Authors' Rights, Fair Use, Open Access and Institutional Repositories, Scholarly Publishing

What is an author to do?

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A fascinating little controversy came to my attention the other day; one of those disputes that seems well outside the arena of academic issues, yet raises lots of questions that scholarly authors need to consider.

The basic facts of the dispute, which are summarized here on the Techdirt blog, are that the author Raymond Carver published a group of short stories in the 1970s and early 1980s that were subject to very heavy revision by his editor at Knopf Publishing, a man named Gordon Lish.  It seems that it is Lish, more than Carver himself, who was responsible for the spare, laconic style for which Carver was famous.  In fact, Carver’s stories were much more sentimental and expansive before Lish finished with them.  Now Carver’s widow, Tess Gallagher, wants to publish the original, unedited versions of these stories and she is being threatened with a copyright infringement claim by Knopf if she does so.

Two things should be acknowledged up front about this disagreement.  First, Carver consented to the changes, although he grew increasingly dissatisfied with them, and legally transferred copyright to Knopf.  Second, it is at least arguable that the changes made by Lish really did improve the stories.  But each of these acknowledgments also must be qualified.  Carver gave his consent to the changes and to Knopf’s ownership of copyright, but he pleaded with Lish to stop falsifying his authorial voice, even threatening to stop writing altogether if the editing continued.  Unfortunately, Carver was trapped by the publishing system; there was no way he could express himself without the services of Knopf, and Knopf’s editor insisted (for a while) on making the changes.  And while the changes may have improved the stories, they have obfuscated scholarship about Carver over the years.

A law review article by Cardozo law student Matthew Weldon discusses this case in detail and describes what options are open to Tess Gallagher.  In the process, he offers some nice reflections on the role of an editor, although it is unfortunate that his categories of writing and the kinds of editing appropriate to them does not include academic works.  The upshot of his analysis is that US law does not give Ms. Gallagher many options.  He considers how the moral rights tradition would protect Carver from drastic changes to his work, but notes that the US has never protected attribution and integrity, in spite of commitments to do so in international treaties we have joined.  In the end, the best Weldon can suggest is that the moral rights that underlie this controversy would support a fair use defense if Gallagher decided to go ahead and publish in spite of the threats from Knopf.

It seems to me that this case raises several important questions for academic and scholarly authors to consider.

First, what should the role of an editor of scholarly works be?  In copyright controversies, publishers are pushing harder and harder on the idea that they make copyrightable contributions to journal articles.  Yet even in the extreme case of Gordon Lish, there is no realistic way to claim that his changes gave him a copyright interest in the stories apart from Carver’s transfer of his own rights (as Weldon shows in some detail).  And if publishers do make significant changes to scholarly works, we need to ask whether those changes improve the work or undermine it, and how such alterations should be noted in order to preserve the scholarly record.

Second, do scholarly authors need to take steps to protect the integrity of their ideas and their voices from editorial presumptions?  Just as with Raymond Carver, the European tradition of moral rights does not function well in the US, so there is little protection, in copyright, for attribution or to preserve the integrity of an author’s work.  If an author in the US wants a guarantee of attribution, for example, it must be negotiated into the publication contract.  So must any guarantees about preserving the integrity of the original work.  These “moral” issues are at the very heart of value of scholarly publishing for academics, and yet copyright law does not protect them; there is no legal reason why, after a copyright transfer, the work of an author could not be published in revised form and/or over the name of a different person.  Thus extra diligence when transferring copyright may be required for scholarly authors who are concerned about their reputations and about the integrity of the scholarly record.

Finally, the Carver stories, and the failure of copyright law to provide a good solution to that dilemma, causes us to wonder if copyright law as it currently exists really serves the needs of scholarship or if it more often hinders its progress.  Certainly studies of the work of Raymond Carver are seriously undermined when critics cannot tell whether they are reading the words of Carver or Lish, and cannot compare the two versions.  Carver, of course, was trapped by the publishing system, where dissemination of his work left him no alternative but to acquiesce to his editor’s suggestions.  But academic authors today are not so dependent, and neither are creative artists.  The Internet offers opportunities to distribute work without any role for intermediaries, if the author thinks that is her best course.  And a stable online presence, even after traditional publication has taken place, can help an author defend his reputation against misappropriation or corruption of his work.

Open Access topics

What is Open Access?

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Continuing our run-up to Open Access week, another contribution from Pat Thibodeau:

Open access (OA) in its purest sense is making literature free online without any fees or restrictions due to copyright or licenses.

The Budapest Open Access Initiative [http://www.soros.org/openaccess/read.shtml ] was the first to define open access as being publicly free on the Internet, allowing users to read, download, copy, distribute, print, search or link to the full text of articles without legal, financial or technical barriers.  Since their statement, others have followed and Peter Suber, one of the true experts on OA, provides an excellent overview and timeline on his Web site:  http://www.earlham.edu/~peters/fos/overview.htm

Some other important statements are:

Bethesda Statement on Open Access Publishing  http://www.earlham.edu/~peters/fos/bethesda.htm

Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities http://oa.mpg.de/berlin-prozess/berliner-erklarung/

While the OA movement initially focused on journal literature, it is now being applied across the realm of scholarly communication including books, learning objects, repositories of various documents, and data sets.   In all its permutations, its goal is to ensure free access to information to support academic, research and personal pursuits of knowledge and promote innovation and discovery on a global as well as local level.

The OA movement has had an impact on the journal literature.  There are now over 5,300 titles in the Directory of Open Access Journals  [http://www.doaj.org/] and a 2009  PL0S One article by Bjork et al. [http://www.plosone.org/article/info:doi/10.1371/journal.pone.0011273] reports that now 20% of peer-reviewed articles are freely available across all disciplines.   This is a major shift since the Budapest statement challenged traditional scholarly communications in 2002.

While Peter Suber’s OA chronology [http://www.earlham.edu/~peters/fos/timeline.htm]  identifies very early free-access models,  the OA  movement has clearly gained momentum since the Budapest initiative issued its statement in 2002.

For more information, see the Open Access at Duke web site.Open Access logo, designed by PLoS

Open Access topics

Collaboration and the open access movement

In anticipation of Open Access Week at Duke, where the theme will be “Collaboration,” we will offer a series of blog posts about basic, and not so basic, issues and opportunities for OA.  This first post if from Pat Thibodeau, Associate Dean for Library Services in the Duke Medical Center.

The simplest definition of collaboration is “to work jointly with others or together especially in an in intellectual endeavor.”   But the open access source Wikipedia [http://en.wikipedia.org/wiki/Collaboration]   describes it as a “recursive process” where common goals are achieved “by sharing knowledge, learning and building consensus.”    As multidisciplinary and global projects increase in number that sharing of knowledge or information becomes very critical.  But what happens when one of the collaborators cannot access the information because of a restrictive license, the prohibitive cost of a journal subscription, or the unavailability of publicly funded research data?  Collaboration can be hampered if not halted.

The open access (OA) movement is focused on removing the barriers of price, copyright, and restricted use.  OA promotes the free flow of knowledge and data that makes collaboration possible and ultimately supports the generation of new innovations, creative ideas and scientific discoveries on a global scale.  Collaborators are no longer hampered by institutional or international boundaries.

So has open access actually made a difference?

In fact yes!  A recent NY Times article highlighted a research project where data were openly and publicly shared among commercial industries, universities and nonprofit groups in order to find biological markers of Alzheimer’s disease.  This “collaborative effort” has led to new research on early diagnostic tests as well as treatments.  [http://www.nytimes.com/2010/08/13/health/research/13alzheimer.html?_r=1&ref=gina_kolata]

This project is now serving as a model for groups studying other diseases.

In preparation of Open Access Week@Duke (Oct. 18-24), this blog will focus on other topics such as open data, open science, and other elements of the OA movement.  As you follow these blog posts, think about how OA could support collaboration at Duke, within your field, or across the world.

For more information, see the Open Access at Duke web site.Open Access logo, designed by PLoS

Authors' Rights, Copyright Issues and Legislation

What everybody knows

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“Authors are only motivated to write if they know their rights will be protected.”

“No man but a blockhead ever wrote, except for money.”

The second of these quotes, from Boswell’s “Life of Samuel Johnson,” is very familiar, I think, and demonstrably false.  Indeed, even Boswell acknowledged its falsity as he recorded it, and attributed the comment to Johnson’s “indolent disposition.”  The first quote comes from this fascinating article in the online version of the German magazine “Der Spiegel” reporting research that suggests that German’s 19th century industrial expansion may have been at least partially driven by the absence of strong copyright protection.

That authors must have strong copyright protection in order to create is presented in this article as a conventional belief, the kind of thing that everybody knows and accepts as a matter of course.  Such bromides are almost always false, like Johnson’s remark, or at least incomplete.  Perhaps the greatest value of the Spiegel article, short as it is, is that it demonstrates that a complex situation, such as the cultural impact of printing, copyright and the distribution of books, cannot be reduced to truisms.  Complex analysis is required, and Eckhard Hoffner’s research is an example of such analysis.

Hoffner’s discussion suggests two major points to me, both of which contradict the received wisdom about why we need ever-stronger copyright protection.

First, he shows that copyright was never really a great benefit for the majority of authors.  The point that an obscure scientist in copyright-free Germany actually earned greater royalties for his book on leather tanning than Mary Shelley did for “Frankenstein” debunks the economic side of the claim that copyright is always a benefit to authors.  But it is even more important to recognize, as the article puts it, that “the prospect of a wide readership motivated scientists in particular to publish the results of their research.”  Impact and reputation, then as now, were a major motivation for publication, and the higher prices that were made possible by copyright protection often inhibited those sought-after benefits.

Second, it is important to recognize that the real beneficiaries of strong copyright protection have always been intermediaries, as well as a few best-selling authors.  Its history in England shows that authors’ well-being was used as a campaigning point by publishers seeking copyright protection, but that it was the publishers themselves who reaped the real rewards, as they always intended.  Copyright, Hoffner shows, depressed competition and allowed publishers to make a great deal of money while inhibiting the dissemination of books and knowledge.  The irony is that it is only in recent years, as the role of intermediaries has diminished due to digital dissemination, that we can seriously look to a future where copyright protection might be reined in for the overall benefit of  learning.

Copyright Information Notes

Don’t take my word for it

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There are two things that persistently bother me about the musing I post to this blog.  The first is very general — so often I sound like Chicken Little, crying that the sky is falling.  Readers might well ask if things are really as bad as I make them sound in the copyright arena, although I spend enough of my time with frustrated, angry or frightened academics whose teaching and research is impeded by copyright restrictions to justify my dire warnings.

The second, much more specific, thing that bothers are the requests I get for “something short and simple I can read about copyright law.”  Unfortunately, as the copyright law has grown more and more complex, full of new exceptions to try to mitigate the harms done by new monopoly rights and longer protection, a “short form” (and the analogy to the tax code is apt) simply is not available.

There are a couple of excellent websites, of course.  The Crash Course in Copyright at the University of Texas and the Copyright Advisory Office site at Columbia are my favorites.  But now I have the chance to recommend two short articles that I think really will help clarify the current copyright situation for interested readers.

To start literally at the beginning, this short essay on “The Purpose of Copyright” by law professor Lydia Pallas Loren takes us back to the beginnings of copyright to understand how and why it has wandered from its historic purpose (at least as expressed in the US Constitution).  Professor Loren makes a persuasive case that copyright law needs to return to the “delicate equilibrium” that copyright laws seek to establish.  Hers is an eloquent description of how copyright has gone wrong due to some pervasive misunderstandings and what the path to  a restored balance would look like.

The situation specifically in academia is nicely summarized by another short paper, this one by Dorothea Salo on “Who Owns Our Work?”  Through the prism of the thorny ownership questions that are arising around all kinds of academic work, Salo nicely outlines the conflicts inherent in the current system.  Her essay is about a good deal more than ownership per se; it is a compelling summary of the issues that need to be resolved if scholarship is going to make the kind of progress in the digital age that the technology offers.

It is nice to be able to offer these two articles — both readable and compact — both because of their quality and because the next time someone asks me if things are really as bad as I suggest, I can point to Loren and Salo and respond, “Don’t just take my word for it…”

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use

Reading tea leaves

In the ongoing copyright litigation between Georgia State University and Cambridge, Oxford and Sage publishers, we are at a stage where everyone is waiting for Judge Orinda Evans to rule on the cross motions for summary judgment.  In the interim before her ruling, it is fascinating to look at the orders she has issued directing the parties to give her information.  The orders may tell us a bit about what the Judge is thinking, although such divination is always fraught with uncertainty.

In here first such order, back in June, Judge Evans directed the parties to file with the court a complete and certified copy of the new Georgia State copyright policy.  This development presumably indicated that the Judge was giving full consideration to the fair use argument and also that she was determined to stick to the analysis of the current policy.  Those who purport to speak for the plaintiffs in the case sometimes seem to want to continue to make the case about practices at GSU prior to the adoption of the new policy, in spite of Judge Evan’s previous rulings.  This order in June indicates, I hope, that the Judge is keeping her eye on the ball.

Last week is when the orders got really interesting, in my opinion.  First the Judge order the plaintiffs to provide her with a list of all of the items assigned for each class in the  three 2009 semesters that are alleged to be infringing.  Again, she seems determined to look only at practices that occurred after the new policy was adopted in February of 2008, and is looking careful at what those practices really are.  Whether or not this is a good thing for defendants or for plaintiffs, it speaks well of the determination of the Judge to keep the cases within the bounds she has set for it and not be swayed by outside rhetoric.

If we are looking for good news for the defendants in this case, however, I think it is to be found in the next order, filed last Thursday.  There the Judge orders the plaintiffs to provide her with a list of the retail cost of each work that was allegedly infringed during the 2009 semesters and the cost of licensing the excerpts that were used.  It is my opinion that the deeper the Judge looks at the economics of scholarly publishing and university teaching the clearer the need for fair use in this context will be.  To be fair, one could interpret this order a different way, and see it as the Judge evaluating the harm that has been done to publishers by Georgia State’s alleged infringement.  But this interpretation seems less likely when one looks at the actual language the Judge uses in her order.  She clarifies what she wants by asking to be shown “what a student would have to pay to purchase the entire work.”  Regarding licensing fees, she puts the question in terms of “what each instructor would have to pay” and then adds a request for the cost per student of these fees.

My strong hope is that Judge Evans, in these orders, is evincing a desire to fully understand the potential costs of of the ruling she is being asked by plaintiffs to make.  Her decision has the potential to dramatically raise the cost of higher education for students and/or reduce the options available to instructors in the state.  I hope that when she sees the high cost of books from these presses and realizes that permission fees are pegged to cost as much or more than retail sales, she will understand that the fundamental policy choice she must make is a trade-off between higher revenues for publishers and quality, accessible education for Georgians.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

Easy as 123?

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A colleague recently suggested that I consider why it was that two groups with putatively similar interests – the Association of American Universities (AAU) and the Association of Public and Land-grant Universities (APLU) – seemed to take different positions in regard to the Federal Research Public Access Act (S. 1373 and H.R. 5037), which was the subject of House committee hearings two weeks ago.

The difference seems rather slight at first.  David Schulenberger of APLU testified at the hearings and supported the adoption of FRPAA.  The AAU, on the other hand, sent a letter to the Committee that was holding the hearing, for inclusion in the hearing record, but never actually mentioned FRPAA.  Instead the letter urges passage in the Senate of the America COMPETES Reauthorization bill, which has already passed the House as H.R. 5325.  The letter, like Schulenberger’s testimony, expresses support for rapid public access to federally-funded research, but it supports the “collaborative framework” that was agreed upon earlier in the year by the “Scholarly Publishing Roundtable” and which, according to the letter, would be fostered by section 123 of America COMPETES.  So it is worthwhile to look at how the two bills differ.

The major difference is in immediacy of impact.  FRPAA is a mandate which federal funding agencies would be required to implement.  Section 123 of America COMPETES contains no such mandate; instead, it would create an “Inter-agency Public Access Committee” with a charge to “coordinate the development or designation of uniform standards” and “solicit input and recommendations” on “access to the results of federally funded research.”  Section 123 also includes precatory language about “the role that scientific publishers play in the peer review process.”  In this language I hear echoes of the exaggerated claims about the contribution from publishers that were made at the hearing itself.

I was interested to discover that other librarians seem also to read America COMPETES as something of a delaying tactic, or even as a rearguard effort to undermine public access initiatives already underway.  In a joint letter from the Medical Library Association and the Association of Academic Health Sciences Libraries, those two organizations express pleasure at the language about public access included in section 123 but also some concern.  Specifically they want a clause inserted that would prevent the proposed inter-agency committee from interfering with the current NIH Public Access Policy, which they see as a well-function model for public access, not a system in need of additional oversight.  These two organizations also worry that the language about peer-review overstates the impact that public access has on that system.  Whatever the flaws in peer review, and they are many, public access programs like that of the NIH or those proposed under FRPAA have no significant impact on the process; the MLA and AAHSL want to remind Congress of that fact.

My concern that support of Section 123 was a stalking horse to undercut FRPAA was strengthened a bit when I saw a recent report on IP activities from the AAU.  In that report what seemed implicit was made explicit; AAU, through its Scholarly Publishing Roundtable, would support FRPAA only with changes that track America COMPETES in terms of the inter-agency coordination but also would include a longer embargo period (even longer than the 12 months specified in the NIH policy) and mandate “formal” consultation with “all stakeholders.”  This last change presumably means that funding agencies could not attach requirements to their grants without first talking to publishers (and by the way, is the taxpaying public considered a stakeholder here?).  These stipulations leave me wondering to what degree AAU’s support for America COMPETES is a subtle attempt to oppose FRPAA under the guise of endorsing its goals but seeking conditions that would undermine the path to achieving them.

Copyright Issues and Legislation, Public Domain, Technologies

Hot news, cold idea

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At a meeting about public access to federally-funded research that I attended earlier in the year, a publisher strenuously asserted that it was not the role of the government to drive a business out of the market.  He was right of course, but so were a group of us who replied that neither was it the role of the government to prop up a business that otherwise could not survive.

I was reminded of this exchange when I looked at the “Discussion Draft” from the Federal Trade Commission on “support[ing] the reinvention of journalism.”  Unfortunately, the policy recommendations floated in this document have very little to do with reinventing journalism, but a lot to do with propping up the traditional business model of newspapers.  Most of the ideas put forward here, and they come not directly from the FTC but from those the FTC has discussed the issue with (a telling process of selection in itself), are about how to keep that status quo in news publishing from collapsing under its own weight and under the pressure created by new opportunities for disseminating news offered by the Internet.  Rather than looking at how journalism must change, the FTC has offered a set of proposals for how to protect the current set of badly mismanaged news organizations from the Internet.

There are lots of critiques of these proposals, including ones found here and here.  My favorite comment, from Kent Anderson of the “Scholarly Kitchen” blog, notes that the FTC does not “acknowledge how newspapers and other traditional media exploit free information tools like Facebook and Twitter to lazily learn about news through their desktops.”  So, in the great tradition of “what’s mine is mine and what’s yours is also mine,” newspapers seek to prevent others from disseminating news on the Internet while wanting to benefit from that dissemination whenever it can save them money.

Google released an extensive, and deadly accurate, critique of the FTC proposals, which can be found here.

What concerns me most about the FTC proposals and the ideas coming out of the news industry is that copyright law need to be revised to provide news organizations with additional protection.  Sometimes they suggest that fair use should be amended to exclude the possibility of a fair use of news coverage.  Worse, they often suggest, including to the FTC, a statutory version of the so-called “Hot News” doctrine.

The “Hot News” doctrine provided some protection for organizations that first reported a news event from those who would re-use the reportage, sometimes even exploiting technology to “scoop” the original reporters.  What technology, specifically?  The telegraph.  You see, the hot news doctrine dates from a 1918 Supreme Court case and has had very little traction in the modern world.  In that case, International News Service v. Associated Press, the Supreme Court upheld a injunction restraining INS from “appropriating news taken from [AP] bulletins… for the purpose of selling it to defendants clients.”  In spite of a recent attempt by AP to revive the doctrine, I want to suggest that there are at least four good reasons that “hot news” should have no place in copyright law.

First, we should recognize that the original decision by the Supreme Court was not a copyright ruling, but involved unfair trade practices.  These state law protections apply only between business competitors and would not prohibit non-profit distribution of the news by “citizen journalists” and those who post news stories to their Facebook sites.  Incorporating hot news into copyright would have the potential to do just that, expanding the protection for news way beyond what the Supreme Court authorize almost a century ago.

Second, times have changed a lot since 1918.  In the INS v. AP decision, the Supreme Court spilled a lot of ink discussing the economics of news gathering in order to justify the limited protection they were upholding.  Those economics have changed so drastically, as Anderson’s comment illustrates, that the foundations of the hot news doctrine have really been undermined.

Third, further erosion of those foundations came from the Supreme Court in 1991, when the ruled, in Feist Publications v. Rural Telephone Service, that no copyright could be obtained merely through “sweat of the brow.”  If the hot news doctrine were imported from unfair competition law into copyright, we would be importing a sweat of the brow doctrine that is at odds with the structure and underlying principles of the Copyright Act.

Finally, it is simply contrary to fundamental principles of democracy for the law to constrain ordinary citizens from talking to one another about the news of the day.  News is a unique category of information because of its importance to a democratic society.  While the opportunities to exchange information and ideas about the news that exist today can be used for good or for ill, it is not the place of the government to constrain those opportunities, even in the name of propping up newspapers’ foundering business models.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use

Dueling Myths

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It is a curious coincidence that in the past few weeks I have become aware of two different — very different indeed — documents which purport to refute common copyright myths.  The differences are easily understandable, given the two sources of the respective documents, and each reflects, to some degree, the prejudices natural to its authorship. It is, I hope, an interesting exercise to look at them side-by-side and see if and where each goes astray.

For an odd mixture of dead-on accuracy and exaggeration in one’s own economic interest, it is hard to beat this list of Ten Common Copyright Myths from the UK Copyright Service.  The Copyright Service is a collective registration services that clearly depends for its income on putting copyright holders in fear of infringement and significant financial losses; this is evidenced by their use of the frequently discredited figures regarding the alleged cost of IP “piracy” worldwide.  The Copyright Service makes money when rights holders are convinced that they need the extra layer of protection that registration with the service (a private equivalent of the registration available in the US from the Library of Congress’s Copyright Office) provides.

The accurate part of the Copyright Service’s list of myths is the first half; myths 1-5 are accurate and correctly described.  They represent misunderstandings that are frequently heard, although the myth about “poor man’s copyright” is probably not so common as to deserve being treated as copyright myth number 3, but it is a direct threat to the Service’s own business model.

Where things go wrong with this document is in myths 6 through 9.  The statement of each myth does, in fact, recite an inaccurate statement, but the debunking of these myths really overstates the scope of protection and the need for permission.  Indeed, the claim that one should just always seek permission simply because it is not true that using 10% is always fair use merely substitutes one myth for another.  Fair use and fair dealing are necessary and inescapable; ordinary citizens could not go through their days without committing infringement were it not for these provisions.  They cannot be simply dismissed as unreliable, especially because the transaction costs of “always” seeking permission would be prohibitive and would swamp an organization like the UK Copyright Service.

In addition to this re-mythologizing that occurs in myth 7, myths 8 & 9 represent an exaggeration of the risk involved in using copyright material in some cases.  Myth 9, attempting to assert how easy it is to prove copyright infringement, completely ignores the existence of numerous defenses available to users.  Such defenses are an indispensable part of the copyright law in the US and the UK; they preserve the balance of the law and protect important social values like creativity and free speech.

On the other side of the scales is this article on Urban Copyright Legends from Brandon Butler of the Association of Research Libraries.  Butler’s approach is obviously more from the side of users than of rights holders, and the difference of perspective makes reading the two similarly titled documents an interesting experience.  Most importantly, Butler offers a much more balanced and realistic perspective on fair use than does the Copyright Service.

In his discussion of “fair use legends” Butler does a nice job of presenting fair use as what it really is, a framework for a responsible analysis of risk in any given situation.  Fair use is never a certainty, but it is not a total crap-shoot either.  Butler shows that the burden of proving fair use is a relative matter; in some situations, especially non-profit educational settings, it is a relatively easy and secure analysis that we can and do rely on everyday.  In other cases the risk may be greater, and the value of the activity must be weight against the cost of permission and the potential cost of litigation.  This is a calculation that every librarian and academic actually does all the time, and more familiarity with how it works is a major value to be gained from Butler’s article.

In the second part of his article, on legends associated with the performance exceptions in section 110 of the Copyright Act, Butler is on somewhat less secure ground.  His debunking of urban legends relies here on some distinctions that are not as well-established as we might like.  Relying on legislative history, for example, is always a tricky business.  That there has not been major litigation over the TEACH Act, for example, is a good thing, but it leaves us rather more uncertain about just where the lines can be drawn than Butler suggests.  Likewise, the line between those videos that are “primarily marketed for educational use” and those that are available for use under 110 is not really very clear and has never been subject to judicial interpretation.  Nevertheless, the examples Butler offers do support his point that over-interpreting this language can lead to needless self-restriction well beyond what even our over protective copyright law requires.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Clearing up some confusions

The press of daily business yesterday made it harder than I expected to watch and listen to the entirety of the House Committee on Oversight and Governmental Reform’s hearing on the Federal Research Public Access Act.  Documents from the witnesses can be found here, on the page for the Committee’s Minority members.  Perhaps unfortunately, most of what I heard was from the panel of folks opposed to the legislation.  From that group there were several pretty egregious comments about the state of scholarly research and publishing, and it seems like clearing up some of the misapprehensions might be worthwhile.  There is lots to choose from, but I will focus on three seriously misguided claims.

First, I was truly shocked to hear the official from the American Psychological Association let stand the assumption, made by a committee member, that part of the value added to a published article was the clearing of rights in any third-party owned material that is incorporated in that article.  When the Congresswoman asked if that was part of the service that publishers provided, and opined that it was a significant contribution that would be a burden for individual authors, Mr. Beckler agreed with her and went on in general terms about all the value publishers add.  Except, of course, publishers do not do this; authors do, and it is a burden.  Indeed, virtually all scholarly publishers require that authors warrant, in their publication agreements, that they have received permission from any owners for incorporated content.  This is as true of APA as it is of other publishers.  Here is the APA’s publication rights transfer document; in the paragraph above the signature, item (b) is the author’s affirmation “that written permission has been obtained for all previously published and/or copyrighted material contained in this manuscript.”  So the claim that this is value added by publishers is, like so many such claims, really just free-riding on the labor of scholarly authors.

A similar kind of claim was the one made by all of the panelists in this group that publishers add copyrightable content to the scholarly articles they publish.  This was again in response to a question about editing and peer-review and it led all three to affirm that publishers make a contribution that is entitled to copyright protection independent of the copyright which they get from the authors via forced transfer.  I have published several peer-reviewed and edited scholarly articles in my career, and every word of those articles was my own.  Editors sometimes suggested changes (more often peer-reviewers did), but I created the protectable expression that incorporated those changes.  Even copy editors usually obtain the author’s permission for changes beyond correcting a typo.  I continue to be amazed and confused by the claim that there is some protectable contribution made by publishers, and I suspect that if there really were such a contribution it would be to the detriment of the scholarly record, since no publisher is as expert on the topic at hand, whatever it is, as the authors are.

In this report from the Chronicle of Higher Education, this claim about protectable contributions is repeated in the form of AAP attorney Allen Adler’s assertion that published articles are “partly the product of publisher’s labor.”  There are two basic copyright principles that need to be asserted to understand why whatever work publishers put in on an article does not translate to copyright protection.  First, copyright protects expression, not ideas.  Whatever suggestions for revision come from publishers — and most of them come from independent, volunteer peer-reviewers — those suggestions do not translate into a copyright claim.  Only expression, which is, or should be, the work of the authors, is entitled to copyright.  Second, the Supreme Court has reminded us that no copyright can be earned simply for “sweat of the brow.”  No amount of labor on an article earns a copyright interest unless it results in original expression, which the labor of publishers almost never does.

Finally, there was the odd little speech given by one of the Committee members about how important it was that we do not allow foreign governments and companies to “steal our intellectual property.”  When I heard this I want to shout that the Member did not understand the bill they were considering.  FRPAA applies to published research which is already available for sale through various subscriptions and database.  Foreign companies can already get their hands our “our” IP if they are willing to pay the prices for subscriptions or individual article downloads.  Presumably Chinese companies, for example, that want to compete with the US are willing to pay the sky-high prices charged by STM publishers; it is the cost of doing business for them, and the publishers are happy to take their money.  What FRPAA would remedy is the lack of access for smaller US companies and less wealthy educational institutions, as well as individual patients and others who need or are interested in the latest scientific research.  Understood properly, FRPAA is not so much a threat to US competitiveness as it is a necessary step to maintain that competitiveness.  As Sir Richard Roberts said in his remarks, if high school students, community colleges students, students at small colleges and researchers at smaller labs and companies can all get access to cutting edge scholarship, US research and development will accelerate.  If they cannot, our economic future does not look good.

Discussions about the changing world of scholarly communications and copyright