Creative Commons is a "nonprofit organization that increases sharing and improves collaboration" by providing "free, easy-to-use legal tools … [that] give everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work". In particular, many Open Access journals now use a Creative Commons license, among them the new eLanguage initiative of the Linguistic Society of America.
But yesterday, at the LSA's annual meeting, someone raised a question about the use of Creative Commons licenses for this purpose. The question has an interesting linguistic aspect — I'd describe it as a matter of pragmatic scope — which I thought I'd explain to you here.
if you check out the authors' instructions at any pretty much any journal, you'll generally find a form where authors assert that the work submitted is their own, and not fraudulent or defamatory, and so on. Thus BioMedCentral, an Open Access publisher which puts out more than 250 journals and is owned by Springer Verlag, has an Author Agreement which states
In submitting a research article ('article') to any of the journals published by BioMed Central Ltd ('BioMed Central') I certify that:
1. I am authorized by my co-authors to enter into these arrangements.
2. I warrant, on behalf of myself and my co-authors, that:
a. the article is original, has not been formally published in any other peer-reviewed journal, is not under consideration by any other journal and does not infringe any existing copyright or any other third party rights;
b. I am/we are the sole author(s) of the article and have full authority to enter into this agreement and in granting rights to BioMed Central are not in breach of any other obligation. If the law requires that the article be published in the public domain, I/we will notify BioMed Central at the time of submission upon which clauses 3 through 6 inclusive do not apply;
c. the article contains nothing that is unlawful, libellous, or which would, if published, constitute a breach of contract or of confidence or of commitment given to secrecy;
d. I/we have taken due care to ensure the integrity of the article. To my/our – and currently accepted scientific – knowledge all statements contained in it purporting to be facts are true and any formula or instruction contained in the article will not, if followed accurately, cause any injury, illness or damage to the user.
It should be obvious why the publishers, editors, and sponsors of a journal would want this kind of protection.
So far so good. But the next statement on the page is "And I agree to the following license agreement", which is asserted to be "Identical to the 'Creative Commons Attribution License'".
The "Creative Commons Attribution License", in turn, contains this clause:
8.e. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.
When readers download the published article, they obviously don't see (much less become a party to) any of the stuff that the author has to sign about originality and truth and so on, they just become the 'You' referred to by the Creative Commons license itself, which contains no reference to the assertions that the authors have previously made about originality, non-secrecy, lack of libel and fraud, etc. But that Creative Commons license therefore appears to state something false, namely that "There are no understandings, agreements or representations with respect to the Work not specified here".
This sentence appears to be false on its face, since when the paper was submitted, the author(s) signed "understandings, agreements, or representations" about originality and on on, which are absolutely "not specified here" in the license agreement that a reader becomes a party to. And I gather that a legal advisor to the LSA has expressed the concern that as a result, the authors' claims of originality etc. might be nullified, thus undermining the attempt thereby to provide protection for the publisher.
Now, I am most definitely not a lawyer, but I'm assuming that lawyers employed by the likes of Springer have checked this out and decided that it's OK. And my working hypothesis is that this is because there's the previous sentence "This License constitutes the entire agreement between the parties with respect to the Work licensed here" creates an implicit restriction that allows the following sentence to be true.
That's because the cited sentence contains an implicit modifier, something like "There are no understandings, agreements or representations [between the Licensor and You] with respect to the Work not specified here". This is true, since it's the publisher and the reader who are parties to the license, with the author(s) not involved at that point. Or something like that…
This may be a completely routine aspect of contract law, a subject that I know almost nothing about. But this reinforces my belief that it would do lawyers good to take a couple of semantics courses (and, of course, it would do semanticists an equal amount of good to take a law course or two); and that it would be nice if there were a way to write English that was completely explicit about matters of scope and reference.