Open access and the new WIPO director

Posted on 23 September 2008
Filed under Copyright, Open access, Science
Comment on this post

This week, the World Intellectual Property Organization named a new director general, Francis Gurry of Australia. In his acceptance speech, Gurry called for the world “IP” system to serve the goals of access to knowledge and information equity. He also commended the goals of the Development Agenda. Both are welcome statements from the new DG. Of course, that’s not all he said, and that’s what I want to analyze here, particularly vis-à-vis open access.

In his acceptance speech, Gurry calls upon countries to develop “National Intellectual Property and Innovation Strategies”. His own country, Australia, recently released a report on its innovation system which called for OA to public sector information and to publicly-funded research.
Gurry also calls for a greater role for evidence in IP policy-making, noting:

… The [WIPO] Secretariat needs to be better equipped with resources for economic research and statistics in order to provide the Member States with a sound empirical basis for reflection. I intend to establish a Division for this purpose. …

The need for evidence-based policy-making echoes a call in the Adelphi Charter (see previous OAN posts) and many others (e.g.). As someone who thinks that evidence will bear out the merits of OA, a greater role for evidence in policy-making (and an accordingly lesser role for shrill lobbying) would be a welcome development.
Gurry also echoes another welcome theme for IP policy, against maximalism for the sake of maximalism:

… [I]t is useful to remember that intellectual property is not an end in itself. It is an instrumentality for achieving certain public policies, most notably, through … copyright, the stimulation and diffusion of innovation and creativity on which we have become so dependent … In the end, our debates and discussions are about how intellectual property can best serve those underlying policies: whether modifying the international framework will enhance or constrain innovation and creativity and contribute to their diffusion …
Not all of Gurry’s comments are so favorable. He notes with concern that the Internet raises “the most radical of threats” to 20th century business models for creative content, and states that “[t]he widespread illegal downloading of music and films from the Internet raises more generally the question of respect for intellectual property”. Although OA is a wildly different question than unauthorized downloading of pop songs, we have seen repeated efforts to equate them (mostly recently by Rep. Howard Berman’s linking of the NIH policy with Napster) in order to raise fear, uncertainty, doubt, and to distract from the many valid and pressing arguments in favor of OA. That Gurry gives such credence to content industry concerns suggests a certain bias in favor of protectionism and against openness, and that he may be able to be mislead by the same claims.
More broadly, Gurry’s comments focus largely on economic rather than scientific concerns, although both are subject to the same IP system over which he now presides. Where he discusses science, it’s about developing new technologies and solutions to global challenges, and mostly not about the advancement of learning and inquiry. This suggests the direction of Gurry’s priorities for WIPO. While OA requires no changes to the global IP framework, there are a number of amendments to national or international law which could benefit research and education, from guaranteeing the public domain status of data to strengthening limitations and exceptions for academic purposes. Based on the priorities evinced in his acceptance speech, the interests of scientists and students will be of less concern to Gurry than those of Miramax and Metallica.

Comment on this post

Author’s rights: let’s be clear on the problem

Posted on 2 August 2008
Filed under Academia, Copyright, Creative Commons, Licenses, Open access, Publishing
Comment on this post

There are a number of available remedies (e.g. 1, 2, 3) to the problems posed by authors signing away their copyright to academic journals. But the thicket of solutions and the surrounding rhetoric can sometimes muddy up what the real problem is. So let’s be clear:

Researchers want to publish their research in academic journals.
As author, the researcher owns the copyright inherent in her article. (This doesn’t apply to works produces by government employees, such as intramural NIH researchers, which are not subject to copyright and are in the public domain. Different considerations apply when the author is an employee or contractor and agrees contractually that the employer or client will own the copyright in the work. But this is the situation for most academic researchers.)
These journals often ask researchers to transfer exclusive copyright to the journal as a condition of publication. This “request” is usually in the form of a boilerplate template license (which is not presented as negotiable).
If the author signs away her copyright, then (absent any other agreement, such as a journal policy or an accepted addendum to the copyright transfer agreement) the author will not have sufficient rights to self-archive a copy of her article in an open access repository (aside from any rights which may exist under fair use or other copyright exceptions) or to make it available under an open license (such as a Creative Commons license compatible with the BBB definition of open access).

The existing journal policies and author addenda vary in their specifics: not all of them offer as much flexibility for the author as is desirable for open access. (For instance, they may specify that only certain versions of the article manuscript may be self-archived, or only in certain locations — e.g., on the author’s personal Web site but not in a disciplinary repository — or may not allow the author to apply a CC license to the article.) It’s also important to note that not all journals ask for exclusive copyright: some ask only for the rights necessary to publish the article; others (particularly open access journals) require the author to agree to a CC license.

But for journals that do ask for exclusive copyright, the problem isn’t that the author is giving the journal too many rights (as is sometimes portrayed in the rhetoric around this subject). Rather, the problem is that the author isn’t keeping enough rights. If we were discussing a tangible object, then the preceding two sentences would be semantically identical, but copyright is an intangible: the author can give away rights and keep them at the same time. This point isn’t always made clear.

The ideal approach, then, gives the broadest rights to both the journal and the author. Most important here is the author: as I’ve mentioned, some of the existing addenda and journal policies are too narrow in their “grant” (return) of rights to the author. Ideally, the author should end up with a set of rights as broad as copyright itself: either copyright itself, or a non-exclusive, royalty-free, irrevocable license to do anything with the work (including to sub-license it).

But there’s also little harm in giving a broad grant of rights to the journal. In fact, we can imagine a harm in giving too narrow a grant of rights: for instance, a well-meaning journal that wishes to reproduce the article in a way that will improve access or usefulness, but which was only granted (say) a right of first publication and of reproduction in the original medium — combined with an unlocatable author (or her heirs), the article is effectively an orphan work.

We can imagine few objectionable uses of a scientific article — or at least, few objectionable uses to which we think the author should actually be able to object: this is one the premises of open access. So there’s not much harm in giving the publisher, as well as the author, wide leeway in permission to use and re-use the article.

(As always, I’m not a lawyer, this is not legal advice, etc. …)

Comment on this post

Everybody4

Posted on 15 May 2008
Filed under Copyright, Politics
Comment on this post

There’s a certain irony in the fact that Lessig and Berman have endorsed the same candidate.

Comment on this post

CopyNight Orlando, April 22

Posted on 22 April 2008
Filed under Copyright, Florida, Orlando
Comment on this post

The February meeting of CopyNight Orlando will be Tuesday, April 22 (Earth Day!) at 7 pm at Stardust Video & Coffee (1842 E. Winter Park Rd., Orlando). This month is an open topic: whatever participants want to discuss. Learn more at copynight.org or my CopyNight page. Hope to see you there!

Comment on this post

The brilliance of Flickr Commons and the public domain

Posted on 10 April 2008
Filed under Copyright, Libraries, Open content, Public domain
4 comments

Flickr’s The Commons is a really clever initiative.

Flickr gets high-value historical content (the kind of stuff that drives the long tail) and some nice publicity. The collections get to bring their content to many new users in a new way. Beyond access, the collections can also accrue tags, comments, and geo-tags, potentially adding a layer of valuable data. Since the photos are in the public domain (and marked as such), everyone has full re-use rights; there’s no threat of Flickr holding the collections hostage. (I don’t know whether the collections can mass-export all the associated data in a useful format, though. If not, The Commons is basically just a neat toy and not of archival value.) All around, it’s a great collaboration between for-profit and non-profit entities, where everybody wins, including the public.

The confluence of all this is maybe best demonstrated in this blog post by Australia’s Powerhouse Museum, the latest to join The Commons:

What Flickr offers the Powerhouse is an immediate large and broader audience for this content. And with this exposure we hope that we will have a strong driver to increase the cataloguing and digitisation of the remaining Tyrrell glass plate negatives as well as many more the previously hidden photographic collections of the Powerhouse.

In other words, projects like this create demand for more digitization of open content. Now that’s a comedy of the commons.

4 comments | Add yours

CopyNight Orlando, March 25; plus Document Freedom Day, 3/26

Posted on 23 March 2008
Filed under Copyright, Florida, Orlando, Personal
Comment on this post

The February meeting of CopyNight Orlando will be Tuesday, March 25 at 7 pm at Stardust Video & Coffee (1842 E. Winter Park Rd., Orlando). This month is an open topic: whatever participants want to discuss. Learn more at copynight.org or my CopyNight page. Hope to see you there!

I’m also organizing a local activity for Document Freedom Day on March 26. Stay tuned for details.

Comment on this post

CopyNight Orlando, Feb. 26: FOSS licensing

Posted on 24 February 2008
Filed under Copyright, Florida, Orlando, Personal
Comment on this post

The February meeting of CopyNight Orlando will be Tuesday, Feb. 26 at 7 pm at Stardust Video & Coffee (1842 E. Winter Park Rd., Orlando). Our topic for the month is open source licensing — or whatever else comes up. Learn more at copynight.org or my CopyNight page. Hope to see you there!

Comment on this post