Open Data and Moral Rights

Kaitlin Thaney, Project Manager, Science Commons pointed me to her colleague's post on moral rights. "Our legal counsel, Thinh Nguyen has just posted a bit on the relationship between and issues regarding CC licenses, OA and moral rights. Worth a read.
Certainly worth a read. Some exceprts:
A question that we often see in connection with the use of Creative Commons licenses in OA publishing is how the Creative Commons licenses, (and in particular CC-BY) affect moral rights. One example is this post on the topic by Peter Suber.From the perspective of moral rights, the Creative Commons licenses start with a simple proposition: They don’t affect moral rights....


So one question comes up a lot: how is it consistent to have a license (such as CC-BY) that allows derivative works to be made while at the same time recognizing that the author reserves his moral rights? Isn’t any derivative work an infringement of moral rights, when they exist? Not necessarily. Moral rights exist to protect the reputation of the author.

So the right of integrity, which bars distortion, alteration or mutilation of the work, does not necessarily bar all derivative works, but only those that are harmful to the reputation of the author....

PMR: This is useful, in that it shows that there are additional jurisdictions whuch may protect the author's moral rights. For Open Data what are these and should they always be respected?There are several reasons for making data Open, and they may imply different moral rights. Here are some:

  • to make available the record of science. In this case it is important to distinguish the primary "copy" of the work and to be clear that derivative works - whatever their added or subtracted value are NOT the original. It is important not to rewrite history without metadata. It is likely that in a very few years almost all science PhD theses will be mandated to be Open.
  • to provide a definitive statement of a set of data - often called "reference data" or "critical data". This is frequently done by standards bodies and International Scientific Unions. These represent the collective wisdom of the community and if, for example, they announce a critical value for the speed of light or the genome of a species it is important to honour this. A creator of derivatives works, perhaps by mashup, incorporation into a program or annotation has a duty of care to make sure that the quality of the original is not deliberately or inadvertently corrupted.
  • to aggregate and re-use the works of others (this is the case with CrystalEye). Here we have a duty to make sure that the original work is properly referenced, that we do not introduce corruption and that if we do it is correctly as soon as reasonable.

But should we bar "derivative works [...] that are harmful to the reputation of the author...."? Science requires that the work be published and criticized. The criticism can be that the data are suspect, the logic is flawed or that the work is not novel. It would be reasonable - and in some cases mandatory - to make such criticism public. It might include the creation of derivative works which take the data and rework it. If compelling, such works may very well be harmful to the reputation of the author. A typical example, where data are reworked can be seen here (where the quality of data in NMRShiftDB are challenged). This is an acceptable derivative work and the reader can make their own mind up whether its argumants are compelling. It would be quite unacceptable for any author to forbid this under "no derivative works".

On the other hand there are derivative works that many would find unacceptable. If we use CC-BY then we are allowing (and maybe even encouraging) others to rework our material for profit. It would be acceptable to re-purpose the work in a framework which contained advertising - we might not like it, but we have to accept the logic. It might be used - possible spuriously - to justify a political or pseudoscientific view (e.g. creationism) that we find unacceptable. But again we cannot use CC-BY to forbid this.
So the conclusion must be that legal licences are only part of the approach. We need to consider authors' moral rights to Data as an additional concern. And we need to realise that in the modern world the work may be more that the simple content. The hypermedia and the metadata may be integral parts of the work and we should be aware to this.

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