I have recently published a book chapter (on Shadow Libraries) in a very fine collection that was published in print in January and digitally just now, in June. The digital edition contractually promises to be open access with a CC BY-NC-ND license (yes, I know, the hardcore OA crowd are baying “that’s not open access” etc. but I really liked the book concept and wanted to write for it etc.).
However, the question arises in this dual licensing scheme of what actually remains under copyright and what is openly licensed. Is it the text that is now open or the full expression of the text in its full and individual context? For example, the book version has specific pagination, typesets, layout, and so forth, while the webpage has a different set of digital characteristics and framings. These features might remain distinct to each version and under different intellectual property regimens.
Perhaps of some significance, in English law, the relatively recent THJ v Sheridan case ruled (basically) that merely copying/photographing an existing work would not cross the barrier for originality and a new copyright/derivative work.
This is relevant because it might be that the NoDerivatives license does not allow me, for example, to print a PDF file from this work so that I can encapsulate it in a repository, because that might be considered a new derivative work. I think this is probably not the case, because it doesn’t contain sufficient originality to engender a fresh copyright, as per the above cited case. But then we are not working under English law here. The contract will be based and judged in America. But the question persists. If I copy the text of that chapter and put it into a Word document, is that a derivative work? Or because I haven’t modified the text at all, is it just “the work” itself? Have they licensed the text or have they licensed a web page in its totality?
I had assumed that the important thing, in terms of Presses pursuing these dual-licensing strategies, was that citation norms often require pagination for the most part, although we can see that this is, in many ways, potentially silly in the digital age. Nonetheless, the book version retains a distinct value for this purpose.
But regardless of whether they are happy about it, the Press has contractually agreed that all of those publications will be by BY-NC-ND. If they are considering the implications of that, probably the most important thing is the likelihood of abuse or even likely loss of revenue, rather than just the theoretical possibilities. And I would say it is relatively low risk. The physical book retains much value for its flexibility in terms of random access (flicking to a page), but also for sequential reading (much easier on the eyes). Having a relatively openly licensed digital version, as we have said for many years, probably doesn’t actually erode the value of the book.
But we will see. I noticed that the license wasn’t yet being applied to the work and so contacted my editors who have been superb in passing this up the chain and thinking through what this means with me.
Image: An image saying CC BY-NC-ND (Umberto on Unsplash)
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