@Stravoula. I'm not sure what you mean precisely by "funded research not being covered", but the Creative Commons license has nothing to do with the way the research has been done (in a private setting or not) or funded (by a private company or not). It concerns what any person accessing a paper (or other scientific document) resulting from the research can do with it (posting it, distributing printed copies, modifying it, etc.). NC just means that any use must be non-commercial. Commercial funders (as opposed to public ones) may put restrictions, for confidentiality purposes, on which results can or can't be included in the papers, but not (to my knowledge) on the type or conditions of publication of the papers themselves.

@Mihai. Companies funding research don't obtain - nor expect - revenue from the dissemination of the papers resulting from the research (publishers do, but this is another story). Their interest lies in the commercialisation of marketable research products, not papers, so that they're not concerned with the way these papers are published or used afterwards (patents are the name of the game here).

@Anna. Here is my personal opinion on CC licenses. The best choice is the license with the least restrictions (CC BY), as any restriction (NC, ND, SA) has the potential of being in conflict with specific uses. Some favor using these restrictions because it reduces the risk of unwarranted uses. This may be true, but at the same time I believe that restrictions mostly increase the risk of seeing very few uses, or no use at all. The reason being that these restrictions (especially NC) are difficult to interpret, and may have different consequences in different countries, due to local differences in copyright law. The resulting uncertainty could make someone interested in using the paper hesitate to do it for fear of violating the restriction, even if the person who put the restrictions never thought of forbidding such use. For instance, even a charity charging a small fee to recover its costs (something few people would object to, I guess) could be considered "commercial", and thus couldn't use a paper with a CC BY-NC license.

SA could be seen as restrictive in that any re-use would also have to follow the Creative Commons model. NC could be problematic to the extent that funded research may not be covered.

I would say that CC BY offers the best solution because it allows use (including commercial), distribution, remix (editing) and requires attribution.

However, in some fields this might not be the case. For example, an open access in a high-cost field (such as medicine) might hurt the profit margins and, thus, make companies less willing to invest in science.

@Stravoula. I'm not sure what you mean precisely by "funded research not being covered", but the Creative Commons license has nothing to do with the way the research has been done (in a private setting or not) or funded (by a private company or not). It concerns what any person accessing a paper (or other scientific document) resulting from the research can do with it (posting it, distributing printed copies, modifying it, etc.). NC just means that any use must be non-commercial. Commercial funders (as opposed to public ones) may put restrictions, for confidentiality purposes, on which results can or can't be included in the papers, but not (to my knowledge) on the type or conditions of publication of the papers themselves.

@Mihai. Companies funding research don't obtain - nor expect - revenue from the dissemination of the papers resulting from the research (publishers do, but this is another story). Their interest lies in the commercialisation of marketable research products, not papers, so that they're not concerned with the way these papers are published or used afterwards (patents are the name of the game here).

@Anna. Here is my personal opinion on CC licenses. The best choice is the license with the least restrictions (CC BY), as any restriction (NC, ND, SA) has the potential of being in conflict with specific uses. Some favor using these restrictions because it reduces the risk of unwarranted uses. This may be true, but at the same time I believe that restrictions mostly increase the risk of seeing very few uses, or no use at all. The reason being that these restrictions (especially NC) are difficult to interpret, and may have different consequences in different countries, due to local differences in copyright law. The resulting uncertainty could make someone interested in using the paper hesitate to do it for fear of violating the restriction, even if the person who put the restrictions never thought of forbidding such use. For instance, even a charity charging a small fee to recover its costs (something few people would object to, I guess) could be considered "commercial", and thus couldn't use a paper with a CC BY-NC license.

Marc, if I could speak for Stavroula, I think she means materials available under a CC BY NC licence cannot then be used by a third party in any way to make money, e.g., when submitting a bid for some funded research. So yes, it is more restrictive than CC BY, which is indeed the most generous.

@Charles. I hope Stavroula will clarify her thought, or respond to our comments. But yours is a good example of the problem of the -NC restriction. Nobody really knows how to interpret it. "Not using it in any way to make money" is the most encompassing interpretation there can be. The actual wording of the licence is rather "not primarily intended for or directed towards commercial advantage or monetary compensation".

Despite CC reassurance ( see https://creativecommons.org/faq/#does-my-use-violate-the-noncommercial-clause-of-the-licenses) that "it is usually relatively easy to determine whether a use is permitted", I find it very hard to decide if your statement (using a CC BY-NC work in a funding application would be illegal) is valid. Is the use “primarily” intended towards monetary compensation? To what extent a grant is a “compensation”? And I’m not even considering fair use / dealing, which could well apply in this case, especially (but not exclusively) if one uses only an excerpt of a CC BY-NC work.

To be true, although I tend to disagree with your statement, I really don’t know who is right. As in all matters legal, the last word may only come from the courts, but very few such cases will actually be clarified in this way. That's one of the souces of my reluctance to use these restrictions: you never know exactly how they will be understood.

I agree, Marc. "Commercial" is interpreted differently in different countries, and as you say, many countries have not had any court cases relating to it, but which ever way it is interpreted, by definition it is likely to be more restrictive than CC BY. Let's see if Stavroula explains her thinking a bit more.

@Charles. Not only it is more restrictive than CC BY but, and this is my point, much more restrictive than many authors considering using it, with certain types of use in mind, would imagine.

Dear Stavroula Karapapa Mihai Constantinescu Marc Couture Charles Oppenheim

so far there was not much talking about ND and, in my opinion, a lot of journals are using it. The question arises what is the common understanding of CC ND license.

I am afraid that publishers have a quite different understanding then authors and that is a reason why CC ND is used so often as publishers want ONLY to prevent published articles from being reprinted.

On the other hand, the authors may be afraid to CITE/REUSE some phrases/figures/data thinking that this violates the ND license.

It hinders the dissemination of science and is also harmful to the same publishers as well because these authors are less willing to choose these journals for publishing their works.

What is your understanding of ND? Where is the border that, if exceeded, violates the ND license?

Do you prefer to publish in CC SA or maybe more in CC SA ND?

@Anna. I don't know if it's what you had in mind, but the -ND restriction still allows anyone to reprint (and distribute) the material.

As to my understanding of the -ND restriction, I think that though it's much less discussed than -NC, it's no less fuzzy.

One peculiar thing is that ND stands for "no derivative", but the word "derivative" isn't used in the licence terms. This term has a specific meaning in US copyright law, but is not necessarily used in other countries. It was found in earlier versions of the licence, but now the term used is "adaptation".

CC indicates that to adapt is to "remix, transform or build upon" and that, to require the permission of the copyright owner (this is what a restriction entails), an adaptation must "manifest sufficient new creativity to be copyrightable", and that the criteria to judge if it does so vary from country to country. On the other hand, it also indicates that sharing only a part of the material is allowed under the licence, even if this is certainly a transformation and the operation (selecting an appropriate excerpt and choosing how to present it) could require a minimal amount of creativity. It also states that a mere change of format is not an adaptation (thus my first observation).

Elaborate adaptations like translations or abridgments certainly fall under this restriction, but there are some grey zones. For instance:

- To what extent making minor changes, like correcting typos or obvious factual errors, would be considered "transforming" the material? Previous versions of the licence stated that the original work had to be used "verbatim", but this has been removed in later versions, so it seems that such changes could in fact be acceptable, but who knows for certain?

- Is including parts of the material (a few paragraphs or a couple of figures, for instance) in another work, even without modifying them, equivalent to "build upon the [original] material"? Does it depend on the relative amount of reused material? Or on its role (illustration, evidence, information) in the new material?

As for -NC (but perhaps to a lesser extent), the -ND condition could well make a user hesitate to do something that would be useful and that the author would find totally acceptable.

Marc Couture

thank you for your detailed considerations. I generally agree.

But looking at the CC licenses openness rank we see that the ND is the option that kills the openness the most.

I am curious what is the motivation of publishers in choosing the ND option? What guarantees it gives to them? What of their business does it protect comparing to the regular CC BY?

Anna Małgorzata Kamińska

CC BY-NC-ND is obviously the less open license. But I don't really know why they consider CC BY-ND less open than CC BY-NC. Maybe they see put more value in being able to build upon works than in sharing them more widely.

As to publishers using the -ND license, according to DOAJ, among the 10k+ journals using CC licenses, very few (133) use only the -ND restriction. Most that put restrictions have chosen -NC only (2222) or NC-ND (2703). I would think that the latter add -ND to maximize their potential revenues (even non-commercial adaptations could be monetized), though not many non-commercial users will be willing to pay. Another reason could be that authors hold fears about possible distorsions of their work if others are allowed to modify, even if the license require indicating that the original work has been modified, and how. Surveys have shown that when asked to select the license they would prefer, authors tend to choose the most restrictive.

Thank you all for participating in the discussion. The subject seems to be very hot as we are currently celebrating an international week of open access:

http://www.openaccessweek.org/

In my opinion the licenses CC BY and CC BY-SA are the best for free development of science.

Dear Mariusz Balcerek

it would seem that using SA favors the free development of science as it requires any derivative also to be published as open. But this is quite often called as viral (must be transmitted through the whole chain of sources/destinations) - of course, despite the negative wording, it has both its supporters and opponents.

But if you where the potential author that must choose the journal for publishing wouldn't you be afraid that choosing SA journal may limit the number of authors that will use your work in the future, as some of them would not like to be forced to use the SA license again?

Apologies for the belated response - I do not log on regularly on RG. What I meant in my comment on the NC clause is in line with what Charles Oppenheim said, i.e. that the NC clause may not allow third parties to make a profit by re-using the work subject to the NC clause (including bids for funded research).

It’s difficult to draw the line and know precisely how NC is to be interpreted and I agree with your comments Marc Couture.

There have been some cases discussing the meaning of the NC clause but context is king and interpretations depend on the laws of each jurisdiction. In Belgium, a first instance court held, for instance, that the use of a song (licensed under the CC BY-NC-ND 2.0) in an advertisement was in breach of the NC clause. This cannot be seen as a directly commercial activity so the meaning of NC may receive broad interpretations depending on the context.

Surely there must be more cases addressing CC licenses (and interpretations to the various terms) but it can be assumed that in the broader question that Anna Małgorzata Kamińska raised NC can be seen as restrictive clause.

Dear all,

Thanks a lot for an extremely interesting and very useful discussion that I am only seeing now. I just wanted to add (perhaps the obvious) but that NC is not Open Access compliant, so any CC BY-NC publications do not meet the OA standards as set in the BBB.

Regarding the ND it is not that straight forward. It is certainly limiting reuse and as such should not be considered OA compliant, but the case is sometimes made that it protects the integrity of a work and integrity of the work is contemplated in the BBB. (Think of the invariant sections of the FDL). To this it could be counter-argued that integrity is protected by the (moral) right of integrity so there is no need to employ an ND (which would however lead to the non obvious question of what about those countries that do not have moral rights, mainly (only?) the US, would it be OA compliant in these counties(y)?).

Regarding SA, I would say that the debate may borrow much of the GPL v BSD/Apache/MIT discussion in the FLOSS field. SA operating as "copyleft" in the GPL. Difficult to say what is best, they have different functions.

Finally, and very inelegantly, let me point out some guides that have been produced with the aim of clarifying some of these concepts to non lawyers.

https://www.researchgate.net/project/Text-and-Data-Mining/update/59ad50bab53d2ff30bdde596

Hope you find them useful.

@Thomas. On -ND and moral rights. It's important to note that the all CC licenses include a clause stating that the Licensor (in this case, the author deciding to disseminate their work under the CC license) waives, or agrees not to assert their moral rights. See for instance https://creativecommons.org/licenses/by/4.0/legalcode, section 2b. Thus, to be able to control the integrity of one’s work using a CC license, one has to choose the -ND restriction.

The problem is that this restriction allows authors to oppose any modification to their work, whatever the reasons. Moral rights, on the other hand, as defined in copyright law, protect them only against modifications that put their honour or reputation at risk.

It's not clear though if the authors of the Budapest Initiative OA definition (http://www.budapestopenaccessinitiative.org/read), speaking of "control over the integrity of [the] work", meant “total control of modifications”, or “control of integrity, as defined in copyright law”.

Hi Marc,

Thanks for your reply!

I agree with the moral rights element in CC, but I would point out 2 aspects: Sec. 2b1 says that moral rights are not licensed under this license (correctly as they could not), but they are waived to the extent possible to the "limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise" which is a quite "de mimis" limitation. Also consider that depending on the legal system moral rights (which are always non transferable) may also be non waivable. Limiting further the operativity of 2b1.

That said I agree that the moral right of integrity and the economic right of adaptation/modification are two distinct rights, although the may overlap on occasions. My point on ND and integrity relates to those countries (mainly if not only the US) where moral rights are not generally recognised: If it is correct to say that ND is not compliant with OA because integrity is protected by the moral right, does this mean that where the moral right of integrity does not exist, ND become compatible with OA?

@Thomas. I agree with your explanations. As to your question, “does this mean that where the moral right of integrity does not exist, ND become compatible with OA?”, I have no definite answer, but some comments.

The other widely used definition of OA is the one found in both Berlin and Bethesda declarations (see https://openaccess.mpg.de/Berlin-Declaration). It doesn’t mention control of integrity, but stipulates that the allowed uses must be “responsible”. In all cases (Budapest, Berlin & Bethesda), one has to interpret what these terms (control, integrity, responsible) mean and how the author may use copyright to fulfill these requirements.

One thing is sure: CC BY doesn’t allow the author to control integrity or to impede non-responsible uses (whatever that means), while CC BY-ND gives much more control that what is needed. So the question of which CC license is compatible with these OA definitions remains an undecided one.

Personally, I prefer to err on the side of openness, promoting the use of CC BY (and acting accordingly, when feasible).

+1. Thanks!

I was talking about this with some friends and I thought go point out, just for the clarify of the discussion, that CC licences do somehow protect integrity through the BY clause, even though in a limited form.

This is done e.g. in Sec. 3a1B of CC BY 4.0, requiring to "indicate if You modified the Licensed Material and retain an indication of any previous modifications". Of course this does not tantamount to a ND clause (or anyway to forbid certain modifications). Only to clearly state which part of the modified work corresponds to the original and which part is the addition of the second author (something like a change.log). But I think this is a useful element of CC which is nonetheless often ignored.

@Thomas. I agree. Normally, it should appease those who fear that modifications could harm their reputation. There is a page on CC website, Best practices for attribution (https://wiki.creativecommons.org/wiki/Best_practices_for_attribution), that covers this issue well but I'm afraid few people actually consult it when adapting a CC-licensed document.

[added 2019-01-16] I realize that the licence only requires that one indicates if changes have been made in the new version (and in previous versions, if one hasn't used the original, but an already modified version). However, indicating (at least in a succinct manner) the nature of the changes would be a good practice, from an ethical perspective (or for the sake of honesty and transparency, if you wish). It would allow readers to assess the respective contributions of the original author and the creator of the new version.

https://www.google.com/imgres?imgurl=https://www.wur.nl/upload_mm/e/f/c/0527e0fb-5053-4045-8ee0-95d91f127f76_Creative%2520commons%2520licences.jpg&imgrefurl=https://www.wur.nl/en/article/What-are-Creative-Commons-licenses.htm&h=600&w=800&tbnid=YUN4fuWq9mcL8M:&q=Creative+Commons+licenses&tbnh=160&tbnw=213&usg=AI4_-kSQw5T1SMbc2p6i47ImhdRu6ckLHw&vet=12ahUKEwihzNur8PHfAhUKMI8KHSkhB38Q9QEwAHoECAQQBg..i&docid=Jw_QUzhXewm1AM&sa=X&ved=2ahUKEwihzNur8PHfAhUKMI8KHSkhB38Q9QEwAHoECAQQBg#h=600&imgdii=AGxFeOm98mpfwM:&tbnh=160&tbnw=213&vet=12ahUKEwihzNur8PHfAhUKMI8KHSkhB38Q9QEwAHoECAQQBg..i&w=800