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Sunday, November 04, 2007

OA and derivative works, continued

Last Thursday I wrote some blog comments on OA and derivative works which elicited disagreement from several friends and allies:  Klaus Graf (disagreeing with my position), Peter Murray-Rust (agreeing with my support for CC-BY licenses but disagreeing with my position on derivative works), and Matt Cockerill (disagreeing with my position on derivative works --by email, not online). 

Much of the trouble, perhaps all of it, was my own fault.  I should have said more to make my position clear, and here I take the chance to do so.  We may still disagree when all is clarified, but I suspect that we will disagree less. 

I'll frame my response as a dialog with Matt Cockerill, who has allowed me to quote from his email:

  • MC:  I don't think any of  the BBB definitions of OA suggests that disallowing derivative work  can be compatible with OA.  Remember, even reusing a figure, with attribution, in another article or in a piece of educational material, is an example of a derived work that would be banned by CC-ND. 
    • PS:  Reusing a figure is exactly the kind of re-use that OA should make possible.  (Here's a beautiful example.)  The BBB definition unquestionably allows this kind of re-use.  When I said that the BOAI allows authors to disallow some kinds of derivative works, I didn't mean all derivative works and I didn't mean examples like this one.
  • MC:  What BOAI says is:  "The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited."  I think the confusion may result from the dual meanings of the word integrity.  It could mean physical/structural integrity - i.e. the pages of the work may never be separated, nor the metadata separated from the fulltext, nor a figure separated from the rest. But that would actually be quite a strange and extreme sort of integrity to demand to be preserved.
    • PS:  As the principal author of the BOAI text, I can tell you that there is another salient meaning:  to prevent the mangling of an author's text.  The example I used in the Poynder interview last month (p. 45) was adding or subtracting the word "not".
  • MC:  But I understand it rather to be in the sense of 'moral integrity', within the Berne Convention idea of 'Moral Rights'.  The "right of integrity" is phrased in the convention as the:  "right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation' [MC's italics]."
    • PS:  Yes; preventing this kind of mutilation is what we had in mind, or at least what I had in mind.
  • MC:  Control over the integrity of the work in this sense is exactly what author copyright, universally licensed under the CC Attribution license, delivers.
    • PS:  I can't agree.  If a license permits all derivative works, then it permits some mutilation.  Conversely, if authors are allowed to block mutilation, then they are allowed to block some derivative works.  The BOAI lets authors block this subset of derivative works. 
    • That's what I meant in my blog post when I said that "the Budapest definition allows authors to disallow derivative works that would interfere with 'the integrity of their work'."  It's a true statement about the BOAI, and I still believe that the BOAI took the right position on this issue.
    • I should have been clearer in my post that I was only talking about this subset of derivative works, not all derivative works. 
  • MC:  I really do think that the creation of derived works is so fundamental to the practice of research communication that licenses which do not allow this use really need another label, rather than OA.
    • PS:  I agree that more labels would be useful.  There are many foreseeable troubles, however, including the trouble of agreeing on the scope of the "OA" label itself.  (I say more about this in the Poynder interview at pp. 30-31.)
    • But on the present point, I think we have to speak more precisely.  It's true that some or most kinds of derivative works are fundamental to research communication.  But it's not true that the kind that mutilate and misrepresent an author's position are fundamental. 
    • I'm saying that we should discriminate among kinds of derivative works.  Even if you disagree, the BOAI discriminates among kinds of derivative works, at least implicitly by picking out the subset of derivative works that violate the integrity of the author's work.  I don't want to prohibit all derivative works and I don't believe the BOAI allows authors to prohibit all derivative works. 
    • Hence, I should say for completeness that a license which does prohibit all derivative works would not be OA within the BOAI definition.  I regret leaving the impression that prohibiting all derivative works would be OA. 
    • One more point:  If I had to choose between a license allowing all derivative works and a license allowing none, I'd certainly choose the former.  (And I've done so; I use the CC-BY license for my blog and newsletter.)  I'd like to see another option, however:  a license allowing all derivative works except those that violate the "integrity of the author's work" in the sense in which this phrase is used in the Berne Convention.  If we had this option, then the BOAI would recognize at least two kinds of open license:  the new option and the standard CC-BY license.  (There may be others as well.)  This fleshes out a point I often make:  that the BOAI allows some latitude on exactly which permission barriers to remove. 
    • Finally, I should also say that even with the new licensing option, I'd usually choose the straight CC-BY license and urge others to do so as well.  Mutilation is a rare problem; there are other remedies to it than restricting re-use rights; and simpler licenses are always better than complicated ones.

Update.  See Klaus Graf's response.