copyright


Wow! Here’s an interesting signal coming from the incoming Obama Administration. “Change.gov” is now carrying a Creative Commons copyright license. According to the copyright policy on Change.gov, they are using the Creative Commons attribution license. That’s the most open license Creative Commons offers, and is a great signal that at least some officials in the new Administration “get” the value of greater openness and freedom to use and reuse information. I hope this is a sign of greater sanity on issues such as defense of the public domain, transparency in government, the importance of fair use, and the need for greater openness in publicly financed scholarly and research communications.

Hat tip to my friend and colleague Jason Schultz over at the Samuelson Technology Law Clinic.

Update: The Change.gov blog has a post describing the reasoning behind adopting the Creative Commons license. Interesting that they are highlighting a comment made by Lessig. It does indicate that the Obama team has some familiarity with the “Access to Knowledge” movement, its thinkers, and goals. A good sign!

I recently returned from Athens Greece and a facinating meeting hosted by the Hellenic Ministry of Culture. The meeting (“Digital Heritage in the New Knowledge Environment: Shared Spaces & Open Paths to Cultural Content“) explored how the Greek cultural heritage sector is embracing and is challenged by the explosion of digital technologies and content that is currently reshaping the globe.

The meeting highlighted important tensions in the adoption of digital dissemination frameworks. For many of us who have been working with digital technologies for the past several years, the tensions are familiar, and at the risk of putting them into a characture form, I can summarize them below:

 


Opportunity

Threat
Nearly free access to the full richness of the documented record of Greece’s cultural heritage Resistance to abandoning traditional models of “cost recovery” (subscription charges). Continued attempts to charge for content, even though the justifications for such charges seem poorly articulated.
The possibility to use digital dissemination technologies to enhance the comprehensiveness, scope, and transparency in cultural heritage documentation and research. The social realities of micro-politics, personal rivalries, and established norms of professional practice which inhibit transparency and create incentives for data-hording. As in many other parts of the world (US archaeology included!) paper publication is still has more prestige than digital dissemination. A fetish for paper seems to be a common affliction in the humanities and social sciences.
The capability of digital content to be easily and endlessly duplicated, adapted, and incorporated into new scholarly, educational, or artistic works. Long standing national copyright claims over Greek cultural patrimony. It seems that the Greek state has legislated ownership over it’s past. Releasing the documentary record of Greece’s past into a digital commons may pose some legal challenges. (See these discussions: one and two of intellectual property claims over national heritage)

 

The whole “copyrighting the past” argument is interesting. Though I have no formal legal training, I’ve picked up some expectations from living within the Anglo-American legal tradition. At least traditionally, we’ve got a very economic / practical view of copyright, and typically regard copyright as a convenient legal fiction to incentivize creative production. “Copyrighting” a work that is 2500 years-old obviously flies in the face of this tradition. However, parts of Continental Europe have different legal traditions. Copyright over the works of Classical Antiquity seem to be somehow in line with “moral rights” types of perspectives, where the goal of copyright is not only to protect commercial incentives, but it is also to protect, in perpetuity, the dignity and honor of the creator of works. That seemed to be some of the argument given in comments made at this conference.

Given Greece’s recent history of resistence to Ottoman imperialism, exploitation by Western powers, and transition out of “developing world” to “developed” status, attempts to guard national honor and dignity of a past that is so important to Greece’s national identity makes some sense. However, this perspective doesn’t seem to work so well in the new digital environment, where everything is global, remixable, and seemingly uncontrollable. Legislative mandates to protect “dignity” seem difficult if not impossible to enforce.

Oddly enough, the current situation may have the perverse effect of making it difficult for members of the public to use Greek cultural heritage for mainstream academic or instructional purposes. People who would be more likely to use Greek antiquity in obnoxious ways are probably precisely those people who would tend to ignore legislative restrictions.

It’ll be fascinating to watch how Greece will adapt its cultural heritage policies in this new world. 

Other conference participants have blogged about the meeting. Check out Leif Isaksen’s post,  and Stefano Costa’s post.

[UPDATED]: Mary Saunders also posted about her experiences at the conference, and she has some additional useful links to related content. 

I’ll update with even more links of blog reactions as I find them.

 

Final Note:

I want to thank the Hellenic Ministry of Culture for their invitation for me to attend this meeting. I deeply appeciated the opportunity to participate in this discussion.

Cory Doctorow, an author and vocal advocate for digital civil liberties, recently reported on Boing-Boing that Reuters is suing George Mason University and Dan Cohen in relation to the popular Zotero citation management system. For those of you don’t know, Zotero is a free and open source pluggin for the Firefox browser. Zotero is a fantastic tool for scholars, since you can use it to automatically copy citation information from many important academic, library, and commercial collections (including JSTOR, Elsevier publications, Amazon, and many more) and build your own bibliographic database. You can also use Zotero to copy webpages and articles to maintain your own personal archive for later reference.

Obviously Zotero meets many of the same needs as the commercial Endnote system. Endnote is owned by Reuters (click here for the complaint specifics), the news wire service. According to the DLTJ blog, Reuters is suing the Zotero project for enabling users to convert from Endnote’s proprietary data style (see update) format to the non-proprietary data format preferred by Zotero. Essentially, Reuters would prefer to keep academics locked in their Endnote walled garden and are attempting to scuttle efforts at enhanced interoperability. 

If this lawsuit succeeds, this is really bad news for scholars, since it will limit their choice of tools and services. In effect, Reuters is claiming that you don’t really own the data you manage in Endnote, since they control everything that you can do with that data. I haven’t used Endnote in years (having shifted over to Zotero long ago), and I’m very glad I made that choice. Even Microsoft doesn’t make such strong claims about data in MS-Word, Excel, or Access file formats.

There may be improtant data preservation implications all of this as well. A researcher’s bibliographic database, which is often richly annotated, is an important resource. The Zotero project aims to help scholars share these databases in nonproprietary formats and this will make preservation of these important products of scholarship more likely. If such scholarship remains locked up, we run the risk of losing potentially valuable scholarly contributions.

At any rate, I want to point out that there is a silver-lining here. Obviously, nobody wants to get sued, but to my mind, the fact that Reuters is acting like this suggest that they see a threat here. To me, this means Dan Cohen and the whole Zotero team are doing an excellent job at giving the world of scholarly communication a much needed shake up. To have earned a lawsuit means that they are taken seriously, and that is a great sign of success!

UPDATE:

Thanks to Bruce for the clarification!

From 6-8 June, I was lucky enough to be able to attend a scholarly symposium at UCLA in sunny Southern California: the UCLA/Getty Storage Symposium. Preservation and Access to Archaeological Materials. I live blogged it on the IW&A Blog. Of course, the papers were very specialized and/or technical, and normally only interesting for archaeologists and conservators. However, one issue that reoccurred several times was how to deal with copyright inside a very specialized, niche academic discipline.

Archaeologists, so peculiar

Archaeologist are typically spread out over all kinds of departments at different universities and institutions: history, classics, anthropology, area studies, art history, geology, metallurgy, etc. They often are looked upon as curiosa by their more “mainstream” departmental colleagues. All this makes the way they publish and how it contributes to their career especially critical. The silver standard for their career is the peer-reviewed article, the gold one being the monograph, i.e., a book on a specific topic put out by an academic press. These are the stepping stones for advancement, heck, even for getting a professional career going in the first place. Some symposium speakers reiterated their support for web-based publications. The advantages are well known: faster publication time, ability to include tons of photos in color, accessibility creating higher use, reduction in cost, etc. But the fact remains that when a young professor is trying to get tenure, a peer-reviewed paper output still is what matters. The web is still seen by many in the “old guard” as a hobby, not serious scholarship. The paradigm is slowly changing though. Several scholarly online-only, open access publications now exist: see my iCommons.org article Archaeologists Coming Out of the Cold.

Online encyclopedia of ancient Egypt

At the symposium, the UCLA Encyclopedia of Egytology (UEE) was introduced. It is meant to replace and improve upon the old bulwark of traditional paper publishing: the Lexikon der Ägyptologie (7 tomes, 1975-1992). There will be free public access to core UEE materials and functionality, and an “enhanced” access to members who support the UEE financially. This is how some of the qualms of potential contributors are being addressed:

• The articles will be peer reviewed, making use of the University of California’s eScholarship repository features, which enables an automated double blind review process;

The entry Ma‘at

• It is a multinational endeavor: the editors represent Belgium, the UK and the US, while the editorial committee adds representatives from Egypt, France, Germany, the Netherlands and Switzerland;

• It has the stamp of approval of Zahi Hawass, the highly influential Secretary General of the Supreme Council of Antiquities of Egypt who is on the advisory committee – yes, the guy with the fedora;

• The International Association of Egyptologists has endorsed it;

• Funding by the National Endowment for the Humanities and affiliation with the California Digital Library will ensure stability and longevity;

• Last but not least: author’s rights for individual articles will remain with the author for probably 5 years, a reasonable length of time within which an expedition or archaeologist ought to be able to publish the excavation data in a more formal way.

Recurring theme

However, John Lynch was only one of several speakers who touched on issues of copyright, open access and the like. Digital registration of excavation finds, as well as increasing digitization of existing archaeological collections of all stripe, are unstoppable developments. Everyone realizes this. The big impediments are: 1) money; 2) time/(wo)manpower; 3) software/IT expertise. Fortunately, funding organizations are focusing more and more on digitization and online sharing projects, e.g., the proposed National Endowment for the Humanities (the U.S behemoth of archaeological funding) new budget before the US Congress now. Time and (wo)manpower remain a tougher problem: no matter how you approach it, digitization is time consuming and requires skilled or at least trained people. In the field, while excavating, it might take a little extra time to register information digitally but it surely saves time later when researching, analyzing and synthesising the typical avalanche of primary data. As many of the speakers illustrated though, there still is a tendency for each archaeological/conservation project to design from scratch a database system attuned to (perceived) specific research needs (e.g., Huffman of the Institute for Aegean Prehistory – Study Center for East Crete). The Getty’s Cataloging Cultural Objects (CCO) system for cataloging using standardized terms and definitions was set up to address the problem of a lack of shared, standardized terminology. The Getty also developed the CDWA Lite (Categories for the Description of Works of Art) system which allows a minimal cataloging routine, usable for any kind of institution, bowing in a way to the realities of the real word. Their Open Archives Protocol for Metadata Harvesting (OAI-PMH) is an excellent protocol to embed the catalogue data and provides the common language for accessing museum and library collections as well as individual objects over the web.

Asserting cultural copyright

Each excavation jurisdiction may also have its own rules about who is allowed to publish in which way and in which publications. For instance, in South America and the Middle East, foreign archaeologists are often not allowed to work without a local co-director who then also has preference as far as publishing is concerned, e.g. a specific type of report has to be published first of all in an archaeological service series or periodical, in the local language, a reasonable requirement that however sometimes involves friction and delays. One could say that a source country asserts its “cultural copyright” this way. Due to local sensitivities, the Tarapacá Valley Project for one is the only foreign-participation project in Chile. In Syria, projects may be required to store all excavated materials on site for a period of time. As far as making materials available online, Kenneth Hama (Getty Trust) pointed out that things are moving fast: if you’re not available on the web somehow, you risk becoming irrelevant or at least miss out on exposure, recognition for your institution or project. Aaron Burke (UCLA) introduced the concept of expectation inflation.

All in all, this well-organized symposium reflected on many aspects of problems that archaeologists and conservationists share with anyone involved with cultural heritage.

* Reposted from iCommons.org, originally published July 7, 2008

I have a short article over at iCommons about proposed Egyptian legislation to copyright antiquities. Here’s a link.

According to a report from the BBC, the Egyptian Government is about to enact a copyright law to protect Egyptian antiquities, and this law would apply to all nations. Zahi Hawass, who leads the Supreme Council for Antiquities (the agency responsible for Egypt’s cultural heritage) claims that the licensing money is needed to maintain monuments in Egypt.

The main target of this very far reaching legislation seems to be ancient Egyptian-themed commercial parks. Commercial uses of Egyptian antiquities (such as a picture of the Giza Pyramids) would require a license from the Egyptian state, as would any “full-scale” replica.

Comment:

This is in some ways understandable, but in other ways it comes from Bizzaro-land.

It’s understandable because the US and the European Union have long advocated intellectual property maximalism (expanding the scope and reach of copyright and patents), usually to the disadvantage of the developing world. The Egyptian case, in many ways, reflects a growing trend on the part of the “Global South” to attempt to use their own versions of intellectual property protectionism for their advantage. For example, Peru has laws to regulate access to genetic resources of its natural heritage. Similarly, India has also enacted legislation to protect some traditional medical knowledge. The issue of “bio-piracy” in general reflects how nations in the developing world as well as some indigenous communities are attempting to use intellectual property legal frameworks to benefit from developments in biotechnology.

That said, intellectual property laws, in general, are typically justified to encourage innovation and creativity. Without some legal rules to extract rents, theoretically there would be less incentive to invent new technologies or make new art. Egypt’s move to claim copyright over 4000-year old monuments obviously has nothing to do with motivating new creativity or invention, since the creators of these antiquities are long dead. (Note: neither does Walt Disney’s continually demand to exclusively own Mickey Mouse…) In our legal system, such works would belong to the public domain, and would be available to all for any purpose.

This is another case of how the public domain is a highly contested concept, being undermined by intellectual property maximalists in the developed world and being questioned by some developing nations and indigenous community organizations. Instead, it seems that this is just an attempt to monopolize the global popularity of Ancient Egypt. Since tourism is so strategically important for Egypt, I suppose any competition in the tourist experience of Egyptian antiquities may be something of an economic threat. Alternatively, the continual use and expression of ancient Egyptian styles, motifs, and references may be more valuable to the Egyptian state, since this continued expression may help keep ancient Egypt alive and relevant in the popular imagination, and may generate more interest to travel to the source of Egypt’s glorious past. In the same vein, just because Washington DC uses elements of classical architecture (not to mention a famous Egyptian-inspired obelisk), I seriously doubt this fact diminishes visits to Rome or Athens. But, who knows. How cultural references like this impact tourism is an issue clearly worth of some rigorous economic analysis.

In any event, I wonder how the Egyptian state will try to enforce this far-reaching copyright claim. The Egyptomania genie is long out of the bottle (at least since the New Kingdom!). There are some 17,000 images tagged as “Giza” just in Flickr. Attempting to extract licensing rents on such uses will be monumental task, on par with building the pyramids in the first place. I really can’t see how this will help Egypt or protect and maintain its monuments. To me, this will most likely be too hard and unwieldy to enforce. And if enforcement could be effective, I suspect it will benefit Egypt about as much as lawsuits and DRM have enhanced the traditional music business (and yes, it’s going down the tubes). How this law will impact research and education about Ancient Egypt is another issue of great concern. Making it harder to use images in journals and textbooks is no way to encourage understanding of the past. Finally, I also wonder how this law would impact the antiquities trade. If it is harder to create replicas and reproductions of Egyptian antiquities (because of the transaction costs associated with licensing), would more gravitate to purchasing the “real thing”?

We’re entering a brave new world of bizzare contradictions. On one hand we have new models of sharing, open IP, peer-production and collaboration as seen in open source software, the Wikipedia, Creative Commons and the access to knowledge movement. On the other hand, we have the expansion of monopolistic intellectual property claims and increasing commoditization of knowledge and culture.

Update:

Check out the discussion on Boingboing

Update 2:

Wow! Slashdot also has a lively discussion.

Update 3:

Check out the post about this on the Ancient World group blog:

Update 4:

Here’s an interesting post by William Party, senior copyright counsel at Google. He was once in Egypt as part of a US copyright delegation.

It’s been a long time since I’ve had much of an opportunity to blog, or digest many of the important developments that have been taking place in the world of open access and open science.

First off, I had the pleasure of attending the Creative Commons 5th anniversary party. Besides enjoying myself, it was a great chance to reflect on how far Creative Commons has come. Millions of people and sites using their licenses, important projects in Science and Education, and continuing and growing buzz and energy.

Creative Commons made some recent announcements at the party and after that are important for archaeologists and for our planning for cyber-infrastructure. Here’s an update:

(1) CC-Zero: CC-Zero is a new protocol that lets people assert that content has no legal restrictions associated with it, or lets them sign a waiver removing all rights associated with a work. It is similar to a public domain dedication, but (in the words of Creative Commons) “The key addition is that the assertion that content is in the public domain will be vouched for by users, so that there is a platform for reputation systems to develop. People will then be able to judge the reliability of content’s copyright status based on who has done the certifying.” In other words, this seems like a way of trying to get encourage certainty that an item of content really IS in the public domain.

(2) Community Norms: One of the interesting recent developments out of Creative Commons (especially Science Commons) is the growing emphasis on relying on social norms (see this link). Social norms are an important force in science (and the humanities), and many researchers probably mistake the social norms of their fields with copyright or other legal protections. For example, archaeologists (and other researchers) have been publishing non-copyrightable facts for a long time, these include counts of species, dimensions of artifacts, etc. You’re still expected to cite the people who published these facts, even though the facts are in the public domain. This is an example of a powerful and good social norm.

(3) Open Data Protocol: Here’s where everything above comes together. The new Science Commons “Open Data Protocol” discusses the issues of copyright, factual (non copyrightable) data, interoperability, attribution, and community norms. It is an impressive and needed document, and makes a very clear and compelling case for moving away from the traditional Creative Commons approach of leveraging copyright licenses to encourage (or mandate) good behavior such as citation and attribution.

Scientific data repositories are typically full of content that is both “expressive” (subject to copyright) and “factual” (not subject to copyright). Data sources are also highly global, and therefore subject to all sorts of legal jurisdictions and rules. Because of all of these legal complexities, it becomes very difficult to achieve legal interoperability between data from different data repositories (that may have different terms of use, license frameworks, or may be subject to different legal systems). This case is clearly made in their document.

The solution that Science Commons advocates is to essentially move all open science data repositories to a common legal baseline, which is basically the public domain. This is very different to the “traditional” (if one can speak of traditional in the context of a 5 year old organization) Creative Commons approach of “some rights reserved” copyright licensing. Science Commons argues against licensing or other legal instruments to mandate “good” behavior (such as citation and attribution) of data resources, because these seem legal unworkable and have many practical problems. Instead, citation and acknowledgments of data contributions should be the province of social norms, and not legally enforced. Scientific data repositories that want to be “open” should shape their terms of use, copyright, and other policies so their content is essentially public domain and freely remixable with other resources.

Comments: Wow! This Science Commons development is very impressive, and very compelling.

Unfortunately, I think it’s very likely to freak out a large portion of the archaeological community. Science Commons is simply so far ahead of our community, that I worry about how this will be received.

I just gave a paper at the recent American Schools of Oriental Research meeting in San Diego. I presented our recent work with Prof. Martha Joukowsky to publish 15 years of her excavations at the Great Temple of Petra (see here, and here) in Open Context. This content is licensed with the Creative Commons Attribution license, the most open of their licensing choices. This was very generous and forward looking of Prof. Joukowsky.

To illustrate how far we have to go to advocate “openness”, in the Q&A part of my talk, someone in the audience advocated legally registering the copyright of archaeological content. That way, one could sue for damages in infringement. Ugh, so the discussion turned from how to share our data to how to sue each other for copyright infringement. Given some of the audience reaction to the discussion, it seems very clear that in Near Eastern archaeology, there is very little faith in “social norms”. A good fraction of my audience seemed to believe that their community was so dysfunctional that they needed legal protections.

Thus, while I a agree with the arguments in Open Data Protocol, I believe a large portion of the archaeological community has a long way to go. It will take many more examples of datasets like Petra to move this community from secrecy and suspicion. Sigh, we truly have our work cut out for us.

Update: Peter Suber (as always) has excellent commentary on these developments.

Something of an Open Access breakthrough is happening in the world of archaeology.

Open Access News reports that the APA/AIA have recently issued a report that takes into account open access recommendations made by the American Council of Learned Societies (ACLS)(blogged about here).

The extended excerpt reported by Open Access News shows that the APA/AIA report makes some important moves toward recognizing the value of open access. The report also notes increased barriers to scholarship created by the recent expansion of copyright restrictions. While this is an important observation, the APA/AIA report should also have recommended Creative Commons licenses as a strategy for unlocking scholarly materials from overly restrictive copyright. Given that the ACLS report suggested use of Creative Commons licenses (page 45), I am a little bit puzzled about this omission in the APA/AIA report.

Beyond licencing, the APA/AIA has some good language about interoperability (including a discussion of the OpenURL standard, related to the COinS standard discussed here). Additional discussion about the need for data sharing and longevity is also in the report (page 4).

The discussion about the “Digital Monograph Series” (pages 9-10) is also of interest to DDIG members. It noted that there is still a great deal of skepticism about publishing with digital media. Though, I wonder how quickly this may be changing given the growing amount of activity seen in the world of digital scholarship. Nevertheless, the report recognizes the need for dissemination mechanisms and calls for a new publication series “for works that would be improved through the digital medium”. Databases and the like would be included in this.

And there is much more, plus a discussion of this report (while it was in draft form) over at the Stoa Consortium. Don’t miss the comments by Greg Crane (Editor in Chief of the Perseus Digital Library), which (I believe) rightly emphasize how the “…center of gravity for intellectual life in academia and society as a whole has already shifted decisively to a digital environment.”

Nevertheless, the seriousness and interest in Open Access frameworks shown in this report is significant news, especially because it comes from a scholarly society. What a marked point of contrast from the very counter-productive approach taken by AAA! The APA/AIA report is well worth reading by archaeologists, including the leadership of the Society for American Archaeology (SAA).

The NEH funded Pleiades discussion list recently picked up on my last post about copyright and scientific data. Several contributors to that list had important points and resources to add, especially about geospatial data. These include:

  • Here’s an interesting post by Chris Holmes, “Promoting freely available geodata“. It touches on many of these themes, and also notes that Creative Commons and Science Commons is reluctant to develop licensing mechanisms around factual data. He also explores some of the policy implications of “copyleft”-type contracts that are not based on copyright law.
  • Another contributor to the Pleiades discussion list rightly pointed out that geospatial data sees very different legal regulatory frameworks internationally. I should also add that the EU has greater copyright protection for database content than the US. James Boyle (who’s on the Board of Creative Commons), wrote an interesting piece in the Financial Times about how the EU database protection laws have not helped the European database industry. This perspective helps explain why Creative Commons and Science Commons are very reluctant to get involved in licensing factual data. “Protecting” such content with licenses (even with “some rights reserved” licenses) may do more damage than good.

Aside from the fact that it seems we all need some good lawyers, these discussions help illustrate the importance of community social norms. Scholars are already (largely) a self-regulating community. Inviting in lawyers to craft custom licenses and contracts may not make the most sense, unless the law directly impedes our work (as is the case with standard “all rights reserved” copyright, where Creative Commons licenses are a vast improvement). Developing positive social norms is something of an art, but there are many examples of successful online communities. Hopefully we can learn from these examples and adapt them to help make open research in everyone’s enlightened self-interest.

Additional Note:

Before someone else points out my error, I was remiss in not linking to the original blog post over at the Open Knowledge Foundation that started all this discussion. Jamie Boyle’s article is already well discussed in this first post! It clearly pays to thoroughly read one’s primary sources before posting to a weblog. My apologies!

Peter Suber, an essential source of scholarly open access news, recently posted a discussion about the copyright status of “data”, and if Creative Commons licenses where appropriate for such content. Copyright law makes a distinction between “facts” (and/or ideas) and “expressions”. Original expressions are protected by copyright, but the ideas and facts being communicated by these expressions are public. If I write “Stratum B at site X dates to between 7500 – 7000 BP”, this specific sentence is an original expression and is copyright protected. However, you are free to “abstract” the ideas and facts out of my sentence and put them into a new expression such as the following table:

Site Phase Est. Dates (BP)

Site X Stratum B 7500-7000

Because the ideas and facts in my original sentence are not copyright protected, no permissions need to be asked to re-express them in a new way, like the table above. Legally, citation isn’t even required, though citation is a very important social norm for the scholarly community, even when it involves crediting non-copyrightable facts.

The legal distinctions between “facts” and “expressions” are important to consider when we develop online data-sharing systems. Creative Commons licenses are wonderful tools for the research community to share expressive (copyright protected) content. Each Creative Commons license requires attribution for all uses of a licensed work. Attributing researchers for their contributions is very important, since it helps them build their reputation.

However, Creative Commons licenses are copyright licenses. They only work with copyrightable material. Many scientific databases lack enough original expression and are too factual to be copyrightable. Their contents are therefore public domain and can’t be licensed with Creative Commons licenses. Here’s a great paper (“Geographic Information Legal Issues”) by Harlan Onsrud that explores these issues. He noted a legal case involving the copyright status of an alphabetically organized phonebook, where a court decided that the content (names and phone numbers) lacked sufficient originality of expression to make it copyrightable. Peter Suber also links to the Science Commons FAQ about databases and copyright, which is also an excellent resource.

So what’s the threshhold for original expression to make content copyrightable? The answer is ambiguous. For archaeology, which so often sees documentation expressed in free-form notes and drawings, copyright will probably often apply. In such cases, Creative Commons licenses can and should be used. However, some areas of archaeology capture much less expressive and more “factual” kinds of data (archaeometry, zooarchaeology, some studies involving GIS, etc.). In these cases Creative Commons licenses shouldn’t be used.

The public domain nature of factual data raises an incentive problem. Factual data can be legally copied and used without attribution. Again, even traditionally published factual data can be legally used without attribution. However, putting such resources up in open online archives would make such legal appropriation very easy. Without some reasonable expectation of attribution, why would any researcher share their hard-earned data?

Therefore, developing online archives of factual data requires developing social norms to regulate their use. Just as we expect citation even when we publish “facts” in traditional paper media, we should expect citation in online publication of our data. Professional ethical codes should be updated to reflect these needs, and journal editors and reviewers should be aware of these issues to help prevent cheating.

In addition, data archives may want to consider “terms and conditions of use” contracts that require end-users to attribute sources of factual data. Such contracts need not be based on copyright (as are Creative Commons licenses), but are made as a condition for using a data archive. While these should be explored, we should be very careful about such legal “solutions”. There may be hidden costs and unwanted problems associated with such end-user agreements. Nevertheless, I welcome such discussion, since, as a developer of tools for open access data archives, I’m keenly interested in incentives!

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