On Doing the Right Thing: The Rights of Readers
From the Studio: Publishing Infrastructure
I am super-excited and impressed by the American Anthropological Association’s (AAA) decision to make Cultural Anthropology open access—it's a bold move and one with few precedents in the social and human sciences. I'm not sure readers, or most anthropologists, will realize what a challenging step this is in the current context, but the AAA, the Society for Cultural Anthropology (SCA), and all the people involved are to be commended for taking it.
But that won't stop me from pointing to a serious problem that I think the AAA could very easily and quickly address.
The problem is this: Although we are calling Cultural Anthropology "open access," it is not at all clear—legally speaking—that it is. Specifically, the AAA, SCA, and Wiley-Blackwell all need to confirm for readers that the works being made available come with specific rights and duties—whether those rights are the ability to make a copy and distribute them, to preserve authorship, or to use them for educational purposes. If they don't make this plainly evident—on the articles as well as on the various websites—readers neither know what they can do with an article, nor are they legally protected if they merely think it might be okay. We need the AAA to be clear and specific.
But Chris, I hear you saying, you are just being difficult. Right here, on the Cultural Anthropology website, it says:
Articles in the Cultural Anthropology Journal on this site are freely available to download, save, reproduce, and transmit for non-commercial, scholarly, and educational purposes. Reproduction and transmission of articles for the above purposes, other than for personal use, should include the original source and author of the article. Use, reproduction, or distribution of articles from the Journal for commercial purposes is not permitted.
Fair enough. I get a warm and fuzzy feeling, and I know that Cultural Anthropology loves me and would never hurt me. I trust them, and they trust me, and after all, isn't that the world we all want to live in?
Yes, but alas it is not. Copyright law is what's known as a "strict liability" doctrine. This means that it does not matter if you love the law, hate the law, or don't even know about the law—you will still be breaking the law if you make an unauthorized copy.
But hasn't Cultural Anthropology authorized me with that statement? Maybe, it's not clear. A lawyer might advise you to be careful. But why mess around? There is a specific, legally enforceable solution: to grant a copyright license to the reader, which gives readers particular rights—rights the copyright holder (in this case, the AAA) can determine and set ahead of time. It clearly states for both parties what is expected, and it gives the reader a concrete, legally specific set of instructions about what is and is not appropriate to do.
In fact, the statement above is almost identical in purpose to a very well-established, defensible, legally specific, and standard copyright license: the Creative Commons attribution, noncommercial (CC BY-NC) license. This license would allow readers to do the very same things, but it would provide them with something more: the actual legal right to do so, without asking permission and without having to worry about whether the AAA or Cultural Anthropology really means what they say. It's just honest business and good policy to do this, and I urge the AAA and the journal (and Wiley-Blackwell also, assuming they will carry the open-access Cultural Anthropology articles in the future) to do it.
Perhaps you think I am just a shill for Creative Commons. Fine—write your own license. I don't care whether it is a CC license or not, I just want it to be a real, actionable, legal license that grants me the right to make copies, distribute the article, share it with others, without having to worry about whether I actually have those rights. If the AAA can write its own license, so be it, though it does seem like a huge waste of time and resources since Creative Commons licenses (1) are internationally standardized, (2) have ten years of research and testing behind them, and (3) are free to use, forever. Seems like a no-brainer to me.
Here is another reason to do this: because reader rights are author rights in this case. The AAA has bent over backwards to revise its author agreement to give authors expanded rights to do what they want with their articles. Kudos to them—they are awesome for doing this, but it is unnecessary in this context. Having decided to make Cultural Anthropology an open-access publication, the AAA could demand an author's copyright in full, and leave them with no rights whatsoever in the author agreement, but it can subsequently return all those to the author through a CC BY-NC license on the article itself. It's like magic! Nearly all the rights the AAA offers in its current agreement are available under a CC BY-NC license. Presto, two birds with one stone! The only change they might make in the author agreement (and it is not strictly necessary) would be a statement that both the author and the AAA agree to release the article under a CC BY-NC license.
But wait, don't order yet, here's another reason to do this. There is a standard definition of open access, which has been in place since 2001. Many open-access experts also define open access as being either gratis or libre. Gratis (for free, as in beer) means making the work available, but with limited or no rights for either authors or readers—for example, only the ability to read a work, not copy it or use it in any other way without permission. Libre (free, as in speech) means granting legal rights to authors and readers that allow them to make copies, print the work, distribute the work, use it in a classroom, discuss it online, take it to the field, give it to informants, and so on and so forth. We might all agree that open access is about more people reading our work—that's good. But what we should really be aiming at are ways to allow more people to use our work in all the diverse, serendipitous, not-quite-yet known ways that people inevitably and unpredictably do.
If we allow the AAA and Cultural Anthropology to define open access as merely the ability to read our work online, then we lose all those other rights. This is in fact what many larger publishers want to do—to co-opt the meaning of open access to mean readable but to reserve all rights to every other use to themselves, all the while getting lots of good press and good will for doing the right thing. But they aren't doing the right thing for scholars or for readers—only for themselves.
In the case of Cultural Anthropology, we the scholars need to be clear about what doing the right thing means and who it should benefit: our publics, our readers, our collaborators, informants, or subjects. We don't even need to argue for ourselves—authors—because it is part of the elegant magic of using copyright law to make work open and free that if we give the public the rights we think they should have to our work, then we get them too.