Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

A model for academic publishing

Last week BioOne unveiled its new “Model Publication Agreement,” with an announcement that ought to generate more attention than it has. BioOne is “ a collaboration between scientific societies, libraries, academe and the private sector [that] brings to the Web a uniquely valuable aggregation of the full-texts of high-impact bioscience research journals.” The decision to create a model publication agreement grew out of the perceived need to help some of its publishers, especially the scholarly societies, deal with the legal complexities of publishing in the digital age. The model agreement was drafted for BioOne by an attorney for an intellectual property firm in San Francisco, and it represents a superb and realistic balancing of the needs of author’s and academic publishers.

The core of the model agreement is a double license; the author grants to the publisher both a time-limited exclusive right of first publication and a perpetual, non-exclusive license to publish, distribute and sublicense. Subject to these two licenses, copyright is retained by the author. The model agreement contains a number of options or “fill-in-the-blank” points where publishers can customize the license to fit specific conditions. As an attempt to lower the transaction costs associated with publishing, and as an equitable balancing of needs that do not have to be in permanent competition, this is an excellent model to be followed in academic publishing.

It is unfortunate but predictable that one of the most immediate responses from the publishing community was a very revealing demur to the BioOne model agreement project. A university press director posted his objections within two days of the announcement; his position that the agreement is inappropriate even for academic publishers exposes the growing gap between academic publishing and the values of the academy that supports it.

One complaint is that, without an exclusive right in the published works, the publisher will have no standing to sue putative pirates who want to steal academic work. First, we should note that there will still be a rights holder under the model agreement who can enforce the copyright – the author. The problem is that the author’s interests not only do not coincide with the publisher in some cases, they sometimes conflict. The objecting press director notes that the author may actually benefit from wider distribution by a “pirate,” so one wonders why authors should continue to sign away copyrights to organizations who want to wield them as litigation weapons contrary to the authors’ interests. Copyright is supposed to be an author’s right; its genesis as a publisher’s right (associated with their role in censoring unpopular content) is centuries out of date.

And this brings us to the second revealing question about this objection – who are the pirates we are supposed to fear enough to give up copyright entirely to publishers? In fact, the only “pirates” against whom publishers tend to threaten litigation are the authors themselves and their institutions. The “theft” these publishers want to control is faculty authors passing out copies of their work to their own students or to others on campus, to their colleagues at other institutions, and via their websites. No one seriously expects large-scale republication of scholarly content for profit; all that is being defended by these grabs for exclusive copyright transfer is the traditional, and increasingly expensive, subscription model of access. If there is real danger that subscriptions will be canceled because authors retain their own copyrights, and this has never been shown to be the case, all it would illustrate is that this traditional business model has runs its course and no longer serves the interests of those it was created by and for.

The Ithaka report on university publishing asked presses and their parent institutions to reexamine how well publishing is integrated with the interests and values of the academy and the specific university. The BioOne Model Publication Agreement can help advance that integration, and objections to it are a profound illustration of the problem we need to address.

Copyright Issues and Legislation, Fair Use

Limitations and exceptions

Are getting a lot of attention lately. This is the phrase, used primarily in international copyright discussions and negotiations, to refer to the many compulsory licenses, declarations that an apparently infringing act will not be considered infringement, and restrictions on when a copyright can be claimed that make copyright material usable, to a degree, by the rest of us. Without limitations and exceptions, the exclusive rights granted by copyright would frustrate copyright’s fundamental purpose to encourage progress and creativity. It is one thing to guarantee a financial incentive for intellectual creation, but if that creation cannot be used by others, innovation grinds to a halt.

That is why so much of the Copyright Act is dedicated to exceptions to the exclusive rights. In the Government Printing Office edition, over one-third of the text is dedicated to sections 107 through 122, which incorporate most, but not all, of the limitations and exceptions.

In international treaties, the limitations and exceptions to copyright are supposed to be subject to a “three-step test” which has its origin in the Berne Convention, initial adopted by many countries (but not the US) in 1886. The US joined Berne in 1988 and oversaw its incorporation into international trade law in 1994. As it now stands, the three step reads like this:

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. (Art. 9(2) of Berne and Art. 13 in the TRIPs Agreement)

It is an interesting question whether some of the exceptions in the US Copyright Act violate this three step test – does fair use apply only to special cases, for instance, or conflict with normal exploitation of a work? The recent emphasis our courts have placed on transformative use as the sine qua non of fair use may be a direct reaction to this three part test.

So far, only one provision of the US Copyright Act has been found to violate the TRIPs three step test – the section 110(5)(B) exemption for businesses that allows installed TV sets and radios to “publicly perform” copyrighted works for patrons of those establishments. As interesting as that case is, the discussion of how fair use fits into this framework is even more interesting and important. A recent blog post by William Patry on this subject arguing that fair use does not violate the three step test is a great primer about this discussion.

Other attention to limitations and exceptions include this discussion of a proposal made to the World Intellectual Property Organization for a formal discussion and agreement about limitations and exceptions, something the US says it is not ready for. Closer to home, of course, is the recently released report by the Section 108 Study Group, proposing changes in the US copyright exception that permits library preservation work and interlibrary loan.

Most exacting, from my point of view, is this full-day conference being held at Duke Law School this Saturday on the topic of “Copyright Limitations and Exceptions: from access to research to transformative use.” There will be an exciting group of scholars from the US and European here to discuss the various issues and problems, with a focus on practical strategies to encourage creative uses of digital content. I hope any readers who are close to the North Carolina Research Triangle will consider attending this conference, and that those who cannot will look for podcasts, which are often posted by the Center for the Study of the Public Domain.

Copyright Issues and Legislation, Fair Use, Technologies

Turnitin and hold your nose

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I have been very neglectful of posting for the past two weeks, mostly due to the pressures of other work, but the attention paid to the recent court decision involving the online plagiarism detection service Turnitin has finally provoke me enough.

Turnitin is a web-based service that compares submitted papers to vast database of essays available on the web and it is own proprietary database. It offers instructors a report on how likely it is that the given paper is plagiarized. Four high school students from Virginia who were required to submit their work to Turnitin or get a zero challenged the company in court. The district court’s opinion, dismissing all of the students claims, was issued March 11 and has provoked a lot of reaction, The Chronicle of Higher Education has a story about those reactions here, and William Patry discusses several aspects of the case in his blog post called “Turn-it-it and Kiss-it-goodbye.”

One aspect of the decision worth mentioning is its discussion of the claim that Turnitin infringes copyright because it adds a copy of every paper to its database as soon as the paper is submitted so it can be compared to later submissions. The plaintiffs tried to prevent this by indicating their lack of consent to have their work copied in this way on the papers they submitted, but the court found that the click-through contract they were obligated to agree to in order to submit in the first place took precedence. More on that in a moment. On the copyright issue, the court found that the company had a valid fair use defense regarding their storage and use of student work, even if the contract giving them permission had failed (which it did not).

I have been torn about the fair use analysis the court used in this case. I have a hard time justifying to myself the business model Turnitin use, although my doubts are likely bound up with broader concerns about this kind of attempt to use technology to force people to behave with integrity. But, to my mind, Turnitin’s business model is as dependant on infringement as is Grokster. The district court disagreed, finding that Turnitin made a transformative use of the works it archived for later comparision. What strikes me most about this decision is the way “transformative use” has become a talisman, invoked whenever the court wants to find fair use. The copyright statute seems to indicate pretty clearly that even non-transformative uses can be fair use, but courts are now so enamored with the notion of transformation that they are now finding it even in unlikely situations because it has become the sine qua non of fair use. This is both good and bad for higher education; some educational uses of copyrighted works seem to be purely iterative, not transformative, and fair use in those cases seems increasingly hard to argue. On the other, the more the concept of transformative use is expanded, the better it will be for educational; some of those uses that don’t seem transformative to me may well seem so to our courts.

The other, more troubling aspect of the Turnitin decision was the court’s attitude to the click-wrap license. The plaintiff students had no choice but to click through the license; they faced a zero if they didn’t and there was no way to communicate with Turnitin until they had accepted the license. Nevertheless, they tried to make their objection to the term that allowed Turnitin to copy and save their work as soon as possible; they included a notice with their paper that said they did not consent. Tough luck, said the court; you agreed to the license and you have to live with it. This strict enforcement of a “take it or leave it” license even when the party on whom it is imposed objects in a timely way seems to make a mockery of the notion of a contract as a bargain that may be “unconscionable” if there is no meaningful chance to negotiate.

If we need further confirmation that the court was aiming at a particular result and disregarding a reasoned discuss of the law, there was its astonishing dismissal of the plaintiff’s argument that, as minors, contracts they entered into are voidable. The court recognized that this was the usual rule in contract law, but said that the plaintiffs could not avail themselves of it because they had accepted the “benefits” of the contract. What benefit had they accepted, I wondered. Standing to sue, the court replied, the right to bring the case to challenge the contract itself. By this logic, of course, no contract could ever be challenged on the basis of “infancy.” Such absurd and circular reasoning can only serve, as Bill Patry says, to increase the cynicism so many people feel toward our courts.

Copyright Issues and Legislation, Digital Rights Management, Fair Use, Uncategorized

Copyright Reform Suggestions, part 2

They are almost five months old but now, and I meant to point them out a long time ago, but the six-point proposal for copyright reform released by Public Knowledge is well worth reading, studying and mailing to your local Congressman.

As has been said before on this site, it is probably passed time that our copyright law be throughly revised and made flexible enough to address new technologies that have come into existence since 1978 as well as to anticipate and accommodate those that have yet to be invented or widely-used. But there is not a lot of political will to undertake a comprehensive copyright reform these days, and the overwhelming influence the biggest content companies seem to wield with major players in Congress suggests that comprehensive reform might do more harm to the interests of consumers and, especially, educators, then good. Until we can reasonable hope for through-going reform in a positive direction, the kind of incremental changes suggested by Public Knowledge seem like the best direction to focus our energies. Although it is fair to call these proposed reforms “more modest,” some of them would be quite radical in practice.

Two of the suggestions made by Public Knowledge will be quite familiar to those who follow copyright issues — fair use reform that would make the four factor test more usable and sensible in today’s digital environment and orphan works legislation to reduce the risk of making productive, socially beneficial works that are not currently subject to commercial availability and whose rights owners are AWOL. One proposal that I have not written about before in this space, but have discussed elsewhere, is that copyright holders should be required to give notice to consumers whenever they are imposing contractual or technological restrictions on a work that takes it outside of the uses reasonable expected under copyright law with its exceptions, including fair use. The principle that consumers should know what they are buying and whether they an use it for reasonably foreseeable purposes is actually quite basic in our commercial law, and neither contracts nor DRM systems should be allowed to defeat reasonable expectations of a purchaser without prior notice.

All of these suggestions — the remaining three are limits on secondary liability, protections against copyright abuse and simplified, fairer licensing rules — deserve our attention and support, at least until a more comprehensive and fair reform of copyright seems possible.

Open Access and Institutional Repositories, Scholarly Publishing

Freeconomics

What a delightful word to describe the increasing need to talk about the economics of free stuff. As strange as that idea sounds, it is the subject of a recent article in Wired magazine called “Free! Why $0.00 is the Future of Business.” Besides coining the word “freeconomics” (as far as I know), author Chris Anderson describes the forces that drive prices in the digital world down toward nothing. He identifies two important trends that tend to make the Web “the land of the free.”

First, there is the phenomenon of “cross-subsidies,” where a product or service is given away for nothing in order to create an income stream somewhere else. Anderson uses the example of King Gillette, who gave away his safety razors in order to get men hooked on using them and to make money selling the disposable blades. As Anderson points out, the Internet provides greater freedom for businesses to make money from one set of customers while giving things away to another. Advertising supported Web business are only one of many examples.

The other trend Anderson identifies is “simply that anything that touches digital networks quickly feels the effect of falling costs.” He provides a nice discussion of why the cost of Internet communication is approaching or has reached the point where it is close enough to free so that we can “round down to zero.”

Anderson’s article ends with a “taxonomy of free” that describes five business models built around a base price of zero.

What has this to do with scholarly communications? We are already seeing the pressure towards free for all kinds of intellectual property on the Web. Music, of course, was the first IP commodity to head to zero, and it did so before distributors could catch on and move to a zero-based business model. Now the music companies are scrambling to find ways to add value to music in order to move customers back from the lure of $0.00. That is a very difficulty task, needless to say.

As the same pressures are exerted on digital scholarship, those who make that scholarship available, whether traditional publishers, libraries or individual scholars, need to plan ahead for how they will at least recover basic costs as the price of access falls. If we sit on our hands and deny that this is happening, we may well witness “the end times for tradition journal publishing,” as was recently predicted in Inside Higher Ed.

The issue is going to be how to add value to what could be obtained for free, in order to recover costs. To guide us, here is one more article about “freeconomics” — In “Better than Free, Edge columnist Kevin Kelly suggests eight “generatives” that can move a product past free to a point where consumers will pay something, not for the product necessarily, but for the value that comes with it. Kelly’s discussion of these “generatives” — immediacy, personalization, interpretation, authenticity, accessibility, embodiment, patronage and findability — should be required reading for those who advocate, consider or foresee that move toward free access to scholarship. Even if we fear it, we are likely to have to deal with it. The ability to add value along the lines that Kelly suggests may keep us and the scholarly apparatus we have grown familiar with over the years afloat in the age of freeconomics.

Copyright Issues and Legislation

The discordant argument for harmony

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Last Monday, in his regular column for the Financial Times, James Boyle discussed the ubiquitous argument that copyright laws should be harmonized around the world. Often phrased as a argument about competitive advantage, the call for harmonization, Boyle points out, only goes in one direction — upwards. No one ever asks that the laws be harmonized downward in favor of lesser protection, even when there is substantial evidence that copyright protection is now far more restrictive and protective than is necessary to accomplish the purpose for which it is intended, to provide incentives for creation. As Boyle indicates, copyright has become an “evidence-free zone” where the mounting number of studies that suggest that we are over-protecting intellectual property in a way that actually discourages and depresses creativity and innovation are consistently ignored. One economic study that Boyle cites, for example (and that I have mentioned before in this space), finds that the optimal term of copyright protection is only 15 years, not the average term we now have of approximately one-hundred years.

As if on cue, another industry lobbying group, dressed up as a think-tank, is touting their latest argument for additional protection; the Progress and Freedom Foundation wants to extend the performance right in US Copyright law to include recording artists. The principle argument for this grab at additional royalties, of course, is that other countries give recording artists such a right, and the laws ought to be harmonized. No thought is given, of course, to the possibility of seeking harmonization by lobbying other countries to drop this particular right, even though its absence in the United States is not shown to have done any harm to our recording industry. The argument that radio play is an economic benefit to the recording industry is dismissed as irrelevant, proving Boyle’s point about the fear of actual evidence.

Until legislators start to demand hard economic evidence for the changes they are asked to make to intellectual property laws, we will continue to have this game where lobbyists convince one nation to adopt a stricter IP regime than the rest of the world, then try to force that regime down everyone else’s throats in the name of harmony.

Copyright Issues and Legislation

Silly copyright reform and its serious implications.

On February 11, Senator Arlen Specter (R-PA) introduced a very specific reform measure for the US Copyright Act — a bill that would add to the exceptions to the public performance rights a special provision to allow churches to host Super Bowl parties.

Senator Specter is justifiably angry at the NFL for intimidating churches that want to host parties where folks get together, often share a meal or heavy snacking, and watch the big game. Some churches also use the events as an opportunity to raise money for various causes (like the “Souper Bowl” movement to assist community food pantries) or to have Sunday evening services. For several years the NFL has sent letters to such churches telling them that the parties infringe rights in the trademarked name “Super Bowl” and in the NFL’s copyright in its broadcast.

So Senator Specter has introduced an amendment that would allow only churches, based on a definition in the IRS code, to host viewings of “professional football contests.” Presumably a World Series party would still be potentially infringing, as would a party held at the local Elks or Kiwanis club. His anger is justified, but his narrow solution makes the legislation look silly and like special pleading. What is needed is a more comprehensive reevaluation of the copyright exceptions with a eye to the foundational purpose of copyright law.

The question that should be asked is “if the exclusive right is intended to provide an incentive for creativity and innovation, does this exception put that incentive at risk?” When the answer is clearly no, as it is here, the correct approach is to determine how broad the exception should be based on the public interest to be served, not to craft a narrow exception to penalize over-reaching, however satisfying that punative urge may seem.

Here, the ridiculous claims of the NFL seem to be unrelated to any incentive to create new TV broadcasts.  The same number of eyeballs, if not more, will witness the advertising that is the true purpose, and often the true entertainment value, of a Super Bowl broadcast.  And there is no indication that the NFL or the networks are trying to extract a licensing fee from the churches that host these parties.  But if restricting the viewing of broadcast TV to personal homes and a few closely defined exceptions does not serve an incentive purpose, why are we doing it at all?  Why not recognize that sporting event parties, “Sopranos” get-togethers, and lots of other gatherings to watch TV that seem like public performances, pose no risk to the reasoning behind copyright law and simply ought to be allowed?  Instead of punishing the NFL, however much that punishment is earned,  lets take the opportunity to discuss whether the public performance exceptions ought to be much broader than they are in order to serve legitimate public interests.

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

Suddenly, Open Access is all the rage.

In December the National Institute of Health made public access to research articles that grow out of NIH funded research mandatory; research are now required to place their final version of articles accepted for publication after April 7 into the PubMed Central database at NIH within one year of publication.

This was a victory for many library and higher ed. advocates of public access, but there is a certain element of “be careful what you wish for” here. Many campus are now scrambling to figure out the legal, practical and financial implications of complying with this mandate. Three issues must be addressed in a relatively short time frame.

1. How will authors manage their copyrights to comply with the mandate? It has long been important for authors to think about and negotiate for an appropriate copyright arrangement with publishers. Insofar as this mandate forces them to do what they ought to have been doing for years, its impact is salutary. But it will still come as a shock to many researchers and will increase the need for sound copyright guidance and policies on campuses.

2. How will campuses deal with the mechanics of deposit? Since lack of compliance could imperil future research funds, this is an issue which should not be left entirely to individual authors. Institutional repositories, where they exist, are in a good position to help with the mechanics of deposit, and library staffs will also need to be aware of the process and ready to assist. Although the process is not hard, and is easier to accomplish if the author is involved, it is clear that institutional guidance and assistance is called for.

3. Likewise, researchers will need assistance locating and tracking the PubMed reference numbers of their articles that are deposited with NIH. Starting with the May round of grant funding, NIH will require that these numbers be included as part of the investigators previous work with NIH when applying for renewals or new funding. Again, libraries are in the best position to help researchers locate and retrieve this information.

Hard on the heels of this public access mandate came news of the vote this week by the Harvard faculty to require deposit of all articles written by the Arts and Sciences faculty in Harvard’s own institutional repository. The faculty agreed unanimously to automatically grant to Harvard a non-exclusive license to their work to put those articles in the repository; authors retain copyright and are free to publisher their work anywhere they lack as long as the publisher will accept that copyright is subject to this prior license. The decision is a strong affirmation of the value of open access to academic research, both to the public and to the academy itself.

Lots of commentary on these two decisions is available. This comment by William Patry addresses both, and there is an excellent roundup of information and comment on the Harvard decision here on Open Access News and on Mike Carroll’s blog here. I have written about the NIH mandate here.

Have we arrived at a “tipping point” for open access? At the very least, these developments are a great opportunity to begin or deepen a campus conversation about open access – what it is, all the different whys it can be accomplished and, most importantly, why it is so important, both in our own best interests in higher education and in the public interest.

Copyright Information Notes, Copyright Issues and Legislation, Technologies

Copyright reform suggestions, part 1

I am a little ashamed to admit that, at the American Library Association meeting last month, I learned about a very problematic provision of the U.S. copyright law that I had never heard of before. Representatives of the Association for Recorded Sound Collections and the Music Library Association spoke to several groups during the meetings in Philadelphia about the effects of section 301(c) on our ability to preserve historical sound recordings. ARSC and MLA are looking for support for their efforts to have 301(c) repealed or amended.

When our “new” Copyright Act was adopted in 1976, one of things it did was explicitly preempt state copyright protection. Before the 1976 Act, unpublished works were protected by a wide variety of different state laws (many with perpetual duration), and federal copyright protection usually only took effect when something was published. This created lots of confusing and difficult situations, so Congress took almost all works, published and unpublished, under federal protection, including the limited federal term of protection.

For some odd reason, Congress crafted an exception for sound recordings that were made prior to February 15, 1972. Those recordings, instead of being subject to the normal copyright rules, continue to be protected by state law until 2067. State protection, which was usually created by judges rather than legislators, often allowed perpetual protection for unpublished works, but were not designed to deal with other materials. Leaving these historical sound recordings subject to the patchwork of state laws has meant that, in fact if not by intent, these historical materials are subject to the most restrictive of state laws and for all practical purposes unusable until 2067. For the earliest recordings, which date from the 1890s, this amounts to a copyright term of over 170 years. Since even preservationists are reluctant to make copies under this bizarre and uncertain regime, many recordings are locked up by copyright for longer that the usable life of the medium in which they are recorded; they will be irretrievably lost before they are available in the public domain.

So here is an opportunity to reform our copyright act to mitigate one of its most pernicious effects – the unnecessary loss of our cultural heritage merely to time and decay – without harming anyone’s economic interests. In fact, compilations of some of these old recordings that are available for sale in other countries but technically infringing in the US could finally be sold here as well. The recording industry frequently lobbies Congress for full performance rights in sound recordings, and there was legislation to add such rights introduced into both houses late last year (the “Performance Rights Act”). Whether or not it is a good idea to subject radio stations to all the licensing fees such a law would require, this seems like a good time to demand a quid pro quo in the shape of repealing the foolish overprotection of historical sound recordings.

Open Access and Institutional Repositories, Scholarly Publishing, Uncategorized

Blogging law

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Trying to catch up on interesting developments over the past few weeks, I note the very interesting and wide-ranging discussion going on across several blogs dealing with legal scholarship about the value of blogging in that discipline. It seems to have started with several reports (here on Balkinazation, here on the Volokh Conspiracy, and here on Law Librarian Blog) about the rapid increase in citations to blogs in the legal literature. Lots of interesting questions are raised here. Why are these citations growing? Jack Balkin writes about the assimilation of blogs into the “larger universe of legal writing.” Is there a different ethic and etiquette for citing blogs in scholarly articles? Eugene Volokh suggests that there is and provokes a fascinating chain of replies. His discussion of the ethics of citing unpublished sources continues here. And finally, is this good for scholarship, or the beginning of the end? Brian Leiter writes a long piece on “Why Blogs are Bad for Legal Scholarship.” In spite of the apparent “liar’s paradox” here – telling others not to read blogs in a blog – Leiter makes an interesting argument about the importance of mediation and some way to test and evaluate the expertise of the one whose writing is being cited.

I have commented before on the growth of informal channels of scholarship, but have not written much about the relevant roles for different types of scholarly venues. These posts, and several others to which they link, do a nice job of starting that discussion. The linking itself is an important phenomenon; blogs provide a novel environment in which arguments and discussions can connect to and interpret each other. From that perspective, citing to a blog in a traditional article seems to defeat some of the principle advantages of blogging – the immediacy and interconnection.

It is also interesting to speculate on why legal scholarship seems to be the discipline in which this conversation is taking place. When I first read about it, I wondered if the unique aspects of legal scholarship, where most of the journals are edited by students rather than by full-time academics, might lead the professorate to feel less proprietary about their publications and thus more willing to experiment outside of the traditional confines of scholarship. Leiter suggests a somewhat different spin on this observation when he writes: “The problem is that reputational effects in the legal academy are mediate by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts… First, one of the major venues for legal scholarship remains the student-edited law reviews” (the second institutional problem is the “journalistic reception” of legal ideas). For Leiter, the problem to which this lack of expertise contributes is the “availability cascade” – “an opinion that appears to be informed gains credibility by virtue of being repeated and thus becoming current in discourse.” For its discussion of this phenomenon alone, Leiter’s piece is worth reading, even while recognizing that blogs are certainly here to stay and scholarship is going to have to find ways to deal with them.

Discussions about the changing world of scholarly communications and copyright