Copyright and scholarship -- II

By SAM VAKNIN, UPI Business Correspondent  |  Feb. 19, 2002 at 9:57 AM
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SKOPJE, Macedonia, Feb. 18 (UPI) -- This is the second part of my interview with Peter Suber, publisher of the Free Online Scholarship newsletter. Part 1 appeared Friday.

Q. Can you summarize for us the major developments and trends in FOS?

A: Here are some trends in the FOS movement:

A growing number of disciplines have free online preprint archives. Every discipline now has a growing number of free online peer-reviewed journals. A growing number of universities have free online archives for faculty research papers.

Journal publishers are experimenting with ways to offer more of their content online, some of it free of charge. They are also experimenting with different ways to fund the costs of the online content. More journal publishers are allowing authors to put their published papers online free of charge e.g. on their own home pages. It is increasingly common to see journal editors rebel against journal publishers that refuse to lower subscription prices or widen online access. They rebel by resigning and launching new journals on the same topics and usually gather the same subscribers and a superior "impact factor" very quickly.

More scholars and researchers are demanding that journals offer free online access to their contents. The Public Library of Science open letter has so far gathered more than 29,000 signatures from 175 countries. More online repositories of digital articles are participating in the Open Archives Initiative, and more scholars and task forces are endorsing it. It is the emerging standard for making separate archives "interoperable"--for example, searchable as if they were one.

More serious, feasible solutions are emerging to the problem of long-term preservation of digital content. More journals and special initiatives are seeking ways to provide developing countries with free online access to scientific and scholarly literature. More software tools exist to automate the operation of online journals (hence, to keep costs low). Just about all tasks can now be automated except editorial judgment (which shouldn't be, of course).

More hiring and tenure committees are giving weight to peer-reviewed publications without regard to the medium of publication (print or electronic). More journal publishers are seeking ways to accommodate the scholarly demand for online access (though not always to accommodate the demand for free online access). The serials pricing crisis, which has long alarmed and mobilized librarians, is starting to alarm and mobilize university administrators and faculty.

Copyright law is changing from a balance between publishers and readers toward a severe imbalance favoring publishers.

The recent Budapest Open Access Initiative is promising for several reasons. It brings together FOS proponents from many disciplines and nations, FOS initiatives from many fronts, and foundations with serious resources to help advance the cause. These foundations are led by George Soros' Open Society Institute, which convened the meeting that gave birth to the BOAI.

One thing I like about the BOAI is its friendliness. It doesn't demand that journals or publishers join the cause or face sanctions. It offers to help them make the transition if they are willing to do so. But if they aren't willing, it simply says it will pursue the cause without their help.

The BOAI doesn't demand any changes from publishers, markets, or legislation, and doesn't criticize anyone for not joining. It articulates two strategies that scholars can pursue on their own. One is self-archiving, by which scholars deposit their papers in institutional or disciplinary archives. (These archives are interoperable, or they cooperate with one another, by virtue of their compliance with the standards of the Open Archives Initiative.) The second is the launch of a new generation of journals that are committed to making their contents freely accessible online.

The long-term economic sustainability of free online scholarship is not a problem. We know this because creating open online access to this literature costs much less than traditional forms of dissemination and much less than the money currently spent on journal subscriptions. The only problem is the transition from here to there.

The BOAI is especially promising because it understands this and mobilizes the financial resources to help make the transition possible for existing journals that would like to change their business model, new journals that need to establish themselves, and universities that don't yet participate in self-archiving. In this sense the BOAI is not just a statement of principles or ideals, but a serious and effective plan to achieve this very important public good.

Q. Copyright laws are being revamped the world over (but mainly in the United States.) What would be the impact of the likes of the Digital Millenium Copyright Act on scholarship and on the economics of publishing?

A. The DMCA has several harmful consequences for scholarship. First, it prevents some scientists who happen to specialize in encryption and data security from publishing their research. Edward Felten of Princeton has so far been unable to get a court to declare that he has a First Amendment right to publish his research on certain methods of copy protection. Taken at face value, the DMCA would punish Felten for publishing his research. Until courts settle the question whether the relevant sections of the DMCA are constitutional, the free expression rights of scholars like Felten will be chilled. And of course if the question is resolved in favor of the DMCA, then the free expression rights of scholars like Felten will be repealed.

Second, it prevents some computer scientists from publishing their research in the form of source code, the technical language of their field. While some courts have held that source code is protected as a kind of speech, other courts are giving it a low level of protection in order to give effect to DMCA prohibitions on certain kinds of software.

Third, it supports strong copy-protection schemes that deprive readers of their fair-use rights. For the same reason, it deprives purchasers of digital content of the right to bypass copy protection in order to make personal back-up copies or to keep the content readable when they move to a new computer. For the same reason, it prevents libraries from taking necessary measures to assure the long-term access and preservation of digital literature.

The DMCA is even worse for software developers and consumers than it is for scholars. This week Felten dropped his appeal. So currently no court is even considering his question whether scholars have a First Amendment right to publish their research, or whether the anti-circumvention clause of the DMCA (which seems to prohibit Felten from publishing) is unconstitutional.

Note that the FOS movement has no problem with the strong protection of intellectual property, which is at the heart of the DMCA. That's not the problem. The problem is the way the DMCA upsets a long-standing (and constitutionally mandated) balance between publishers and readers and gives nearly everything to publishers.

Because Internet content crosses national boundaries, one nation will often want to enforce the copyright judgments of its own courts, interpreting its own laws, in another country. Worldwide developments in parallel to the DMCA, like the still evolving Hague Convention on Jurisdiction and Foreign Judgments, are giving effect to these desires. The problem is that these efforts, like the DMCA, put intellectual property rights above free speech rights. The same rules that let a nation enforce a copyright judgment beyond its own boundaries also let it enforce a censorship judgment beyond its own boundaries.

Until recently, the border-crossing potential of the Internet was a feature; now it's a bug. Until recently, it subjected less-free nations to the free speech of the most-free nations. New developments threaten to subject the most-free nations to the censorship rules of the least-free nations. In the name of copyright enforcement, worldwide speech rights are sinking to the lowest standard in use anywhere.

Another development in copyright law that harms scholarship is the extension of copyright terms, even retroactively. The Sonny Bono Copyright Extension Act (1998) retroactively added 20 years to existing copyrights. This harms scholarship by greatly delaying the transition of copyrighted works into the public domain. By shrinking the public domain, it shrinks the number of modern classics that volunteers can lawfully digitize and make freely available on the Internet. For the same reason, it tilts the balance of copyright law even further in the direction of publishers and against the interests of readers and researchers.

Those who have looked into it believe that the Bono Act was motivated to protect the Disney copyright on Mickey Mouse, which would have expired in 2003. If so, this is a grotesque inversion of values. The Uruguay Round Agreements Act (1994) is even worse, and can remove works from the public domain and retroactively grant them copyrights.

In short, whatever harms the rights and interests of readers harms scholarship and research, and recent trends in copyright law increasingly favor the rights and interests of publishers over those of readers. Copyright law is increasingly hostile to fair-use rights, the first sale doctrine, limited terms, and the public domain.

Q. To summarize: is the Internet a boon or a bane as far as publishing and scholarly exchange are concerned? It would seem that its existence brought about the retardation of users' rights - rather than the user empowerment everyone was hoping for.

A. The Internet is an unprecedented boon to scholarly publishing. The only problem is that we have barely begun to realize its full potential, including its potential to make scholarly literature freely available to everyone with an Internet connection. We may never take full advantage of the ways it can transform scholarly research and publication. That requires an endless approximation process, deep imagination, and time. But if we could just take advantage of the opportunity it affords for free online research literature, then the Internet will have a greater beneficial impact on research and education than lending libraries or the Gutenberg press.

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