Copyright Law and Free Online Scholarship
An Interview with Peter Suber
By: Sam Vaknin
Also published by United Press International (UPI)
The battle between owners of content and its users extends to
all corners of the publishing world. Following a brief period
of enthusing about "synergies", most media companies, content
aggregators, content providers - movie and recording studios,
publishers, news organizations - came to view the digitization
of content as a threat rather than an opportunity. In an
effort to protect their intellectual property rights,
publishing and recording corporations have fostered the
radicalization of copyright law (mainly in the DMCA - the
Digital Millennium Copyright Act). They have also retarded the
fair use of copyrighted material and the rights and
traditional privileges enjoyed by content users. This was
achieved mainly by incorporating "rights management" or "asset
management" technologies into readers of digital records (such
as e-books). These technologies prevented users from copying
the files they purchased, from converting them to audio, from
lending them to others (as they would a print book), and from
reading them on more than one device.
Consider, for instance, scholarly publishing. It is in the
throes of a protracted crisis.
The price of scholarly, peer-reviewed journals has skyrocketed
in the last three decades, often way out of the limited means
of libraries, universities, individual scientists and
scholars. A "scholarly divide" has opened between the haves
(the negligible minority of academic institutions with rich
endowments and well-heeled corporations) and the haves not
(all the others). Paradoxically, due to rising costs, access
to authoritative and authenticated knowledge has declined as
the number of professional journals has proliferated. This is
not to mention the long (and often crucial) delays in
publishing research results and the shoddy work of many under-
paid and over-worked peer reviewers.
The Internet was suppose to change all that. Originally, a
computer network for the exchange of (restricted and open)
research results among scientists and academics in
participating institutions - it was supposed to provide
instant publishing, instant access, and instant gratification.
It has delivered only partially. Preprints of academic papers
are often placed online by their eager authors and subjected
to peer scrutiny. But this haphazard publishing cottage
industry did nothing to dethrone the print incumbents and
their avaricious pricing.
Peter Suber has both a Ph.D. in philosophy and a J.D. He is a
professor of philosophy at Earlham College, where he also
teaches law and computer science. This qualifies him uniquely
to tackle the issue of free online scholarship, which cannot
be divorced from the legal intricacies of copyright law. In
the last 11 months, he has been writing and publishing the
weekly the Free Online Scholarship (FOS) Newsletter.
Apart from writing the FOS Newsletter, Suber is working to
realize FOS on several fronts. He is a consultant to the Open
Society Institute on FOS issues. He is the general editor of
the Web's foremost philosophy search engine Hippias and co-
editor of Noesis, both available online free of charge. He
serves on the Committee on Philosophy and Computers of the
American Philosophical Association. He is on the board of
governors of the International Consortium for the Advancement
of Academic Publishing. With Tony Beavers, He is working on
software to collect, index, and search the literature at
distributed online journal sites and text archives.
Q: In "Revolt of the Poor", I wrote: "If the rights to
intellectual property were not defined and enforced,
commercial entrepreneurs would not have taken on the risks
associated with publishing books, recording records, and
preparing multimedia products. As a result, creative people
will have suffered because they will have found no way to make
their works accessible to the public. Ultimately, it is the
public which pays the price of piracy." Is there any proven
connection between the enforcement (or even the existence) of
intellectual property rights - and the preponderance of
creativity and/or of media entrepreneurship (publishing,
etc.)?
A: I don't have the relevant expertise to answer for music,
software, general literature, or even scholarly books. But
for scholarly journal articles (the main focus of the FOS
movement), there seems to be very little or no connection
between copyright and the productivity and creativity of
authors. I say this for two reasons. First, scholarly
authors tend to transfer copyright in their articles to the
journals that publish them. (Most scholars don't realize that
they could probably negotiate a different arrangement, but
that's another issue.) For most journal articles, then,
copyright protects publishers, not authors. But this hasn't
stopped scholars from writing journal articles. Second,
authors of scholarly journal articles are not paid for them,
whether they transfer copyright or not. Authors consent to
this practice and willingly submit their articles to journals
that don't pay for submissions. Scholarly authors are paid by
their institutions, not by readers, which frees them from the
market in deciding what to write. They are rewarded by making
a contribution to knowledge and advancing their own careers,
not by cash. Hence, the "unauthorized copying" prohibited by
copyright law doesn't deprive these authors of money, but only
readers. Copyright law (at least when used in the traditional
way to restrict access to paying customers) gets in the way.
Widespread copying with or without permission would give
authors of journal articles more readers and more impact,
without depriving them of any revenue. But copyright law
generally prohibits this kind of copying. Even though this
limit on free distribution is contrary to their interests, it
clearly hasn't deterred authors from writing more articles.
Having said that, let me add that the FOS movement doesn't
need to abolish or even reform copyright law. If authors of
scholarly journal articles retain the copyright to their
articles (transferring only, say, the right of first print
publication, and perhaps some other rights), then authors can
consent to widespread copying and finally let copyright
advance their interests rather than those of publishers. In
particular, authors could consent to put their writings on the
internet without any financial, legal, or technical barriers
to access. This is what the FOS movement is trying to
achieve, and it can all happen within the boundaries of
existing copyright law.
Q: Could you describe the crisis in scholarly publishing?
A: The main problem is that the prices of journals (both print
and online journals) have risen faster than inflation and
faster than library budgets for three decades. Libraries cope
by canceling subscriptions, or by taking from their book
budgets to enlarge their serials (journal) budgets, or both.
One result is that even researchers at the wealthiest
institutions do not have access to all the journals they need
for their research. Or, from the other end of the author-
reader relationship, authors of journal articles cannot reach
all the readers who would benefit from the results of their
research. When research is slowed and obstructed in this way,
so are all the benefits of research, such as new medicines.
Another way to put the underlying economic problem is that the
huge savings that can be achieved by publishing to the
internet haven't yet done anything to bring down the costs of
scholarly journals. One reason is that most journals still
have print editions whose costs are unaffected by the internet
revolution. Another reason is that the online editions of
most journals use expensive software to permit access to
paying subscribers and block access to everyone else. The
internet is only a revolutionary medium of nearly costless
dissemination for those who don't manage subscription lists
and don't try to distinguish between authorized and
unauthorized readers.
There are other dimensions to the scholarly publishing
crisis. One is that journal publishers (like software
publishers) are moving beyond copyright law to licensing
contracts give them even more protection. Publishers don't
let libraries "buy" or "own" copies of electronic journals,
but only "license" them. As a result, libraries aren't
assured that they have long-term access rights to these
journals, they have diminished rights to lend their copies,
and their patrons have diminished fair-use rights. They are
getting much less and paying much more.
If there were no alternative, that would be one thing. But
there is an alternative to the near monopoly concentration in
the scholarly publishing industry. There is an alternative to
harsh licensing contracts. And above all, the internet gives
us an alternative method of dissemination that widens
distribution and lowers cost at the same time. Even if there
were no crisis, the opportunity afforded by the internet would
be too beautiful to ignore. Given the crisis, it's
inexcusable.
Q: What is Free Online Scholarship and how can it be
reconciled with rights to intellectual property? Can the
current revenue models of publishers be replaced with viable
alternative revenue models - and, if yes, which are they? What
the risks of abuse of FOS? Is FOS an instance of a larger
"free content" movement (Napster, etc.)? If so, can Free
Online Content principles be applied to music, books, and
film. for instance?
A: Free online scholarship is scientific and scholarly
literature which is made available free of charge on the
internet. The FOS movement singles out this body of
literature not because it is useful (because other kinds of
literature are useful too), but because it has the relevant
peculiarity that its authors don't expect to be paid. If
authors want to make money from their works, we don't
criticize or pressure them. But when authors consent to do
without royalties, then there's no reason not to make their
writings freely available on the internet. When the
literature is as useful as research articles are, then free
online access is a public good worth every effort to realize.
Once we understand that the scope of the FOS movement is
limited to works that authors consent to give away, or to
publish without payment, then we can understand why this
movement is completely compatible with intellectual property
rights. When authors write articles, they are the copyright
holders. A growing number of journals will use their peer
review process to vet and validate articles, and ultimately
publish them, without demanding that authors give up copyright
--and we hope to launch more journals with this enlightened
policy. If the authors of peer-reviewed articles holds the
copyright to them, then they have the right to decide whether
to make access free or restricted. If they choose to make it
free and open, that is their right, not an infringement of
their right. The FOS movement is about using copyright to
authorize free and open access, not about piracy that creates
free access without the consent of the copyright holder.
This movement has nothing interesting in common with the
movement created by Napster. The all-important difference is
that researchers give away their journal articles and
musicians don't give away their music. We work entirely
within the consent of the copyright holder.
Q: The major missing element seems to be
perceived respectability. But there are others. No agreed upon
content or knowledge classification method has emerged. Some
web sites (such as Suite101) use the Dewey decimal system.
Others invented and implemented systems of their making.
Additionally, one click publishing technology (such as
Webseed's or Blogger's) came to be identified strictly with
non-scholarly material: personal reminiscences,
correspondence, articles, and news. Above all, no feasible
alternative revenue models seem to have emerged.
A: Regarding respectability: There is a growing number of
free online *peer-reviewed* journals, and growing number of
highly respected academics willing to serve on their editorial
boards. As measured by impact (citations) or informal
prestige, some online journals surpass many print journals.
It's true that print journals still have greater impact and
prestige than online journals, but only if we average the two
classes. The factors that create respectability are medium-
independent, and can easily belong to online journals. A
growing number of online journals are as respectable as any
print journal. BMJ (formerly called the British Medical
Journal) is eminently respectable. It offers 100% of its
print copy online free of charge. There are other examples in
every field.
My view is that the lack of an agreed upon classification
method is not a problem. That's a long conversation. But
it's not true that the need for such a classification method
is widely felt. Indexing and organization are desirable, but
there is free and priced software to index and organize any
online content in any way that users want. This software will
only get better as time goes on.
It's not true that no feasible alternative revenue models have
emerged. FOS doesn't depend on volunteer labor. The general
revenue model is to pay for outgoing articles (dissemination)
rather than incoming articles (access). There are many
variations on the theme, depending on who pays. But it's
perfectly feasible to regard the costs of dissemination as
part of the cost of research, to be paid by the grant that
funds the research --for example. (This is just one variation
on the theme.) BioMed Central is a *for-profit* provider of
FOS implementing one variation on this theme.
In a general introduction to the FOS movement I'm writing for
another journal, I'm putting it this way. The economic
feasibility of FOS is no more mysterious than the economic
feasibility of Public TV. Donors pay the costs of
dissemination so that it will be free for everyone. For that
matter, it's no more mysterious than the economics of
commercial TV, which is identical except that advertisers are
among the donors. There are many successful and sustainable
examples in our economy in which some people pay to make a
good free for everyone rather than pay only for their own
private access or consumption.
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. (See next question below.)
The recent Budapest Open Access Initiative (BOAI) 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 USA). What would be the impact of the likes of
the DMCA 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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