Why Non-Commercial (CC-NC) #openaccess does not achieve useful outcomes for authors

The “non-commercial” licence CC-BY-NC option for “open access” is often promoted (e.g. by Heather Morrison) as a means to restrict inappropriate use of the article. It is suggested that NC will prevent pharmaceutical companies from using the information in the article. This is misguided – all that copyright does it to restrict the copying of the article – the information in it can be re-used without permission

I have often argued against CC-NC as a useful tool, partly because “commercial” is very poorly defined, and partly because in practice it does not address authors’ moral rights (which are (implicitly) the primary concerns of proponents). To paraphrase: “we, the authors, do not want the following groups of people to use the article” or “we do not want the article to be used for the following purposes”. However worthy these arguments might be (and they don’t appeal to me and many others) they are unworkable in practice. The FLOSS software community threw out the Non-Commercial option many years ago and no conformant FLOSS licence has such a code (no discrimination against people or fields of endeavour). In practice the only effect of CC-NC is to generate more revenue for publishers (not authors).

I’m prompted to this analysis by a mail I got from a scientist (who I shan’t identify) who had used a CC-NC licence because s/he thought it would prevent re-use. There was no price differential between CC-BY and CC-BY-NC so it was purely a question of moral rights and re-use. They argued that they did not want pharma companies to re-use data, especially images such as micrographs, in their advertising material.

In practice what would happen? An irresponsible re-user would simple re-use the image – perhaps with attribution. What would the author do? Contact the publisher? The author retained copyright so the publisher has no interest. I doubt they would help. So the author has to pursue the re-user themselves. If I were the re-user I would argue the micrographs were facts and an integral part of the factual information. It would depend on the skill of the lawyers (and the domain – this could be fair-use in US) but my guess would be that the re-use would not held in breach of copyright.

What would a responsible re-user do? They’d use the Right-and-Permissions link which normally goes straight to RightsLink. This organization appears to be solely concerned with protecting the rights of publishers to receive income. The normal outcome is “how much do I have to pay” – and I have shown some examples. There is nothing about authors moral rights. In some cases, admittedly, the re-user is directed back to the publisher (not the author) and the publisher then replies as to whether rights are granted and if so how much. I haven’t done this, so it’s possible that moral rights may be included but normally I suspect it is purely about publisher, NOT author, income. [I’d be grateful for any publisher information about nuances of operation.]

But in summary I argue:

CC-NC as operated by publishers only serves to increase the revenue of publishers or to increase the publisher’s control over re-use of the information (e.g. new derivative works).

So, authors, please use CC-BY for “open access”. And if you are offered the “cheaper” option of CC-BY-NC or similar at a cheaper price, highlight the unacceptability of this.

[Note: my correspondent mailed back and said as a result of my points they wouldn’t be using CC-NC in future.]