Much of the debate on Open Access has concentrated on the shift from a subscription model that opens access for authors, while restricting access for readers, to a publication charge model that restricts access for authors, while opening access for readers. The proposed requirement to publish under a Creative Commons CC-BY licence may, though, be even more pernicious for social science authors.  Unfortunately, understanding why takes us to parts of intellectual property law that many of us do not usually need to bother with.

I may be old-fashioned but I remember when university librarians were people of high integrity who worried about the protection of copyright in books and journals.  We baby-boomers have had years of completing copyright forms before copying anything, promising only to xerox a limited part of any work and to use it solely for education or research.  The information from these forms, and their electronic successors, determined payments to a licensing agency working for authors, who then received a royalty, reflecting the value of the intellectual property they had created.  For most, this was rarely more than a few tens of pounds per year but it acknowledged their ownership of the intellectual property they had created.

I also used to think that UK government departments were committed to the rule of law so that people could not be deprived of property rights without payment of fair compensation.  Indeed, I have regularly observed their continuing commitment to the protection from internet piracy of intellectual property in film, music, literature and other works.

The CC-BY licence strips all this away.  One class of content creators, who happen to work in universities, will arbitrarily lose its historic rights to own and control the intellectual property that it has created.  Will there be any compensation for their economic losses?  Do I need to spell out the answer?

How does this happen?  The CC-BY licence confers the following rights on anyone who wants to use the content: to copy, distribute and transmit the work; to adapt the work; and to make commercial use of the work.  When you publish a paper in an academic journal, any reader will, in future, be able to copy and pass it on, to mash it up or to use it for marketing purposes without the author having any control or receiving any reward.  The user is supposed to link your name to their use of the work, so you can track the impact. Thankfully, this acknowledgement must not imply endorsement.

It is not difficult to see why librarians like this arrangement: suddenly they no longer have to pay for scholarly work available under these terms.  Teachers and students will no longer need to buy course readers or pay copyright fees to assemble them. However, the money simply moves round the system into Author Payment Charges rather than necessarily being liberated for other purposes.  The UK government’s arguments proclaim benefits for small businesses – all those SMEs that are burning to read the latest academic journals.  Unfortunately, it is not clear that they are.  I am supervising a project studying knowledge management and SMEs, which is discovering that they actually depend on intermediary firms to scan journals for them.  For a fee, these companies read papers and tell their clients whether there is anything worth knowing.  These fees are unlikely to fall with Open Access because search and evaluation costs are likely to increase: intermediaries will have to look further with weaker quality signals.  This should not surprise anyone: innovation studies have established that companies vary in their absorptive capacity for knowledge – unless a firm is big enough to do its own R&D, it probably lacks the resources to undertake search and evaluation.  Should we be surprised if the prime beneficiaries of this change are large corporations that can well afford to pay journal subscriptions and will now be able to access content with the benefit of public subsidy?  Does this not conform to well-remarked trends in the relationship between public and private spheres over the last 20 or 30 years?

Others may be more excited by the potential benefits.  Take the possible example of a far-right political group studied by a political scientist. This might well result in a journal paper which demonstrates that the group’s members are not demons but ordinary men and women responding to economic and social challenges with strategies that seem reasonable to them, even if based on partial information or analysis by others’ standards.  Racism is not psychopathology but as an action that is wholly intelligible within a particular context.  For the author, the paper presents evidence that it is unhelpful to dismiss these people as bigots: the political system needs to recognize and address their grievances, without adopting their racist solutions.  With a CC-BY licence, however, nothing stops the group taking hold of the paper, editing it down and using it as a recruitment tool: “Famous professor says we are just ordinary people responding in a reasonable way to the problems of our community…” You cannot pick and choose users: free access for Big Pharma is also free access for neo-Nazis.

There are partial solutions.  Publishers will be able to offer CC-BY-NC http://creativecommons.org/licenses/by-nc/3.0/ and CC-BY-NC-ND http://creativecommons.org/licenses/by-nc-nd/3.0/us/ licences, which give content creators somewhat more control.  The former bars commercial use but allows sharing and remixing, which does not address the neo-Nazi issue, while the latter adds a ban on remixing.  Learned societies that own journals will be offered these options and it would be desirable if they could adopt CC-BY-NC-ND  as a common position.  This still leaves content creators as victims of copyright piracy but it does reduce the risk that their work will be used in abusive ways.  It also poses some intriguing questions about whether private providers of higher education and research will be able to describe their uses as non-commercial…