The public was given the opportunity to provide feedback on the draft implementation guidance on Plan S.

We were asked to provide answers to two questions. Here they are, along with my responses.

Is there anything unclear or are there any issues that have not been addressed by the guidance document?

The guidance suggests, “CC BY 4.0 demands that licensees indicate if changes are made when re-using licensed material, and this means that the CC BY-ND license should not be necessary for due protection of the rights of the author.”

It is not clear how the demand that licensees indicate if changes were made when re-using the licensed material means that the CC BY-ND license should not be necessary to protect the rights of the author.

CC BY 4.0 does not demand that licensees indicate what changes were made, only that changes were made. How, exactly, does that protect the rights of the author? Which author rights does it protect?

Even if Creative Commons were to develop a CC BY 5.0 that demands that licensees indicate what changes were made, how would that protect the rights of the author? Which author rights would it protect?

CC BY-ND protects the right of the author to grant/withhold permission for specific derivative works.

My understanding is that CC BY 4.0 does not protect that right, since it explicitly grants permission for derivative works.

If I am the rightsholder, then I am legally entitled to grant or withhold the permissions I choose. By imposing the CC BY (or CC BY-SA or CC0) requirements on rightsholders, cOAlition S is taking that power from the rightsholder. According to the original Preamble to Plan S, this sort of power grab is justified in terms of our “collective duty of care for the science system as a whole.” How are we to understand this collective duty of care? Is the idea that our collective duty to the system as a whole ought to trump our individual rights? Why?

How would I harm the system as a whole, even if I were to apply a CC BY-ND license to everything I publish? I can imagine how my individual reputation could be severely compromised by derivative works — say, a bad translation of my work — for which I had been forced to “grant” permission under a mandatory CC BY license. I can imagine how the system as a whole could be harmed by bad translations. I can also imagine how society could be harmed by bad translations. How would the system as a whole be harmed by my retention of the right that those who want to create a derivative work contact me to obtain permission?

The other argument in favor of mandating a CC BY license seems to be consistency with the Berlin Declaration definition of Open Access. What is the justification for imposing that definition on everyone funded by cOAlition S partners? I have a problem with that definition, since it entails the idea that imposing fewer restrictions on reuse is always better than allowing some restrictions. I think that claim is false. I grant that allowing fewer restrictions is more open — in the sense of more libre — than allowing more restrictions; but how is that better? Perhaps the idea is that imposing fewer restrictions on reuse is better in the aggregate — for the system as a whole — than allowing some restrictions. But I have not seen a good argument for that claim. Please clarify your thinking on imposing the Berlin Declaration definition of Open Access.

Finally, to shift topics, it is not clear how — or why — cOAlition S plans to sanction researchers who have neither the funds to pay APCs nor access to a compliant repository. Since there are so few currently compliant repositories, and since researcher funds are limited, this seems like a real possibility. I think it would be wrong to sanction a researcher who could not comply with Plan S (ought implies can). There is a further complication here. Suppose I am on a team of researchers from different universities. My university does not have a compliant repository. If one of my team members at another university deposits the Version of Record of a co-authored work on her repository, will that count as my having complied with Plan S, or will I still be subject to sanctions?

Are there other mechanisms or requirements funders should consider to foster full and immediate Open Access of research outputs?

Yes, you should consider the contrasting approach laid out by AmeliCA here.

Consider that disempowering publishers is not the only way to achieve Open Access.

Consider that imposing unreasonable requirements on researchers is not the best way to achieve buy-in from researchers.

Consider choosing a different way that *begins* with buy-in from researchers from around the world.

Consider that Open Science is more than Open Access; that Open Access is one among many means to achieve Open Science; that there are many ways of achieving Open Access; and that some ways of achieving Open Access can empower researchers and society.