Intellectual Property Rights have become increasingly powerful and far-reaching. This has grown to be the standard opening line of papers in the field of law addressing issues of copyright for scientific research and scholarly publishing . Concerns are expressed about the likelihood of preserving the public domain in the Internet era . Currently new ways to safeguard the values and the entire potential of scholarly publishing and communication are being explored within the framework of existing copyright law. To date copyright law has always been reasonably balanced, weighing the interests of rights owners against those of users and the public interest generally.
'The Contracting Parties, recognising the need to maintain a balance between the right of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne convention, ...'
So from this rather abstract point of view, copyright serves the same interests as those inextricably linked with scholarly communication. This is why a practical first step to adjusting to an Open Access environment can be found within the existing framework of copyright law. The use of Creative Commons licences, agreements, guidelines and regulation through technical developments (such as integrating licences in metadata) can be seen as a means of adjusting copyright to the needs of scholarly communication without changing the law.
Moreover the potential of using Creative Commons licences as an advocacy tool is equally worthy of investigation. In tweaking the use of Creative Commons licences for scholarly use it may be important to re-examine research norms. Solutions can be found in better understanding of the values as well as the aims and purposes of scholarly communication . This is an issue in which scholars need to be involved and where it is important to come up with discipline-specific answers. The Berlin Declaration recognises the view that community standards will continue to be important in the enforcement of proper attribution and responsible use of the published work.
Repositories and Open Access
Copyright Inside Out
Open Access grants a right to the end-user to access freely and make use of scholarly materials. This represents a radical shift in the paradigm. Copyright is based on a 'state-given' exclusive right to an author to publish, with some limitations to safeguard the interests of end-users. Open Access can be achieved when rights holders decide to give some of their rights away to the end-user. Because copyright law is regulatory, rights holders are entitled to decide whether to cede some of their rights. The full merit of the strict reading of the definition of a Open Access contribution according to the Berlin Declaration is that it makes clear that initiatives by (groups of) private authors are required to advance a public goal.
The Rights Roadmap in the Berlin Declaration
Now more and more institutions are signing the Berlin Declaration, it is useful to examine the definition of Open Access in some detail. On an initial reading there seems to be two conditions for Open Access:
- the author grants free access to the end-user and
- a complete version of the work is placed in a repository.
In fact, in the current quest for content, libraries tend to be satisfied when just the second condition is met. As a consequence there is every chance that they miss out on the richer roadmap to Open Access that is hidden in the following definition which with its preamble reads as follows:
"Definition of an Open Access Contribution
Establishing Open Access as a worthwhile procedure ideally requires the active commitment of each and every individual producer of scientific knowledge and holder of cultural heritage. Open Access contributions include original scientific research results, raw data and metadata, source materials, digital representations of pictorial and graphical materials and scholarly multimedia material. Open Access contributions must satisfy two conditions:
1. The author(s) and right holder(s) of such contributions 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.
2. A complete version of the work and all supplemental materials, including a copy of the permission as stated above, in an appropriate standard electronic format is deposited (and thus published) in at least one online repository using suitable technical standards (such as the Open Archive definitions) that is supported and maintained by an academic institution, scholarly society, government agency, or other well-established organization that seeks to enable Open Access, unrestricted distribution, inter operability, and long-term archiving." 
The definition of an Open Access contribution holds an important pre-condition where it states that Open Access ideally requires the active commitment from each and every individual producer of scientific knowledge. As explained above, this is also an important point from a lawyer's perspective.
The first-mentioned condition can only be met if the rights holder  decides that he or she wants to do two things, i.e. grant free access to end-users -which can be done in a straight-forward way - but also grant a licence to reuse the material for any responsible purpose. This is an important condition, for in so doing the rights holder helps to widen the legal public domain. Furthermore the licence offers the opportunity to reduce transaction costs currently associated with the reuse of scholarly materials for educational purposes.
The suggested reach of the licence as described in the first condition does not apply to printed material. Instead it is limited to reuse in any digital medium for any responsible use. Lawyers should refer to 'any responsible use' as a vague norm. This requires further clarification: communities should decide on the licences appropriate to their field of research. Guidelines and publication agreements with the option of a licence to make an Open Access contribution can be worked out by faculties, learned societies and the boards of journals. And it would seem sensible that they take account of the reasonable interests of those publishers who facilitate self-archiving or an Open Access business model in their guidelines .
I do not agree with the view that this licence is merely a formalistic condition and likely to lead to problems in enforcement . The ever-vigorous Creative Commons initiative has proven otherwise. In broader research on institutional deployment of Creative Commons licences the preliminary report states that there is no reason to suggest that Creative Commons licences could not be used by public sector organisations .
The second condition in the definition of an Open Access contribution states that the work and all supplemental materials, including a copy of the permission as stated above, in an appropriate standard electronic format is deposited (and thus published) in at least one online repository. The holder of a repository can facilitate this by offering information on the use of searchable standard licences like the Creative Commons licences.
Towards Good Practice in Awareness-Raising
As part of a collaborative programme by SURF and JISC, a survey was carried out on the views on copyright of authors publishing in Open Access journals. I was involved in this investigation. The report Towards Good Practices on Copyright in Open Access Journals is now available online . The recommendations should also prove valuable to the process of awareness-raising in respect of the use of repositories. It was established that author involvement in copyright matters even among authors who already publish in Open Access journals is still low. Let me quote from this recommendation:
'Maybe the most important stakeholder in the scholarly communication system consists of the scientific authors themselves. However, this stakeholder seems insufficiently involved in developing new copyright practices: stumbling blocks in reaching the academic community are low involvement and ignorance among scientists. This can also be concluded from this study, in which 30% of the respondents don't know who initially owns the copyright of their own research articles and in which 26% of the respondents indicate to have a low interest in the copyright issues of their own research articles.' 
One of the main recommendations is to use the Creative Commons licences as models for awareness-raising. These licences are used in a wide variety of Open Access journals.
The example of the PLOS (Public Library of Science) magazines demonstrates that there is a relationship between the business model of the publisher and the freedom of end-users to use a work as they see fit. With these magazines the publisher is in no way dependent on income from access or reuse of the work. Therefore PLOS can agree that the producer makes his or her work available under a Creative Commons attribution licence. As long as the end-user gives a proper attribution, he or she is free to reuse the material. Even commercial reuse is allowed. PLOS explains that the publisher and the producer both have an interest in the work being widely disseminated. Therefore there will be no objection if, for instance, a book appears on the Indian market with translated articles from PLOS magazines.
In general the survey shows that authors want a limited copyright role for the journal publisher. The attitudes of the authors on copyright issues in relation to traditional journal publishers are surprising: although most are involved in traditional journal publishing, only 2% prefer the transfer of copyright to the journal publisher and only 10% think that the publisher should handle permission requests to reuse the article. A large majority (71%) wants the authors to retain the copyright; an equally large majority wants to see the author handling permission requests as well. This also holds true, judging from the replies of the respondents, as regards the editorial board members of traditional journals.
Authors want unlimited reuse for scholarly and educational purposes for everyone, but limitations on commercial reuse by others. This could be achieved by the NON COMMERCIAL USE licence. The Berlin Declaration apparently considers it to be proper to scholarly communication that the author keeps the right to be attributed. This can be done by adding the ATTRIBUTION licence. A third Creative Commons option gives rights to end-users on the condition that they make their work freely accessible under this Creative Commons licence as well. I will come back to the value of this SHARE ALIKE licence for scholarly communication after a general introduction to the Creative Commons initiative.
The fact that the general issue and the specific matter of enforcement of copyright have gained in importance with the advance of the Internet is largely due to a strong lobby of the music and film industries. Laws and technical protection measures are used to safeguard their interests. However at the same time the dissemination of culture and knowledge, which copyright tries to encourage, is in fact also jeopardised at the same time. As a counter-movement Lawrence Lessig  instigated the Creative Commons. This initiative offers people who would like to share music, photos or text the opportunity to do so within the parameters of copyright law by means of contracts between the author and the end-user. In such a contract the author indicates the degree of licence the end-user has in using the product. These contracts are standardised and legally sound and they are offered in natural language and as metadata for the purposes of machine searches.
For instance, when someone makes a photo available with a Creative Commons licence, stipulating that the author's name be quoted and that no commercial reuse be allowed, then a student who wishes to use this photo in an assignment knows that there is no impediment in this instance, and can publish the assignment without further ado, as long as he or she acknowledges the name of the photographer.
From the user's perspective the ideal situation would be for clear indications as to user rights to be offered within the search process through descriptive metadata in respect of copyright status. An example of this functionality can be found on the Creative Commons Web site under the Find button. Some work still has to be done to add information on user rights to the metadata used in the OAI protocol used for institutional repositories. In the long run, a search including the question whether the material may be reused for scholarly, non-commercial use could well result in a vast number of articles, thereby demonstrating that scholarly communities value the opportunity to share their work.
Using the SHARE ALIKE licence recognises that it will require a collective effort to achieve freely accessible scientific research and scholarly communication over the Internet. Such use seems to resonate with a central value in scholarly communication, namely constructing knowledge through sharing information . A limitation on an author's rights to cite from a work has always been part of copyright law. From this perspective it might be reasonable to ask whether, in the context of scholarly communication, it is practical for the author to add the condition that his or her work be made available under the same licence. This licence can be valuable in circumstances where scholars work together on the Internet using software for collaborative peer production .
Creative Commons Licences: The Berlin Declaration and the Repository
Integrating the Creative Commons licences under the conditions of the Berlin Declaration demands the following steps.
- In the light of the second condition of the definition of the Berlin Declaration, the holder of a repository should start to offer information on the standard Creative Commons licences to the depositor.
- Individual depositors who retain their copyright should be encouraged by an institutional policy to use Creative Commons licences.
- Communities of researchers should be encouraged to develop guidelines and agreements on the use of Creative Commons licences appropriate to their areas of work.
- Further searching for works published under a specific Creative Commons licence should be enabled through the development of descriptive metadata on the copyright status.
- Since a repository can also contain materials of which the institution is the rights holder (i.e. educational materials), institutions could further the aims of the Berlin Declaration by developing a policy that such materials are made available under a Creative Commons licence.
I hope to have demonstrated that the Creative Commons licences can add value to the aims of the Open Access movement. As the Berlin Declaration has indicated, it is crucial that authors are involved in the process. Using the standardised Creative Commons licence models can achieve this goal. A further advantage of this approach is that what is now largely a library-driven movement can be broadened in scope.
As regards further development it is essential that every holder of an institutional repository work in co-operation with the appropriate scholars in the department of law and other relevant departments. It is to be hoped that collective discussion will help to raise awareness of the potential, for instance, of regulating an internationally distributed networked environment, adopting practical approaches to the sharing of information and maximising the chances of embedding a new generation of peer-to-peer software into the scholarly communication process .
I would like to record my thanks to the Ticer  community for giving me the opportunity to contribute to work on which this article is based.
- Samuelson, Pamela, Preserving the positive functions of the public domain in science, Data Science Journal, Volume 2, 24, November 2003 p.192
Also: C Waelde and M McGinley, "Public Domain; Public Interest; Public Funding: focussing on the 'three Ps' in scientific research", (2005) 2:1 SCRIPT-ed 83 available at:
- Boyle, J., The second enclosure movement and the construction of the public domain 66 Law & Contemp. Probs. 33 (Winter/Spring 2003)
- S. Norman, IFLA Copyright Adviser, Report of the WIPO Diplomatic Conference 2-20th December 1996,
- WIPO Copyright Treaty, Official Journal L 089, 11/04/2000 P. 0008 - 0014
- H. Nissenbaum, New Research Norms for a New Medium, The Commodification of Information. N. Elkin-Koren and N. Netanel (editors) The Hague: Kluwer Academic Press, 2002. 433-457
- Conference on Open Access to Knowledge in the Sciences and Humanities 20 - 22 Oct 2003, Berlin
- For research works the author is generally assumed to be the rights holder. Institutions in some jurisdictions hold the rights on educational materials.
- An interesting example of this approach can be found in the Open Access Law Programme
- A possible next step to facilitate enforcement and tune the distinction between proper scholarly use and commercial use would be to introduce a copyright dispute resolution system. See: Lemley, Mark A. and Reese, R. Anthony, "A Quick and Inexpensive System for Resolving Digital Copyright Disputes" (March 24, 2004). UC Berkeley Public Law Research No. 525682. http://ssrn.com/abstract=525682
- Creative Commons Licensing Solutions for the Common Information Environment
- E. Hoorn, M. van der Graaf, Towards good practices of copyright in Open Access Journals
- Lessig, L., Code and other laws of cyberspace, Basic Books, New York, 1999 Recently a collaborative effort to update this book has been undertaken. Read more: http://www.lessig.org/blog/
- Benkler, Y. "Sharing Nicely": On shareable goods and the emergence of sharing as a modality of economic production , The Yale Law Journal, Vol. 114, pp. 273-358
- An example of this can be found in the project JurisPedia, the shared law
- A good example is the German Mediaconomy Project. In this research partnership a workshop on Legal Aspects of Open Access has taken place and a series of lectures were held:
- Ticer http://www.ticer.nl/