Open Access, copyright transfer and NC licensing: caveat emptor!

When I was rummaging around in J Vis a while back, I noticed something that I’ve been meaning to blog about: why is an Open Access journal still requiring complete surrender of author copyright1?
I happen to know one answer to that question, though I don’t know whether this is the case at J Vis. The deal is this: Big Publishing sells paper reprints, and not just of their own articles — they pay fees where necessary in order to provide a one-stop shop (e.g. through Excerpta Medica or Ovid), mainly to the pharmaceutical industry. In order to blanket existing and potential customers with research favorable to their causes, pharm companies spend a great deal of money on these reprints — some of which trickles down to small publishers, some of whom depend on that revenue. Such publishers therefore cannot afford to give up such rights as force the reprint traders to pay for their wares.
J Vis has a copyright notice which says, in part:

Users may view, reproduce or store copies of articles comprising the journal provided that the articles are used only for their personal, non-commercial use. […] Any uses and or copies of Journal of Vision articles, either in whole or in part, must include the customary bibliographic citation, including author attribution, date, article title, journal name, DOI and/or URL, and copyright notice.

A closely related strategy is to use open(ish) licensing that contains a noncommercial (NC) clause. For instance, Springer Open Choice leaves copyright with authors, but uses their own license that is compatible with CC-BY-NC. That, like J Vis’ copyright notice, puts their publications out of reach of the reprint traders, except for the little clause that says:

No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.

which allows the small publishers to waive the NC part for certain uses, in return for what amounts to royalties2.
Why do I care about this? Because it’s another instance of the old “Free is not Open” argument, and the problems discussed here and here. Since digital repositories — as far as I know, all existing digital repositories — carry no blanket license, but leave intact the licensing of each individual digital object they contain, the effect is that there are no OA repositories that remove both price and permission barriers (that is, provide “strong” or “libre” OA to their contents).
The end result is the same problem that copyleft causes3: Reuse, Rework and Redistribute may not be powerfully affected, but Remix is killed outright.
Consider, for instance, PubMed Central, all the papers in which are free to read. What else can you do with them? Textmining, datamining? As far as I can tell, the answer is no, you can’t do any of that — because whatever you want to do, some papers will be licensed to allow it and some won’t. Barring some way to reach agreements with dozens or perhaps hundreds of publishers and pre-sort millions of papers on the basis of licensing, the entire PMC barrel is spoiled by the copyrighted, NC and similar apples — though there is a much smaller uncontaminated barrel available4.
Which brings me, at long last, to my title. Why “caveat emptor”? Well, if you’re buying Open Access — that is, publishing with a journal that charges author-side fees (remember, most don’t), make sure you’re getting value for your money! If the journal demands your copyright, or slaps a NC license on your work before distributing it, you should know that many possible downstream uses for your work are being pre-emptively eliminated. Are you sure that’s what you want?

1 From the copyright form, emphasis mine:


2 There’s even a clause in the canonical definitions of OA that deals with this issue — or at least I suspect that’s what it’s doing there. Budapest, which came first, says this:

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.

But Bethesda and Berlin, both of which were written about two years later, include this in the definition of Open Access (emphasis mine):

The author(s) and right holder(s) of [OA works] grant(s) to all users a free, irrevocable, worldwide, right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship (community standards, will continue to provide the mechanism for enforcement of proper attribution and responsible use of the published work, as they do now), as well as the right to make small numbers of printed copies for their personal use.

I suspect, though of course I’m really just guessing, that the “small numbers” clause was inserted at least in part as a reaction to the gleeful scarfing-up of OA works for resale by reprint distributors, or to the threat of same.
It needs the force of law to be any use for that purpose, though, which is where licensing comes in — using a noncommercial clause like the one in CC NC licenses is a bit like swatting a gnat with a bulldozer, but I know of no licenses which deal specifically with the volume reprint trade but allow other commercial uses.
Frankly, even if there were such a license, I wonder whether publishers who insist on NC now would switch to it. Springer’s Open Choice, for example, charges $3000 per article. I would say they’ve already been paid and shouldn’t much care if someone else, without restricting access to their content, makes further profit from it. The barrier (to such a view) seems to be a mindset that says “why shouldn’t I get my cut?” — and if any other downstream use should arise that starts to make serious money, they would want their cut of that too. To make sure they get it, just in case it ever comes into being, I expect that many publishers would be willing pre-emptively to kill off any smaller commercial innovations that might otherwise arise.
(Someone will no doubt argue that these fledgelings could always negotiate via the waiver clause, as above. The main problem there is that such negotiations themselves cost money, and since much of the promise of OA is in remix across a wide range of sources, that means negotiating with every publisher. Let me know how that works out for ya.)

3 In fact, although NC clauses don’t require a particular license for derivative or collective works, they do exert a kind of de facto copyleft, because they are only downstream-compatible with other NC licenses — see footnote 1 here, or play this game for a while.

4 Two things of note here: firstly, the NIH apparently agrees with me that OA by definition removes both price and permission barriers, since they refer to the uncontaminated barrel as Open Access and explicitly say that the rest of their content is free, not OA. Secondly, following on from Egon’s and Antony’s questions, I wonder: by permitting the spoilage, can databases violate the licensing terms of the CC-BY papers they also contain? The question hinges on this wording:

You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License. […] When You Distribute or Publicly Perform the Work, You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License.

Egon and Antony are asking more directly technological questions, but I do think it could be argued that if they do not do as PMC has done and make available a libre OA subset, databases can be seen to be imposing terms that restrict, etc.