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.
What problem can open access solve? September 27, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 2commentsA recent conversation on an e-mail list for theological librarians (the branch of academic librarianship in which I began my own professional career) has lead me to reflect on exactly what problem it is that open access is designed to solve.
The exchange involved a journal called “Studies in Religion,” which is subscribed to primarily by seminaries and other small religious colleges and universities. The journal has just announced that it will move from being published by Wilfrid Laurier University Press to Sage Publications, and the cost of an institutional subscription will rise from $64 per year to $300, an increase of about 470%. For freestanding seminaries a “price break” will keep the increase down to a mere 350%.
The humanities have been largely insulated from the journal pricing increases that are the origin of the so-called crisis in scholarly communications, but they are fast catching up, unfortunately. In this case, the motive for moving to a new publisher is probably to have “Studies in Religion” included in a large package of online journals. The ironic result, of course, is that many schools with no interest in this title will be forced to subscribe to it while those institutions where it is most needed will likely have to cancel.
I have frequently argued that the solution to the continuing copyright battles in higher education is for scholars to stop transferring copyright to publishers and preserve their right to make their work available in open access. Widespread open access can indeed reduce the need for scholars to ask permission to use their own works and the risk of copyright litigation against colleges and universities. But it will not, by itself, solve the problem of journal prices.
We need to distinguish between the problem of skyrocketing journal costs and the access problem, of which costs are only part of the cause.
There was a time when publication in a prestigious journal, or even a second tier one, brought with it an assurance that all the people to whom a scholar’s work would be important would have a chance to see it. Times have changed dramatically, and that sense of assurance based on publication in a toll-access journal is simply no longer possible. Cost is certainly part of the problem; an increasing number of a scholar’s colleagues will be working at institutions that have had to cancel access to the journal or database in which her work has been published. But it is also the cases that fewer and fewer researchers begin their work by browsing journals, or even journal databases. Internet searches are the first recourse for many seeking information about a new topic or trying to stay current on a familiar one. Articles in toll-access journals may not be found by such searches, or when they are found, the links will not work if the toll has not been paid. Thus new technologies, and the research strategies they generate, are as much a cause of the access problem as prices are. And it is the greater “findability” that open access offers that make it primarily an opportunity for greater access and impact rather than a solution to the pricing crisis.
Maybe not so revolutionary after all September 7, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentWhen I wrote a few weeks ago suggesting broader latitude for fair use in the case of academic and scholarly works, I contrasted that position to the more “revolutionary” one proposed in the title of Steven Shavell’s recent article “Should Copyright of Academic Works be Abolished?” Shavell, who is professor of law and economics at Harvard, premises his argument on the same phenomenon that I stressed in my blog post — the lack of incentive provided by copyright for academic authors. He builds an elaborate economic model to demonstrate that authors would be as happy or happier to continue to create their works and society as a whole would be better off if academic copyright were eliminated, as long as, he suggests, publication costs were subsidized by universities or grantors. He writes, “if publication fees would be largely defrayed by universities and grantors, as I suggest would be to their advantage, then the elimination of copyright of academic works would be likely to be socially desirable.” Read in its entirety, however, this position is not as revolutionary as it might seem, and probably is less desirable from the perspective of academic authors than the suggestion I have made about broad fair use.
For one thing, a broad interpretation of fair use would help address one of the problems that Shavell is trying to solve with his proposal — the labor and permission costs associated with providing material for students in colleges and universities. But more important, Shavell’s proposal that academic copyright be abandoned addresses neither all the legitimate concerns of academic authors nor all of the problems with the publication system as it now exists.
When Shavell speaks of universities defraying the costs of publication, it is important to remember that efforts at open access on campuses are one way in which universities are already doing this. Shavell is well aware of this, and discusses open access movements at some length. He ultimately concludes that such movements will be too slow because of what he calls the individual versus social incentive problem. Each individual lacks sufficient incentive to make the change, even though the result would benefit society as a whole. The result is that Shavell decides that a change in the law is needed, removing academic works (which he is at pains to define) from the scope of copyright protection.
My biggest concern with this proposal is that it neglects one benefit which academic authors do gain from copyright, the ability to control the dissemination of their work and, especially, the preparation of derivative works. Of course, that control is of little use as things stand today, because copyright is so freely given away by academics who must then hope that the commercial publishers to whom they cede their rights exercise those rights for the best interests of the authors. That is happening less frequently, unfortunately. One of the reasons the Creative Commons license is such a benefit to academics is that it allows authors to both authorize broad reuse of their work and to assert control over that reuse, especially in regard to attribution, which American copyright law does not protect. In order to use a CC license, however, one must be a copyright holder; copyright is the “teeth” that enforce the license. So any analysis of the incentive structure for academic writing must factor in the potential loss of control when considering abolishing copyright in academic works. This is one reason I have suggested broadening fair use for academic work rather than eliminating copyright altogether.
To me, what this suggests is that the problem with academic publishing is not copyright per se, but the transfer of copyright to corporate entities whose goals and values are usually quite different than those of academic authors. Because he does not really consider open access a solution to the problem he outlines, Shavell assumes that the publishing structure would remain very much intact under the no-copyright regime he suggests, simply with a different mechanism for paying the bill. But at least one open access option — a prior license granted to the institution by faculty in their scholarly writings before they submit those works for publication — could restructure publishing in the right direction without losing those benefits that academics really do get from owning copyright.
Shavell does briefly mention such prior licenses, such as those adopted by Harvard and MIT, but does not treat them extensively and does not recognize that some of the difficulties he finds with open access movements would be mitigated by the prior license mechanism. He cites two major problems that would prevent open access from quickly solving the problem he finds with scholarly publishing — the fact that authors will not insist on open access if they have to pay for it and the alleged fact that open access journals lack prestige. Neither of these problem exist for the prior license scheme, which, when combined with a broad latitude for fair use of academic writing, offers, at the very least, a significant intermediate step toward resolving the dilemma of scholarly publishing.
It may be that copyright should be eliminated for academic works, but it would hardly be easy to accomplish. Nevertheless, Shavell’s analysis of the state of academic publishing, and its future, is complex and interesting. But while we wait for Congress to move in the direction he suggests (if it ever does) the adoption of institutional licenses for open access to faculty writings and a broad latitude for fair use of those writings, both of which could be implemented immediately, are intermediate steps that would return a great deal of control to the authors for whom that is the major incentive.
Moving beyond the photo album August 27, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing, Technologies , 1 comment so farLast week G. Sayeed Choudhury, Associate Dean for Library Digital Programs at Johns Hopkins University, came to Duke to talk with the staff of the Libraries about e-scholarship and the changing role of the university library as part of our strategic planning process. His presentation and conversations were fascinating, and we were left with a great deal of thought-provoking material to consider. I was particular struck by one observation, which was actually Choudhury quoting from a 2004 article that appeared in D-Lib Magazine by Herbert Van de Sompel, Sandy Payette, John Erickson, Carl Lagoze and Simeon Warner. In the article, “Rethinking Scholarly Communications,” the authors assert their belief that “the future scholarly communications system should closely resemble — and be intertwined with — the scholarly endeavor itself, rather than being its after-thought or annex.” The article further makes the point, perhaps more obvious now that it was five years ago, that “the established scholarly communications system has not kept pace with these revolutionary changes in research practices.”
In developing this point, Choudhury talked about the traditional research article as a “snapshot” of research. Those snapshots are increasingly far-removed from the actual research process and have less and less relevance to it. Indeed, the traditional journal article seems more like a nostalgia item every day, reflecting the state of research on a particular topic as it was at some time in the past but beyond which science will have moved long before the formal article is published, thanks, in part, to the many informal ways of circulating research results long before the publication process is completed.
Choudhury called on libraries to move past a vision of themselves as merely a collection of these snapshots and become more active participants in the research process. He recounted a conversation he had with one researcher who, in focusing on the real need he felt in his own work, told Sayeed that he did not care if the library ever licensed another e-journal again, but he did need their expertise to help preserve and curate his research data. The challenge for libraries is to radically rethink how we spend our money and allocate the expertise of our staffs in ways that actually address felt needs on our campuses and do not leave us merely pasting more snapshots into a giant photo album that fewer people every day will look at.
Recently I have seen a lot of fuss over an article that appeared in the Times Higher Education supplement that posed the question “Do academic journals pose a threat to the advancement of science?” The threat that the article focuses on is the concentration of power in a very few corporate hands that control the major scientific journals. But read in the context of the radical changes that Choudhury, Van de Sompel and others are describing, it is clear that the threat being discussed is not a threat to the advancement of science but to the advancement of scientists. Scholars and researchers have already found a way around the outmoded system of scholarly communications that is represented by the scientific journal. The range of informal, digital options for disseminating research results will not merely ensure but improve the advancement of science. All that is left for the traditional publication system to impede is the promotion and tenure process of the scientists doing that research.
This, of course, is the rub, especially for libraries. Traditional scientific journals are increasingly irrelevant for the progress of science, but they remain the principal vehicle by which the productivity of scholars is measured. One researcher told Choudhury very frankly that the only reason he still cared about publishing in journals was for the sake of his annual review. Sooner or later, one hopes that universities will wake up to the tremendous inefficiency of this system, especially since the peer-reviewing on which such evaluations depend is already done in-house, by scholars paid by universities but volunteering their time to review articles for a publication process with diminishing scholarly relevance. Nevertheless, the promotion and tenure system still relies, for the time being, on these journals, which presumably cannot survive if libraries begin canceling subscriptions at an even faster rate. The economy may force such rapid cancellations, but even if it does not, pressure to move to a more active and relevant role in the research process will. The question librarians must ask themselves is whether supporting an out-dated system of evaluating scholars is a sufficient justification for the millions of dollars they spend on journal subscriptions. Even more urgently, universities need to ask if there isn’t a better, more efficient, way to evaluate the quality of the scholars and researchers they employ.
Choosing between reform and revolution August 13, 2009
Posted by Kevin Smith in : Copyright in the Classroom, Fair Use, Scholarly Publishing , 5commentsA recent article by Steven Shavell called “Should Copyright of Academic Work be Abolished” caught my notice, as I am sure it did for many others, because of the radical question posed in its title, but it ultimately focused my attention on a different article altogether. I hope to have more to say about Professor Shavell’s work in a later post, but here I want to record my initial reaction, which was that copyright in academic works need not be abolished but should be heavily reformed. And the best reform I can think of (short of legislative revision) is the re-evaluation of fair use, based on more attention to the second fair use factor, that is suggested in Robert Kasunic’s article “Is That All There Is? Reflections on the Nature of the Second Fair Use Factor.”
The second fair use factor – the nature of the copyrighted work – is usually treated very mechanically by courts, and sometimes is ignored altogether. When it is discussed, it is in a few sentences addressed to only two issues – whether the work is published or not and whether it is creative or factual. Kasunic, who is Principal Legal Advisor to the Copyright Office, suggests that this treatment seriously undervalues the importance of this part of the fair use analysis. He argues convincingly that the second factor, when examined carefully, offers a wealth of information that could improve consideration of all of the fair use factors. Indeed, one of his major points is that the fair use factors are a guide for fact-gathering, not a mechanical “tally sheet” or scorecard.
If courts pursued the probing questions about the nature of an original work that Kasunic suggests when considering a claim of fair use, the result for academic work would be, I think, truly revolutionary, because those courts would learn how much more leeway should be accorded to academic work than would be appropriate for other types of work. Kasunic argues that part of the scrutiny that should be applied to the original work would ask what the particular incentive structure for that type of work is. When the purpose of copyright law is understood properly, as a mechanism to give incentives for creation, the expectations of the authors and creators are really the only guide for what uses should be compensated and what uses need not be. Thus it is important to ask what the normal incentives for creators of that particular type of work are and what markets supply those incentives. Unexpected markets, or markets that benefit only secondary owners of copyrights rather than authors, are not relevant in deciding if a particular use is fair or not.
When academic work is considered, it is clear that the scope of fair use would be very broad under this more sensitive and sensible analysis. Academics are usually not paid for their most frequent works of authorship, journal articles, and compensation for books authors is meager. Thus the protection of various markets s not necessary for this type of work in order to effectuate the purpose of copyright; incentives for authors clearly come from some place else. Also, it is usually a secondary copyright holder who is trying to protect those markets, which further reduces their value as an incentive for creation. Finally, secondary markets, such as permission fees for electronic reserves and course packs are usually wholly unexpected, and therefore have no incentive value, from the point of view of academic authors. In fact, I once had a faculty author ask me if a check from the Copyright Clearance Center was some kind of scam, so unexpected was the tiny windfall he was being offered.
As Kasunic points out, different types of authorship receive different rights under our copyright law; it is logical, therefore, to also think about fair use differently depending on the specific facts that surround the creation of a particular category of work. Academic works would, in such a fact-specific analysis, be subject to much more fair use than a commercial novel, film or song. Indeed, Kasunic selects as the example with which he closes his article the case of academic authors and fair uses claims for course packs and electronic reserves. Although he does not spell out a conclusion, it is clear from his discussion that the facts uncovered by the searching analysis he recommends would greatly favor a liberal application of fair use for that type of work.
Since an actual case such as Kasunic describes is currently being litigated – the lawsuit against Georgia State University alleging copyright infringement in the distribution of electronic course readings – it is hard to resist reading his article with that case in mind. Kasunic presents, to my mind, a compelling argument that the court should look very careful at why the works in question were created in the first place and focus a fair use finding on the incentives for creation and not extraneous claims for windfall profits made by secondary copyright holders. This would be a sensible application of a factor that has largely been treated as unimportant; it would take seriously the intent of Congress and their instructions to courts when they codified section 107. And it would dramatically increase the likelihood that many of the uses in question at Georgia State (at least those uses that involve academic writings) would be found to be fair use.
