Creative Commons and the Openness of Open Access

The Internet has inspired multiple movements toward greater openness — most prominently, open access, open data, open science, and open educational resources. None of these is based on the belief that there should be such a thing as a free lunch, but each recognizes that the Internet changes the economics of publication and digital-resource sharing so that changes can feasibly be made to traditional practices that are in some ways “closed,” requiring payment for access to information or prohibiting myriad reuses of accessible information. The quality of “openness” applies to both the terms of access and the terms of use. Advocates in each movement — and I am one, serving on the boards of directors of two organizations promoting open access, Creative Commons and the Public Library of Science (PLOS) — share an understanding that an open resource is freely accessible over the Internet. Opinions vary about the terms of use necessary for a resource to be open.

Copyright law supplies the baseline terms of use for almost all information on the Internet. These terms can be altered if the copyright owner grants a license or permission to do something that would otherwise infringe copyright. Traditionally, copyright owners granted licenses to specific persons or entities. More recently, copyright owners seeking to grant permission to everyone have issued public licenses broadening the range of permitted uses, subject to certain conditions. Creative Commons licenses are the most widely used of these public licenses for all kinds of copyrighted works except software, for which free and open-source licenses are most common.
Within the open-access context, debate focuses on whether an article is “open” when it, like this one, is freely accessible over the Internet but still subject to the standard restrictions imposed by copyright law. The question also applies to most articles posted in PubMed Central under the Public Access Policy of the National Institutes of Health or in institutional repositories under most university policies, such as that recently adopted by the University of California, San Francisco.1 The three major declarations of purpose for the open-access movement (the Budapest Open Access Initiative, the Bethesda Statement on Open Access Publishing, and the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities) say no: openness requires making the literature freely accessible under liberal terms that permit nearly all reuses so long as the author receives credit for the work when it's republished or adapted.2
The rationale for seeking open terms of both access and use is as follows. Free access provides the literature to at least five overlapping audiences: researchers who happen upon open-access research articles while browsing the Web rather than a password-protected database; researchers at institutions that cannot afford the subscription prices for the growing literature; researchers in disciplines other than that of a journal's intended audience, who would not otherwise subscribe; patients, their families, students, and other members of the public with an interest in the information but without the means to subscribe; and researchers' computers running text-mining software to analyze the literature. In addition, granting readers full reuse rights unleashes the full range of human creativity for translating, combining, analyzing, adapting, and preserving the scientific record, whereas traditional copyright arrangements in scientific publishing increasingly inhibit scholarly communication.
The argument for open licensing must be understood in the context of the baseline terms of use provided by copyright law. Copyright applies to works of authorship. One does not have to do anything to “get” a copyright. It attaches automatically when a work is created and stays intact even if a work is published without the copyright symbol (©). Copyright does not apply to the ideas or facts in the covered work, however, but only to the author's expression of these.
Copyright law gives the copyright owner the exclusive rights to make and publicly distribute copies of the work, to publicly perform or display the work, and to prepare adaptations of it. Granted initially to the author or authors of a work, these rights can be assigned or exclusively licensed to a publisher or other content distributor if that is done in writing. After authors sign away these rights, they, too, must seek permission or a license from the publisher if they wish to make or distribute copies of their article, unless doing so would be considered fair use. Fair use permits certain uses that have positive social benefit, such as use in research or education, and that do not unduly interfere with the copyright owner's ability to receive economic benefits from publishing or licensing the work.
Copyright's terms do not restrict all uses of an article. In addition to fair use, uses of facts such as scientific data are not covered by copyright except to the extent that an author has exercised minimal creativity in their selection or arrangement. This minimal-creativity standard might prevent republication of some tables or figures, but copyright doesn't restrict the reuse of the underlying data if they're arranged in a different format or a conceptually new figure.
For a wide range of creators, educators, and researchers who care primarily about broad distribution of their work, copyright's standard terms are inappropriate because they prevent reuses that these authors wish not simply to permit but to encourage, such as translation into other languages. Creative Commons is an organization that has responded by producing a suite of six copyright licenses that offer standardized terms of sharing to permit a range of uses beyond fair use, subject to certain conditions.3 The four conditions are combined into six permutations reflecting the types of copyright restrictions that people who otherwise choose to share their works for free might like to retain (see tableTable 1Creative Commons Licenses.). The licenses, designed to allow all uses except those prohibited by a specified condition, have been adopted by a variety of institutional and individual copyright owners.
All Creative Commons licenses require that users who republish or reuse a work in a way that would otherwise infringe copyright give attribution as directed by the copyright owner. That's the only condition included in the Creative Commons Attribution license — the only Creative Commons license meeting the definition of “open access” endorsed by the Budapest, Bethesda, and Berlin declarations. This license is used by leading open-access publishers such as PLOS and BioMed Central, recommended by the Open Access Scholarly Publishers Association, and adopted by the World Bank for its internally published research. Commercial science publishers that have launched publications funded by article-processing charges also use Creative Commons licenses, but they either use a more restrictive license or offer authors choices. The Nature Publishing Group's Scientific Reports, for example, allows authors to choose from three Creative Commons licenses, including the Attribution license.
Other adopters of Creative Commons licenses impose additional conditions on users. Two of these conditions, called ShareAlike and NoDerivatives, concern adaptations of the licensed work. The Wikipedia community, for example, has adopted the Creative Commons Attribution ShareAlike license, which requires both attribution and that any adaptations be licensed under the same license. MIT OpenCourseWare, from the Massachusetts Institute of Technology, adopted the license with the Attribution and ShareAlike conditions but added a NonCommercial condition, prohibiting commercial uses. The various creators of the online educational materials in the University of Michigan Medical School's Open Michigan database have adopted nearly the full suite of Creative Commons licenses.4 The broad adoption of these licenses reflects a belief that a work is not “open” until it's freely accessible on the Internet and under a public license offering more liberal terms of use than copyright law provides. Though options offered by Creative Commons licenses address the needs of copyright owners in various contexts, in the open-access context, the Attribution license in my opinion remains the gold standard.