omitted a lot of good information to save space here; anyone interested in this issue should read all of the linked discussions. In particular, the SPARC newsletter goes into useful specifics about the OA-related activities of a number of publishers.BH: Peters Suber and Murray-Rust have both pointed out that one way to be specific about “levels” of openness is to be explicit about licensing — PMR:

If the community wishes to continue to use “open access” to describe documents which do not comply with BOAI then I suggest the use of suffixes/qualifiers to clarify. For example:

• “open access (CC-BY)” – explicitly carries CC-BY license
• “open access (BOAI)” – author/site wishes to assert BOAI-nature of document(s) without specific license
• “open access (FUZZY)” – fuzzy licence (or more commonly absence of licence) for document or site without any guarantee of anything other than human visibility at current time. Note that “Green” open access falls into this category. It might even be that we replace the word FUZZY by GREEN, though the first is more descriptive.

BH: I take Peter S to be saying that it’s inevitable that “Open Access” will come to mean, in general use, more things to more people than strict BOAI, and we will not achieve anything by making arseholes of ourselves over it. (Even if that’s not quite the way Peter S would put it, that’s the way I’ve come to look at the situation.) There’s no point in picking quarrels we don’t have to have. It’s enough to be more careful in our own usage, for which purposes suffixes a la Peter MR should prove very useful when we need extra precision. I don’t think we need invent terms (“fuzzy”) just yet — “OA (specific licence, with hyperlink if writing online)” and “OA (free to read)” should cover most cases.BH: If we can get to the point where the average consumer — basically, any researcher — responds to an OA claim or label by asking “which licence?”, we will have done an end-run around the problem of term dilution.

Well, I’m a pragmatist – I don’t really want to end up pursuing a Stallman-like insistence on a particular model. tempora mutanta (and I hope) nos mutamur in illis. But we are in grave danger of something worse.
I hesitate to spell out what will happen if we let the most greedy publishers (and we have to accept that a large motivation of the commercial publishers is simple greed) have their way. By pointing out a future which is to their benefit and detrimental to us we give a new potential business model to them. And the less public support we get for protecting data the more that the publishers will steal it.
So if we accept the sort of model that is being brokered by HHMI we get the following:

• journals are by default completely closed. Even if now they permit self-archiving, why should they continue? They get more money by closing the journal and then asking the author’s funder to pay for non-subscribers to read it. (Green access) So the HHMI deal may cause more journals to close.
• By default Gold Access allowed the authors to retain copyright and for the licence – if any – to permit any conceivable re-use. It’s now clear from what PeterS has said that “Open Access” covers everything from less-than-green to full CC-BY or PD. A publisher – such as MDPI/Molecules can claim that their papers are full Open Access even though they are copyright the publishers and forbid commercial re-use. Have I lost this one? Am I making myself stupid here? Should I rightly accept the criticism of a Nature editor that I am unacceptably rude in suggesting that “open access” cannot be redefined by publishers as they wish?
• It will lead to a model where publishers start charging additionally for the data. It’s pretty close to that already but I had thought that the Wellcome model of paying for complete Open Access also helped to clarify access to and re-use of data. If funders blur this by offering OA models which depend on the funder and where everyone has to spend hours reading the small print then we have lost.

So is there a positive way forward? (I am already feeling a traitor for having suggested that there may be a publishing model where publishers ransom our scientific data and sell it back to us. But I am afraid the publishers are no longer simplistic and they will have worked this out. Several (Elsevier, Wiley) have huge scientific databases which they will wish to populate with the primary data in publications.
Yes. It comes from those publishers which are proactive in promoting Open Access. I don’t know the situation outside chemistry and some bioscience but there are some hybrid publishers such as the Int. Union of Crystallography who seems to me to have the most active hybrid program in the chemistry arena. But I am not in favour of the fuzzy hybrids who do not allow re-use of data. I do not know where Nature stands – yes they have some interesting experiments and a single Open journal. And I don’t think they wish to own supplemental data. But they forbid full text-mining (else they wouldn’t have created the OTMI where all the text appears in jumbled form).
So it seems clear that we have to have licences. I shall take the following position:

• Any publisher or author who exposes a CC-BY or Open Knowledge Foundation licence  I shall call “OA-BY”. This permits full data re-use.
• Any publisher or author who exposes a CC-NC or CC-ND or similar I shall call OA-NC or OA-ND. This does not permit full data re-use but does permit some. We may have to kludge some of the worst “conditions” like “you may post this on your web site but not in your institutional repository”
• Any publisher or author who posts a paper that I can read I shall call OA-FREE.

I also issue a warning to the funders, librarians and provosts that unless they take re-use of data seriously and fight for it they – and we – will lose – and quite quickly.