While I agree with much of what they say, in a post on the LSE Impact Blog, Meera Sabaratnam and Paul Kirby write, of the latest round of HEFCE consultations on OA for a post-2014 REF:
Second, the licensing battle appears to have been deferred. This relates specifically to RCUK’s enthusiasm for a very permissive commercial, derivative re-use blanket licence to be applied to all research (CC-BY). Many scholars have responded with scepticism deriving from fears about re-purposing, inadequate attribution, royalty losses and dilution of the authorship, without any clarity over the exact benefits of the new licences, especially in arts, humanities and social science subjects. The current HEFCE proposals will allow authors and publishers to work within existing copyright and fair use provisions if they wish, which will likely satisfy the sceptics more than the enthusiasts. However, in the absence of any legal clarity about the actual applicability and impact of the new licences this seems a good outcome.
This isn't how I read the proposed document at all. Paragraph 26 of the document reads:
“presented in a form allowing the reader to search for and re-use content (including by download and for text-mining), both manually and using automated tools, provided such re-use is subject to proper attribution under appropriate licensing.”
This seems to go way beyond "existing copyright and fair use provisions". Instead, in not specify a particular type of license (paragraphs 34 and 37), the licensing battle has been turned into a war: this requirement isn't met by fair dealings provisions and, instead, seems to imply that publishers should each come up with their own terms that extend this further. This looks like a massive can of worms to me. We'll get a proliferation of licenses -- none of which have any "legal clarity", especially compared to Creative Commons -- that each try to fulfil HEFCE's remits in the most restrictive ways, rather than aiming for the more ambitious option. I know that I am one of the enthusiasts, rather than sceptics (as mentioned), but unless I'm really misreading the HEFCE statement, they want more permissive licensing than just fair dealing, they just don't want to specify CC.
There are plans to introduce legislation later this year, from what I gather, that will allow text mining for non-commercial purposes under fair dealing. However, if universities capitalise on their research, then it becomes commercial. So, in that situation, fair use does not allow the reader to "search for and re-use content"; it is non-compliant.
I'm also not sure that I would want "the case-by-case exceptions" to be "made generously in favour of protecting academic freedom and equality". I think I'd far prefer it to be incredibly difficult to get an exception and for that to factor in the decision of where to publish (ie. this once more regulates the journal market and publisher behaviour).
In any case, some sensible points in the piece (and I like the last paragraph a lot), but these aspects were food for my thought.