Why CC BY-NC Licenses Are Still Necessary in Open Access Book Publishing

On February 13, UK Research and Innovation released their Open Access Review: Consultation, outlining a proposed Open Access policy for the UK’s research councils, which are in charge of funding scholarly research.

As already remarked by Lucy Barnes of Open Book Publishers, the UKRI review explicitly rejects CC BY-NC (Attribution–NonCommercial) licenses as compliant with its definition of Open Access, including for monographs, book chapters, and edited collections:

8. For monographs, book chapters and edited collections, UKRI’s proposed policy would apply from 1 January 2024, unless a contract has been signed before this date that prevents adherence to the policy. In summary, the proposed requirements are for the final version of record or the peer-reviewed author’s accepted manuscript to be made free to view and download via an online publication platform, or an institutional or subject repository. OA would be required within a maximum of 12 months of publication, with a preference for immediate OA. For the OA version, a CC BY licence is preferred but CC BY- ND would be compliant.

Furthermore:

52. UKRI supports innovation and therefore a CC BY-NC (non-commercial) reuse licence would not be compliant with its proposed OA policy. Stakeholders have also raised concerns that CC BY-NC could act as a barrier to non-commercial reuse due to ambiguities about what constitutes ‘commercial’ and ‘non-commercial’ reuse in relation to research activities.

A clause with similar implications was included in Plan S:

The public must be granted a worldwide, royalty-free, non-exclusive, irrevocable license to share (i.e., copy and redistribute the material in any medium or format) and adapt (i.e., remix, transform, and build upon the material) the article for any purpose, including commercial, provided proper attribution is given to the author. cOAlition S recommends using Creative Commons licenses (CC) and requires the use of the Creative Commons Attribution (CC BY) 4.0 license by default.

The rationale behind these clauses excluding CC BY-NC from the definition of “true” Open Access is that the content of open access publications never should be constrained by the prohibition on commercial use. For example, it may be imagined that usage of scholarship from a medical paper that could contribute to a commercial application that saves thousands of lives would be prohibited by a CC BY-NC license. This would of course not be desirable (even though it remains a question whether it’s ethical to capitalize on publicly funded research to the extent the current pharmaceutical complex is doing).

Yet at the same time, these clauses bely the skewing of both the UKRI Review and Plan-S toward the publishing practices from Medicine and STEM without taking into account the specific histories and practices of the Humanities and the Social Sciences (HSS), while also showing the limits of the CC model in the context of scholarly research in general.

The Limits of Creative Commons

The Humanities and Social Sciences, different from other fields of inquiry, have historically used the long form argument facilitated by the monograph as their primary medium of scholarly expression. Whereas a field like mathematics or chemistry publishes most of its primary research output through journal articles in standardized repositories (such as arXiv and its spin-offs) without much interference of editors or publishers and without much regard for the form of publication, for HSS the formal qualities of the book – its design, layout, and typography – are an essential aspect of the work.

In this context, Creative Commons, widely adopted within the Open Access movement as the default licensing system, shows its essential incompatability with the scholarly monograph, namely its inability to distinguish between the rights to content and the rights to form, and to appropriately value and protect the labor that is invested on either side of the equation. CC licenses were basically developed for born-digital content, which was conceived of as formless, pure “information” (blissfully ignoring the reality of the enormous carbon footprint of cloud services and their obfuscated silicon-based material carriers produced under dismal labor conditions).

Now that the turn towards Open Access in scholarly publishing is increasingly shifting its attention from journal articles to monographs, it appears that the baseline assumption is that monographs are simply long-form articles, to which the same conceptual frameworks would apply. Yet when it comes to monographs, specifically within HSS, the support for the importance of freely accessible content of publicly funded scholarly research should go hand in hand with a proper valuation of the labor and investments that go into a finely crafted scholarly monograph. I am afraid that the Creative Commons model here shows its limits.

Why Keep CC BY-NC

The reasons why punctum books is arguing for the inclusion of the possibility of CC BY-NC licenses for scholarly monographs (and therefore against the limitations set by both the UKRI and Plan-S) is not because we would reject commercial reuse of the content of the books we publish. We reject the monetization of the Open Access books as material object, whether its carrier is paper or silicon.

This does not mean that punctum books is against the monetization of its books tout court. As a publisher we simply want to maintain a minimum of control of who profits from our work. We are happy that our works are distributed through non-profit channels such as the DOAB or unglue.it. We also have the digital analogues of our books filed at Project Muse, and in the near future JSTOR. We are completely fine with our books floating off to the edges of the Internet and ending up on any device anyone may carry.

But we want to have at least the symbolic capacity to say no to commercial initiatives that suck the oxygen out of the Open Access landscape and try to monetize something to which they made no contribution in terms of either form or content, while failing to constructively engage the Open Access community by creating shared open infrastructure – without sharing our desire to make scholarly communications essentially more open.

A case in point is the Open Research Library of Knowledge Unlatched, which essentially duplicates the work of DOAB while boasting centralized access to open access monographs on a for-profit platform built on proprietary software. Critical analyses of ORL have already been made by ScholarLed and in an LSE blog post by Marcel Knöchelmann, for example, and they need not be repeated here. But for me the core is this: How do we, as Open Access publishers, committed to open infrastructures and open source solutions that will make scholarly publishing open not only to read, but also to write and to publish, protect our work from the commercially driven parasites lying in wait to create an Elsevier 2.0? That is what a CC BY-NC license (and variants) provides minimal protection against.

The battle for Open Access remains a highly asymmetric one, where resources are distributed most unevenly. Let us not shoot ourselves in the foot, believing that our non-profit aspirations make us invulnerable. Let us not abandon the few weapons that we have, simply for the sake of an Open Access chauvinism that ignores our shared reality: We are not there yet, and the struggle will be protracted.