Home > Uncategorized > Dual licensing and exclusive rights

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.

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Categories: Uncategorized
  1. 2015-03-21 at 21:19

    Regarding access, there is a micro-issue that in a digital world, access requires copying, and the scope of that copying is blurry. But on the overall substance, IANAL either, but I agree with a lot of it. I assume that if the grantee turns around and restricts the rights, they can only do so on the part they control.

    In other words, though I doubt they’d break it down this way, it seems to me you could model this as saying that there is a corpus of work that when you give to the grantee to control takes on its own identity and can be controlled. Pragmatically, independent of what courts have done, it’s pretty hard to imagine that the “exclusive” part of what is granted can be construed as other than either [1] a promise to stop giving out new such licenses (most reasonable interpretation in my mind), [2] a promise to go invalidate other such licenses (impractical if not outright legally dubious), or [3] a claim that you never made such licenses in the first place (risking that the contract granting the new rights is put into jeopardy in part or in whole due to a breach).

    In the standardization of ISO ISLISP, we had a similar issue (dual licenses that conflicted in nature) that we solved a different way. Parties to the technical decisions that went into the standard’s design wanted the result in the public domain, even though ISO wanted to own the result. We approached this by building on the ANSI Common Lisp experience, where we’d concocted a similar end-run solution. We just tried to be a bit more formal about some details we’d left to chance with ANSI CL. (Note: We didn’t have a lawyer review the end result in the ISO case, but neither did any ever challenge it.)

    Essentially what we did was to produce a document out-of-band and place it first into the public domain. Then when ISO wanted us to offer them the copyright, we simply told them that it wasn’t legally possible for us to do so because we no longer owned it. Instead what we did was to write a notice on the cover reminding ISO that they could take the public domain material, conjure a custom document by adding their own headers, and copyright that. The notice can be seen in the cover page of this document:
    http://islisp.info/Documents/PDF/islisp-2007-03-17-pd-v23.pdf

    What led us to take this approach is described in my story of the ANSI Common Lisp experience:
    Common Lisp: The Untold Story
    http://www.nhplace.com/kent/Papers/cl-untold-story.html
    I apologize for the length of that paper, as not all of that story is relevant to this forum. But the story does give a very concrete sense of how my and others’ personal history led to doing better with the copyright on Common Lisp’s specification, and how our experience with ANSI CL led to doing better still on ISLISP’s copyright.

    We didn’t say so, as it didn’t need to be said, but really anyone could have done the same. In effect, what they’d be copyrighting is a version that was signed by them, and while anyone could make their own signed copy and copyright that, such a separately signed copy was not a child of the ISO-signed copy. And so the dilemma was resolved successfully, at least in the sense that it was never challenged.

    Alas, I’m led to believe that much of the law is about who can intimidate who most successfully, not actually about going to court. That’s quite an unsettling prospect, leaving little closure. But so it goes.

    Footnote: Ironically, ACM wanted me to sign over rights to “Common Lisp: The Untold Story” as a condition of publication. I declined. It was an invited paper and they weren’t paying me for any value they’d receive. What were they going to do, uninvite me? I’d already given the talk. I guess they could have declined to publish it, but then I am no longer in that place in my career where I have to rely on them for visibility. At this point, their not publishing would have just meant a few more people would end up going to my site instead. My recollection is that I wrote them a permission that was adequate for them to publish but that didn’t take away my ability to do so as well. It probably wasn’t what they wanted, but it worked in practice.

    • 2015-03-23 at 13:23

      Re [1], [2], [3] I think you’re missing an important part of “exclusive”. To have rights exclusively means you have them and no one else does. So if I grant you a right exclusively (“exclusive right” is bad wording), I no longer have it. (Of course such a grant is not a license, it is a contract.) In the case raised by Ross it’s the author of the article who no longer has any rights. If I’ve previously given a right to someone else (i.e. licensed it), then I simply do not have the right to grant it exclusively to you – you could not possibly have the right exclusively. Re [1], it’s not that you’re making a promise, it’s that you no longer have a right (whether interpreted legally or not) to license anything. Re [2], it’s impossible to retract a license, any more than you can retract any (felicitous) promise, contract, marriage, etc. Such a retraction can be done but only through special bilateral proceedings such as forgiveness or divorce. Re [3], that might fall under what speech act theory calls “unfelicitous” acts: it’s not that you’re doing something with an existing license, it’s that you’re claiming that there was no license in the first place because the speech act that seemed to have created it was unfelicitous, e.g. you said the words under threat, or didn’t have a right to license in the first place.

      (If you don’t know about Austin’s speech act theory I encourage you to check it out, it’s a great explanation of promises and similar things.)

      • 2015-03-23 at 14:09

        No, I understand exclusive, and I don’t disagree with your analysis for as far as it goes, I just think we’re slightly talking at crossed purposes. I’m saying that some of the language is about the noun entity of reference.

        Just as when I do call-by-value in a programming language and you’re allowed to modify the object I pass to you. You even have exclusive use of it. It just doesn’t have a useful identity for many purposes. If I disclose to you that I’ve previously given away a copy under other terms and you say “I still want exclusive rights”, then one answer is “I can’t give them to you” and another is “Well, you surely understand that all I can give you exclusive rights to is a copy”. This distinction seems to me entirely legally meaningful.

        Consider a version control manager that permits branching and in which I’ve started branch B from the head of branch A. At that moment, A and B point to the same thing. I could give you the exclusive rights to A and yet not to B. If I later modify A, I’m in breach but if I modify B, I am not. It might not be the thing that I’m giving you rights to, but he container that holds the thing. My understanding is that this happened with DOE Macsyma (later renamed “MAXIMA” to avoid confusion) to get around an exclusivity grant to the commercial version of Macsyma.

        This was the case for ANSI and ISO in the cases I mentioned. They were given the rights to something called ANSI Common Lisp but not to the underlying language; in effect, they had exclusive rights to the page headers and title, so only they could call their work ANSI Common Lisp or ISO ISLISP, and only they could issue modifications. But the language was available for anyone to use (in the case of ANSI, subject to other legal fumbling that we’ll gloss here, but certainly not with respect to ANSI’s exclusivity). Both the CL language and the ISLISP language are available via other means that can grow independently, just not calling itself the other thing.

        But, bottom line (just an expression, I’m not actually done), you’re focused on the adjective (exclusive) and the verb (promise/agree) and I’m focused on the (pro)nouns about which these things are said. To paraphrase Bill Clinton, “It depends on what the meaning of ‘it’ is.”

        There is a bit of Ship of Theseus in this as well because the same-named thing can drift with time. There are many tellings of it, and I rarely if ever hear the one I was taught, but I like mine anyway because it illustrates important things that some others don’t:

        Consider the having of a wooden ship, and the periodic replacement of broken boards with aluminum ones. After a while, it’s an all-aluminum ship. Is it still the same ship? Some say yes, others no. And then if I tell you I’ve saved the wooden ship and assembled another? Does that change your answer? Well, if it’s a ship that’s insured, for example, one would assume the “it” that is insured is the maintained/aluminum one. If you go out in the wooden one and it sinks, don’t expect a payout. But if you talk to a museum, it may prefer the wooden one. But what if at the outset I gave you exclusive rights to paint the ship, but those rights didn’t start until now, after I’ve made the second ship. Which do you have rights to? I don’t think you could reasonably argue you had rights to both, since your rights didn’t start when the cleaving was happening. The nouns matter a great deal, as much as the promise itself. I’ve certainly seen companies buy other companies only to find that the cash value of the company was not the company but its employees, who promptly left, leaving the owner with a very expensive few desks.

      • 2015-03-24 at 02:10

        You don’t have rights to a thing, you have rights to do things. We have property rights (the right to use property) and rights to copy, and these two are orthogonal. To judge whether a right has been exercised or violated you look at what people do. Rights certainly refer to things (the real property, the “work” being copied), but you don’t have a right to a thing, that doesn’t make sense.

        The identity of copyable things (and therefore decisions about whether a given thing has been copied) is a known insoluble problem – arguments over document identity are fundamentally unresolvable (in general) and therefore it is up to the courts or something like them to decide in any particular case whether X is a copy of Y (or: whether physical objects X and Y carry the same “creative work”). Yes, there are identity problems in other domains as well, and they can be just as difficult. Congress plays tricks with the identities of bills by vacating their contents and replacing them with unrelated matter (what is a bill, then?) (this is speech acts again by the way). An insurance claim (the owner’s right to a claim) on Theseus’s ship (or its successor) would have an identity problem – whether the presented ship is the one that was insured would have to be decided by a court. Identity is inherently slippery. That does not mean it is a useless concept – it works much of the time, and for all the other times we have some combination of extra-careful speaking and the courts.

        Your example of call by value is clarified by separating property rights and copyright. I might have exclusive property rights to some part of a computer’s memory; that means I can change it and you can’t. But I can have property rights (to the memory) without having the right to copy (what’s in it), and the right to copy without having property rights. In the version control system there are rights to change the state of the system, and independent rights to copy parts of any given state. If you just talk about rights to “the object” you’ll get confused.

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