All posts by Kevin Smith, J.D.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

NIH public access and copyright

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Last Tuesday the Senate passed a FY 2008 appropriations bill that included language making it mandatory for investigators funded by the National Institute of Health to place the published versions of their results in the open access PubMed Central database within one year of publication. There is a new release about the policy, which was passed by the House in July, here from the Alliance for Taxpayer Access.

A consultant for publishing groups recently posted several questions about how the policy relates to authors’ copyrights on a library listserv, intended to convince academic authors that the policy is some kind of threat to them. By responding to those questions below, I hope to clarify the real relation between this new mandate and author’s rights.

The first question was whether supporters of the NIH mandate believe authors should own their copyrights, including the right to charge for their work. In my opinion, an author should have ownership rights in their own work. I also recognize that the unique nature of intellectual property means that those rights have to be subject to limitations and exceptions in the public interest. Every copyright law in the world, and all of the international treaties, recognize and allow for such limitations and exceptions, so this is not a radical proposition. In any case, the NIH policy is not a threat or challenge to copyright ownership. In fact, the explicit language of the provision passed last week requires that the mandate be implemented in a way consistent with an author’s ownership of copyright.

All that the NIH mandate requires is that authors give to the NIH a non-exclusive right to distribute their work no later than one year after it is published. This demand is a much more modest limitation on authorial rights than is the complete transfer of copyright still demanded by many publishers as a precondition of publication. There is no evidence that this delayed and non-exclusive license would harm an author’s ability to charge for her work, although that part of the copyright has little application in the world of academic authorship. On the other hand, there is evidence that public access as soon as possible will benefit an author’s reputation, which is the real value academic authors are able to extract from their copyright ownership.

The second question was whether supporters of NIH deposit believe that authors should have the right to transfer their rights by contract. Again, I support that right very strongly; I spend a good deal of my time advising academic authors about how to accomplish these transfers in a thoughtful manner that benefits them, not just the other party to the transfer. Again, the NIH policy will not impair the ability to do this, it will simply make such contracts subject to the non-exclusive license described above. Governments often put restrictions and requirements on the contents of contracts; it would be absurd to claim that the Uniform Commercial code has seriously impeded a manufacturer’s ability to sell his goods, even though contracts for sale are much more heavily regulated than a publication contract is, even after the NIH mandate.

One must remember that deposit in PubMed Central will not be required until one year after publication, so there is lots of room to negotiate the exact terms by which that non-exclusive license will be implemented. I will certainly advise authors to negotiate for earlier deposit, since it will be to their benefit to do so.

Finally, supporters were challenged about whether they believe academic work is “work for hire” that is owned by their employing universities, and whether they also felt other faculty work,like inventions, should belong to the school. It seems to me that academic work should not be work for hire, although I recognize the strong legal basis on which some universities claim that it is. My preference is for clear policies that leave academic ownership of copyright in the authors’ hands. But again, the NIH policy has nothing to do with work for hire; it certainly does not involve any claim that funding of research makes a work a work made for hire. Such a claim would be insupportable under our current definition of work for hire.

When something is a work for hire, the ownership of the copyrights vests immediately with the employer. In contrast, the NIH is only requiring, again, a non-exclusive license to distribute which will not have to come into being until well more than a year after the copyright vests in the author.

As for other types of intellectual property, I would note that many academics are not uncomfortable with a work for hire claim over patentable inventions because they recognize that university resources are much more involved in such creations and that the assistance of the university is needed to pursue the complex and expensive process of obtaining a patent. Copyright protection is very different in its origination and its terms, so it is quite rightly treated differently.

Responding to these challenges helped me clarify for myself that the real threat to authors’ copyrights is not the NIH public access policy, but an outdated approach to publishing that tries to build an exclusive market around a non-competitive good (which means a good that can be distributed widely without diminishing its supply or value to the creator).

Scholarly Publishing, Technologies

Talk back on schol comm issues

Two interesting scholars have recently undertaken to write major pieces of scholarship about scholarly communications issues in blog form. This means that all of us have the opportunity to comment on these works in progress, a rare opportunity to participate in cutting edge research and to make our voices heard before a work of scholarship is published. Not only are these two projects interesting because of their topics, they also represent important experiments in the kind of collaborative scholarship that the digital environment makes possible.

Georgia Harper, well-known in copyright circles for her years of work in the Counsel’s Office at the University of Texas and her educational outreach to the whole academic community, is now a Ph.D. student in Library and Information Science. She is working on a major paper on the impact of mass digitization projects on copyright law and policy. Her work should be fascinating, and we are invited to participate as she develops the paper and solicits feedback at this blog site using CommentPress software and in collaboration with the Institute for the Future of the Book.

The growing influence of the Institute for the Future of the Book in these new experiments in collaborative scholarship is evident from the fact that the other project, Siva Vaidhyanathan’s growing book on “The Googlization of Everything,” is also a project of if:book. Vaidhyanathan’s project promises to be the more synoptic and polemic of the two as he tells us why we should worry that “one company is disrupting culture, commerce and community.” Combined with Georgia’s deep knowledge and experience in law and policy, these two projects offer a rich set of opportunities to imagine the future of publishing and scholarship.

Copyright Information Notes

When is something a work for hire? (weekly widget)

A work is “made for hire,” so that the employer owns the copyright from the beginning, if the work was created “by an employee within the scope of his or her employment” or if a work by an independent contractor is subject to an express agreement that it will be work for hire and it falls into one of nine broad categories listed in the Copyright Act. Many works created by college and university faculty would seem to be works for hire under the first prong of this definition, but there is a long judicial tradition of excluding these works from the category. Many universities have adopted policies to address when a faculty work is or is not a work made for hire.

Open Access and Institutional Repositories, Scholarly Publishing

Flipping out

Can it really be this easy? I have written several times about the difficulty of transitions from the increasingly unworkable subscription model for academic journal access to an open access model with some alternative form of financing. Now Peter Suber has developed an idea suggested in 2003 by Mark Rowse, who was CEO of Ingenta at the time, which offers an elegant mechanism for that transition.

Rowse’s suggestion is simply that a journal “flip” its business model by declaring that, from now on, what have previously been regarded as library subscription fees will now be considered authors’ subsidies and the contents of the journal will be available without barriers on the web. Such a decision would protect the journal’s income in the short run, and it would challenge subscribing libraries to refrain from canceling there payments to the journal, now identified as author’s fees, until a sustainable model to keep the contents available in open access is developed. Such a model would presumably involve incremental steps towards correlating what an institution actually pays with the publishing habits of its faculty in the journal. Some schools would pay less, some would pay more, and some that did not pay the high subscription rate at all would be convinced, one hopes, to pay appropriate fees for publishing their own faculty’s work.

This idea obviously involves a risk on the part of both the publisher and the libraries, but it seems like an excellent way to prod libraries into putting their money where their mouths are in regard to open access. As Rowse says, this technique suggests a way to transition to open access “without fundamentally destroying the existing scholarly publishing business.”

In addition to Suber’s article linked above, more comment can be found in this blog post by Heather Morrison.

Just for some context, this article about the decision of the Max Plank Society to cancel all of its electronic access to the 1,200 scientific publications from Springer Publishing due to the failure of negotiations for an acceptable price is another reminder that the current model is failing at the fundamental goal of facilitating scholarly communications. The kind of imagination and courage that could make Rowse’s suggestion work is sorely needed.

Copyright Information Notes

Who gets copyright in a work? (weekly widget)

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Copyright is automatic whenever a work of original authorship is fixed. No notice (like the symbol ©) or registration is required anymore. The copyright is owned immediately by the person who created the work, who retains ownership unless and until they transfer some or all of the copyright to another. The exception is a work made for hire, where the employer rather than the creator is the immediate owner of the copyright.

Copyright Issues and Legislation, Digital Rights Management, Technologies

Fixing the DMCA?

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The Digital Millennium Copyright Act added two important sections to the copyright act, one that has proved somewhat useful in fostering fair use and the balance between owner’s and user’s rights, and one that, in stark contrast, threatens to drastically overturn that carefully crafted balance. The “safe harbor” provided for online service providers has assisted the growth of web 2.0 applications that offer an unprecedented opportunity for user creativity that pushes the boundaries of fair use. The strict protection of electronic protection measures (anti-circumvention rules), on the other hand, has arguably given content producers the means to control each and every use of their content, forbidding any uses they wish to prevent, even if those uses would otherwise be privileged under the rest of the copyright law.

A new article by Professors Riechman, Dinwoodie and Samuelson, available here on the Social Science Research Network and forthcoming in the Berkeley Technology Law Journal, examines these two provisions carefully, in the context of their origins in the World Intellectual Property Organization Copyright Treaty and the US Congress, as well as the important interpretation of each in the courts. The professors find in the development of the safe harbor “notice and takedown” mechanism that has successfully protected OSPs a fascinating suggestion for how to fix the clearly dysfunctional anti-circumvention rules.

It is difficult to summarize an article this complex, although the clear writing and argumentation in this piece makes it far easier than many other law journal articles to comprehend. The authors examine the way the concern of the US courts, starting with the famous Sony Betamax case before the Supreme Court in 1984, to protect so-called “dual-use” technologies (those capable of both infringing and non-infringing uses) so that copyright law not be allowed to stifle technological innovation, laid the groundwork for the safe-harbor provision of the DMCA. Building an elaborate analogy between these cases and the situations in which the anti-circumvention rules would come into play, the three professors suggest that, in the US (the article also deals with the European Community), courts could begin fashioning a similar solution to the over-protection of copyrighted works fostered by technological protection measures. In short, they propose a “reverse notice and takedown” procedure which would obligate content producers to “unlock” technological protection when necessary to foster uses privileged by the law as in the public interest. They discuss in detail how such a procedure make be established in both the US and the EC, and what the details of such a solution might look like.

Although long and complicated, with its treatment of both the US and the EC, this article richly rewards the time spent reading it. It provides a clear summary of where we are vis-à-vis the uneasy relationship between copyright and the digital environment, how we got to this point and how we might move forward in a responsible way. Scholarly work seems to get more attention from European courts and legislators than it does in the US, but this is one article that we must hope catches the attention of some well-placed American jurists who could consider implementing its creative solution to a problem that has rapidly become intolerable.

Copyright Information Notes

What does Copyright protect? Our first widget.

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Copyright protects original expression in fixed form. “Original” means there must be some element of “authorship,” but the standard here is very low. A phone book is not sufficiently original, but my grocery list probably is. “Fixed” means that the expression must be available in a medium that can be perceived; unrecorded oral expression is not protected. Most importantly, “expression” means that copyright does not protect ideas, only the form in which those ideas are expressed. I am free to use ideas gained from another’s work in my own original expression without authorization.

Copyright Information Notes

Copyright widgets

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A colleague recently suggested the value of putting out short tidbits of information about copyright on a regular basis as a way to educate a community and keep attention focused on copyright issues and opportunities.  It seemed like such a good idea that this site will begin carrying such short information briefs (called widgets in honor of my colleague’s affection for that word) each Thursday (I hope).

All of this site is placed under a Creative Commons license (Attribution, non-commercial, no derivative works), but it seems appropriate to explicitly offer these informational widgets for reposting to other academic communities if they seem helpful.

These widgets will be collected under the more descriptive blog category of “copyright information notes,” with the hope that they will cumulate into a helpful review.

Open Access and Institutional Repositories, Scholarly Publishing

A Civil Debate about Open Access

Looking at these two articles about open access and scholarly publishing has made me aware of an online (and open access) journal that I did not know about before, “Script-ed” is the online journal of the Research Centre for Studies in Intellectual Property and Technology.  If these two articles, and the titles of others I have yet to read, are an accurate measure, this is an excellent publication for all interested in “law and technologies in the broadest sense.”

The two articles I want to recommend here are about the cost of open access to publishers, who fear loss of revenue if OA were to become the norm in the academic world, versus the social costs of continuing as things are, where fewer and fewer people have access to significant research as the toll for access to subscription journals rises.

From the perspective of an academic publisher, Kevin Taylor’s article is a calm and reasonable account of the current situation.  He recommends, and apparently practices at Cambridge University Press, where he is IP Director, sensible and even enlightened copyright policies for academic publishing.  It is only when he talks specifically about open access that he raises some fears that are not very well-founded.

In his response to Taylor’s article, A.A. Adams carefully refutes these fears and offers a font of helpful information about open access.  Perhaps his most important point is that book publishing in the academic world is very different that the business of publishing journal articles.  Academic authors do not write articles to gain direct economic benefit, which makes OA an important and entirely beneficial option in the world of articles, where it might be more contested if we were talking about monographs.

Adams’ section on “Routes to Open Access” is a superb introduction to the arcane jargon of the OA movement, explaining very clearly what green and gold OA are and how the various versions of these two “roads” to OA can work.

Authors' Rights, Scholarly Publishing

Keeping your copyright

There is a great new website to help those who create stuff — whether they are filmmakers, musicians or academic authors — understand and manage their copyrights.  Several groups at Columbia University law school, working with a Board of Advisors, have created the site to walk creators through the rights they have, how they can manage those rights to accomplish their personal goals for their work, and even the common terms found in many publication contracts.  The need for this website is summed up very well in its first paragraph:

“Today, too many creators take a passive attitude toward their copyrights. The matter seems complex, and publishers or distributors may tell you that everyone does it their way, or that giving up copyrights is standard practice. But giving up your rights under copyright is a decision, not a default option. If you stand passively by, you may over the course of a long creative career produce a large body of work, most of which is owned and controlled by other people, whose interests and yours may diverge.”

Academic authors and creators should take these words to heart and use this website to develop a proactive strategy for managing the rights they have in the works they create.  The vast array of options now available for sharing and exploiting one’s own creative work suggest that passivity is no longer a sensible option, and the information offered by this site is exactly the remedy needed.