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Does research constitute "derivative works"? 
6th-Sep-2014 03:53 pm
pic#111812164 bunsen burner

The GNU Free Documentation Licence states that "derivative works" must also be distributed under the terms of the FDL. This is the "cancer" by association that Mr Ballmer (Microsoft) famously criticised the related GNU General Public Licence for software (i.e. preventing the usual monopolistic behaviour of the monster from Redmond). It has become noticeable that academic research published via various permutations of the Creative Commons licences are then cited in subsequent subscription access journal articles. Doesn't this maintain unfairly the subscription journal system? If citation of previous research (published open access) makes a new article a "derivative work", shouldn't that article be distributed also via open access? How would researchers respond to this "licence consequence"? Would researchers prefer to reject citation of open access articles, in order to continue submission of work to subscription access articles? Or, would researchers be more willing to publish their work open access if they know any cited works would also be compelled to be published also open access? It is annoying that researchers cite my open access work in new research articles, that are then published in subscription access journals (the motivation for this post!).

Comments 
6th-Sep-2014 05:44 pm (UTC)
I mean I'm not a lawyer or anything but it seems obvious that Paper A which cites Paper B is not "derivative" of Paper B, on that basis alone. I suppose it could be construed as derivative in the event that Paper A reused, for example, code that had been publicized under a CC license by Paper B, but that does not seem to be the situation you are querying. In short... no.
6th-Sep-2014 05:55 pm (UTC)
Also not a lawyer, but I do teach about copyright law (and Creative Commons). And this is generally right, IMO -- citation alone does not make a 'derivative work.' Short quotes or paraphrases would also almost certainly be covered under the fair use provisions, as well.

If they are using more substantial elements of your creative output*, such as a paper that is really just a retooling/restructuring of an existing paper, you probably have a stronger case.

*Note that the facts and information in your research are never protected by copyright, Open Access or not. If you demonstrate that 21 of every 25 monkeys is in fact an awesome monkey, the whole world is free to reuse that information as they see fit from a copyright perspective -- it's only the tangible expression of that idea (in your beautifully written paper) that is protected.
7th-Sep-2014 04:20 am (UTC)
Was gonna say this, in a less eloquent manner.
7th-Sep-2014 09:44 am (UTC)
Yup, what palinurus said!
8th-Sep-2014 03:54 pm (UTC)
A good example of a derivative work is Pride, Prejudice and Zombies.

If I was writing a paper about the obsessiveness of pop culture with zombies, I would cite PP and Z (which is based off of a now out of copyright material, and available through the Guttenberg Project, itself covered by CC).

But at no point would I consider my paper derivative work -- I am just following good academic scholarship, regardless where I have my paper published.

Now, if I wrote a book called "pride, zombies and vampires" that totally lampooned all this, now I would looking at derivative work.
11th-Sep-2014 10:11 am (UTC)
Understood; the post was a weak attempt to find a way to respond in opposite to the Elsevier "take-down notice". As said, it is annoying that open access research is _cited_ in further research restricted by subscription access journal charges. That's the price of freedom.
12th-Sep-2014 04:18 pm (UTC)
Given that Creative Commons licenses are generally less restrictive than copyright, and citing another copyrighted paper is considered fair use, it seems unlikely that citing a CC paper would not be fair use.
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