Nature journal posted an article in their news section on legal issues surrounding open access publication. The most important questions are ‘how free is free’ and ‘how open is open’ as summarized in this paragraph.
Open, but not open?
A paper that is free to read on the Internet is not necessarily legally open to other uses such as mining the text with computer software to draw conclusions and mix it with other work, distributing translations of the text or commercially selling republished versions in derivative publications.
All legal details of open access publication are hidden within short words such as CC, BY, SA, etc. Presence or absence of each word has different meaning to the end-user and that meaning may change between jurisdictions. Add that to fair use clause of various copyright laws and you have a complete mess in hand.
Creative Commmons (cc)
The original set of licenses all grant the “baseline rights”, such as the right to distribute the copyrighted work worldwide, without changes, at no charge.
The details of each of these licenses depends on the version, and comprises a selection of four conditions:
**Attribution (by) **
Licensees may copy, distribute, display and perform the work and make derivative works based on it only if they give the author or licensor the credits in the manner specified by these.
**Share-alike (sa) **
Licensees may distribute derivative works only under a license identical to the license that governs the original work. (See also copyleft.)
The following two clauses are not free software licenses, according to either DFSG or the Free Software Foundation, and cannot be used in contexts that require these freedoms, such as Wikipedia.
Licensees may copy, distribute, display, and perform the work and make derivative works based on it only for noncommercial purposes.
Licensees may copy, distribute, display and perform only verbatim copies of the work, not derivative works based on it.
Similarity with Software Licenses
You may notice that many legal issues are identical to licenses for releasing software, but software-related questions are somewhat more settled with their legal history.
Placing ads on website - commercial or non-commercial?
One hot topic of contention is whether Creative Commons license allows sidebar ads on website, or whether ads are considered commercial use. Based on reading following threads, it appears to us that the creators of Creative Commons do not consider placing ads to be commercial use, but the jury is still out. They are still working on explicit definition of ‘commercial use’.
Ive asked the Wikipedia mailing list a while ago, and recently received another confirmation from Creative Commons Lawrence Lessig: yes, the CC organization believes this being OK is the best reading of the license. Not that theyre saying youre allowed to directly sell the CC content or anything, but youre allowed to display ads if you use CC-NC content. But its also a matter of how you display ads, Lawrence disclaims, saying that there could be certain advertising schemes that take it too far.
(It should be noted though that the Creative Commons organization does not determine whether a judge would agree with their interpretation, in case someone would get sued over using NC content on an ad-supported site. In the end, perhaps such a case would go back to what the license says and not what interpretations of the license say.
Response: Maxwell Felsheim, Attorney at Hellmuth & Johnson
It would depend on what type of creative common license the media is licensed under. There are 7 different creative common licenses, and each allows you to use the work in a different way, and for different purposes. So without any further information on the type of license, I cannot answer your questions. Check out http://creativecommons.org/licenses/ for more info on the various types of creative commons licenses.
Where is it going?
We have no clue, but following factors are worth considering.
Global access of internet:Questions of open access and Creative Commons license came in 2000s and not 1980s because of the internet. In 1980, nobody was asking about opening up all journal publications, because journals were all paper-based and printing and mailing paper journals to all corners of the world were both expensive. With internet, the costs of ‘printing’ and distribution have become insignificant, and so the question arises about who should get the benefit of reduced cost. The intellectual effort needed to write a novel like Les Misrables is possibly the same in 2000 as in 1862. So, the second question is how the creator of original content would be rewarded for his efforts.
Three parties in a contract: A contract is usually an agreement between three parties - two parties, who sign on the dotted line and the state that enforces it. If the state is weak or refuses to enforce a contract, there is no meaningful agreement. That consideration will be important in deciding the fate of various open-source agreements, because we believe the centralized US-based order of prior era will not last for too long.
In fact, the legal question regarding speed of electronic communication, enforceability of contract and weak central state already played out in a different arena (US property law) and remains to be a huge unsorted mess. We do not have time to go into all the details, but in our understanding, anyone buying real property in USA after 2002 have significant less legal right than in earlier era (link, link).