Copyright term, open access and the NIH

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

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

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

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

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

A very expensive blanket

Two weeks ago the Copyright Clearance Center announced that it would offer a “blanket” license to college and university campus for permission to copy and distribute copyright protected material to students. The license offers to replace the time-consuming struggle to get and pay for permissions with a single yearly bill. Unfortunately, the blanket licenses apparently will not cover all, or even most, of the material frequently used by college classes. Even more unfortunately, dependence on a blanket license will further discourage university faculty members from considering whether or not their use of specific material is fair use. Fair use, like many other rights granted by law, can atrophy if it is not exercised.

In his current column in the Financial Times’ “New Technology Policy Forum,” Duke Law Professor James Boyle makes this point succintly and eloquently. He explains much more clearly than I can why the price tag on such a license, regardless of its monetary cost, may be much too high. His column should be read by anyone who wonders if a blanket license might relieve the uncertainties and stresses of relying on fair use. The consequences of such a decision, Boyle suggests, might in the long run be far more harmful to higher education.

Update on Public Access to Research

Several new developments are happening in terms of supporting public access to research within the United States.  One comes from a granting agency (HHMI) and the other is new language in current legislation before Congress.

The Howard Hughes Medical Institute (HHMI) just announced that it will require its scientists to publish their original research articles in scientific journals that allow the articles and supplementary materials to be made freely accessible in a public repository within six months of publication.   This policy expands upon the current policy requiring HHMI investigators to share published research materials, databases, and software in a timely and useful manner.The new policy applies to all manuscripts submitted on or after January 1, 2008 where an HHMI investigator is the major author.  What’s a major author?  If the HHMI scientist is listed first or last on a paper, or is designated the corresponding author, than the HHMI investigator is considered the major author.  However, HHMI strongly encourages all its investigators and collaborators, whether or not the major author, to comply with the public access policy.For those in the biomedical sciences, PubMedCentral (PMC) developed by NIH and the National Library of Medicine (NLM) is the designated free digital archive.  If the article is in a journal outside biological sciences, then deposit must be made in a comparable repository within 6 months.To help authors with this process, HHMI has entered an agreement with Wiley Publishers for uploading manuscripts to PubMedCentral, paying Wiley a fee for each upload.  This goes into effect as of October 1.  In addition, the American Society of Hematology, publisher of Blood, has extended its open access option to HHMI authors as of October 1, 2007.

 NIH Policy may become Mandatory

The other big development is the inclusion of language in the House and Senate bills for the 2008 NIH appropriations that would require the submission of research articles funded by NIH to PubMedCentral within 12 months after their appear in a journal.  This would make the current NIH policy mandatory and sets the submission deadline of no later than 12 months after publication.  Publishers have already started experimenting with NIH on submitting author manuscripts directly to PubMedCentral on behalf of researchers. 

This has been a long awaited change to the NIH Public Access Policy.  The Public Access Working Group and the NLM Board of Regents recommended mandatory submission over a year ago, and numerous library and consumer groups have been advocating for this language to be include in the NIH 2007 appropriations and reauthorization bills.   

Watch this blog for more information when the final bill is passed and NIH issues its new policies and procedures.

New speak v. old speak

It seems to be a monthly occurrence; an editorial appears in a major news outlet advocating stricter copyright legislation and enforcement. This week it was the San Francisco Chronicle, which published on Monday an opinion piece from two attorneys who have just launched a class action lawsuit against Google over videos posted in YouTube. The acquisition of YouTube by deep-pocketed Google has clearly made it a tempting target, and class actions are notoriously lucrative, especially for the attorneys, if they can get past the formidable obstacle of class certification. Authors Louis Solomon and William Hart claim to represent the interests of “large and small copyright holders whose creative works have been posted and reposted [to YouTube] without authorization.”

Solomon and Hart make a number of conclusory statements in their editorial that deserve closer scrutiny. For one thing, they repeatedly assert that YouTube’s “very business model depend[s] on the unauthorized exploitation of copyrighted material.” They say there is “no legitimate constituency” for that business model and ask, rhetorically, what Google thought was the main source of value when they bought YouTube if not “the copyrighted works of others.” All of this ignores the large number of user-created works that are posted to YouTube with explicit permission granted by the creator/user who uploads the video. Of course YouTube depends on copyrighted works created by others, but many of those creators want to have their work available in this forum; these creators are not being exploited, they are being offered an outlet for their creativity that would not otherwise be available.

By ignoring the legitimate users of YouTube, Solomon and Hart reveal that the fundamental purpose of this lawsuit, like that filed earlier this year by Viacom against YouTube, is to undermine some settled legal principles. This kind of attack on new techonologies dates back into the 1970s, when some movies studios sued to prevent the distribution of consumer video recorders. The Supreme Court ruled that a technology could not be suppressed if it had a “substantial non-infringing use.” YouTube obviously has such uses, but the various plaintiffs are clearly hoping that our now more business-friendly federal courts will reverse or revise that standard to give content producers stricter control over technological innovation.

Another target of the lawsuit is the “safe-harbor” provision inserted into the Copyright Act in 2000 by the DMCA to protect online service providers from liability for the actions of their consumers. The content industry is hoping that the 2005 Supreme Court decision in MGM v. Grokster offers an opportunity to reverse in the courts what Congress did by legislation and force online hosts, who are easier and wealthier targets than individuals are, to assume the risks and costs for user behavior.

Finally, Solomon and Hart assert in response to an anticipated defense that “no one has a First Amendment right to infringe” copyright. This is true as far as it goes, but it overlooks the fact that some apparent infringements are immunized by law precisely because of the danger that copyright could be used to suppress legitimate and socially desirable speech. Sections 107-122 of the Copyright Act all enact “limitations on exclusive rights” designed to allow conduct that would otherwise be infringing but which Congress believed should be protected. The Supreme Court has said that “the Framers intended copyright itself to be the engine of free expression” (Harper and Row v. Nation Magazine, 471 U.S. 599 (1985), and YouTube can legitimately argue that the opportunity it offers for such expression gives it a social value that tips the copyright balance in its favor.

Educating the Educators

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

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

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

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

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

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

UT Offers Help Seeking Permissions

A while back we wrote about the new database from Stanford University that helps one search copyright renewal records for that period of US copyright history during which un-renewed works would pass into the public domain. Now the Harry Ransom Humanities Research Center at the University of Texas, Austin has announced two databases that will help make searching for information about “orphan works” a little easier.

The Ransom Center has offered the WATCH database, which stands for “Writers, Artists and their Copyright Holders,” for some time. This database helps those seeking permission to use a copyrighted work find out who owns or administers the rights and can give the necessary permission. For example, if one searches “Rawlings” in the WATCH database one discovers the name and address of the literary trust that holds rights in Marjorie Rawlings work.

On May 29 the Center announced a companion database – FOB, for “Firms out of Business.” Here one can find publishing firms that no longer exist, have changed hands or are part of a larger company. Searching “Vintage,” for example, turns up the information that it is an imprint of Random House and that the parent was sold in 2006 to a German company called Bertelsmann AG. Tracking the subdivisions and mergers in publishing is a huge and complex task, so it is impossible for a database like FOB to be entirely complete and up-to-date, but the ability to find “successors in interest” for a defunct publisher will go a long way to reducing the burden of seeking permission.

Both these databases are valuable tools for finding rights holders. The real problem is when rights holders can not be found; when the databases come up empty. That is the real orphan works problem – works that are lost to our cultural heritage as long as they are locked up by copyright with no one to turn the key by giving permission. For that problem we need to see the orphan works legislation that was proposed last year reintroduced in Congress and passed without delay. But in the meantime the Ransom Center deserves a hat tip for the hard work it has done to make the work of all who seek copyright permissions a little easier.

“Policy Laundering”

Speaking of international issues, at the recent copyright conference at the University of Maryland University College Center for Intellectual Property, Gigi Sohn of Public Knowledge used the above phrase to describe a disturbing trend in copyright legislation. “Policy laundering” refers to the practice of negotiating bilateral trade treaties with other countries that include rules about intellectual property that are more strict than US law, then presenting the agreements to Congress as evidence that the US must change its law in order to “enable” the treaties. This use of trade agreements to force legislation without regard to whether it serves the original purpose expressed by the Constitution in its authorization of copyright and patent laws – “to promote the progress of science and useful arts” – represents an end run around the Constitution.



Concern about this practice is not merely abstract. David Nimmer, whose name represents the highest authority on US copyright, writes about the TRIPS (Trade Related Intellectual Property Rights) agreement as a similar, and successful, attempt to use trade negotiations to circumvent constitutional strictures in his book Copyright: Sacred Text, Technology, and the DMCA. The Hague, London, New York: Kluwer Law International (2004). And the recent (July 2003) extension of the copyright term in Mexico to life of the author plus 100 years (30 years longer than in the US) must surely raise the concern that calls for such an extension in the US for the sake of “harmony” will soon be heard.

Ineffective Technological Protection Measures?

Recently we have seen some music companies move away from using technological protection measures to prevent copying songs onto multiple devices or those sold by different companies in favor of a market solution that charges consumers slightly more for music that can be freely copied. Now another brick, albeit a tiny one, has fallen from the wall of electronic protection measures.

Both the DMCA in the United States and the European Union’s Copyright Directive are designed to implement an international treaty that calls for legal enforcement of “effective technological protection measures.” Both laws use that phrase, but the way they define it differs a bit. The European definition, which says that, to be effective, a technological protection measure “must achieve its protection objective,” was recently used by a court in Finland to declare that CSS (Content Scrambling System), the protection code used on most DVDs, was ineffective and therefore no longer protected from circumvention by law. See Electronic Frontier Foundation posting on the case here.

The problem, according to the Helsinki District Court, is that the code for circumventing CSS is all over the Internet. Some consumers that download software for copying DVDs may not even know that they are circumventing a technological protection measure when the do so. In these conditions, the court said, CSS is simply not effective under the EU definition. It is also important that the argument was made that CSS is not intended so much to protect copyrighted content as it is to enforce a monopoly on playback equipment manufacturing; the fact that this is not a legitimate “protection objective” under the EU directive supported the finding that it was not an effective measure. There is a short English-language article about the case here.

This case may have some symbolic significance, especially by pointing out the real monopolistic purpose behind much DRM, but it is not likely to have much impact in the United States. The definition of “effective” in the DMCA seems to rest more on the intent of the copyright owner than on the observable operation of the DRM system. And two US cases have already rejected the argument that the ubiquitous availability of “keys” renders the “lock” unenforceable. But this Finnish decision may help pressure the movie industry to move away from DRM and, like the music companies, consider market solutions to their copying problem.

“A Disgrace to the Forces of Evil”

Although it is available from lots of sources, I can’t resist adding a reference to the “A Fair(y) Use Tale” video to this site.  This 10 minute remix video, constructed entirely from Disney cartoons, offers a very clever explanation of copyright and fair use while at the same time asserting the latter as the justification for the whole creation.  It could provide a valuable resource for teaching students about copyright and fair use; its evident bias in favor of aggressive fair use provides a needed balance to the one-side educational material offered by the content industries.

The video, which was created by Bucknell professor Eric Faden, is available on YouTube, of course, or through the Stanford University Center for Internet and Society web site (which is the link provided above).  The presence of Stanford Law School as a host site may prevent the promiscuous use of take down notices to suppress this amusing and important work; as the video itself says, Disney is notorious for using its copyright to intimidate others and Stanford may be indicating its desire to push back some against that practice.

Be sure to read the “FBI Warning” at the beginning of the video; it is not at all what we are used to seeing on commercial videos.  And listen for the quote used to title this post, which is part of the explanation of fair use.

A Seventy Percent Solution?

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

Discussions about the changing world of scholarly communications and copyright