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 to connect related themes, 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 in the OER movement.

The Science Commons project at Creative Commons has been involved in the Open Access movement since its conception in 2005. Scholar and OA advocate Peter Suber defines Open Access as “literature [that is] is digital, online, free of charge, and free of most copyright and licensing restrictions.” The three most widely used explanations of Open Access come from the Budapest (February 2002), Bethesda (June 2003), and Berlin (October 2003) meetings. The Budapest Open Access Declaration describes Open Access as the freedom of users to “read, download, copy, distribute, print, search or link to the full texts of 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 Creative Commons Attribution license--the least restrictive license in the suite--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 the Budapest standard.

Creative Commons launched its Scholar's Copyright Project in June 2006, the forward facing clearinghouse for Creative Commons' work within the Open Access movement. Creative Commons has engaged with OA issues with a wide range of individuals and groups, including the Scholarly Publishing and Academic Resources Coalition (SPARC), libraries, academic institutions, publishers, standards bodies, and non-profit organizations.


Individuals Publishing Open Access Articles

Almost all academic faculty must publish their scholarly work in order to receive tenure at their institutions, and authors know that publishing in the most prestigious journal possible is desirable. As a result, scholarly journals find themselves wielding a disproportionate amount of power, since authors want to publish and journals are the gatekeepers. Thus, most journals require authors to transfer the copyright to them as a prerequisite to publication. In this way, publishers are then able to take advantage of the authors work by retaining exclusive rights to the publication and distribution of the work. Some authors wish to retain some rights to the academic scholarship they produce.

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 and MIT have adapted the engine to meet the needs of their faculty.

Creative Commons has seen that the copyright addenda are useful as a faculty education tool, and the addenda continue to help expose some of the drawbacks to the traditional scholarly publishing process. 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 Open Access, when push comes to shove, they will follow the rules of the journal publisher 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

There's been a groundswell of Open Access support within universities over the last few years. 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. That paper describes the process and best practices of implementing an Open Access policy at a university. 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 faculty 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 was a result of 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 for 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 230 Open Access policies in place around the world. Many of these are university policies, while others are government or institutional policies. Some university OA policies apply across the university, some bind specific departments, and some cover only student theses.

Nguyen noted 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 suggest the adoption of a policy that is binding upon the entire faculty, or as many faculty as possible. It was recommended that university Open Access policies at 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

According to David Bollier in Viral Spiral, in some fields--notably biology and bioinformatics--OA journals are among the top-cited publications. Bollier and others note that releasing journal articles as OA increases the likelihood that it will be discovered and cited, which enhances the overall impact of an article and the reputation of the author.

Via the Directory of Open Access Journals (DOAJ), there are 5493 journals in its directory, with 2,312 of the journals searchable at the article level. In total, there were 453,342 articles available as of October 2010. 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 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.

Some commercial publishers have adopted liberal copyright policies. For example, the Nature Publishing Group (NPG) offers a progressive policy for a few of its publications. One of the leading examples is Nature Precedings, a preprint archive of the NPG. That publication is licensed CC BY. Nature also utilizes the “more free” Creative Commons licenses for publication materials 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 the non-commercial condition. This sort of policy allows authors to split access of the material--a portion is freely accessible, while access controls and embargo periods remain for the rest.

NIH Public Access Policy

One federal initiative within the Open Access landscape been the National Institute of Health's (NIH) Public Access Policy. NIH spends $28 billion on research each year, resulting in about 65,000 peer-reviewed articles. The NIH Public Access 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 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 OA 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 condition--is sufficient to fulfill the deposit requirement. Alongside SPARC and the Association of Research Libraries, Creative Commons worked with Michael 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.

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. The Federal Research Public Access Act (FRPAA) would require that 11 U.S. government agencies with annual extramural research expenditures over $100 million make manuscripts of journal articles stemming from research funded by that agency publicly available via the Internet.

Protocol for Implementing Open Access Data

An important initiative for the 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 public domain dedication and Open Data Commons Public Domain Dedication and 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 other applications of CC licenses and public domain tools 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 explored a progression of arguments backing up the need for Open Access. 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 and textbooks, spearheaded by the Student PIRGs, Students for Free Culture, and SPARC and its student-focused offshoot, the Right to Research Coalition.

Other 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 concept communicates that the ability to conduct semantic text mining on scientific literature is crucial to scientific innovation. Essentially, being able to conduct massive experiments on large collections of text can give researchers an over-arching view of a particular field and help uncover trends that no individual human researcher could discern.

Advocacy Efforts

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 tools and technical infrastructure to enable the sharing of scientific information, educational materials, and cultural resources.

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 renowned 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 policies. It was through this collaborative process that the Science Commons Data Protocol emerged as the best—and possibly only—solution to the challenges collectively identified. 

OER policy challenges and suggestions

Similarities between OA and OER

Some of the lessons learned from the Open Access movement are immediately relevant to open education policy and offer areas for meaningful action. For instance, just as traditional scholarly journal publishers fear that Open Access journals will supplant their business models, educational textbook publishers fear that open content and open textbooks will negatively affect their market share. The high cost to users of academic journals and educational materials is a criticism shared by advocates of Open Access and Open Educational Resources. For instance, the Open Access movement champions the concept that users shouldn’t have to pay twice for access to the research the public funds, calling for “public access to publicly funded research.” Similarly, the OER movement suggests, “public access to publicly funded educational materials.”

The flourishing Open CourseWare (OCW) movement, a subset of the overarching OER community, has shared several similarities with the OA movement. University advocates of OCW have explored various models for adoption. Some garner champions from university administration--MIT’s then President Chuck Vest made MIT OCW a priority by pushing for all MIT course materials to eventually be released as OCW. The University of Michigan’s Open.Michigan initiative began within the Medical School, and is branching out to include several other schools and departments. And, some OCWs bubble up based on individual interest from motivated students and faculty. In any case, OCW proponents have encountered similar concerns to OA publishing, including communicating to faculty, administration, and students the benefits to sharing under open licesnses, managing copyright concerns, and integrating OCW with other university initiatives.

Even though OA and OER share various similar concerns, the motivations in creating and sharing OER are different than the motivations for Open Access. 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. This is not to insinuate that there’s not a broad benefit to sharing educational content widely on the Internet, but the initial motivations may be different in the creation of open educational resources. 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. There’s been increasing interest from policymakers in the benefits of publicly funded OER. Initiatives supportive of open education have been discussed in various places within the federal government--the U.S. Department of Education’s Race to the Top program, National Education Technology Plan, Proposed Grant Priorities, and National Learning Registry, the FCC’s National Broadband Plan, Department of Labor Community College and Career Training Initiative, and in proposed federal legislation. States have been involved too, supporting digital textbook initiatives and adopting open licensing policies for competitive grants.

Ongoing challenges

If OER are to gain traction at the state and federal levels, the community needs to address baseline copyright questions. As with OA, there’s a general need for OER education for a wide variety of individuals and groups. Michael Carroll’s white paper mentioned above helped explain to grantees and researchers some of the primary copyright considerations with regard to complying with the NIH Public Access Policy. There’s a need for a similar sort of explanatory document and guidance with regard to the fundamental copyright considerations in creating and sharing Open Educational Resources. This document should address some of the baseline copyright considerations, address the management of copyrights, and offer information about open licensing options. This type of information will be useful for policymakers, educational publishers, curriculum coordinators, school administrators, and teachers.

Like Open Access, there are varying 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. OER advocates should continue their education efforts to clarify the key concepts of OER for decision makers in Washington and elsewhere. While there are varying definitions of OER, the fundamental assertion is that teaching and learning materials funded by the government should be released under a copyright license that allows for their free access, redistribution, and re-purposing, or made available via placement in the public domain.

Other challenges currently being addressed include how to include OER in materials adoption processes (making sure the resources meet various educational and social standards), and how states and districts can collaborate on creating and disseminating OER as a way to support innovation in education in a cost-effective manner.


Creative Commons has been involved in the evolving Open Access movement over the last several year, offering useful legal tools and analysis in support of individual faculty, universities, and institutions wishing to engage in OA. As the Open Educational Resources movement grows, Creative Commons and other OER players should look to the work in the OA space and replicate best practices. OA and OER education and advocacy should support each other in their advancement toward similar goals.