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.

Second thoughts

On Google — the New Yorker has a learned and fascinating article on the Google Library project this month, by historian Anthony Grafton. The Google project has gotten inordinate praise in some quarters, as well as its share of criticism (see here, for my contribution to the latter). But Grafton’s article is neither wholly critical nor wholly laudatory; his is an attempt to place Google in the history of efforts at building a universal library and to realistically assess what can actually be accomplished. He points out that a truly comprehensive history of humanity, which some have claimed Google will provide, will still remain out of reach. For example, much “gray” literature and archival material will never see the light of scanning, nor will the cultural production of many of the world’s poorest countries.

This latter point is especially troubling. Poor countries are not just consumers of cultural production, they do also produce it. The digitization of so much western/northern literature could have two negative effects on this production. One would be to push developing world literature further to the margins in the developed world. The other is that, in so far as technology is available within those developing countries, the easy access to material through Google could marginalize a country’s own cultural production even within its borders.

Nevertheless, Grafton is properly amazed at the level of access that digitization has made possible. As he says, picking up his opening theme, “Even [Alfred] Kazin’s democratic imagination could not have envisaged the hordes of the Web’s actual and potential users, many of whom will read material that would have been all but inaccessible to them a generation ago.” Digitization offers great things, but a realistic valuation of those benefits recognizes that no single means of access should replace all the others; the Internet will continue to coexist with libraries, archives and whatever the future holds that we can not yet imagine; all will be part of any genuinely comprehensive look at human history.

On Second Life — On a less exalted plane, the New York Post reported last week on a law suit filed by and against Second Life entrepreneurs alleging copyright infringement of products designed and sold entirely within the virtual environment. See another comment on the lawsuit here. As the comment points out, many educators are looking closely to consider the educational potential of Second Life or other virtual worlds. This lawsuit raises some interesting questions that will need to be answered in order to exploit that potential. For example, do real world laws protecting the rights of creators even apply to Second Life? Is copying someone else’s design in Second Life stealing, as the plaintiffs allege, or is it merely part of a giant “video game” that should not have real world legal consequences? The answer to that question should be a prerequisite to placing educational content into Second Life; teachers typically want to protect the content they produce, or at least share it on their own terms. Whether Second Life will be subject to real world laws, intra-world regulation amongst its members, or merely arbitrary decisions enforced by Linden Labs, its owner, will have a profound impact on how much time, money and content educators are likely to invest in Second Life.

Interestingly, the same defendant who argues that Second Life is a giant video game in which real world laws should not apply also claims that his home in Second Life was subject to an illegal search and seizure by the plaintiffs when they entered to photograph the allegedly infringing items. Just goes to show how hard it is for us to escape our real world notions of property and privacy.

What are the rights protected by copyright? (weekly widget)

Copyright is a set of exclusive rights. By exclusive we mean that the owner of the rights has the sole authority to permit or forbid covered activities. There are five basic things that a copyright holder can authorize or prevent — reproduction, meaning making copies of her work; distribution of the work; public performance of the work; public display of the work and the preparation of derivative works. A derivative work is a work based on the original, like a translation or a film adaptation. All of these rights can be sold or transferred to others, and they can be divided up and sold to different parties.

It is important to note what rights are not given to the copyright holder. They do not have the ability to prevent private displays or performances, for example. Most importantly, there is no right to authorize or prevent uses of the work, as there is in patent law. A user is permitted to make use of a work they acquire without further permission as long as they do not copy it, make a derivative work, or offer a public performance or display. A user is also permitted to distribute the legally acquired copy of the work as they see fit.

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).

Talk back on schol comm issues

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

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

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

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

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

Flipping out

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

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

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

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

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

Who gets copyright in a work? (weekly widget)

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

Fixing the DMCA?

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

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

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

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

What does Copyright protect? Our first widget.

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

Discussions about the changing world of scholarly communications and copyright