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.

copyright symbol

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:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. 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.”

Robert Harington

Robert Harington

Robert Harington is Associate Executive Director, Publishing at the American Mathematical Society (AMS). Robert has the overall responsibility for publishing at the AMS, including books, journals and electronic products.

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Discussion

23 Thoughts on "The Value of Copyright: A Publisher’s Perspective"

Thanks for this very thoughtful piece. I very much appreciate your instinct to allow a range of current initiatives to play themselves out. Still, I’m also wondering what you make of the constitutional rationale for copyright. I’ve heard questions about whether it is as valid today as it was in the past, as the means of distribution change and in particular as the marginal cost of distribution falls. Are we stuck with a system that is unable to evolve sufficiently with technological and associated economic change? Or do the underlying rationale and fundamental mechanism of its operation remain sound?

Good question. As far as I can see, copyright is enshrined in the Constitution and remains sound – and these days that feels more important than ever. Copyright in the public sphere is also subject to political forces. Consider for a moment the recent happenings at the Library of Congress and the Copyright Office. In the latter half of 2016, a new Librarian of Congress was appointed, Carla Hayden. One of her first acts was to remove Maria Pallante as U.S. Register of Copyrights. The copyright office reports into the Librarian of Congress. Maria subsequently resigned and, interestingly, has recently been appointed as the new President and CEO of the Association of American Publishers (AAP). While there is much speculation as to the political forces at work here, there is no doubt that Maria was an advocate for copyright and for an independent copyright office, in the face of political pressure to relax copyright, much of it coming from the tech industry. The removal of Maria Pallante appeared to raise the hackles of a number of those in the House Judiciary Committees. While the Congress Judiciary committees have their political hands full with Supreme Court appointments and immigration, the issue of copyright has not been forgotten. It is likely that the removal of Maria Pallante as U.S. Register of Records will result in the formation of an independent copyright office.

Yes, absolutely subject to political forces, from a variety of different sources. Thanks.

Two weeks ago the US Department of Education promulgated a final rule mandating that most copyrightable materials developed under its grants be open licensed. Almost the same day an Advisory Committee of the US Department of State issued an “Open Licensing Playbook” as guidance for other federal agencies to use when making similar mandates.

DOEd’s open licensing regulations explicitly exclude peer reviewed journal articles, but the Playbook does not. On the contrary it explicitly refers to science and research.

The point is that what is called the Open Educational Resources or OER movement may be on a collision course with the present copyright practices of the US Public Access Program, which allows publishers to retain copyright to journal articles. The DOEd regs show that the Government is embracing OER, while the Playbook shows that some in the movement want research to be included. 

Interesting summary of copyright. Thank you.

Allow me to take issue with Rick Anderson’s following sentence: “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.”

This is a strange claim.

1. Who is pushing? How?
2. Why did authors not understand ramifications? Are they stupid?
3. Which ramifications? Someone is making some money out of a work where the authors did not expect money? So what!
4. Having one’s paper reprinted (with attribution) and sold is just a marginal way to increase one’s visibility, which is exactly what a scholar wants.
5. Weighing the relative demerit of publisher behaviour vs alleged pushing is like counting the number of angels dancing on a pin.

Shall we agree to consider this quotation as a needless digression from an interesting copyright survey.

I think it might be worth going back and reading some of the responses of authors from the situation that Rick described. The word “outraged” is directly used to describe how the authors felt upon seeing what was a completely legitimate reuse of a CC BY licensed work. Examples:
http://rrresearch.fieldofscience.com/2013/07/apple-academic-press-predatory.html
and
https://schadtlab.wordpress.com/2013/07/02/a-rant-on-strawberries-open-access-licenses-and-the-reuse-of-published-papers/
While I would hesitate to call the authors “stupid”, it is clear that they did not understand the implications of the licensing agreement that they signed.

It still has nothing to do with copyright.

And, in a system of laws, expressing outrage because things happen that had not been understood or anticipated is meaningless. The intensity of emotions cannot compensate for the poor reading of the contract’s terms.

Finally, as an author of scholarly articles, I am seeking symbolic capital, not capital. If I send an article to a journal that is published by a company making 35-45% profit, and I accept to transfer my property to that company, am I entitled to outrage because none of that money comes back to me? And am I not pushed into transferring if I want to be published?

Come, come, now! None of this informs a good understanding of copyright.

I’m not sure one can so easily disentangle the concepts of copyright and Creative Commons licenses. The CC licenses are clearly designed to give up some of the rights granted by copyright. There is a clear relation between the two.

As to your other points, regardless of your own knowledge of the subject or attitude toward publisher or author profits, it is clear from the incident described that at least a number of authors were not so well informed, and had not considered the consequences of their licensing agreement.

I think we can both agree that we would prefer authors to have a clear understanding of any license or transfer of copyright that they sign with a publisher, and to carefully choose a situation that will best meets their needs. For that, it is clear that we need to continue educational efforts so no one ends up surprised or outraged.

Creative comments relies on copyright. It is not “entangled” with it. It allows an owner of rights to give up some of his/her rights. It takes the form of a contract which is expressed in three ways: in very simple, human, terms; in legalese for those who understand that, and in metadata for machines.

CC-by is quite unambiguous: I give up all of my rights except attribution. Period! Anyone who works in a university as a researcher should be able to master the meaning of this without any difficulty. Now, if some authors sign their rights away without thinking about what they are doing, it is their responsibility. Everything is very clearly laid out and easy to consult. Educational efforts are nice, but, in this case, I am afraid that people that do not understand the implications of CC-by are beyond education.

And acting without thinking is not equivalent to “being pushed”.

These two statements seem contradictory to me:

It still has nothing to do with copyright.

and

Creative comments relies on copyright.

If CC relies on copyright, then the two are connected and one can’t truly make an informed choice about a CC license without knowing specifically what one is giving up. I agree with you that this is the responsibility of the author to understand, but disagree that prominent scholars are “beyond education.” I think researchers put little effort into understanding the nuances of publishing, and understandably so — their main focus is on doing research, and time spent researching copyright law is time away from the bench/clinic.
So I would suggest it is in everyone’s best interests that such choices be clearly delineated. I’m not sure why you seem to think this is an objectionable concept.

And acting without thinking is not equivalent to “being pushed”.

Perhaps it is seen as “pushing” when one makes a decision on behalf of an author without an attempt to inform them of its consequences (perhaps because one has decided that author is “beyond education”). If you fail to realize that there are many agendas being pushed from different angles when it comes to CC licenses, then I’m not sure there’s much further to discuss.

A contract is not a law; but a contract depends on laws (contract laws). Such is the case with CC. Hence, my two statements are not contradictory.
By looking at a CC contract, you know exactly what you give up.
The choices involved with CC are about as clearly stated as can be.
I do not say that prominent scholars are beyond education; I say that scholars who do not understand the terms of CC should also have a problem being a scholar.
If researchers do not want to spend the minimal time to understand CC-by, then it is their responsibility. If I do not want to spend the time to understand the difference between a red and a green light as I drive a car, then I must not complain (and I should not complain too much for fear of looking stupid).
If you can delineate CC choices better, be my guest. We shall see.
As for the “agendas being pushed”, I do not know what you are talking about. Conspiracy theory?
And I agree that there is not much further to discuss. This is becoming somewhat ridiculous, or theological. This will be my last intervention.

While CC licenses are pretty clearly written, knowing exactly what you’re giving up is not obvious (can you define for me the exact legal meaning of “non-commercial”?). And I don’t think it’s a question of scholars deliberately choosing to remain ignorant, I think it’s more a question of awareness. I spend a good amount of my time attending scholarly society meetings and giving talks on things like open access, copyright, licensing, etc. This information is usually welcomed.

As noted, I think all benefit from a clear understanding of the choices being made. Taking a stance that if the author isn’t going to make an extraordinary effort to research licensing terms that one should just dictate that choice for them seems to me not in the authors’ best interest. I want authors to choose the publishing outlet and the publisher that best suits their needs and best fits their philosophy, and an informed scholar will make a better choice than one kept in the dark.

As for the “agendas being pushed”, I do not know what you are talking about. Conspiracy theory?

I would suggest looking into the major donors to Creative Commons. There are technology companies that stand to benefit financially from an abundance of freely available content, and they put their lobbying funds toward driving this agenda. At the same time, there are other businesses that benefit financially from the strict enforcement of copyright, and they put their policy efforts toward achieving those goals.

Robert good summary of the ins and outs and advantages and disadvantages regarding copyright issues. CC BY is a two sided blade. Although it may make the work available to anyone it does not – as you point out – stop the repackaging of materials and making it available for sale without reward to the creator(s).
I think it is necessary to educate authors on the various kinds of copyright and their implications.

Maybe a good topic for the next Mathematics meeting!

There is one aspect of copyright in the US that I didn’t see you cover, which involves the trend of signing over the license to a publisher while retaining copyright. Usually, when a publisher has copyright signed over to them, they will register the copyright with the US Copyright Office. Most authors don’t know to do this, and don’t bother with the paperwork and fee. This can create a problem for authors if their copyright is violated. Without the copyright being registered, authors have to prove actual damages, which is a very high bar — i.e., the author actually lost money or other tangible benefits. If the copyright is filed, they (or the publisher) only need to prove statutory damages, which is a far lower bar. Basically, evidence of unlicensed use is typically enough to prove statutory damages. So, authors retaining copyright sounds nice, but it actually leaves them with fewer protections, at least in the US as I understand and have experienced it. Maybe things have changed since the last time I tangled with someone over this on behalf of an author (which is something publishers also do as a service).

Thanks very much to Robert for a very helpful survey. Nonetheless, there do remain (despite the two major international conventions he cites) very important differences between copyright law as interpreted in the United States, the tradition of copyright that tends to hold under English law, and the rather different copyright traditions that have fed into copyright statutes in continental Europe, and particularly those where French legal traditions have been paramount. The absence – under English law – of the concept of fair use (and ‘fair dealing’ in the English context is not the same, in important ways) is but one important divergence. Discussions in the schol comm sphere about these issues invariably assume the primacy of US, and indeed certain American state, copyright legislation, but it is worth reminding SK readers that there exists a great deal of inter-national jurisdictional complexity in these matters, the complexity of which will doubtless increase further as and when Brexit actually happens.

With due respect to Dr. Harrington, the details about Canada are in error. Educational institutions cannot simply help themselves to protected content; materials copied are governed by a fairness analysis that closely resembles American development of fair use. For a summary of relevant Canadian details, please see https://fairduty.wordpress.com/2016/03/03/omitting-facts-ignoring-logic/. Regarding the cited article, my rebuttal: https://fairduty.wordpress.com/2016/04/24/wrapping-copyright-in-the-maple-leaf/

At the risk of re-rocking an earlier boat, to Jean-Claude, it’s been my experience in working with researchers that many (I won’t say most, because I don’t have the numbers to say for sure it’s over 50%) do not clearly understand their rights to their created content under U.S. copyright law, nor do they understand exactly what rights they’re giving up if they transfer copyright for a particular work over to a publisher (it’s one of those last minute forms you sign to get your article published). Given that, why would one assume the average researcher understands Creative Commons licenses any more clearly? It seems to me ALL of those cases are symptomatic of those authors not understanding their rights as authors, and probably more importantly, the _importance_ of those rights. I think if they understood the importance element better, they would make far more effort to truly understand those rights and which of those rights they’re giving up via a copyright transfer agreement or the use of a particular CC license.

1. That many authors do not understand what they sign when transferring or giving up rights is probably true. Nonetheless, it is their responsibility;

2. Not understanding the legalese of transfers of rights to publishers is perfectly understandable. No one but a lawyer can understand that;

3. Understanding the terms of the CC level one faces is orders of magnitude easier than (2). At the same time, I grant it is not perfect, but many efforts have been expended to make it as clear as possible

4. If not understanding CC licences really bug some of you, then get involved with the CC organization and improve the explanations. Criticizing CC explanations is a little like criticizing a Wikipedia article. If you are not satisfied, do something about it.

Obviously, everyone is for perfecting CC. If CC has gone through so many iterations, it is precisely because this kind of need has been felt. Presently, and personally, I feel pretty good about CC levels. Those of you who do not feel so good, then work on it.

And, to come back to my earlier remark, it is orders of magnitude easier to understand than any contract offered by some publishers.

Good article Robert. The India case has 3 applicants, not the two you mentioned. The 3 are OUP, CUP and T&F. The case has gone through one round of appeal where a division bench has directed the single judge to revisit the case on the grounds that the issue of entire books being photocopied has not been addressed (this is true!). The case is now become even more complex because two publishers’ associations and a representation from authors have collectively asked to be made party to the suite. A critical piece of the first judgment is the interpretation of “in the course of instruction” as stated in the law. This particular statement appears (in various forms) in US and UK copyright law. I didn’t see any mention of the Georgia Tech judgment on fair use. It would be worth hearing views on that too.

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