Copyright Law and Free Online Scholarship - An Interview with Peter Suber

Copyright Law and Free Online Scholarship

An Interview with Peter Suber

Also published by United Press International (UPI)

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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.

Question: 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.)?

Answer: 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.

Question: Could you describe the crisis in scholarly publishing?

Answer: 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 cancelling 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.

Question: 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?

Answer: 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.

Question: 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.

Answer: 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.

Question: Can you summarize for us the major developments and trends in FOS?

Answer: 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.

Question: 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?

Answer: 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.

Question: 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.

Answer: 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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