Dual licensing and exclusive rights
Ross Mounce asks:
How does dual licencing work when one license flatly contradicts the other e.g. CC-BY vs Elseviers “exclusive right to publish & distribute”
Here‘s the problem he’s referring to:
“Elsevier is granted the following rights:
1. The exclusive right to publish and distribute an article, and to grant rights to others, including for commercial purposes. …”
This is indeed very confusing. When the work is first created, the author has (by copyright law) exclusive right to publish, distribute, and grant rights. Then the author makes an agreement with Elsevier that (a) grants Elsevier exclusive rights to do these things – which I take to mean that, they, the author, are excluded from doing these things (and everyone else is too, but they were already excluded by copyright law). But author and Elsevier also made an OA agreement that (b) requires Elsevier to distribute the work under a CC license. Once Elsevier does (b), as required, it no longer has an exclusive right to publish and distribute, because it has granted those rights to others (which it was able to do since the author grants the right to grant rights). (The grant is conditional on attribution, etc.) The wording “grant the exclusive right to publish” is very confusing since Elsevier by OA agreement is required to turn right around and relinquish some of that exclusivity.
Elsevier might retain the right to publish and distribute in ways other than what they licensed, e.g. without attribution, or without a statement of the CC license. That is, it is free to dual license, while the author is excluded (by contract) from dual licensing. But that in no way negates the CC license, which is irrevocable.
But I don’t know what the OA part of the agreement looks like. If it doesn’t say that every copy that Elsevier makes must carry the agreed CC license, it’s not worth very much as an OA agreement, since the door would be open (legally) to dubious practices such as the one you observed: they can meet the OA agreement by publishing with the CC license for a year, say, and then remove the license statement. Then people who don’t know about the CC license will be tricked into paying them money, even though they don’t need to. (The absence of a license notice does not imply the absence of a license.)
To answer your question: (1) The statement about exclusive rights is not a license, it’s part of a contract that the author has with the publisher, where the author agrees to give up rights (be excluded) in exchange for something else. It has no bearing on users of the material; there is no dual licensing here. Exclusivity comes from copyright law, not from any proclamation the publisher makes. (2) Even if this were a dual license, licenses cannot take rights away, so there is no way that any license can contradict or modify any other license. If you can do A because of license X, and you can do B because of license Y, and you can do A and B, no matter what the licenses may pretend to say about prohibitions on A and B. Prohibitions in a license can only be conditions on the exercise of rights: ‘you can do A if you do P’ (e.g. you can copy if you attribute) does not mean ‘if you do A you have to do P’ because you can perfectly well do A without P if a different license lets you. ‘You can do A only if you do P’ or ‘Joe has exclusive rights’ would be a prohibition, and a license, no matter what it claims, cannot globally prohibit anything that was not already prohibited (by copyright law).
It is possible for a contract to prohibit a party to the contract from doing something. This is why libraries are prohibited from doing things with journal articles (like text mining) that would otherwise be permitted under copyright law or a CC license.
(Also note that when you pay for access to an article, that has nothing to do with copyright. The ‘license’ granted to you in exchange for payment is for access, not the ability to copy. And a CC license does not require anyone to make the material accessible.)
IANAL, TINLA, etc.