All posts by David Hansen, JD

Copyright Issues and Legislation

Who owns the law?

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This post is co-authored by Dave Hansen and Leslie Street, Director of the Mercer University Law Library and incoming Director of the Law Library at William & Mary.

There are some categories of information that are so critical to a well-functioning society that restrictions on access or use should almost never be allowed. We could write a long list of those categories, but at the top would be “the law.” Anyone vaguely familiar with the U.S. legal system knows that ignorance of the law is no excuse. The ancient concept, that citizens have the obligation to understand and comply with the law, is an almost absolute presumption across the American legal system. And wrapped up in that presumption is the implicit expectation that citizens have an opportunity to understand the law, and thus necessarily have access to the text of the law itself. Concepts like democratic rule and due process hinge on the concept.

Public.Resource.Org and the Official Code of Georgia Annotated

Later this week an organization called Public.Resource.Org will ask the Supreme Court to address the scope of public access and use rights in “the law”, specifically in a case titled Georgia v. Public.Resource.org. The case is about whether the State of Georgia—by way of a publishing contract with Lexis—can hold copyright in the Official Code of Georgia Annotated, which is the official statutory “version of record” that courts, attorneys, and the public must rely on. While courts have been relatively clear about the inapplicability of copyright to the core text of edicts of government, courts have not thoroughly addressed how copyright applies to parts of “official” legal publications that include non-statutory additions such as annotations and comments that are authorized by the state. The state of Georgia asserts that such materials may be protected by copyright and therefore controlled and restricted. The 11th Circuit disagreed, holding that

“By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. . . . Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. . . . The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all. As a result, no valid copyright can subsist in these works.”

We find the 11th Circuit reasoning persuasive, and so does Public.Resource.org, which is now making the bold move of asking U.S. Supreme Court to review the case it has already won in the court below, in hopes of clarifying the law nationwide.

Looking beyond Georgia

What’s crazy is that it’s not just the state of Georgia claiming rights over its laws. Over the last year or so we researched and wrote an article titled Who Owns the Law: Why We Must Restore Public Ownership of Legal Publishing, 26 J. Intell. Prop. L. 206 (forthcoming 2019), https://doi.org/10.31228/osf.io/xnbcp, which outlines all the many ways that commercial legal publishers have come to dominate the primary law publishing market. The article explains how those publishers use tools like copyright law and contracts to restrict access today, and how yet more noxious tools such as the CFAA could pose threats in the future.

In writing that article we cataloged the status of copyright assertions and publishing arrangements for the court opinions, statutory codes and administrative codes of all 50 states [links here and here, and we hope to make a more usable/readable version of this data soon].  We found that at least 20 states, in addition to Georgia, make some type of copyright assertion over their official statutory code. Many others make claims regarding their administrative codes and judicial opinions. Some of those assertions result in what seem like amusing oddities—for example, one must contractually agree to arbitration in New York to obtain free online access to the Arkansas code—but that have also resulted in real legal battles that can have a chilling effect on access and use.

So what can we do? Our paper has some suggestions, specifically for law libraries, state legislatures, and the courts. But ultimately, the solution is likely as complicated and localized as the 50+ jurisdictions that produce the law. In the short term, pay attention to the Public.Resource.Org case before the U.S. Supreme Court. And if you’re a law student, solo practitioner, or legal educator, there is an awesome opportunity to join an amicus brief before that court in support of Public.Resource.Org, asking the court to take the case  (but you’ll have to act fast; signatures are due by May 2).

 

 

Open Access topics

Enough is Enough: UC Leadership and the Transformation of Scholarly Publishing

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This is a guest post by Jeff Kosokoff, Assistant University Librarian for Collection Strategy, Duke University; and Curtis Brundy, Associate University Librarian for Scholarly Communications and Collections, Iowa State University

With the University of California’s (UC) announcement that they have broken off talks with mega-profitable commercial publisher Elsevier, we have moved closer to a tipping point in the ongoing struggle to correct asymmetries in the scholarly information ecosystem. Elsevier, along with the rest of the Big Five (Wiley, SpringerNature, Taylor & Francis, and Sage), has been put on notice: things as they are cannot stand. UC’s leadership in advancing open access is longstanding, and we applaud their continued efforts to seek new models that would transform scholarly publishing.

This is a great day to be a librarian, and a great day for scholars and scholarship. A day when the needle visibly moved in the right direction. Like the UC, we must openly and strongly engage publishers if we want to find mutually agreeable and sustainable long-term solutions to the current crisis. While profit-driven publishers whose business models depend on artificial scarcity to control scholarly content may object, the privatization of the common goods represented by research outputs no longer serves the best interest of academia or society at-large. To be clear, we are not rooting for large commercial publishers to go out of business. The Big Five provide substantial value through their publishing services and journals. However, journal subscription pricing has increased beyond what even the most well-resourced institutions can afford. As a result, an increasing number of preeminent institutions in North America have been quietly cutting their subscription inventories. See SPARC’s Tracking page for an incomplete but helpful list of institutions and packages they have cut. We are not aware of any academic institution that does not have renegotiation of big deals in its plans.

In the name of efficiency and effective provision of service, a growing number of librarians seek to create, negotiate and support transformative models that move scholarly publishing to be immediately and openly available. Collections are a service, and we, like the UC, believe the scholarly community will be better served by collection budgets that support and advance open access. These efforts are farther along in Europe, with the recent Wiley-Projekt DEAL agreement serving only as the latest example. But interest in transformative open access models in the United States is rapidly growing. The UC System is not alone in their desire to increase their support for open access while reducing support for subscriptions and paywalls.

Elsevier’s present impasse with California should be understood in the context of the broader worldwide movement to transform scholarly communication. This is a movement that has seen significant recent acceleration, and it is one that transcends country and institution type. If and when Elsevier shuts off access to UC campuses, its researchers will be in good company, joining researchers from Germany and Sweden who have also seen their access cut off after negotiations failed to produce a transformative agreements. One wonders how many of the world’s researchers must lose access to Elsevier content before they finally come around to a position where they will be our partners in solving the scholarly communication problem. Let’s also keep in mind that UC was able to take this stand partially because the libraries have worked hard to help their faculty see the value in openness and the resulting UC Academic Senate support for this difficult decision.

Costs to institutions and the profit margins of publishers are out of control and unsustainable. It is time for more research to come out from behind paywalls. Paywalls as such only benefit the payee. UC’s approach is an attempt to address the access and the market distortions together, which makes a lot of sense. Libraries have a growing list of trusted partners working to advance open access, including the Open Library of the Humanities, Public Library of Science, Libraria, and Knowledge Unlatched. Many libraries stand ready to support common sense experiments to find ways that work better for our scholars and scholarship. We are always seeking willing partners, be they existing publishers and publications open to re-imagining scholarly publishing, or new platforms seeking more dramatic transformation. It is time to stop pouring our money into the black hole of excessively for-profit publishing that seeks to control scholarly information. Let’s work to open up the ecosystem.

Authors' Rights

Giving the Authors a Voice in Litigation?  An ACS v. ResearchGate Update

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You might recall me writing about ACS v. ResearchGate, a lawsuit filed last fall in the United States by ACS and Elsevier against ResearchGate. It followed a similar lawsuit filed a year earlier in Germany.  In both the German and U.S. versions of this lawsuit, the basic complaint is that ResearchGate infringed the publishers’ copyrights by hosting and publicly distributing scholarly articles for which the publishers claim to own exclusive rights.

Nothing had happened in the U.S. case for months, but yesterday ResearchGate made several filings.  ResearchGate has apparently retained Durie Tangri (the same law firm that represented Google in the Google Books lawsuit) and has invested in making some opening arguments that I think are pretty smart.

Authors rights: the argument I’ve been waiting for

The most interesting ResearchGate filing isn’t its factual answer to the complaint, but rather the motion that ResearchGate made accompanying its answer. That motion, with the inconspicuous title of “Motion for Notice Under 17 U.S.C. § 501(b)” asks the court to open the door for something big: communicating about the litigation with the actual authors of the articles posted to ResearchGate. Imagine that!

ResearchGate begins its argument by pointing out the unusual nature of the case, and why it is so important to clearly sort out who owns rights (authors versus publishers) in the articles underlying the lawsuit:

A typical copyright infringement lawsuit about copyrighted material appearing online involves a content creator suing a website owner when an unauthorized third party has posted the creator’s work to the website without the creator’s permission. But here, [the publishers] are suing . . . ResearchGate for allowing scientists to share their own work. . . . Under Plaintiffs’ infringement theories, if ResearchGate is infringing Plaintiffs’ copyrights in the articles at issue here, so are those articles’ authors. Accordingly, a finding that the appearance of those articles on the ResearchGate site was infringing would necessarily mean that the people who conducted the research and wrote the articles did not have the right to share them.

The motion goes on to argue that many authors of these articles (almost all of which were co-authored) still hold a valid copyright interest in them that would allow those authors to legally post the articles to ResearchGate. Even assuming that the publishers obtained valid transfers of exclusive rights from the corresponding authors, ResearchGate argues that there is no evidence that the publishers also obtained a valid transfer of exclusive rights from co-authors of the papers. Thus, those co-authors are free to make what uses they want with their papers, including posting to ResearchGate.

Given that these authors may hold rights, ResearchGate argues that § 501(b) of the Copyright Act allows (and may even require) the court to order notification of those authors as third parties who have a “claim or interest” in the copyrighted works at issue. Section 501(b) provides that the court:

  • may require written notice of the action with a copy of the complaint provided to “any person shown . . . to have or claim an interest in the copyright,” and
  • shall require that such notice be served upon any person whose “interest is likely to be affected by a decision in the case,”

In addition to notification, the statute also provides for a way to actually bring third-parties into the lawsuit. It says that the court “may require the joinder, and shall permit the intervention of any person having or claiming an interest in the copyright” (emphasis mine).

ResearchGate is, for now, just asking the court to order the plaintiffs to notify other potential copyright owners about the lawsuit. Specifically, ResearchGate is asking the court to “order Plaintiff’s “to serve ‘written notice of the action with a copy of the complaint upon’ each co-author of each journal article at issue in the lawsuit who is not a corresponding author. . . .” I don’t know exactly how many authors that is (as I’ve said previously, there are over 3,000 articles), but it’s probably a lot.

Procedure, procedure, procedure

You may think I’m getting all worked up over a little bit of civil procedure. Maybe. But I think it is important because over and over again we’ve seen large-scale copyright infringement suits fought between the large organizations (e.g., Authors Guild v. Google, Authors Guild v. HathiTrust, Elsevier v. SciHub, Cambridge University Press v. Becker (Ga. State)) without much input at all from the actual authors of the works that form the basis of those lawsuits. When those authors have been allowed to have a say, such as in the Google Books class action certification process, their input has meaningfully altered the outcome.

For the ResearchGate litigation, it seems like a good start to at least require the Plaintiffs to notify authors that their work is being used as the basis for a copyright infringement lawsuit. I would hope, once authors are notified, that the court would also allow those same authors to intervene, as the statute allows, to have their own say in how their works are shared with the world.

 

Uncategorized

Public Domain Showcase 2019!

Some examples of works in the public domain as of January 1, 2019

Guest Post by Arnetta Girardeau, Duke University Libraries, Copyright & Information Policy Consultant

As you may have already heard, January 1, 2019 marked a very, very special “Public Domain Day.” When Congress extended the term of copyright in 1998 through the Copyright Term Extension Act, it set off a long, cold public-domain winter. For twenty years, no work first published in the United States entered the public domain. But now, spring is here! On January 1, 2019, works first published in 1923 became free to use. And in 2020, works first published in 1924 will enter the public domain, and so on and so on! It’s exciting stuff.  What does that mean to us as creators, makers, teachers, or writers?  It means that we suddenly have access to more materials to rework, reuse, and remix!  Works such as Charlie Chaplain’s The Pilgrim, Agatha Christie’s Murder on the Links, and “The Charleston.”

Throughout the year and across the country, festivities are planned—including a live streamed panel at the US Copyright Office on January 16, and a incredible lineup of speakers and talks at a live event, “A Grand Re-Opening of the Public Domain,” co-hosted by Creative Commons and the Internet Archive in San Francisco on January 25.

At Duke, we’re celebrating this introduction of new materials into the Public Domain with a competition to showcase what our community can do with the public domain.  We want to see how Duke faculty, staff, and students can use items from 1923 and earlier, all of which are now in the Public Domain!   We have provided a few representative images along with this post, but feel free to create with any works that you find that are in the public domain (if you have questions about what is and isn’t in the public domain, you can contact us and we’d be happy to talk!) Selected entries will be posted on the blog and on Library social media. We have a small number of giveaways to thank you for participating.

What can you do?

  • Write new lyrics to a song
  • Create a wallpaper for your mobile phone
  • Make a work of art
  • Create a score for a silent movie made in 1923.

What else do you need to know?

Any member of the Duke community may enter.  Faculty, staff, students, and retirees are all welcome.

You can read more about the Public Domain in this article by the Duke Law Center for the Study of the Public Domain.

Thanks to the David M. Rubenstein Rare Book & Manuscript Library for providing many of the images!

If you have any questions about entering the showcase, or how to incorporate other people’s work into your own, consult the Arnetta Girardeau, Copyright and Information Policy Consultant, at arnetta.girardeau@duke.edu.

 

 

 

 

 

 

 

 

Uncategorized

A Framework for Library Support of Expansive Digital Publishing

I’m very pleased to announce a new report, A Framework for Library Support of Expansive Digital Publishing, released today by the team here at Duke University Libraries. The report is about how libraries can more fully embrace their role in the evolving space of digital humanities publishing. This is the summary:

This report offers a framework for how libraries can begin to embrace their role in the maturing space of digital humanities publishing, particularly as they seek to support what we call “expansive digital publishing” — challenging digital publications that can span disciplinary and institutional boundaries; use many different technologies; have multiple scholarly outputs; grow over time; operate over the long-term or are multi-phase; aim to engage with multiple audiences; and, in general, use digital tools and methods to explore or enable scholarship that would be more difficult to achieve through traditional publishing.

This report is the result of an ambitious project, generously funded by a grant from the Andrew W. Mellon Foundation, that aims to address how libraries engage with scholars, publishers, humanities institutes, promotion and tenure committees, and many others on expansive digital publishing projects. We covered everything, from financing to producing, evaluating, and preserving some of the most complicated and gnarly digital projects that scholars are now exploring. In our view, these types of publications embody many of the best characteristics of networked digital scholarship. They open new possibilities for engaging in conversation with a broad set of readers — both peer scholars and publics — and, simultaneously, revise and expand knowledge based on this engagement. They are also, for the same reasons, some of the most challenging to truly “publish” as scholarly works within the full meaning of that term.

For readers of this blog who typically look here for a discussion of legal challenges,  I hope you’ll indulge me by reading this report, as it grapples with the significant cultural and organizational challenges that face scholars of new, more broadly accessible forms of digital scholarship. For many areas of scholarship, I think these challenges are far more significant than the legal and financial ones that I typically write about.

One of the best parts of studying for and writing this report was receiving the generous, thoughtful and diverse comments that the digital publishing community contributed. You’ll find an impressive list of contributors who have already added their thoughts to this effort in one way or another here. To help further that conversation, we’re pleased to be able to share the report with the world through PubPub (thank you, MIT Press!), which will allow you to add your own comments or suggestions as you read.

Full citation:

Full citation:  Hansen, D., Milewicz, L., Mangiafico, P., Shaw, W., Begali, M., & McGurrin, V. (2018). A Framework for Library Support of Expansive Digital Publishing. A Framework for Library Support of Expansive Digital Publishing. https://doi.org/10.21428/680f3353  

Authors' Rights, Open Access and Institutional Repositories

ACS v. ResearchGate – 3,143 articles and a few lessons about their authors  

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In October, Elsevier and ACS filed a new US copyright infringement lawsuit against ResearchGate [complaint]. Like the German ResearchGate lawsuit I wrote about last year, the basic premise of the suit is the same. This is how Elsevier and ACS describe ResearchGate’s activities in the American lawsuit:

In egregious violation of copyright law, ResearchGate provides anyone connected to the Internet with a free trove of infringing digital copies of peer-reviewed published journal articles [PJAs]. ResearchGate has consciously designed and actively maintains the RG Website as a hub for obtaining infringing copies of those PJAs. ResearchGate is not a passive host of a forum where infringement just happens to occur. Rather, ResearchGate actively participates in the ongoing infringement, in which it directly engages by duplicating, displaying, and distributing unauthorized copies of PJAs. ResearchGate also intentionally facilitates, supports, and lures users into uploading and downloading unauthorized copies of PJAs.

Big, if true. I have some doubts that I will write about later.

As far as what this suit and the publishers’ assertions mean for authors, I suggest reading this detailed post by Brandon Butler at UVA on the subject. It’s the best explanation I’ve read yet on copyright, open access and publisher-author sharing policies.  The “tl;dr” for that post is sad but accurate: “You probably can’t share your research as widely as you thought, and this is a problem endemic to academic publishing.”

The Authors of the ResearchGate Articles

One thing I found so interesting about the complaint in the most recent lawsuit was that it had very little discussion of the authors of the articles involved, or about the research itself (to be fair, if I were writing the complaint for the publishers, I’d try to leave the authors out of it too). Discussion of the authors and their articles is important context, though, for understanding how these articles were created, who posted them to ResearchGate in the first place, and what rights those users might have. Were any authors U.S. government employees who had no rights to be transferred to the publishers? Were any subject to university open access policies that reserve rights to universities or authors? Were any subject to funder OA mandates? Or did authors pay for open access for any of these articles? 

Thankfully, to bring a copyright infringement suit, one must actually identify the content alleged to have been infringed, even if you don’t talk much about it in the complaint. In this case, ACS and Elsevier provided a list in “Exhibit A” to the complaint of the 3,143 articles that they claim were infringed. I haven’t had time to fully explore those articles (these is a spreadsheet with information for all 3,143, if you’d like to do your own research). But thanks to some advice from some fantastic colleagues here at Duke, I was able to extract that data and run some searches for information about the articles and authors. I searched those article 3,143 DOIs in Web of Science, which returned 3,082 records. Here’s some of what I learned from those records:

Author Organizations

  • Most authors of these articles are affiliated with non-US institutions. From among the 3,082 records, the top ten author organizational affiliations are:
    • Chinese Academy Of Science (176 articles, 5.7%)
    • Centre National De La Recherche Scientifique Cnr (128 articles, 4.1%)
    • Universite Cote D Azur Comue (100 articles, 3.2%)
    • University Of Chinese Academy Of Sciences Cas (68 articles, 2.2%)
    • University Of California System (60 articles, 1.9%)
    • Russian Academy Of Sciences (49 articles 1.6%)
    • Indian Institute Of Technology System IIT System (45 articles, 1.5%)
    • State University System Of Florida (37 articles, 1.2%)
    • Nanyang Technological University (36 articles, 1.2%)
    • Nanyang Technological University National Institute Of Education Nie Singapore (36 articles, 1.2%)

I think there is a whole other blog post to be written about publishers going after articles authored in large part by non-Western authors. But I’ll not touch that for now and focus on the license situation.  I can’t speak about all of those institutions, but at least one (the University of California System) has an open access policy. I’m not sure how that policy/license factors into the posting of the articles to a site like ResearchGate, but it’s worth exploring. Two of the authors are Duke authors, and I know we have an OA policy that affects whether posting the articles to ResearchGate is permissible.

Article Funders

  • Unsurprisingly, given the authorship, most articles with identified funders are not based in the US. The top 10 funders are mostly Chinese.
  • NSF funded 38 of the articles, and NIH funded 24.

Again, unclear how funder OA policies may factor into the posting of these articles, but worth further exploration.

“Open Access” Articles

These articles raise some important questions about what rights the authors thought they were getting when they paid the OA fees for their articles. Did they understand that posting to ResearchGate would be disallowed? It also raises a question about how Elsevier is interpreting the “non-commercial” clause of the CreativeCommons license (is an author posting to ResearchGate “commercial” use?) and how that matches up to, e.g, the interpretation of that language by Creative Commons and by courts such as in Great Minds v. FedEx.

I haven’t had as much time as I would like to fully explore these articles and their authors. I should say that I’m not particularly sympathetic to ResearchGate or its business practices, but I do sympathize with authors who are trying to share their research in the best way they know how. From them, I would be particularly interested in hearing what they think about this lawsuit — were they consulted before the suit was filed? Are they aware that it was even filed? Do they agree with it? Did they understand their publication contract and its effect on posting to sites like ResearchGate? I’m hopeful that someone out there will take up the important work of developing better information about authors views on lawsuits like this.

Fair Use, Libraries

Controlled Digital Lending of Library Books

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This post is co-authored by Dave Hansen and Kyle K. Courtney

We’re very pleased to announce the release of two documents that we believe have the potential to help greatly expand digital access to print library collections by helping libraries do online what we have always done in print: lend books.

Both documents are aimed at addressing the legal and policy rationales for what we term “controlled digital lending” — a method by which libraries loan digitized print books to digital patrons in a “lend like print” fashion similar to how non-digital patrons check out books in-person. Through CDL, libraries use technical controls to ensure a consistent “owned-to-loaned” ratio, meaning the library circulates the exact number of copies of a specific title it owns, regardless of format, putting controls in place to prevent users from redistributing or copying the digitized version.

CDL isn’t itself a silver bullet for mass digital access to books. It’s not meant to be a competitor to Overdrive, nor a replacement for licensing e-books of best-sellers or other currently licensable e-book content. But we think CDL does deserve significant attention as a legal strategy, particularly to help address access to the large number of books published in the “20th Century black hole” that have little hope of otherwise bring made available to readers online.

The first document is a Position Statement on Controlled Digital Lending, which is meant to help people understand the concept at a glance, give an opportunity for libraries and legal experts to communicate their support for CDL, and provide a centralizing statement around which libraries can build a community of practice. The Statement is signed by a number of leading libraries (some of which are currently employing CDL or actively exploring how to do so) and copyright experts.

 The second document is A White Paper on Controlled Digital Lending of Library Books, which we co-authored. The White Paper delves much deeper into the legal and policy rationales for controlled digital lending, reviewing relevant law, the fair use rationale for CDL, and practical risk and policy considerations for libraries that might consider implementing CDL for some parts of their collections. Our aim with the White Paper is to help libraries and their lawyers become more comfortable with the concept by more fully explaining the legal rationale as well as the situations in which the rationale is the strongest.

We, along with several colleagues, have posted more information at www.controlleddigitallending.org, which includes the statement text.

The white paper can be found at:

David R. Hansen & Kyle K. Courtney, A White Paper on Controlled Digital Lending of Library Books (2018), https://doi.org/10.31228/osf.io/7fdyr.

Uncategorized

The Library Copyright Institute

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Hello world! I’ve left this blog quiet for the last several months as we have eased into some leadership changes at Duke University Libraries that have reinvigorated our focus on addressing information needs across the full research lifecycle, from collections to discovery to research to publication and back again. That focus reflects on several major principles and goals of the Libraries’ strategic plan, Engage, Discover, Transform. I’m really excited about the direction we’re headed.

Closely connected with those goals are a few long-term projects that I’ll be posting about over the next few months. I’m pleased to announce one today: The Library Copyright Institute.

The Library Copyright Institute is a collaborative project with colleagues from UNC-Chapel Hill, North Carolina Central University and NC State University, all part of the Triangle Research Libraries Network (TRLN).  You can read the full press release here.

The project is meant to be a pilot to develop a program of systematic, deep instruction on copyright law for librarians. The Institute is specifically targeted at training librarians at institutions with fewer resources and no copyright expert on staff. The premise of the Institute is that we’re all better off when the whole library community is widely and deeply engaged on the legal issues that most directly affect our ability to help users. Regardless of what library you work at, we all need to be able to confidently apply fair use, understand licenses, and assess public domain status. Having fewer resources should not mean that the beneficial rights granted by copyright law are unavailable to librarians, researchers, teachers and students at those institutions.

We’ve already identified a number of excellent instructors who have indicated a willingness to help us teach what we expect to be a 3-day intensive experience, hosted sometime in late summer 2019 at NCSU’s James B. Hunt, Jr. Library. We will have an open call for applications sometime in Spring 2019 and for those selected, attendance will be free (including lodging and food). We’re aiming to reach librarians in the Southeast with this first version of the Institute, but are designing the program with an eye toward replicating the Institute in other regions in the future.

I look forward to seeing how this project progresses. If you have an interest in what we are doing, I’d love to hear from you: david.hansen@duke.edu.

The Library Copyright Institute was made possible in part by a grant from the Institute of Museum and Library Services (IMLS Grant RE‐87‐18‐0081‐18).

Authors' Rights

Who posted all those articles to ResearchGate anyway?

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You may have heard about recent legal action against ResearchGate brought by several large academic publishers organized under name of the “Coalition for Responsible Sharing” (Elsevier, Wiley, Wolters Kluwer, Brill, and ACS). Some of its members filed a lawsuit against ResearchGate and sent ResearchGate copyright takedown notices for many articles posted there. There are some good summaries of the dispute already, including this one by Mike Wolfe at UC Davis and this one on Science Magazine Online.

The dispute is about the millions of copyrighted articles–the Coalition claims there are 7 million–made freely available through ResearchGate. The Coalition publishers, whose business model depends on charging for access to those articles, don’t like that users can get them for free. It’s a familiar dispute, and one that publishers have fought over the years, although on a much smaller scale, with Academia.edu, as well as a variety of universities repositories.

A natural inclination toward open access

So, who posted all those articles to ResearchGate? As far as I can tell, every article shared through ResearchGate was put there by one of its authors. I’m not sure of all of the reasons why authors use ResearchGate, but I believe a major one is that those authors want their work to be as easy to find and read as possible.

I also believe, based on experience working with academic authors on their publishing contracts, that many authors aren’t aware of the details of how their publishing contracts allow them to share their work. They aren’t lawyers, but they shouldn’t have to be.

For most of the ResearchGate articles, I have every reason to think that the publishers are correct in their assertion of legal authority, based on publishing contracts, to remove those articles. Authors often sign publishing contracts that transfer almost all of their rights to publishers. Some agreements grant rights back to authors for some “scholarly sharing”, but the contract terms are often so incomprehensible and limited that they are effectively meaningless to many authors. Some try to figure it out (do a Google search for “Is it legal to post articles to ResearchGate?” and you’ll find lots of advice of varying quality), but it’s far from clear.  So instead, many authors opt to follow their natural inclination—despite the risks—to take what steps they can to make their work easier to find, read, and perhaps be cited.

OA the “right” way versus “wrong” way

Scholarly publishing has long struggled with authors who don’t especially respect or even understand the dominant pay-for-access business model. Judging by the 7 million articles authors have shared through ResearchGate, many authors seem to view that model with something from outright contempt to self-interested indifference.

 So what are publishers to do with these authors who make their work freely available the “wrong” way? If enough people do it, it may have a serious effect on journal subscriptions. But authors are in a pretty good position; if publishers start actively enforcing copyright law against authors we may react negatively (and possibly very publicly) against not just the particular enforcement action but against the underlying business model. See, e.g., The Cost of Knowledge. So instead, we now see a stream of copyright enforcement not against authors but against the intermediaries that authors use to share their work: ResearchGate, Academia.edu, and university institutional repositories. It puts those organizations in a tough position, but ultimately, the harm is to authors who want to share their work.

As many people have stated before, the goals of open access can best be achieved if authors—who have great power as the initial owners of copyright in their works—hold on to their rights and negotiate their publishing contracts for terms that allow them to widely distribute online. For that matter, authors who want to share their work as openly as they can would do well to use alternatives besides posting to proprietary commercial sites like ResearchGate. But right now, that ideal of broad OA the “right” way seems far off.

Open in order to be read

We’re at the end of Open Access week, as you may have noticed by the encouraging number of OA events over the last few days. This year’s OA Week theme is “Open in order to…” I find one of the simplest but most powerful “open in order to…” statements is “open in order to be read.” To me, a silver lining of the ResearchGate takedowns (among other similar recent actions) is that it signals meaningful, author-created, system-wide pressure against a business model that hinders readership, rather than enhances it. The method and platform demonstrating that pressure isn’t ideal, the legality is questionable, and the result for some organizations (and potentially authors) may be painful. But it’s clear that author-initiated sharing, viewed collectively, is seen as a real threat to that business model. I’m hopeful that means we’re just a little bit closer to seeing that model fade out of dominance and yield to one that emphasizes access and readership.

As for authors today, we can protect ourselves from the risk of takedown notices by retaining our rights. Publishing contracts are not written in stone; they’re negotiable. Increasingly, we can negotiate to keep the rights we need to post our works anywhere we want to be read. For anyone interested, here are some tools for doing this the right way:

 

 

 

 

 

Copyright Issues and Legislation, Libraries

Revisiting Section 108

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Earlier today the U.S. Copyright Office released its long-awaited review of improvements to Section 108 of the Copyright Act, the section which grants limited, specific exceptions to copyright for libraries and archives. Over a decade ago the Office convened the Section 108 Study Group* to assess improvements to this section, and in 2008 that group produced its report. Since then (and with recent inquiries from the Office to stakeholders) we’ve been waiting to hear from the Copyright Office about its views on updates to Section 108. This Section 108 “Discussion Document” does just that.

Before getting into the document I want to start with two observations. The first is that Section 108 is horribly outdated. Most of its text is exactly the same as enacted in 1976. The piecemeal updates that have been added to address modern library and archives practices, including online uses, haven’t worked well and are awkward additions. I–and many others–have written about the need to update Section 108.

The second is that I’m leery of asking Congress to revise any part of the Copyright Act, including Section 108. From someone who thinks that copyright law already unnecessarily restricts access to lots of information in ways that have no positive effect on the copyright system’s underlying purpose–encouraging the creation and dissemination of new creative works–I don’t think Congress has a great track record on legislative revisions. Since the 1970s Congress has consistently made copyright terms longer, dramatically expanded the number of works protected, and has made using those works riskier. Asking Congress to revisit Section 108 could mean that it gets much worse, rather than better.

All that said, I think many of the Office’s suggestions are pretty good. I can’t go into every detail in this blog post–the Discussion Document is around 60 pages long, and it needs every one of those pages–so, for now, I thought I’d point out the top three positives I see in this document:

1) The Office suggests in a number of places removing hard numerical limits on the number of copies allowed. For preservation purposes, for example, the proposal would allow libraries, archives, and museums to reproduce works “as many times as is reasonably necessary for preservation and security.” This is a major problem under the current statute, which generally only allows for making three preservation copies. Perhaps more significantly, the proposal would also low eligible institutions to make incidental, temporary copies that are needed for making resulting preservation copies and for copies made for users. This is important when thinking about digital access because it would eliminate concerns about whether 108 can apply at all when incidental copies are made in the course of transfer from one machine to another.

2) It would expand the categories of works to which Section 108 applies. The current statute makes several Section 108 exceptions inapplicable to musical works, pictorial, graphic or sculptural works, and to motion picture or other audiovisual works. That restriction currently limits 108’s usefulness–and makes it all the more difficult to understand and apply–without providing a clear benefit for rightsholders of those kinds of works. This document also reframes how the Section 108 exceptions would apply to “published” versus “unpublished” works (the current Section 108 treats unpublished works differently, with the idea that unlike published works, there generally isn’t a commercial market to be harmed by the use of those materials ). The new proposal opts instead to make distinctions based on whether the work was ever “disseminated to the public” by the copyright owner. “Publication” is a notoriously difficult concept, so the move away from it to something a bit broader is welcome, though I’m not sure the concept of “disseminated to the public” is going to be easier to apply in practice.

3) It suggests that institutions should be able to provide remote digital access to users, albeit in some cases limited to one user at a time, for a limited time. This most directly applies to works “not disseminated to the public,” (i.e. unpublished works). For archives, this enhancement could be significant when thinking about how to provide access to preservation copies. Would an online reading room, with technology to allow for controlled digital lending, be permissible under these terms?

The Office’s 108 document also has parts that are likely to cause some controversy. One big one is a suggestion that eligible libraries, archives, and museums could be exempt from copyright liability for violating non-negotiable contract terms that prohibit institutions from engaging in preservation activities otherwise permitted under Section 108. I think this is an incredibly important suggestion, given the number of click-wrap, consumer-oriented license agreements that libraries enter into so they can provide electronic access to their patrons. Many of those contracts prohibit making copies necessary for preservation purposes, but if libraries aren’t saving copies there is a great risk that in the long term, those works may one day become entirely inaccessible to everyone.

Another part of the document likely to cause some controversy is the requirement that eligible institutions implement reasonable digital security measures. I understand the desire for such a limitation, but this is an area where the devil is going to be in the details. Who decides what is reasonable is an open question, and how compliance with that provision is monitored and assessed could be extremely burdensome for some institutions.

Overall, I have to say that I’m impressed. I think the Office did good work in pulling together the results of the Section 108 Study Group report as well as feedback from stakeholders in creating this document. As proposed, the Section 108 envisioned in this document still wouldn’t provide all or even most of what libraries, archives, and museums need to fulfill their missions,  and fair use would remain an important and probably overriding consideration when making uses of copyrighted works. But, as a sort of safe harbor for institutions seeking certainty for activities that they commonly engage in, the types of improvements outlined in this document would be welcome and a great help in facilitating modern (as opposed to 1970s-era) libraries, archives, and museums.

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* The 108 study group was jointly convened by the The National Digital Information Infrastructure and Preservation program of the Library of Congress and the Copyright Office.