Rick Anderson asked me recently to present a talk, as part of a panel, on the “Publisher’s View of Copyright”, at the upcoming Research to Reader Conference in London later this month. If you are going to stand up in front of an audience, it’s always best to know what you are talking about. While I have a general sense of what I think about the subject, and opinions to match, I thought it would be helpful to dig a little deeper, to make sure what I know is actually correct, and to try and find evidence and arguments that support what I am trying to say. First, a caveat: there is no one view of copyright that fits all publishers. The publisher of a poetry magazine will likely feel differently about aspects of copyright when compared to say the publisher of your local phone book — yes they do still exist. Indeed, even within scholarly publishing there is a range of attitudes towards copyright.
In this post I start with the basics. I move on to describe some interesting legal cases, and follow with a look at the shift towards the CC-BY Creative Commons license. I leave you with a sense of where I come down on these issues, and then ask you to let me know where you sit.
Let’s look at some facts on the ground about copyright, bearing in mind that while the spirit of copyright protection is global, copyright laws in a particular country are national. Having said this, international treaties have greatly helped harmonize an international approach to copyright law, the two main treaties being the Berne Convention and the Universal Copyright Convention.
Copyright law aims to:
Reward authors for their creative efforts
Provide an economic incentive to write and publish
Advance the learning, teaching and research ecosystem
Provide legal protection in case of infringement of the law
In the US, copyright law is etched into the US Constitution in Article 1, Section 8, Clause 8:
“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The Supreme Court has upheld our Founders’ belief in the value of copyright. To me, a key case is Harper & Row Publishers vs Nation Enterprises. In 1985, the Supreme Court decided that the public interest in learning about a historical figure’s impressions of a historic event was not a fair use of material otherwise protected by copyright.
“…it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).
So, copyright law creates a balance between authors, publishers and distributors, and users and the general public.
Perhaps at this point it is worth pointing out that the copyright holder is always the creator, the author. The author can transfer copyright to a publisher, or, as is becoming more common in scholarly publishing, sign a license allowing publication of the work while still retaining copyright. In an open access (OA) environment, the work remains under copyright, but a variety of Creative Commons licenses may be applied to the work.
In the US, it is also worth remembering that copyright is in force from the moment an author’s work is created in a tangible form for the life of the author plus 70 years. After this, the work is in the public domain. This does seem like an absurdly long period of time, and it is a good example of where there is a need for rational copyright reform.
It is important to distinguish between infringement of copyright and plagiarism. In an academic setting, copyright law really only protects the expression of ideas (the specific words and images used), not the actual ideas themselves. If actual ideas are copied, this is plagiarism but not copyright infringement, and it is unethical, but not illegal. If you were to take a work that sits in the public domain, and change it around a bit and call it your own, you are not breaking the law, but it is plagiarism. However, if you take a copyrighted work and claim it as your original work, it is both copyright infringement and plagiarism. If you take a portion of a work that is copyrighted, change it around a little bit and insert it into your own work without attribution, you are definitely plagiarizing; in addition, depending on how much you use, this could either be fair use or an infringement of copyright.
This leads us to one of the most controversial areas of copyright law in the digital age: fair use — in our scholarly arena, what limits should be placed on the sharing of copyrighted information among scholars, or for educational purposes? US Copyright law states: 17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
There’s no way to know whether a use of copyrighted material is truly considered fair use until it is challenged in court. In determining whether fair use comes into play for any particular case, the factors to be considered are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
One of the most interesting fair-use recent cases worth following is in India. Oxford University Press (OUP) and Cambridge University Press (CUP) took out a law suit against Delhi University to stop the practice of photocopying copyrighted material and compiling them into course-packs without payment to the copyright holder. While the appeal is still in front of the Delhi High Court, this looks to be going in favor of the copy shops and the student’s rights.
Another recent copyright change worth noting is in Canada. In 2012, Canada added “education” to the list of exceptions that allow use of content without asking permission from the owner of that copyright. This means that you can assemble educational content and copy it, put into course packs etc., with no concern over whether you are infringing copyright. The effects have been quite serious. Oxford University Press and Edmond Press withdrew from publishing in Canada’s K-12 market as a direct result of this new provision.
An area of concern is the trend towards the Creative Commons CC BY license. CC BY allows for the greatest openness possible when publishing your article, save for placing your work in the public domain, with the author solely retaining attribution rights. In essence, authors are agreeing that their product is reusable in any form, and in any way by any one, provided proper attribution is granted. So, why is this a problem? Researchers may take the view that they do not care if their work is reused and redistributed, even if it is for a profit motive, as they were not going to make money from their work anyway, and they gain exposure. The question is whether proper attribution is really taking place, as noted in Phil Davis’ Scholarly Kitchen post, “CC-Bye Bye! Some Consequences of Unfettered Reproduction Rights Become Clearer“. Under this model, any incentive that publishers might have had to track and enforce CC BY terms vanishes. They have already been paid for the published article, without the continuing revenue seen in the subscription model, so what motivation is there to engage lawyers to enforce CC BY attribution?
So, copyright law creates a balance between authors, publishers and distributors, and users and the general public.
Another problem is that with CC BY, authors are signing away rights to any potential reuse, or perhaps misuse/misrepresentation of their product — all secondary rights. Indeed, this is a problem for publishers, too, in the sense that other channels such as reprints, advertising, and secondary rights offset author and subscriber costs with money coming from outside the research community. With CC BY, the financial burden shifts back entirely to the author.
The CC BY license allows for a liberal reuse of content, perhaps with a profit motive. It is interesting to look at the activities of the successful, for-profit sharing sites, ResearchGate, and Academia.edu. Most researchers like these services as they allow for easy sharing of content and the ability to see who is citing one’s work. However, there is another aspect to these services: Sarah Bond, in an interesting article in Forbes, entitled “Dear Scholars, Delete Your Account At Academia.Edu”, urges readers to delete their Academia.edu account. She suspects its motivations, pointing out it is not a real .edu, with no educational affiliations and motivated strictly by profit. For example, though the initiative failed, the site’s owners tried asking scholars if they would pay a fee to have their papers recommended on the site. As you may imagine, there was quite backlash to this notion.
It is worth taking a look at Rick Anderson’s Scholarly Kitchen post entitled “CC-BY, Copyright and Stolen Advocacy”. I extract an interesting example of an unfortunate consequence of unfettered reuse of content from his piece below:
“Apple Academics Press published a book titled Epigenetics, Environment, and Genes. The book was comprised almost entirely of articles taken, without their authors’ permission, from OA journals in which they had been published under CC-BY licenses. It is now being sold on Amazon for just over $100. Although members of the scholarly community have responded with outrage, Apple Academic Press has done nothing illegal or even unethical. As long as the authors of the articles are given due credit, this kind of reuse is one of the many that are explicitly allowed under CC-BY terms. If the authors feel mistreated by Apple Academic, it’s because they failed to read (or understand) the agreements they signed when they submitted their articles for publication in OA outlets. What is troubling about this example is not so much what the publisher did, but the fact that authors are apparently being pushed to adopt CC-BY licensing without understanding its ramifications.”
Lest we just focus solely on STEM, take a peek at Karin Wulf’s Scholarly Kitchen piece on “Open Access and Historical Scholarship”. It is clear that authors want to see their work distributed and used as widely as possible. Karin points out that when an author’s article is exempted from copyright restriction, the publishing ecosystem that led to the article is not accounted for and this may harm scholarship itself. In the humanities, the real value lies in the argument and this is found in the published article. This is very different to science, where most often the paper describes the experimental finding and it is in this finding that the value lies. If you write a paper on the cure for a disease, then the cure itself can be protected by patent, even if your paper about the cure is published under CC BY. For the humanities researcher, the essential intellectual property is in the argument — it is the paper itself, so there is great resistance in many such fields to the CC BY license.
To wrap up, let me say that I do not see why we need to rush towards the relaxation of copyright. I would suggest that one can provide paths to openness, while being mindful that the extreme conditions of CC BY actually may be one step too far if we want to preserve the ability of our creators to create in the global economy. There are several interesting article sharing initiatives emerging from the publishing community, bearing copyright concerns in mind. I am looking forward to seeing how these may come to fruition. Let’s not rush to undermine the value of copyright. Its value is in supporting our ability to teach and do research, and publish high quality works.
What do you think?
I will leave you with a quote I like from Roy Kaufman (Managing Director, New Ventures at the Copyright Clearance Center), who is an active supporter of gold open access models, but who also worries about notions of openness as a common good:
“The challenge with treating all scientific communications as a public good, is that it ignores the fact that public goods are often hard to sustain without strong and reliable government intervention. We do not live in a time of strong, reliable government intervention on behalf of unbiased science.”