Creative Commons, French Law for a Digital Republic, rights retention strategy, these are some issues relating to copyright that researchers encounter when publishing their research or which (re)appear when depositing them in HAL. It’s not always easy to find your way around This is why the CCSD proposed to Lionel Maurel, Deputy Scientific Director Open Science, Scientific Publishing and Research Data at the InSHS of the CNRS, to animate a webinar last May 30 devoted to the use of Creative Commons licenses in the framework of HAL repository.
Everything that is not forbidden is allowed
As a reminder, the licenses are a way for the author to formalize his consent to the uses of his work. The Creative Commons licenses, discussed during this webinar, combine several options and form 6 types of contracts: the simplest is the authorization to reproduce and distribute (CC) so long as attribution is given to the creator (BY); the most restrictive includes all the options by prohibiting without the author’s agreement any commercial use (NC), any modification or derivative work (ND) and any sharing other than in the initial conditions (SA).
Licenses can only be chosen by the creator. A third party, such as the publisher of a journal for example, must necessarily obtain his/her agreement. Note that different versions of the same work can be distributed under several types of license. For example, the preprint and the postprint can be distributed under a Creative Commons license while the published version, if the author has transferred his rights to the publisher, is only distributed with a copyright.
Deposit in HAL: five use cases
There is nothing better than relying on practical cases to address these sometimes thorny issues. Lionel Maurel presented five of them, developed with the HAL ambassadors. They are summarized below.
The author of an article published in a journal available only by subscription or for a fee wishes to deposit it in HAL as quickly as possible and with a Creative Commons license.
As he has assigned exclusive rights to the journal’s publisher, he has assigned the right to reproduce and distribute the article. This use case gives Lionel Maurel the opportunity to remind us of the article 30 of the French Law for a Digital Republic : this concerns all scientific writings, result of a research activity funded for at least half public funds and published in a periodical that appears more than once a year. In this cas, the author may distribute the accepted version of his manuscript without exploitation as part of a commercial publishing activity. Any restrictions on distribution in an open archive can not exceed 6 months after publication for STM articles and 12 months for SHS articles. The HAL deposit form makes it possible to manage these embargo periods if the publisher requires an embargo for the distribution of this version.
In this use case, if the criterion on the origin of the funding is fulfilled, the author can thus deposit in HAL the accepted version (or postprint) and nothing opposes to distribute it under a CC license. Lionel Maurel then suggests choosing the NC option (no commercial exploitation).
The second use case is that of a chapter in a collective book, signed by three authors. This contribution contains illustrations, and associates a software and a database. There is a contract with the publishers, but the authors wish to deposit in HAL the preprint with a CC license.
This use case is not covered by article 30 of the French Law since it is about a chapter or a book. However, it allows to specify that :
- the authors must agree on the choice of license,
- they cannot grant more rights than they have themselves: for example, they must obtain the authorization of the author(s) of the illustration(s) they use if they wish to distribute them with a CC license in HAL. One option is to use the mention ‘all rights reserved’ for the illustrations concerned.
- the license applies to the text and does not extend to the associated software and database.
- Authors are bound by the terms of the contract signed with the publisher. If the contract includes a clause authorizing the use desired by the authors, they will then be able to distribute their preprint under a CC license.
The third use case raises the issue of derivative works, since it concerns a translation. The original article is distributed under a CC-BY license and the author realizes that the translation distorts the text (notably by making cuts).
Even though the only constraint of a CC-BY license is that the author and source must be cited, it however preserves the author’s moral rights, which are inalienable. The translator is at fault here: he has distorted the work and has therefore violated the author’s moral rights. He should have explicitly indicated any changes.
The rights retention strategy is addressed with the fourth use case: the deposit in HAL of an article produced by a project funded by one of the member organizations of cOAlition S, such as the ANR or the European Union.
The aim of this strategy is for authors to retain sufficient intellectual property rights to facilitate immediate open access, and proposes them to use a CC-BY license to the different versions of their manuscript as soon as it is submitted. With this license, the rights of reproduction and distribution are open to all and cannot be transferred to a single party (the publisher). If the article is accepted and published, the postprint can be deposited in an open repository without embargo.
Finally, the last use case presented by Lionel Maurel is that of a PhD thesis in chemistry. The author wants to distribute his thesis under a CC licence, but some points of the thesis could be patented. It is reminded that the thesis and the invention are different objects: the licence will only apply to the text of the thesis. The doctoral student, as the author, has the option of distributing his thesis online and choosing a licence. However, when it comes to inventions, there are precautions to be taken: to obtain a patent, you need to prove the anteriority of the invention, and to protect it, you need to ensure that the invention has not been disclosed. To secure the process, it is therefore preferable to publish the thesis after obtaining the patent.