From: "Kiley, Robert" <[log in to unmask]>
Date: Fri, 30 Mar 2012 14:19:32 +0100

Sandy

We accept that the CC suite of licences is largely untested in terms
of legal precedent, and that some of the definitions contained in them
are -- as is the case with many licences -- open to interpretation.
What we do have at Wellcome Trust, however, is significant experience
of negotiating with large publishing houses a wide range of open
access licences which have been intended to convey some or all of the
contents and spirit of the CC licences.  That experience has given us
strong evidence of how individual publishers regard what would
constitute activity which was "primarily intended for or directed
toward commercial advantage or private monetary compensation", and
this most certainly includes selling translations of articles for a
fee and posting articles to web sites which carry advertising.

It is this experience which has influenced our decision to require a
CC-BY licence on those articles for which we pay an OA publication
fee.

Best regards
Robert


Robert Kiley
Head of Digital Services
Wellcome Library
mailto:[log in to unmask]
Library Web site: http://library.wellcome.ac.uk

-----Original Message-----
From: Sandy Thatcher <[log in to unmask]>
Date: Wed, 28 Mar 2012 09:41:45 -0500

By the same token, the CC_BY license removes ANY control the author
might otherwise have over the quality of a translation. The "moral
rights" provision of CC licenses MIGHT be invoked to prevent
distribution of an egregiously bad translation, which could reflect
poorly on the "honor and reputation" of the author, but it is unlikely
to succeed against merely a poor translation. At least some authors
care about how their works are presented in other languages and have
concerns about nuances of meaning and the like.

The objections stated here to the CC-BY-NC-SA license are at least
questionable as to the interpretation of what is "commercial" since
the license does not define that term other than to provide this
partial clarification:

> You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in con-nection with the exchange of copyrighted works.

This paragraph even adds to the ambiguity by highlighting the term
"primary"  and by failing to specify whom the "commercial advantage or
private monetary compensation" is supposed to benefit.  It could be
plausibly interpreted to mean that unless the author of the work
benefits monetarily in some direct way, the reuse is to be deemed
"noncommercial." The example given here of web sites that use
advertising as their means of support might therefore not disqualify
posting of an article as "commercial" because the author receives no
monetary benefit.  The same would be true for the example of
translation, which is not "commercial" in any way that benefits the
author.

I would be interested to know on what authority Mr. Kiley bases his
interpretations of the license. There is nothing in the license itself
that unambiguously supports his interpretation, as far as I can see.

Sandy Thatcher


> From: "Kiley, Robert" <[log in to unmask]>
> Date: Tue, 27 Mar 2012 12:32:23 +0100
>
> Heather, I strongly disagree with your assertion that an "NC" licence
> is better than the CC-BY licence.
>
> Let me give you a couple of examples where the "NC" licence has the
> potential to limit what others can do with the research we have
> funded.
>
> Translation example
>
> **
> We publish a lot of research on malaria.  It is possible that someone
> may wish to take a number of these papers and translate them into,
> say, Burmese so the information can be understood and applied in the
> local context.  The organisation doing the translation however, may
> wish to charge for this "value added" service.  For articles published
> under the NC licence, this would not be possible.
>
> I fully understand that some users may not be able to afford the
> value-added translation, but I fail to see how they are any worse off
> (as they can still access the original research in its original
> language.)  However, others may be able to afford it and thus reap the
> benefits of the value-added service.
>
> Posting research on another web site
>
> **
> To maximise the impact of the research we fund we want people to be
> able to find it and use this content.  As such, if someone wants to
> take an article (which reported the outcome of Trust-funded research)
> and post it on another web site we believe that this this should be
> possible (as long as the work is properly attributed).  However, if
> that other web site carried any form of advertising then that would
> almost certainly be construed as "commercial", and the publisher could
> ask for that article to be taken down.
>
> More generally, advertising is now commonplace in an environment that
> encourages open information like never before:  the Wiki community,
> blogs and, analogously, open source software sources, all generate
> revenue from advertising in order to encourage sharing and
> dissemination of the free content.
>
> The bottom line of this is that we want to maximise the availability
> and use of research outputs in order to achieve greatest health/public
> benefit, and believe that the CC-BY licence provides the best
> mechanism for achieving this.
>
> Consequently, in line with the draft RCUK policy, the Wellcome Trust
> will also be requiring a CC-BY licence when it pays an OA publication
> fee.  We are currently working through the implementation of this
> measure and will make full details available to our publishing
> colleagues in due course.
>
> Best regards
> Robert