The role of open licensing in open science
The open science movement encourages scientists to make scientific information freely available online, so other scientists may reuse and build upon that information. Open science has many striking similarities to the open culture movement, developed by people like Lawrence Lessig and Richard Stallman. Both movements share the idea that powerful creative forces are unleashed when creative artifacts are freely shared in a creative commons, enabling other people to build upon and extend those artifacts. The artifact in question might be a set of text documents, like Wikipedia; it might be open source software, like Linux; or open scientific data, like the data from the Sloan Digital Sky Survey, used by services such as Galaxy Zoo. In each case, open information sharing enables creative acts not conceived by the originators of the information content.
The advocates of open culture have developed a set of open content licenses, essentially a legal framework, based on copyright law, which strongly encourages and in some cases forces the open sharing of information. This open licensing strategy has been very successful in strengthening the creative commons, and so moving open culture forward.
When talking to some open science advocates, I hear a great deal of interest and enthusiasm for open licenses for science. This enthusiasm seems prompted in part by the success of open licenses in promoting open culture. I think this is great – with a few minor caveats, I’m a proponent of open licenses for science – but the focus on open licenses sometimes bothers me. It seems to me that while open licenses are important for open science, they are by no means as critical as they are to open culture; open access is just the beginning of open science, not the end. This post discusses to what extent open licenses can be expected to play a role in open scientific culture.
Open licenses and open culture
Let me review the ideas behind the licensing used in the open culture movement. If you’re familiar with the open culture movement, you’ll have heard this all before; if you haven’t, hopefully it’s a useful introduction. In any case, it’s worth getting all this fixed in our heads before addressing the connection to open science.
The obvious thing for advocates of open culture to do is to get to work building a healthy public domain: writing software, producing movies, writing books and so on, releasing all that material into the public domain, and encouraging others to build upon those works. They could then use a moral suasion argument to encourage others to contribute back to the public domain.
The problem is that many people and organizations don’t find this kind of moral suasion very compelling. Companies take products from the public domain, build upon them, and then, for perfectly understandable reasons, fiercely protect the intellectual property they produce. Disney was happy to make use of the old tale of Cinderella, but they take a distinctly dim view of people taking their Cinderella movie and remixing it.
People like Richard Stallman and Lawrence Lessig figured out how to add legal teeth to the moral suasion argument. Instead of relying on goodwill to get people to contribute back to the creative commons, they invented a new type of licensing that compels people to contribute back. There’s now a whole bunch of such open licenses – the various varieties of the GNU Public License (GPL), Creative Commons licenses, and many others – with various technical differences between them. But there’s a basic idea of viral licensing that’s common to many (though not all) of the open licenses. This is the idea that anyone who extends a product released under such a license must release the extension under the same terms. Using such an open license is thus a lot like putting material into the public domain, in that both result in content being available in the creative commons, but the viral open licenses differ from the public domain in compelling people to contribute back into the creative commons.
The consequences of this compulsion are interesting. In the early days of open licensing, the creative commons grew slowly. As the amount of content with an open license grew, though, things began to change. This has been most obvious in software development, which was where viral open licenses first took hold. Over time it became more tempting for software developers to start development with an existing open source product. Why develop a new product from scratch, when you can start with an existing codebase? This means that you can’t use the most obvious business model – limit distribution to executable files, and charge for them – but many profitable open source companies have shown that alternate business models are possible. The result is that as time has gone on, even the most resolutely closed source companies (e.g., Microsoft) have found it difficult to avoid infection by open source. The result has been a gradually accelerating expansion of the creative commons, an expansion that has enabled extraordinary creativity.
Open licenses and open science
I’m not sure what role licensing will play in open science, but I do think there are some clear signs that it’s not going to be as central a role as it’s played in open culture.
The first reason for thinking this is that a massive experiment in open licensing has already been tried within science. By law, works produced by US Federal Government employees are, with some caveats, automatically put into the public domain. Every time I’ve signed a “Copyright Transfer” agreement with an academic journal, there’s always been in the fine print a clause exclusing US Government employees from having to transfer copyright. You can’t give away what you don’t own.
This policy has greatly enriched the creative commons. And it’s led to enormous innovation – for example, I’ve seen quite a few mapping services that build upon US Government data, presumably simply because that data is in the public domain. But in the scientific realm I don’t get the impression that this is doing all that much to promote the growth of the same culture of mass collaboration as open licenses are enabling.
(A similar discussion can be had about open access journals. The discucssion there is more complex, though, because (a) many of the journals have only been open access for a few years, and (b) the way work is licensed varies a lot from journal to journal. That’s why I’ve focused on the US Government.)
The second reason for questioning the centrality of open licenses is the observation that the main barriers to remixing and extension of scientific content aren’t legal barriers. They are, instead, cultural barriers. If someone copies my work, as a scientist, I don’t sue them. If I were to do that, it’s in any case doubtful that the courts would do more than slap the violator on the wrist – it’s not as though they’ll directly make money. Instead, there’s a strong cultural prohibition against such copying, expressed through widely-held community norms about plagiarism and acceptable forms of attribution. If someone copies my work, the right way to deal with it is to inform their colleagues, their superiors, and so on – in short, to deal with it by cultural rather than legal means.
That’s not to say there isn’t a legal issue here. But it’s a legal issue for publishers, not individual scientists. Many journal publishers have business models which are vulnerable to systematic large-scale attempts to duplicate their content. Someone could, for example, set up a “Pirate Bay” for scientific journal articles, making the world’s scientific articles freely available. That’s something those journals have to worry about, for legitimate short-term business reasons, and copyright law provides them with some form of protection and redress.
My own opinion is that over the long run, it’s likely that the publishers will move to open access business models, and that will be a good thing for open science. I might be wrong about that; I can imagine a world in which that doesn’t happen, yet certain varieties of open science still flourish. Regardless of what you think about the future of journals, the larger point is that the legal issues around openness are only a small part of a much larger set of issues, issues which are mostly cultural. The key to moving to a more open scientific system is changing scientist’s hearts and minds about the value and desirability of more openly sharing information, not reforming the legal rights under which they publish content.
So, what’s the right approach to licensing? John Wilbanks has argued, persuasively in my opinion, that data should be held in the public domain. I’ve sometimes wondered if this argument shouldn’t be extended beyond data, to all forms of scientific content, including papers, provided (and this is a big “provided”) the publisher’s business interests can be met in way that adequately serves all parties. After all, if the scientific community is primarily a reputation economy, built around cultural norms, then why not simply remove the complication of copyright from the fray?
Now, I should say that this is speculation on my part, and my thinking is incomplete on this set of issues. I’m most interested to hear what others have to say! I’m especially interested in efforts to craft open research licenses, like the license Victoria Stodden has been developing. But I must admit that it’s not yet clear to me why, exactly, we need such licenses, or what interests they serve.
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