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Rick Anderson

University Librarian

Brigham Young University

(801) 422-4301

[log in to unmask]

Well, I think what we can agree that we disagree re "use" and you've outlined that disagreement well. We also agree that people should understand the implications of CC licenses they apply. 

But, I think your case example is actually describing infringement. The person who republished the work unaware that there is a CC BY license on it will be infringing when they do not put the CC BY on the copies. CC BY requires both attribution *and acknowledgement of the license.*  So, IANAL, but it looks to me like you'd win the case. 

In the process of this discussion,  I've realized there are three other things that the copyright holder retains.  One, the ability to transfer the copyright to another holder. Second, the ability to pursue infringement when attribution is not given. Interestingly, the third is to require the removal of attribution if one doesn't want to be associated with the use. 

Always enjoy our discussions!

Lisa Janicke Hinchliffe
[log in to unmask]

> The use that is forbidden by CC BY is use that is disseminating an unattributed copy without

> acknowledging the license. So much so that if someone does that it is copyright infringement 

 

We’ve had this argument many times, and I think it boils down to a disagreement about the semantics of the word “use.” If I understand your position, it is that (for example) republishing a CC BY-licensed work without attribution is one kind of use, and republishing it with attribution is another kind of use. I disagree: in my view, the use case (republication) is exactly the same in both instances. “Attribution” isn’t a use; it’s something you do (or don’t) in the context of a use. From this perspective, there is no such thing as a forbidden or restricted use of a CC BY-licensed work. Or, in other words, failing to attribute in the context of a specific instance of republication does make that specific instance of republication a copyright infringement, but it does not make republication of the work an infringing use. There are no infringing uses under CC BY.

 

I realize we’re probably never going to agree on the proper application of “use” in this context. I only insist on my interpretation because while I think it’s essential for users to understand that attribution is required, it’s also essential for copyright holders to understand that when they apply a CC BY license to their work, they are authorizing all possible uses of the work (with the caveat that attribution must accompany the use).

 

 

>  The fact remains that someone must know there is a CC BY license on the work, which one knows

> by having a copy of the work with the CC BY license (or a statement the copyright holder that it was

> so licensed). So, yes, as you say, the user would lack notice. And also the inability to defend

> themselves against a charge of infringement.

 

I don’t think this is true. The license obtains and is meaningful regardless of whether a user of the work is aware of it.

 

Here’s an example: suppose I self-published a novel in 1985. 1,000 copies were printed, with an “all rights reserved” notice. Now, suppose that in 2025, I decide to license my book to the public under CC BY. Because the license applies to the work itself, not only to specific copies published after I applied the license, the novel itself is now free to copy, distribute, etc. The “all rights reserved” notice on a printed 1985 copy of the book is now nullified. A person who owns that copy, and who is unaware of the CC BY license that has recently been applied to the work, now has the right – whether she knows it or not – to make and redistribute (and even sell) copies of my book regardless of that notice. She might even do so with malicious intent, believing (though not caring) that she’s infringing my copyright. But she’ll never have to defend herself against a charge of infringement, because the only one who would have legal standing to bring action against her is me (the copyright holder) and I would have no legal basis on which to bring action, because I applied the CC BY license.

 

That’s the way it seems to me, anyway. If there’s an IP attorney on the list who can provide a more authoritative interpretation, I’d be interested to hear it.

---

Rick Anderson

University Librarian

Brigham Young University

(801) 422-4301

[log in to unmask]

 

 

From: Lisa Hinchliffe <[log in to unmask]>
Date: Friday, October 17, 2025 at 5:02 AM
To: Rick Anderson <[log in to unmask]>
Cc: "[log in to unmask]" <[log in to unmask]>
Subject: Re: [OPENCAFE-L] What is the true definition of a Diamond OA Journal?

 

Regardless of your SK piece, the fact remains that someone must know there is a CC BY license on the work, which one knows by having a copy of the work with the CC BY license (or a statement the copyright holder that it was so licensed). So, yes, as you say, the user would lack notice. And also the inability to defend themselves against a charge of infringement. If they took someone's word other then the copyright holder that it was CC BY, and they then disseminate, they would need to add the CC BY to comply with the CC BY license, which strikes me as rather risky.

 

The use that is forbidden by CC BY is use that is disseminating an unattributed copy without acknowledging the license. So much so that if someone does that it is copyright infringement - note the word use in CC's statement: "the use of the work that was out of compliance with the license was a copyright infringement." (https://creativecommons.org/misuse-of-works/). 

 

 

LLisa Janicke Hinchliffe
[log in to unmask]

 

On Thu, Oct 16, 2025, 10:15 PM Rick Anderson <[log in to unmask]> wrote:

> "The user has to have a copy that has the license applied. If the copy you have doesn't have

> the CC license applied you don't have a license to use it.

 

I don’t think that’s true. As I understand it, the license applies to the creator’s rights in the work, not to particular copies of the work. This means that the license applies to all copies or manifestations of the original work. (My particular copy of the licensed work might lack a CC BY _notice_, and I might therefore have no way of knowing that I have the rights conveyed by the license, but in legal fact I would still have those rights – because the license adheres to the work, and is irrevocable.) The Creative Commons Organization seems to understand this the same way – their entire FAQ refers to the license in terms of the work, and never in terms of copies.

 

 

> And, the copyright holder can also stop disseminating a copy with the license applied.

 

Since the license adheres to the intellectual work itself, and is irrevocable, once a CC license has been applied to the work I don’t believe it’s possible to create (and then disseminate) a copy of it to which the license doesn’t apply.

 

 

> Re "public’s right to use the work in any way they wish and for any purpose is unrestricted either way" - not true. The CC BY requires attribution.

 

The license does require attribution. But the requirement of attribution doesn’t constitute a restriction on use. Under CC BY, there is no use of the work that is forbidden only a requirement that, whatever use is made of the work, the original author has to be credited.

 

For anyone interested, I shared my experience of trying to work out these issues in a post in the Scholarly Kitchen a few years ago:

https://scholarlykitchen.sspnet.org/2022/05/11/q-can-you-revoke-a-creative-commons-license-a-no-er-sort-of-maybe/

 

---

Rick Anderson

University Librarian

Brigham Young University

(801) 422-4301

[log in to unmask]

 

 

From: Lisa Hinchliffe <[log in to unmask]>
Date: Thursday, October 16, 2025 at 9:21 PM
To: Rick Anderson <[log in to unmask]>
Cc: "[log in to unmask]" <[log in to unmask]>
Subject: Re: [OPENCAFE-L] What is the true definition of a Diamond OA Journal?

 

Sorry for extra email but let me correct two typos in the first paragraph...

 

"The user has to have a copy that has the license applied. If the copy you have doesn't have the CC license applied you don't have a license to use it. Presumption is that the text is copyrighted, not that it is CC licensed."

 

Lisa Janicke Hinchliffe
[log in to unmask]

 

On Thu, Oct 16, 2025, 9:18 PM Lisa Hinchliffe <[log in to unmask]> wrote:

The user has to have a copy that has the licensed applied. If the boy you have doesn't have the CC license applied you don't have a license to use it. Presumption is that the text is copyrighted, but that it is CC licensed.

 

And, the copyright holder can also stop disseminating a copy with the license applied.  That doesn't stop people with a license-applied copy from using it. But, if they don't have such a copy, then they would need the authorization of the copyright holder to use it beyond fair use. 

 

Re "public’s right to use the work in any way they wish and for any purpose is unrestricted either way" - not true. The CC BY requires attribution. The public is not free to use it without attribution. Only with CC0 is that requirement removed.

 

 

Lisa Janicke Hinchliffe
[log in to unmask]

 

On Thu, Oct 16, 2025, 7:57 PM Rick Anderson <[log in to unmask]> wrote:

> First, there is the ability to release copies of the work without a CC BY license.

 

Given that a CC license applies to the work itself, and is irrevocable, how would I apply a more restrictive license to another copy of the same work?

 

I do agree that the ability to release a CC BY-licensed work into the public domain remains the exclusive prerogative of the copyright holder, and I agree that it’s a meaningful right – though the public’s right to use the work in any way they wish and for any purpose is unrestricted either way.

 

Rick

 

---

Rick Anderson

University Librarian

Brigham Young University

(801) 422-4301

[log in to unmask]

 

 

From: Lisa Hinchliffe <[log in to unmask]>
Date: Thursday, October 16, 2025 at 7:11 PM
To: Rick Anderson <[log in to unmask]>
Cc: "[log in to unmask]" <[log in to unmask]>
Subject: Re: [OPENCAFE-L] AW: [EXTERN] Re: [OPENCAFE-L] AW: [OPENCAFE-L] What is the true definition of a Diamond OA Journal?

 

While acknowledging Rick's larger point, I think it is important also to recognize that the copyright owner of a CC BY licensed work does retain some rights of ownership that are not available to the community. First, there is the ability to release copies of the work without a CC BY license. Second, the right to release the work to the public domain/CC0.  Personally, I think these are meaningful. Lisa

___

Lisa Janicke Hinchliffe
[log in to unmask]

 

 

 

On Thu, Oct 16, 2025 at 1:47 PM Rick Anderson <[log in to unmask]> wrote:

“Ownership” is an interesting concept in the context of CC BY content. In this context the authors have copyright in a purely technical sense but have no control over the use of the content, so it would seem odd to say that they “own” it in any meaningful way. If anyone can be said to “own” the content, I guess it would be the “community,” where “community” means “everyone and no one.” (Everyone has the right to use the content as they wish; no one has a right to exert control over the content.) So if we’re talking about journal articles, it would seem that all OA/CC-BY content can be called “community-owned” (or, maybe more accurately, “not owned by anyone”).

 

As for the journal itself: if all of its content is CC BY, then “ownership” of the journal as an entity comes down to corporate control: who gets to decide whether the journal continues or stops, which articles it does and doesn’t publish, who is on the editorial board, etc. But how can a “community” own a journal in this sense? If a mechanism exists for a “community” to perform the tasks of managing a journal, then with regard to the journal wouldn’t it make more sense to call the community a… publisher?

 

OA advocates tend to cast “publisher-owned” and “community-owned” as mutually exclusive designations, but if a journal exists, then someone is publishing it.

 

---

Rick Anderson

University Librarian

Brigham Young University

(801) 422-4301

[log in to unmask]

 

 

From: OpenCafe-l <[log in to unmask]> on behalf of "Palmen, H.J. (Heleen)" <[log in to unmask]>
Reply-To: "Palmen, H.J. (Heleen)" <[log in to unmask]>
Date: Thursday, October 16, 2025 at 10:59 AM
To: "[log in to unmask]" <[log in to unmask]>
Subject: Re: [OPENCAFE-L] AW: [EXTERN] Re: [OPENCAFE-L] AW: [OPENCAFE-L] What is the true definition of a Diamond OA Journal?

 

Dear all,

 

Thank you for pointing this out, Giovanni. I believe the answer currently depends on who you ask. So if CRAFT-OA is deciding that it should be community-owned, then the DOAJ listing of Diamond journals is incorrect.

 

What I find problematic with community-owned is: what if a learned society has a journal which asks no fees for publishing or reading but is hosted on a platform owned by a commercial publisher? Or what if the commercial publisher gets (full/partial) rights to sell and distribute the journal and have something to say about the price of the journal in exchange for wider dissemination, but doesn’t legally own the journal. To what extend is it then still community-owned? What is allowed to collaborate on with a commercial company and what not in order to still be recognized as community-owned, or which decisions/rights should you have at least have as a journal/editorial board to be independent enough (I suppose) to be considered as community-owned? Do we have a set boundary / list of criteria for this?

 

With kind regards,

 

Heleen

 

 

Classified as Internal | Intern

From: OpenCafe-l <[log in to unmask]> On Behalf Of Ulrich Herb
Sent: Thursday, October 16, 2025 5:47 PM
To: [log in to unmask]
Subject: [OPENCAFE-L] AW: [EXTERN] Re: [OPENCAFE-L] AW: [OPENCAFE-L] What is the true definition of a Diamond OA Journal?

 

Hello Lisa,

first of all – for me, both would be DOA. For many in Germany, (a) wouldn’t even count as OA at all, or for some, it would be considered bronze, since it doesn’t have a CC BY license. As for (b), I honestly don’t know what those who hold that view would call it – maybe bronze.

Kind regards

Ulrich

 

Dr. Ulrich Herb

 

Publikations- und Forschungsunterstützung / Leiter
Koordinationsstelle Open Access im Saarland / Leiter

Saarländische Universitäts- und Landesbibliothek
Postanschrift: Postfach 15 11 41 | 66041 Saarbrücken
Besucheranschrift: Campus B1 1 | 66123 Saarbrücken
T: +49 681 302-2798
[log in to unmask]
www.sulb.uni-saarland.de

 

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Von: Lisa Hinchliffe <[log in to unmask]>
Gesendet: Donnerstag, 16. Oktober 2025 17:43
An: Ulrich Herb <[log in to unmask]>
Cc: [log in to unmask] <[log in to unmask]>
Betreff: [EXTERN] Re: [OPENCAFE-L] AW: [OPENCAFE-L] What is the true definition of a Diamond OA Journal?

 

If (a) or (b) or .... isn't a Diamond Open Access journal, what do you call it? 

 

Lisa Janicke Hinchliffe
[log in to unmask]

 

On Thu, Oct 16, 2025, 9:34 AM Ulrich Herb <[log in to unmask]> wrote:

Dear Giovanni,

 

thanks so much, I also really struggle with the fuzzy and somehow moving definition of what DOA means. At least here in Germany, there are several interpretations around:

 

1.  non-APC based Gold OA, not necessary CC BY licensed

2.  non APC based Gold OA AND CC BY licensed

3.  a + non-commercial (of confused with non-profit)

4.  b + non-commercial (as confused with non-profit)

5.  c + scholar-led (whatever that means, one could consider outlets operated by learned societies as scholar-led, but many societies are publishers that charge hefty fees)

6.  d+ scholar-led (whatever that means, one could consider outlets operated by learned societies as scholar-led, but many societies are publishers that charge hefty fees)

7.  a OR b OR c OR d OR e OR f + community-owned (what ever that means)

 

I am following the discussions about OA since 2001 and remember the times when we used the term “platin” for what is today called “diamond” and I think the definition or better description of what DOA means has become more and more complicated (so it's imho really hard for anyone outside the OA community to follow) and moved from a, so most people within the OA community (not necessarily me) think today that DOA is more or less the combination f + community-owned from the list above, whereas still most scientist do not know what DOA means or think it is represented by the combinations a or b.

Kind regards

Ulrich 

Dr. Ulrich Herb

Publication and Research Support / Head
Open Access Coordination Office in Saarland / Head

Saarland University and State Library
Mailing address: P.O. Box 15 11 41 | 66041 Saarbrücken | Germany
Visitor address: Campus B1 1 | 66123 Saarbrücken | Germany
T: +49 681 302-2798
[log in to unmask]
www.sulb.uni-saarland.de

---

Von: OpenCafe-l <[log in to unmask]> im Auftrag von Giovanni Salucci <[log in to unmask]>
Gesendet: Donnerstag, 16. Oktober 2025 16:46
An: [log in to unmask] <[log in to unmask]>
Betreff: [EXTERN] [OPENCAFE-L] What is the true definition of a Diamond OA Journal?

 

Hello everyone,

Until now, the usual definition of a Diamond OA Journal has referred to publishing without costs for either readers or authors, and without implications for ownership.

For example, see this recent article on The Scholarly Kitchen: https://scholarlykitchen.sspnet.org/2025/10/15/diamond-dreams-unequal-realities-the-promise-and-pitfalls-of-no-apc-open-access/

 

However, in the European Discovery HUB Project (https://www.craft-oa.eu/operational-diamond-oa-criteria-for-journals/), a new element appears that significantly changes this definition — the requirement of community ownership of the journal.

 

So my question is: what is the true, current definition of a Diamond OA Journal?

 

Thank you for considering this topic of discussion.

 

Best regards,

Giovanni Salucci

 

 

------------------------------------------

 

Università degli Studi di Firenze.

Docente a contratto Laboratorio editoria digitale.

                           Dipartimento di Lettere e Filosofia

 

 

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