OPEN ACCESS MONOGRAPHS AND CREATIVE Michael W. Carroll, Professor of Law Meredith Jacob, Public Lead USA American University Washington College of Law TOME Meeting AAU, ARL, AUP - July 31, 2018

THE “OPEN” IN “”

• has two dimensions • Terms of Access • Readily available? • Free to access? • Open format?

• Terms of Use • ? • Contractual restrictions? THE “OPEN” IN “OPEN ACCESS,” CONT.

•Copyright controls use not access (except for DRM).

•Creative Commons provides standardized copyright that provide users more freedoms to use a work than standard copyright. CREATIVE COMMONS

• Created in 2002 to offer creators, publishers, or other rightsholders standardized terms that communicate open terms of use. • These are public copyright licenses • Licensor is the rightsholder • Licensee is any member of the public who receives a copy of the work CREATIVE COMMONS, CONT.

• Six CC licenses combine different sets of conditions • “CC BY” is shorthand for the Creative Commons Attribution license. • The only condition on reuse is that the source is properly credited LICENSE CONDITIONS

Attribution

Noncommercial

Share Alike

No Derivatives

Icons by the Noun Project, licensed under a Creative Commons Attribution 4.0 International License, available at https://creativecommons.org/about/downloads CC LICENSES

Icons by the Noun Project, licensed under a Creative Commons Attribution 4.0 International License, available at https://creativecommons.org/about/downloads LICENSE TERM COMMUNICATION

• License terms are communicated in three ways: • A machine-readable form that communicates the permissions and conditions • A license “deed” which summarizes the basic terms and conditions • The license itself.

CREATIVE COMMONS LICENSES

• Creative Commons licenses have become widely used standard terms for open access publishing. • Creative Commons is the steward of these licenses. • Licenses have been vetted by a team of copyright lawyers from around the world to facilitate consistent application and interpretation. CC AND OPEN ACCESS MONOGRAPHS

• Support for open access monograph publishing is a welcome development. • Publishers and authors are adopting different CC licenses that offer different amounts of openness. • Some publish under the Attribution License (CC BY), while others use Attribution, NonCommercial, NoDerivatives (CC BY-NC-ND). CC AND OPEN ACCESS MONOGRAPHS, CONT.

• Some considerations. • How to mark third-party content that is subject to different terms of use? • Scholarly publishing already has well established norms for attributing figures and other incorporated materials. • guide - for Nonfiction Authors

If I’m hosting a copy of this book on my website, do I have permission to include Figure 31, assuming I need permission? THIRD-PARTY MATERIALS

• Other examples of marking third-party materials and associated rights/permissions. • http://youtu.be/J9DX2wZiR7A?t=3m30s • At min. 3:30, the following statement appears: “"Copyrighted material (image and audio) from “Men in Black” is used for illustrative purposes, in an effort to advance the instructor’s teaching goals. This use is Fair and consistent with the U.S. Copyright Act. (USC 17 § 107)" ) • See also http://www.youtube.com/watch? v=6VEcPwDwTFo&feature=youtu.be&t=13m23s at min. 13:30. NON-COMMERCIAL USE

• Will users understand whether they are making a non- commercial use? • “NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.” • This standard is taken from the U.S. Copyright Act. • An intent test provides flexibility in application. OPEN ACCESS MONOGRAPHS ON PLATFORMS

• There will be gray areas with any standard for measuring non-commercial use. • The area most likely to arise with OA monographs is commercial platforms that provide a service for universities and charge a license fee based on the number of students. • If an OA monograph is posted to the platform, the analysis turns on whether the platform is exercising the rights or just the person posting and downloading the content. EXPERIENCES WITH ON CAMPUS

Open Educational Resources (OER) include publishing efforts on campus – Open Textbook Network – Experience communicating with professors – Experience awarding $ and benefits – Case for equity and access case for OA – [Sometimes] lower publishing infrastructure and experience WHAT WE CAN DO TO SUPPORT TOME

• Standardized language – OTN Publishing Agreement – Standard Permissions request that explains OA publishing – Others? • Staff support—webinars and TA on CC licenses • Faculty conversations THANK YOU

Michael Carroll [email protected]

Meredith Jacob [email protected]