First of all, let me say that I found the piece of work I’m about to discuss really interesting in its own right. I know one of the co-authors and I’m an avid Soundcloud user (for electronic music, no-less!) so I thought this would be right up my street. The work in question is Allington, Daniel, Byron Dueck, and Anna Jordanous, ‘Networks of Value in Electronic Music: SoundCloud, London, and the Importance of Place’, Cultural Trends, 24 (2015), 211–22 <http://dx.doi.org/10.1080/09548963.2015.1066073>. It’s open access because RCUK policy demands it must be. This is great because my university doesn’t subscribe to “Cultural Trends” and I am interested in the topic. It’s also great that it’s openly licensed, since I can save you the hassle of visiting the publisher’s site by posting a copy here.
So far so good. However, as I was reading the work I noticed that quotations were a little strangely distributed throughout, with some participants named, others not. I then read footnote number four:
While the majority of our interviewees expressed no desire to be anonymised, the Creative Commons licence under which RCUK policy requires this article to be published leaves its authors with no ability to protect their informants from misrepresentation, and so we have elected not only to keep their identities secret, but also to avoid quoting their words directly. We have, however, quoted from statements made by dentified participants in the panel that we organised, because its permanent record is publicly available with rights reserved. Information collected from the SoundCloud website was already in the public domain.
So, to clarify: the demand from the Research Councils for the CC BY license (of which I know Daniel Allington to be a vocal critic) and a lack of certainty around their interpretation has led this research group to alter their methods and practices. The only problem is that, as I read the terms of the CC BY license, this is a mis-reading of what would be allowed. I am not a lawyer so none of the below has legal standing and it seems, in light of this, that guidance from above would be helpful.
My reading of the license
An example and then quotation from the license itself will help to show why I think this is a mis-reading of the license. The first article I ever wrote for a journal is paywalled and not OA. Not even green OA since the publisher won’t allow it. Sorry. I was young, I was foolish etc. In any case, even though you can’t easily read it, it’s here. This piece is not openly licensed.
Now let us say that I write the following:
In his article, Martin Eve approvingly notes that metamodernism “accurately describes” the literary project of Wallace and Pynchon.
Looks good, right? After all, I use the phrase “an aim accurately described by ‘metamodernism’” in the piece. But this completely distorts the purpose of the line in question since I go on to note that the term is so broad that it could be applied to all postmodern literature. I could also write, “Eve approves of fascism”; it would also be untrue.
Whether a work is openly licensed or not does not affect whether people can or will write things that are not true. It doesn’t affect whether people will misquote you. And it doesn’t affect one’s legal right of redress. I could have written “Martin Eve thinks ‘metamodernism’ is the best thing ever” because I used the word “metamodernism” in that copyrighted piece. It’s not true and it also doesn’t mean that someone could do this even if the work was openly licensed. However, in the above instance, if the work was openly licensed, here is what I would do:
- In the first case (quoting with distortion), I would write to the author and point out that they had misread me. I might leave a comment. I might write to the editor of the publication, write a counter-article. As we’ll see below, I would demand my name be removed. etc.
- In the second case (libelous ascription of personal/political views), I would demand an apology/retraction and could take someone to court.
I can do this even when work is openly licensed, since the legal code of the Creative Commons Attribution License states (my emphasis):
Moral rights, such as the right of integrity, are not licensed under this Public License, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise.
As someone re-using a CC BY work, also:
Nothing in this Public License constitutes or may be construed as permission to assert or imply that You are, or that Your use of the Licensed Material is, connected with, or sponsored, endorsed, or granted official status by, the Licensor or others designated to receive attribution as provided in Section 3(a)(1)(A)(i).
Also, if I don’t like what you have done with my words, under the legal license provided by Creative Commons:
If requested by the Licensor, You must remove any of the information required by Section 3(a)(1)(A) to the extent reasonably practicable.
A re-user must also:
indicate if You modified the Licensed Material and retain an indication of any previous modifications
So, let’s say my words appear in a CC BY article and someone mis-uses them:
- They have breached the license if the right to integrity is violated (i.e. cut-up to make it seem that the work said something it didn’t and leaving the attribution in place to make it seem so). I can level a copyright claim against them and perhaps other action if I wish.
- If they claim that I endorse what they have done with my words, they have also violated the license and I can level a copyright claim against them and perhaps other action if I wish.
- I can ask for the attribution to be removed, thereby fixing the problem.
- None of my other legal rights are affected if they libel me. The truth of an ascription and whether it is libelous is not a matter of copyright.
Daniel Allington has previously been extremely critical of CC licenses without an ND clause. He has asked: “But what does it mean to ‘remix’ an academic paper?” (I’d say it means extensive quotation beyond fair use into a new derivative work (say a paper that did a line-by-line commentary on another)) and he has asked: “What if the marketing department of one of those social media sites decides to ‘manipulate’ what I have written by deleting all the negatives and exaggerating all the positives?” (my answer: they are violating the license since they are implying that you endorsed their wrong use of your words and because this could be prejudicial to your reputation and you therefore have legal redress, as you would in a piece that was not openly licensed, which they would also probably quote).
In conclusion, I would genuinely like to know whether a lawyer peer-reviewed this article, its footnote and approved (it would be really worthwhile to see the feedback). If not, then it’s just one non-lawyer (me) versus others but it is resulting in actual change on the ground. I also have quoted the relevant portions of the license above that I feel render this paper’s view a mis-reading of the CC BY license. I remain of the belief that more liberal licenses could have benefits for the academy and beyond. Others disagree. It would be helpful, though, if RCUK, Creative Commons or similar bodies could issue statements from lawyers and/or case-law histories on these types of question, as they are resulting in changing research practice (and possibly less-rich outputs) based on what I feel is a misconstrual of the RC’s intents and the licenses’ wording.