Copyright should be an author’s right (part 1) November 4, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , 1 comment so farIt seems like such a simple point. And the rhetoric of authors’ entitlement to the fruits of their labors has always been prominent in copyright debates, although it was usually on the lips of printers and publishers whose real concerns were much different. Two very different articles have once again led me to reflect on the importance of keeping authors (broadly defined as anyone who actually creates the intellectual property that is subject to copyright) at the forefront of copyright discussions and decisions.
First there are these stories about file-sharing of scholarly articles amongst medical researchers – one from the Chronicle of Higher Education here and the other from Techdirt here. The Chronicle is particularly scolding in its tone, and it evokes the misnomer “piracy” in its title. But aside from that commonplace rhetorical strategy, I want to emphasis two points raised by these reports.
First, the estimate of how much money journal publishers would lose by this practice, which the Chronicle sets at $1.4 million per year, should be taken with a ton of salt. As has become very well known in recent times, these estimates are usually built on false assumptions. The recording industry, for example, often assumes that each unauthorized song download costs the industry the full price of a CD. But there is no reason to believe that that is true; the consumer might be unwilling to pay for an entire CD to get one song and prefer to forgo the music altogether or pay to download a single track if the free option were not available. Likewise, an article shared over a peer-to-per network does not translate to a lost subscription or even, necessarily, to a lost per-article fee. We just do not know how much access would be worth to a consumer, and the copyright monopoly has prevented us from ever getting reliable market data.
Second, we should remember that there is a big difference between music file-sharing and the swapping of academic journal articles. In the latter case, academics are on both ends of the transaction; they are the authors as well as the consumers of the articles that are exchanged. If it were not for the academic practice of giving away copyright to publishers, this would be no big deal at all. Because of the lack of a financial incentive for academic authors, file-sharing of academic articles causes no economic lose to producers. What makes it newsworthy, and, from the academic point of view, necessary, is that copyright is held by entities other than the authors. By transferring copyright wholesale, instead of granting temporally-limited licenses to publish, academic authors have help create the access problem they are now trying to solve with file-sharing networks. That doing so is potentially an infringement of copyright is evidence of how harmful this practice has become to the fundamental mission of colleges and university.
And this gets me back to the point about copyright as an author’s right. For copyright to function, it must serve the needs of creators; if it does not, its fundamental purpose, which is to create incentives that encourage authorship and other forms of creative expression, is defeated. When academic authors give away their copyrights, and then have to resort to “illegal” file-sharing to get access to fundamental research, the copyright system has broken down. Only by reclaiming their copyright entitlement can academic solve this problem.
In a few days I will look at this problem of copyright as an author’s right from a very different perspective, based on an article about the finances of F. Scott Fitzgerald.
I can’t define it, but I know it when I see it October 13, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Licensing , add a commentNo, the title, a paraphrase of a famous remark by Justice Potter Stewart, does not refer, in this instance, to pornography, but to non-commercial uses of copyrighted works.
One of the persistent criticisms — or perhaps reservations is the correct word — about the Creative Commons licensing scheme has been that one of the major terms used in CC licensing — non-commercial use — is too vague and subject to varying interpretations. The core purpose of the Creative Commons, of course, is to allow copyright holders to license their works in a way that assures subsequent users that they can make use of the works within defined parameters. Two of those parameters are attribution, which is protected by CC licenses even though not adequately ensured under U.S. copyright law alone, and, often, a restriction to non-commercial uses. But if there is no agreement on what it means to call a use non-commercial, then there is a real problem with the licensing scheme; it would fail to provide that assurance, which reduces the need for transaction costs involved in seek permission, that is its basic purpose.
Now the Creative Commons has released a voluminous report it commissioned to study this potential problem. Although “Defining Noncommercial” is a massive document that I have not read in its entirety, it is clear from the executive summary and a perusal of the survey data that the situation is not really as serious as some feared. The report suggests that although a comprehensive definition of noncommercial remains elusive, there is not a major problem with its use in CC licensing. Basically, most people seem to agree that “they know it when they see it.”
Two specific findings in the report struck me as particularly supportive of the continued use of “non-commercial” as a licensing term. First, the marketing firm that did the research found that there was broad agreement on what non-commercial meant. Most creators and users agreed that a use that made money for the user or involved advertising was commercial, while those that did not, were not. This broad agreement helps explain why the millions of items licensed under CC licenses have generated so little litigation in the eight years since its founding.
Even more interesting was the finding that showed that when creators and users disagreed about whether or not a use was commercial, it was the users who were more likely to err on the side of seeing a use as commercial, and thus not covered by an “nc” license. The reason this is such an encouraging finding is that it suggests that users will ask permission in doubtful cases, even when the creators (who hold the rights) do not think permission is needed in the particular situation. Thus CC licenses can reduce the transaction costs involved in seeking permission, but they will not eliminate all need for permission and users are likely to ask when they are in doubt. CC licensing, of course, facilitates asking permission as well, since works so licensed will have an identifiable rights holder.
This finding is consistent with our experience at the Duke University Libraries, where we placed most of our web pages under a CC license over two years ago. We still do receive some requests for permission, even for pages that carry the CC license. I try to inquire about why people are asking when the page carries a prior permission that almost always covers the proposed use. Invariably I am told (mostly by other librarians) that they consider asking both the cautious and the courteous thing to do. So while we believe that the license empowers many users and reduces transaction costs, we also see that users who are in doubt feel free to contact us for clarification. This confirms that the non-commercial term is not the problem that some have feared.
Creative Commons has always striven to make its licenses effective and useful, and this study is one more tool for understanding how those licenses are and can be employed. The CC itself suggests three lessons that we can take away from this study:
the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use.
Good advice, available for those who want to be sure that, in regard to non-commercial use, we “know it when we see it.”
Openness and academic values June 26, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright in the Classroom, Open Access and Institutional Repositories , 2commentsAn interesting controversy arose recently at San Jose State University, when a professor objected to the fact that one of his students posted source code he had written as part of some class assignments onto the web. Amazingly, the professor claimed that sharing this code was tantamont to plagiarism, since it made the student’s work available for others to copy, and might be copyright infringement. This latter claim seems to have been based on the professor’s belief that, as the author of the assignment, he had a copyright interest in the work of the student. There is a report and comment about this case from Ars Technica here, and one from Inside Higher Ed here. The University’s Judicial Affairs office did not comment on the copyright claim, but it did determine that the student had not violated the academic integrity policy and could not be prohibited from posting his own work. There are lots of opportunities here to elucidate copyright issues and ponder the important values of academia.
As far as the copyright issue is concerned, it seems pretty clear that the professor does not really have a claim here, at least not if all he did was to pose a problem for his students to solve. Ideas, we must recall, are not protected by copyright, only expression is. Computer code is protected by copyright from the moment it is fixed; the Copyright Office considers software a “literary work.” That protection is vested in the author, and no interest is owned by a person who merely set the parameters of the work or suggested ideas which might be used. Patents, which are also available for software, do protect ideas, and perhaps the SJSU professor is confusing the two very different kinds of protection (although there is no indication that anyone has sought a patent). Unlike a patent, there is no need to apply for copyright protection. That protection is owned by the author of the expression.
Which brings me to the most important reminder to be taken from this case. It is that students own the copyrights in the works they create at our institutions. As the digital age offers new opportunities to disseminate scholarship, including student scholarship, we need to remember that students own their copyrights (just as professors own theirs) and formulate appropriate policy to respect those rights and facilitate use and sharing as needed.
On the plagiarism charge, I think it is clear that SJSU was correct to affirm the ability of students to share their work. If open access sharing is thought to be a problem because of the mere potential for plagiarism, all publication would pose a similar threat. And especially in the area of computer science, where open source code is a common norm, it is important for students to learn the value of sharing in terms of the ability of a community to review and improve a scholar’s work, and to develop judgment about when a particular work is ready to be shared.
There are many reasons to share scholarship, and very few reasons to keep it secret. Scholarship that is not shared has very little value, and the default position for scholars at all levels ought to be as much openness as is possible. There are a few situations in which it is appropriate to withhold scholarship from public view, but they should be carefully defined and circumscribed. After all, the point of our institutions is to increase public knowledge and to put learning at the service of society. And there are several ways in which scholars benefit personally by sharing their work widely. The SJSU student hoped that potential employers would see his work and be impressed; how can a university object to that hope? Indeed, it reflects the professional ambitions of most scholars, and they, like our student, benefit in that ambition if they share their work as openly as possible. Openness should be the default for academic work, and closed access only an alternative when there are clear and coherent reasons that justify it. In this case, the student has something important to teach the professor about the important values of academia.
An approprate way to close this reflection is to point to the web site for the Open Student organization, where students are working constantly to remind the academy that openness and public access are key elements to embodying our educational mission.
Congress shall make no law March 12, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation , 3commentsFollowing up on my earlier post about Anthony Falzone’s lecture and his strong emphasis on the need to limit copyright to the minimum protection necessary to encourage creativity in order to avoid the harmful effects of a monopoly over speech, three related items came to my attention this week.
First, there is this announcement of a conference at Duke Law School to celebrate a new book by copyright scholar David Lange and Constitutional expert H. Jefferson Powell. The book is called “No Law: Intellectual Property in the Image of an Absolute First Amendment,” and the tag line for the conference is “what part of “No Law” don’t you understand?” At the very least, this shows that Falzone is neither alone in his concern that copyright’s monopoly can jeopardize fundamental American values, nor particularly radical in his proposed solution. Falzone focuses his work on defending fair use as a safety valve for free expression, a role the US Supreme Court has acknowledge for that exception and that many courts have upheld. For Lange and Powell, however, the concern goes much deeper, and their book proposes the much more radical re-visioning of copyright and patent protections that would be needed if we took the First Amendment seriously in the context of incentives for creativity and innovation. The question that is seldom asked, but that is beginning to rise up, is whether copyright as it is currently shaped discourages more socially valuable expression than it encourages. If the answer is that it does, and that seems like a pretty easy case to make in an age when Internet users are being sued right and left for creating their own content, it is time to take seriously proposals like that of Lange and Powell to rethink IP from the ground up.
Next up is another new book that I haven’t yet seen, just read about. According to this news release from Washington University in St. Louis, two economists at that fine institution have just published a book arguing that copyright and patent law are not just inefficient, but self-defeating, from an economic point of view. “From a public policy view,” says author David Levine, “we’d ideally like to eliminate patent and copyright laws altogether.” Apparently the book argues both that these intellectual property monopolies are harmful to society, which is becoming a fairly common point, and that there are workable alternatives to protect creators and encourage innovation. I have to admit that I will take some convincing, especially on the latter point; I tend to believe that copyright law needs pretty drastic reform, but not outright abolition. Indeed, based on the remainder of the article it appears that that is really what Boldrin and Levine are calling for, since they argue that it should be much harder to get intellectual property protection than it now is, but not that it should always be unavailable. I look forward to reading the full argument; the book is Against Intellectual Monopoly by Michele Boldrin and David Levine, from Cambridge University Press, and the author’s also maintain a blog on the topic at www.againstmonopoly.org.
Finally, I want to note a pithy comment made at the end of this blog post written by Peter Jackson, the chief scientist and vp at Thompson Reuters publishing. In some ways the post is a little mundane, mostly focused on the joys of e-books. But the last line caught my eye and suggested a context for these other items I have discussed. “In the future,” Jackson writes, “the book is no longer a product; it’s a service.” I am not sure that Jackson would agree, but it seems to me that if we take this service emphasis seriously, it grows harder and harder to see why the monopoly protection of copyright is either necessary or efficient in most cases. Surely service industries florish in a competitive market; if content is ubiquitous and “publishers,” whatever they will look like in the future, offer reliable access and convenience, those services will not depend on the artificial environment of scarcity that copyright was designed to enforce, nor will they thrive therein.
Presses, piracy and the slumping economy February 27, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , 6commentsI am sorry to say that I was not surprised when I read this article in Inside Higher Ed last week about “Pirates v. University Presses.” I had been vlissfully unaware until recently of the existence of the kinds of websites it discusses, where unauthorized scans of the full text of many books, including academic books, are made available for free. But only a short while ago, a colleague from another institution called one such site to my attention (following the lead of the IHE article, I won’t mention the site’s name) and asked me what I thought about faculty linking to such sites as an alternative to using a university’s e-reserves system. It did not take me long to find the full text for some of the most frequently read titles in contemporary classrooms.
I told my colleague that I would discourage faculty from linking to such sites whenever I was asked, both because they so clearly infringe copyright and because they are inherently unstable; what is there today may not be available tomorrow. I would love to see much more scholarly content available for free on the Internet, but the way to accomplish this is for faculty authors to retain their rights to post and license their own work, not to encourage these kinds of pirate sites. Unfortunately, this approach puts me once more in the position of saying no to instructors who want to take illicit advantage of the benefits of the digital realm because our out-dated approaches to copyright have not caught up with that potential.
Why should we discourage piracy of academic work? One contributor to an e-list discussion of the article asked a legitimate question — “Is it the same crime to spread knowledge by illegally making university press books available as to offer Harry Potter for download?” I am inclined to respond that it is not the same, since the interests of academic authors are more in being read than in making money; they seldom profit from academic publication, and profit is almost never the incentive that gets them to write in the first place. This is why our copyright system, and a publishing structure built on the transfer of exclusive rights, serves the academy so poorly. But authors are interested in controlling the texts of their writings that are available, making sure the readings they assign are stable, and getting appropriate credit for their work. For all these concerns, responsible rights negotiation and licensing, not pirate havens, are the right solution.
Moving beyond mere condemnatory hand-wringing, I am inclined to think there is a lesson to be learned in the fuss around these sites. One of the reasons faculty are tempted by such things is that libraries are increasingly unable to meet their demands for online resources, either because the resources are too expensive (either for subscription or for permission), the libraries simply cannot get permission to place materials online, or the publisher does not offer an online version of the work. The Association of Research Libraries has recently addressed these concerns about declining budgets in a document aimed at starting a conversation with publishers to preserve as much access as possible in a time when massive cancellations are inevitable. This document is a good start, but it only addresses one of the three problems listed above.
In many cases, it is the universities that are creating the digital files that students will use, because publishers have failed to do so. Several of the texts I found on the pirate site I looked at are simply not available as e-books. But libraries’ ability to fill this demand is severely limited by a narrow interpretation of fair use and extremely high permission costs for digitization that exceeds that interpretation. One thing that must be understood is that the money an institution spends on permission fees in all likelihood comes out of its collection budget. So even as those budgets are being slashed, the buying power of what remains is further reduced as permission fees go up. Education suffers, and so, in the long run, do the publishers, from whom we can buy fewer and fewer new works. Certainly the purpose of copyright law — to provide an incentive for new creativity — is left in the dust.
I wonder if there is room for a separate agreement between universities and university presses that would look more realistically at fair use for those works produced by the very faculty authors who want to make use of them and also at the cost of permission when the uses involved really are not within a reasonable understanding of fair use. The interests of both the scholars and the university presses are very different from those of J.K. Rowling or Disney or Random House; our conversations together ought not to be burdened by the perceived needs of the entertainment industries.
Why should the university publishers agree to even discuss this idea? Because library e-reserves and permission services are a bulwark against piracy, and the risk of piracy is increased when those services frequently must refuse requests made by faculty, either because they cannot obtain permission or cannot afford it. It is not that libraries would resort to intentional infringment, but that students will find what they need wherever they can, and their instructors may not be inclined to make fine distinctions about the sources of material. Academic presses also need to recognize that faculty authors feel a legitimate sense of ownership over the products of scholarly publishing, even when they have not retained legal ownership. It is simply difficult to convince some scholars that obvious academic uses of academic work are not permitted, so it may be hard to discourage all use of pirate sites unless we can provide higher education with a legal alternative that is at least as useful. This, of course, is what the music industry waited too long to do. In the long run, then, it is in the best interests of all parties to negotiate the contours of both legal ownership and legal use, and it is the presses that are likely to suffer most if we fail to do so.
