Creative Commons and Open Access

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Doing our homework: Science @ Creative Commons, Open Access, and Lessons for OER

Over the last few years, Creative Commons has been a productive convener of ideas and action within the Open Educational Resources (OER) space. As the OER community continues to grow, it is worthwhile to step back and examine a related movement in order identify recurring roadblocks and extract best practices for future work. The largely undocumented role of the Science Commons project at Creative Commons within the Open Access (OA) movement provides an interesting case study to draw lessons and suggest areas for continued action for Creative Commons and others within the OER movement.

History of Creative Commons in Open Access

The Science Commons project at Creative Commons has been involved in the Open Access movement since its conception in 2005. The three most widely used definitions within the Open Access movement come from the Budapest (February 2002), Bethesda (June 2003), and Berlin (October 2003) meetings. The text of the Budapest Open Access Declaration states that "by open access to the literature, we mean it's free availability on the public internet, permitting users to read, download, copy, distribute, print, search, or link to the  full texts of the articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal or technical barriers other than those inseparable from gaining access to the internet itself." The Declaration continues, "the only constraint [...] should be to give authors control over the integrity of their work and the right to properly acknowledged and cited." The Creative Commons Attribution license - the least restrictive  license in the suite - legally implements the Budapest Declaration, and is widely recognized in the community as a means to make a work truly Open Access. Licenses that add restrictions beyond attribution such as the non-commercial or share-alike provisions do not meet this standard.

Creative Commons launched its Scholar's Copyright Project in June 2006. The Scholars Copyright Project is the forward facing clearinghouse for Creative Commons' work within the Open Access movement. Creative Commons has worked with the Scholarly Publishing and Academic Resources Coalition (SPARC) and library groups, academic institutions, publishers, and standards and non-profit organizations to address Open Access issues from a range of perspectives, explored in more detail below.


Individual Open Access Implementation

A challenge to individual academic authors is that they are oftentimes beholden to the whims of particular scholarly journals in which they are expected to publish in order to be tenured.  An original solution to this problem began with the creation of author addenda tools--copyright transfer agreements to help authors retain the rights they need to ensure Open Access to their work. The Science Commons project at Creative Commons released the Scholar's Copyright Addendum Engine in support of the self-archiving route to Open Access. It provides a simple mechanism for scholars to retain rights over their published material that otherwise would be transferred to the publisher. The addendum engine generates a completed PDF copy of a one-page standard addendum that reserves certain rights to the author, such as the right to post a copy of the published version of the article online immediately to a site that does not charge for access to the article--for instance, the author's personal website. The engine offers four authors' addenda, and universities such as Carnegie Mellon, Johns Hopkins University, MIT, and others have adapted the engine to meet the needs of their publishing faculty.

Creative Commons observes that copyright addenda are useful as a faculty education tool, and the addenda continue to help expose some of the flaws in the traditional journal publishing industry. However, as a whole, the copyright addenda approach is not as effective as other more integrated solutions. Even if individual authors wish to release their research papers under Open Access, when push comes to shove, they will follow the rules of the journal because they wish to be published and don't want to risk rejection by the journal over a dispute about copyright. 

University Open Access Policies

With SPARC, Science Commons legal counsel Thinh Nguyen published the white paper Open Doors and Open Minds: What faculty authors can do to ensure open access to their work through their institution. It describes the process and best practices of implementing an Open Access policy within a university. There's been a groundswell of Open Access support within universities over the last few years. Universities with voluntary deposit policies have had generally low participation, so more universities have been exploring mandatory Open Access requirements. Partially a reaction to the high price of journal subscriptions at universities, the Open Access movement within academia has blossomed under the assumption that universities themselves should be able to access and preserve the research outputs of their faculty. In February 2008 Harvard University’s Faculty of Arts and Sciences unanimously voted in favor of an Open Access requirement. Under this Open Access policy, Harvard professors grant the university a non-exclusive license to a scholarly article at time of creation of the work. This process heads off problems with publishers downstream, since the university retains a legal right to the work before copyright can be transferred to a publisher. Faculty advocates at Harvard spent two years building consensus for the Open Access policy, and worked closely with university administration, library, faculty, and the Office of General Counsel. While the Harvard Open Access policy could be called a "mandate," it's important to note that the policy came from a faculty vote and was not implemented in a strictly top-down fashion. There is also a safety valve, in which faculty can opt-out of the Open Access policy in relation to a specific work by submitting a written request to the university administration.  According to the Registry of Open Access Repository Material Archiving Policies, there are approximately 215 Open Access mandates in place, many of them within universities. Some policies are university-wide, some bind specific departments, and some cover only student theses. Nguyen identified that each university has a distinctive culture, and the most effective means for advocating for an Open Access requirement is likely to vary from school to school. One of the goals of the university level work is to adopt a policy that is binding upon the entire faculty, or as many faculty as possible. It was recommended that university Open Access policies at the least should attempt to secure a deposit requirement, which creates a comprehensive archive of the institution’s research output. Communication with faculty about the specific details related to an Open Access policy is extremely important. Communicating with publishers was seen as a necessary second step. 

Open Access Journals

Based on a recent query, there are approximately 1150 Creative Commons licensed Open Access journals. In an attempt to clearly mark journals that comply with stated Open Access definitions (Budapest, Berlin and Bethesda), SPARC Europe and the Directory of Open Access Journals (DOAJ) have released a seal to mark those journals meeting the strongest Open Access definition, the Creative Commons Attribution (CC BY) license. This license is widely used and recommended in the Open Access community. The seal was released in 2008, prompting work by the DOAJ to sift through their lists of journals and more clearly identify the rights regimes that apply, ranging from full copyright but available on the Web, to other Free/Libre/Open Licenses, to CC BY. A more comprehensive study should be conducted to better survey this landscape.

Other commercial publishers have also adopted more liberal copyright policies. For example, the Nature Publishing Group (NPG) offers a progressive policy for a few of its efforts. One of the leading examples is Nature Precedings, a preprint archive of the NPG, which licenses content under CC BY. Nature also utilizes the less restrictive Creative Commons licenses on various special issues as well as whenever the primary sequence of an organism's genome is published for the first time. The Nature Communications journal allows authors the option to choose Open Access but retain non-commercial provisions. This sort of licensing policy allows authors to split access of the material--a portion is freely accessible, while access controls and embargo periods remain for the rest.

Federal Regulatory Policy

One federal initiative within the Open Access landscape been the National Institute of Health's (NIH) Public Access Policy. This policy "requires scientists to submit final peer-reviewed journal manuscripts that arise from NIH funds to the digital archive PubMed Central upon acceptance for publication." Through the PubMed repository, these manuscripts and materials are made freely available to the public. The original policy was voluntary and went into effect in May 2005. The policy became mandatory in April 2008. Through legislation, the NIH Public Access Policy became permanent in March 2009.

Similar to the voluntary university policies, the non-compulsory deposit under NIH achieved only a 4% deposit rate. Under the mandatory policy, 70% compliance has been reached, and is continuing to increase. The licensing requirements of the NIH policy are broadly defined, and thus less desirable for science, mainly because any Creative Commons license (including those licenses containing the No Derivatives clause) is sufficient to fulfill the deposit requirement. Alongside SPARC and the Association of Research Libraries, Creative Commons worked with Mike Carroll, Open Access legal expert and CC board member, to publish the white paper Complying with the NIH Public Access Policy - Copyright Considerations and Options in February 2008. The paper explains the history of the NIH Public Access Policy, addresses some legal challenges to NIH's Public Access Policy with respect to compliance with U.S. Copyright law, and underscores the need for NIH grantees and researchers to properly manage copyrights in order to make sure that the final manuscript is  submitted with the necessary authority to grant NIH permission to make it publicly available within 12 months of publication. Today, the Obama administration, particularly through the Office of Science and Technology Policy, is considering expanding public access policies to the outputs of other federally funded programs.

Protocol for Implementing Open Access Data

An important initiative for Science Commons project at Creative Commons has been the Protocol for Implementing Open Access Data. The protocol, released in December 2007, is a set of principles designed to ensure that scientific data remains open, accessible, and interoperable. The protocol describes a situation wherein "life scientists must integrate data from across biology and chemistry to comprehend disease and discover cures, and climate change scientists must integrate data from wildly diverse disciplines to understand our current state and predict the impact of new policies." The CC0 waiver and Public Domain Dedication License implement the protocol. Later in 2008, Science Commons released the paper Freedom to Research: Keeping Scientific Data Open, Accessible, and Interoperable.    

Open Access Law Program

The Open Access Law Program is a project led by Dan Hunter, Professor of Law at New York Law School. It is designed to enable authors, journals, publishers, libraries, and universities to promote Open Access in scholarly legal literature. The Open Access Law Program includes Open Access Law Journal Principles, an Open Access Law Author Pledge, and an Open Access Model Publishing Agreement. Similar to its work within the Open Access scientific scholarly community, the Open Access Law Program provides simple, standardized principles and agreements that seek to encourage the broadest possible uptake of Open Access ideals in legal publishing. There are 41 law journals that have adopted the Open Access Law Journal Principles or have policies consistent with them.


Shifting Arguments

The Open Access work was one of first endeavors of the Science Commons project at Creative Commons, and provided a platform from which to explore how CC licenses could be applied to the scholarly canon. The Open Access work was seen as the base for exploring applications in data, biological materials, the semantic web, and patents. Creative Commons has not received any project-specific funding for their work within the Open Access movement. Over the years, Science Commons project at Creative Commons has developed high level arguments as a way to support Open Access within a larger purview of work. The progression of arguments range from financial to ethical to generative. Financial considerations take into account the fact that journal subscriptions cost a lot of money and are an increasingly burdensome expense for universities, especially university libraries. While discussing the financial components of the journal publishing landscape is a useful mechanism to generate some initial motivation to explore Open Access, the arguments are limited in their utility because the potential audience who care about journal pricing is not large enough to reach a critical mass on its own. However, there have been practical and effective awareness-raising campaigns about the cost of scholarly journals, spearheaded by the Student PIRGs and Students for Free Culture. Ethical arguments champion the principle that the public should have access to the research that it funds. The taxpayer access argument is strong and has allies across the political spectrum. Public access to publicly funded research is currently embodied by the NIH Public Access Policy, and also by coalitions such as the Alliance for Taxpayer Access. Most recently, Creative Commons and others have been exploring the concept of generativity in support of Open Access. This notion says that the ability to conduct semantic text mining on scientific literature is crucial to scientific innovation. It is the key to breakthroughs in science and medicine. The generativity argument asserts "the progress of science will be slowed if scientists don't have the ability to conduct research on the texts of scientific literature."


Creative Commons views advocacy efforts in a broad sense, but has not been involved with specific lobbying efforts around Open Access. The Science Commons project at Creative Commons has been deeply embedded in the scientific conference circuit in Washington, D.C., nationwide, and internationally, but has not actively cultivated political or legislative connections. For example, employees of Creative Commons have not engaged with Congressional staff about the proposed Federal Research Public Access Act. SPARC has taken the lead in direct lobbying around Open Access. SPARC has also filled the public advocacy role in terms of building and drawing upon members of a coalition to engage in grassroots Open Access advocacy. Creative Commons is generally seen as a neutral third party that provides legal and technical infrastructure to enable the sharing of scientific information, educational materials, and cultural resources.

In addition to legal tools and in-depth analysis, Creative Commons has provided visionary thinking and evangelizing about the benefits and possibilities of Open Access via conferences, networking with the main stakeholders within the OA movement, and calling upon the Creative Commons board of directors to give talks about CC and Open Access. Creative Commons hosted convenings, such as the 2006 Information Commons for Science Congress at the National Academies of Science in Washington, D.C., where eminent scientists and scholars from the United States and other countries gathered to discuss data sharing strategies. In 2007, Creative Commons co-sponsored with the Committee on Data for Science and Technology (CODATA) the Workshop on Common Use Licensing of Scientific Data Products in Paris. This conference included representatives from the Global Biodiversity Information Facility, and leading legal scholars, scientists, and Creative Commons International affiliates actively working on data sharing policy. It was through this collaborative process that the Science Commons Data Protocol emerged as the best—and possibly the only—solution to the challenges collectively identified.  

Some OER policy challenges and suggestions

Complexity of OER

Some of the lessons learned from the Open Access movement are immediately relevant to open education policy and offer areas for meaningful action. In some ways, OER is similar to Open Access. For instance, just like scholarly journal publishers, traditional textbook publishers fear that open content will destroy their industry. Just as Creative Commons and the Open Access community educated journal publishers on the benefits of open licensing, the OER community will need to educate and support innovative businesses and government initiatives providing open textbooks and openly licensed materials built around interoperable licensing conditions. OER can be distinguished from Open Access in important ways. For instance, the OER ecosystem is large and diverse, and stakeholders include both higher education and K-12 communities, federal and state level policymakers, state educational technology and curriculum setting groups, publishers, teachers, content platforms, funders, and others. The OER ecosystem is highly complex, and includes moving parts not observed in the OA space--such as state education standards--that make adoption and sharing of OER in K-12 difficult. The motivations in creating and sharing OER are different than the motivations for Open Access. For example, the main point of academic publishing is for an author to either publish a completed peer reviewed article in the most prestigious journal possible or to get the widest readership possible. But, the main point of teaching materials--and by extension--OER, are for use in the teaching/learning relationship. Many teaching materials are nebulous--rough ideas, concepts, and resources that some teachers may not feel are ready for publishing to the world. There's also a longstanding criticism of OER as being low quality educational materials. For this and other reasons, there may be some apprehension in sharing. 

Political environment

While Open Access policy moved relatively slowly within universities and government circles, an up-swell in information about OER--coupled with an opportunistic political environment--has thrust OER into the policy spotlight The current political environment in Washington has provided some interesting opportunities to support the development of OER at the federal and state levels. The American Recovery and Reinvestment Act, through its Race to the Top, Investing in Innovation, and other grant programs, has opened the door to supporting education projects incorporating core OER principles and language. Even though the Administration's ambitious plan to provide $500 million over 10 years for the development of OER for community colleges has faltered, OER has been mentioned--explicitly and implicitly--within several key initiatives, such as the National Education Technology Plan and the Federal Communications Commission National Broadband Plan. With all the recent speculation around OER support via the federal and state government, there's a risk that the efforts will be disjointed and short term in scope and vision. Potential legislation, especially for "low-hanging fruit" initiatives such as the creation of free digital textbooks, can also pit OER advocates against the powerful commercial publishing industry.

Ongoing legal, language, awareness challenges

Licensing and interoperability questions will continue to materialize in the OER space. While the NIH Public Access Policy is fulfilled by depositing scholarly articles under any Creative Commons license, only the most liberal Creative Commons license--CC BY--implements all the provisions of the Budapest Open Access Declaration. The OER movement is poised to greatly further global access to and participation in education provided a critical mass of educational institutions and communities interoperate legally and technically. If OER are to gain traction at the state and federal levels, the community needs to address baseline copyright questions. Education would be in order, especially in communicating to policymakers what they need to know about copyright when they're thinking about making investments in OER. Like Open Access, there are various definitions of Open Educational Resources. There is a longstanding problem in defining the core characteristics of open, and many legislative and policy documents conflate "open" with "free" (as in free of cost), "digital", "online", and other ideas. Perhaps as a result, there is poor awareness among policymakers as to what OER actually is. In addition, there's little awareness of what Creative Commons is. OER advocates should continue their education efforts to clarify the key concepts of OER for decision makers in Washington and elsewhere. The development of a CC US jurisdiction could provide another venue for policy work in OER.

Replication and collaboration

Based on Creative Commons' positive impact in the Open Access world, it is recommended that CC seek to replicate some of these actions for its work in the OER policy space. Creative Commons should develop a long term vision and work systematically and collaboratively with the OER community. Looking back at the work of the Science Commons project, the creation of the copyright addenda was seen as an intermediary step into informing and advocating for Open Access via Creative Commons licensing. Creative Commons should continue to be a steward for the open community in providing legal and technical infrastructure that enables the creation, use, and reuse of OER. The application of the generativity and innovation arguments could be explored within the education space, but should be tied to the specific expertise areas in which Creative Commons has the most specialized knowledge. Creative Commons is well positioned to partner with members of the OER and education communities, who can provide other types of unique knowledge and research, such as educational pedagogy.