Category Archives: Authors’ Rights

NIH public access mandate becomes law

On the day after Christmas, President Bush signed the Omnibus Appropriations bill for fiscal year 2008, ending a long struggle with Congress over earmarks, appropriate funding levels for various government agencies and continued funding for the war in Iraq.  Buried deep in this huge and complex document (section 218, to be specific, although not all the sections seem to be numbered) is language that turns the voluntary program of open access deposit for research articles that are the result of National Institute of Health funding into a mandate.

Beginning immediately, apparently, when an NIH funded researcher has a article about her research accepted for peer-reviewed publication, she is required to deposit a copy of the final version of the article into the open access PubMed Central database within 12 months of publication.

Librarians, and many others in higher education, have lobbied for several years to get this requirement, and others like it for research funded by other taxpayer supported agencies, enacted.  Now the issues of implementation become both real and urgent.  How can we help faculty researchers understand the new mandate?  What publishers can we recommend, and can we help faculty review their publication contracts to be sure compliance (or even earlier public access to the article) is allowed?  Some publishers, like Elsevier, already promise to deposit copies of articles they publish for researchers.  Publishing with such a publisher is an easy way to comply with the mandate, but it will almost certainly result in the full 1 year delay before open access.  For many researchers, there will still be significant advantage in accomplishing open access much sooner than this.  So the task of assisting faculty with understanding their alternatives, negotiating their publication contracts and navigating the mechanics of open access deposit are even more urgent services that academic libraries can and should provide.

To Assign or Not To Assign?

The International Association of Scientific, technical and Medical Publishers issued a statement last month on the benefits to authors of assigning copyright to publishers. The thrust of the statement is that publishers are better placed than authors to defend against plagiarism and copyright infringement, to ensure broad dissemination of the articles in question, and to manage issues like requests to reprint and migration to new formats. Each of these points is very debatable, and Peter Suber provides both excerpts of the document (which is itself very short) and a comment that refutes the assertions list above in a very concise and competent way. Not surprisingly, his conclusion is that publishers primary concern is to protect their own interests and that a concern for authors’ rights is, at best, secondary.

One point on which Suber and the STM publishers agree is that a complete assignment of copyright need not preclude authors from making their work available in open access through a personal webpage, institutional repository or disciplinary archive. Even when faced with a demand to assign the copyright, authors may negotiate to retain the right to deposit their work in the ways suggested, as well as to retain other rights. There seems to be little doubt, and the STM publishers do not even argue the point, that open access deposit is a benefit to scholarly authors. But authors will have to decide for themselves if assigning copyright while retaining that right really serves their best interests or whether they should negotiate to keep their copyrights and give the publisher a more limited permission to publish.

NIH public access and copyright

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).

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.

Copyright term, open access and the NIH

As reported in the Chronicle of Higher Education last week, an Oxford graduate student in economics is soon to publish a paper arguing that the “optimal” term of copyright protection is just 14 years. This is vastly shorter than the current term of protection in the US, where the term is life of the author plus 70 years, or in nearly any other nation of the world. Although his conclusion may be too radical to be practical, Rufus Pollok’s calculations add some weight, if any was needed, to the argument that copyright protection has moved very far from its original goal of providing an incentive to authors to create and now nearly exclusively serves the economic interests of large commercial distributors.

Pollock bases some of his calculations on the argument that a shorter term becomes more desirable as technology makes reproduction and distribution easier. Nevertheless, it is interesting to note that the optimal term he arrives at – 14 years – was precisely the term provided by the first English copyright law, the 1709 Statute of Anne.

Even if the copyright term was vastly shorter than it now is, however, many of the arguments for open access to research and scholarship would remain just as strong. That there is great public benefit to wider access to cutting edge research, and great justice in providing taxpayers with no-toll access to the results of research for which they have already paid, are points that do not depend on the length of the copyright term. Even if the term were as short as Pollock proposes, more immediate public access would still be worthwhile pursuit; authors would still need to see that a right to open access deposit was included in their publication agreements and funders, especially government agencies, would still need to mandate such deposit whenever practical. But under our grossly over-extended term of protection, these needs are greatly amplified.

Congress is now considering an appropriations bill that includes funding for the National Institute of Health and, for the first time, would mandate that research funded by the NIH be deposited in the PubMed Central database within six months of publication. This language has clear the appropriations committee and will be considered on the House floor this week. Publishers have objected that this mandate might undermine copyrights, but this argument hardly seems convincing, since most publication agreements already allow authors to offer their own published work on the web. Authors must continue to read such agreements with great attention to be sure they retain this right, and Congress should not let this spurious argument prevent them from seeing the basic justice that demands passage of the NIH appropriations bill as it has come from committee.

Added note — The American Library Association has posted this Action Alert to assist those who would like to encourage Congress to support the NIH mandate.

Educating the Educators

At this point in time it is accurate to call the emphasis that educational organizations are placing on Scholarly Communications a movement. The Scholarly Communications Movement like many social and political movements can be characterized by its detractors, supporters and strategies. One such strategy, which I call “Educating the Educators” is the art of communicating with faculty and librarians about the roles that they play as creators, owners, buyers and disseminators of scholarly publications in the scholarly resource enterprise.

Many groups are doing their part to get the word out, emphasizing the need for institutional repositories, retaining author rights and understanding the difference between copy right infringement and fair use. But the work of “Educating the Educators” is never done and I predict that this movement is still in its infancy. It was in this spirit that Kevin Smith, Pat Thibodeau and I led a Scholarly Communications brown bag lunch for the Duke University Library staff this past spring.

Kevin’s presentation, “Authors’ Copyrights: Helping Duke Authors Manage their Rights” was an overview of Duke’s Author Advisory Service that provides information and advice for Duke faculty authors. Kevin’s presentation emphasized that informed authors can “add value by increasing the usability of their work.”

Pat’s presentation, “Faculty / Author Advocacy: Power and Influence on Scholarly Publishing” outlined methods of encouraging faculty to become Scholarly Communication Advocates and to consider publishing in Open Science (Access) sources. This advocacy is mutually beneficial for faculty members and libraries. Faculty can increase the “visibility of their work” and “immediately communicate with peers” and libraries will be in a stronger position to provide access to affordable content.

My presentation, “Institutional Repositories + Libraries” presented the findings of an Association of Research Libraries’ study of the growth and use of Institutional Repositories (IR’s) in libraries. I also gave an overview of the four IR’s at Duke University:

  1. Portfolio @ Duke
  2. MeDSpace
  3. Duke Law Faculty Scholarship Repository
  4. DukeSpace (Under Development)

A Seventy Percent Solution?

It is a little bit belated to be pointing out this April 7 article (“It’s a Steal”) by John Lanchester from the Manchester (UK) Guardian website, but it provides a nice counter piece to the screed advocating perpetual copyright that appeared in last week’s NY Times (see post here). Lanchester, at least, is aware of the balance that copyright law is supposed to strike between incentives for creators and the public interest in access to information and the raw materials for new works. He offers a poignant example of how copyright restrictions have hampered his own creative efforts as an author, and he takes a quick but eloquent romp through the history of copyright law in England. Most important is his acknowledgement that 70% of creative works are currently still protected by copyright but no longer in print. This massive limitation on public access with little corresponding economic benefit to creators is, perhaps, the worst imbalance created by current laws (although Lanchester also cites the extension of copyright term whenever Mickey Mouse looks over the abyss of the public domain). The solution he suggests, a limited copyright term with an ongoing right to minimal royalties, is not fleshed-out well at all, and may be unworkable, unwise, or both. The point is not that this one author can solve the problem; the value of the article is for a creative writer to recognize publicly that our current law has swung too far toward protection and needs to be realigned.

Helprin, Chaucer and literary influence

Several colleagues have asked me if I don’t have some pithy and devastating response to make to the opinion piece by Mark Helprin in Sunday’s New York Times, A Great Idea Lives Forever. Shouldn’t its Copyright?  In some ways the best refutation of Helprin’s editorial is simply to consider its title carefully.  Do we really want great ideas owned by individuals forever?  While copyright does not, of course, protect ideas, perpetual copyright would vastly increase the amount of litigation needed for any new work of creativity in order to prove that its dependence on all that had preceded it was on the correct side of the idea / expression line. What a powerful weapon the James Joyce estate would wield to suppress criticism and scholarship for many, many more years if Helprin got his wish.

Should Boccaccio have been able to sue Chaucer to establish that only ideas and not expression were appropriated when Chaucer wrote his “derivative works?”  Without literary borrowing, the great works of world literature would not have been possible; Chaucer could not have written The Canterbury Tales and Mark Helprin could not have written… whatever Mark Helprin has written.  Then there is the culture of remix and parody fostered by the Internet — a whole new kind of creativity that should not be stifled in its infancy.  So perhaps the most appropriate response to Helprin is to read another recent article that celebrates the interplay and interpenetration of cultural creation, The Ecstasy of Influence by Jonathan Lethem, which appeared in Harpers in February 2007.

Publisher position on author rights

Three academic publishing organizations recently released a short position paper called “Author and Publisher Rights for Academic Use: An Appropriate Balance” that is worth a look from all who are concerned about scholarly communications.  For higher education, the position paper contains elements that evoke hearty agreement and others that demand objection.

If, as a recent comment on the LibLicense list suggested, the purpose of the paper is to call wide attention to two facts, that many scholarly journals already have very “scholar-friendly” policies built into their publication agreements and that copyright is not necessarily a barrier to academic discussion and comment, there would be little to argue with.  It is quite true that many academic journals already allow authors to retain many or most of the rights necessary for subsequent teaching and research uses.  It is important that authors read those agreements to be sure this is true in their specific case and to consider whether or not self-archiving or some other form of electronic deposit is permitted, since such access is becoming more and more important to scholars and to scholarship.

On the issue of digital “open access” availability, the position paper takes an awkward stance.  While citing several journals that have adopted “author-pays” models of open access as leaders, the paper marshals several arguments against mandated public access for research funded with public money.  Some of these arguments are self-contradictory; if one fear about open access is that it will “confuse the scientific record,” why is it suggested that a better course than mandating access to the final version of an article is to post pre-prints?  While pre-print repositories seem less threatening to the traditional business model of journal publishing, the scientific record is best preserved when access to the scholar’s final word is available to all.

One comment at the very end of the report deserves comment.  The publishing organizations take note of the educational exceptions and limitations built into copyright law but assert “that these exceptions are thus far limited to traditional photocopying and do not permit the exploitation of such materials [journal articles] over the Internet.”  This is wishful thinking; no court, that I am aware of, has decided one way or another about how far educational exceptions apply in the digital realm.  The TEACH Act, although largely a failure at its stated purpose, is clearly intended to apply some leeway for education to the Internet.  And the oft-repeated assertion that copyright law is technology neutral implies that there is fair use on the Internet, as the recent Perfect 10 decision held, even if its educational boundaries have not yet been clarified.

Another warning for faculty authors

Our Scholarly Communications colleague at UNC, Deborah Gerhardt, just published this important warning about publication contracts in the Chronicle of Higher Education.

Her point that so-called “non-compete clauses” can hamper a scholar’s ability to publish later work on a particular topic is another reminder that, as the conflicts over copyright get more intense, it is vitally important to read publication contracts carefully. Deborah provides examples of language to look for and language to beware of, and the Duke Scholarly Communications office is always willing to help examine publishing agreements for faculty and student authors in order to protect those rights that are most important for supporing continued creativity and scholarship.