Harris Poll Shows Support for Open Access

Open Access. The Wall Street Journal reports today on a Harris Interactive poll that asked 2,501 Americans whether they thought the public should have online access to publicly funded research. Here's what they found:

• 83% of adults say they strongly (61%) or somewhat (22%) agree that since this research is paid for by tax dollars, the results should be easily available (free and online) to doctors.
• 82% of adults say they strongly (57%) or somewhat (25%) agree that if tax dollars pay for scientific research, people should have free access to the results of the research on the Internet.
• 81% of adults say they strongly (49%) or somewhat (32%) agree that having this information easily available (for free and online) will help those living with a chronic illness or disability get the latest information which will assist people coping with that chronic illness or disability.

Methodology
This Harris Poll was conducted online within the United States between April 11 and 17, 2006 among 2,501 adults (aged 18 and over). Figures for age, sex, race/ethnicity, education, region and household income were weighted where necessary to bring them into line with their actual proportions in the population. Propensity score weighting was also used to adjust for respondents’ propensity to be online.

All surveys are subject to several sources of error. These include: sampling error (because only a sample of a population is interviewed); measurement error due to question wording and/or question order, deliberately or unintentionally inaccurate responses, nonresponse (including refusals), interviewer effects (when live interviewers are used) and weighting.

Put Articles by Government Researchers Online Now

Open Access. This is the first in a series of posts I plan about copyright law and access to publicly funded research. In this post, I highlight the public domain status of research articles by federal employees under U.S. law and issue a call for action by open access advocates.

The proposed Federal Public Research Access Act of 2006 has an important provision that would require covered agencies to mark peer-reviewed articles by agency employees as being in the public domain and to post such articles online immediately. This is an incontestibly sensible requirement, but federal agencies and members of the public need not await the outcome of this pending legislation to make this provision effective.

Why? Because under Section 105 of the Copyright Act, any "work of the United States Government" is not subject to copyright. That means any journal article written solely by federal employee researchers (think NASA, NIH, etc.) is in the public domain. If an article is co-authored by one or more non-federal employees, then the copyright status is more complicated.

For the moment, let's focus on articles written solely by federal employees. These articles, as part of the public domain, belong to you. If you find one, you are free to post it online and to mark it as part of the public domain.

The trick is to find these articles. If you are in an office of intramural research and have access to bibliographies of articles written by federal employees, can you send me a copy or post it online? If you otherwise have access to such bibliographies, please post it or send me a copy.

Going forward, agencies should start requiring that articles written solely by federal employees be marked as such so that we can get these online now.

Muzak and Music Retailing

Music. David Owen wrote a very nice piece in the April 10, 2006 issue of the New Yorker about Muzak, the company that specializes in background music for retail establishments, office elevators, and on-hold entertainment. The company has reinvented itself with some success.

To my ear, however, the trend is away from a Muzak-type service and toward what Starbucks has done with Hear music. Traditionally, companies have spent far more time and effort developing a visual identity than an aural identity. That's beginning to change, as automobile manufacturers have discovered that rock n' roll sells cars, and retailers increasingly begin to develop and package "their" sound.

Brick-and-mortar record stores continue to experience the pain of disintermediation, while lifestyle retailers (coffee, clothing, etc.), begin to add CDs as a new line of merchandise. Interesting times.

The Technological Case for Open Access

Open Access. Clifford Lynch makes another important contribution by illuminating the potential of open access in a networked age. We're trying to realize this potential with the Science Commons neurocommons project.

"As the scholarly literature moves to digital form, what is
actually needed to move beyond a system that just replicates all
of our assumptions that this literature is only read, and read
only by human beings, one article at a time? What is needed to
permit the creation of digital libraries hosting these materials
that moves beyond the "incunabular" view of the literature, to
use Greg Crane's very provocative recent characterization. What
is needed to allow the application of computational technologies
to extract new knowledge, correlations and hypotheses from
collections of scholarly literature?"

Here is the link to the piece (a chapter from a forthcoming book):
http://www.cni.org/staff/cliffpubs/OpenComputation.htm.

The Insider's Argument against Open Access

Open Access. Here comes the public attack against the bi-partisan Federal Research Public Access Act of 2006, which would require 11 government agencies to publish online any articles that contained research financed with federal grants. See Sara Ivry, Some Publishers of Scholarly Journals Dislike Bill to Require Online Access to Articles, New York Times, 5/8/06.

What is particularly galling is one of the two publisher responses to the taxpayer access argument for open access. The taxpayer argument is simple: we paid for it, we should get to read it without paying again. Publishers have two responses: (1) the economic argument and (2) the elitist argument.

The economic argument holds that taxpayers do not pay for all of the valuable inputs into a publicly-funded journal article, and open access will destroy publisher motivation to add value.

The elitist argument holds that taxpayers cannot be trusted with open access because they might harm themselves by misreading or misunderstanding an article written by specialists for specialists. In the case of biomedical research, the argument goes, open access could lead non-specialist members of the public to self-treat, to fail to seek medical attention, and/or to disobey doctor's orders.

Let's just focus on the elitist argument for a moment. How would that argument fly with respect to other kinds of government expenditure? Voters should not have access to information about how the war in Iraq is going because they're likely to misunderstand how complex modern warfare is? Voters should not have access to hurricaine readiness preparations in New Orleans because meteorology is a complex business? These arguments are laughable on their face. Why doesn't the elitist argument against open government get the same response when it comes to science? The different treatment arises out of fundamental differences between the respective cultures of law and science, differences nicely analyzed in Steven Goldberg's 1994 book, Culture Clash: Law and Science in America (NYU Press). The culture of science has been buffered in some respects from our more general information policy in the U.S.

But the Internet is forcing science to confront that policy now, and that policy is rooted in the First Amendment. In the United States, we begin with a premise of democratic access to information. Arguments by elites that the American voter "can't handle the truth" run afoul of our deepest commitments. While it is important to recognize that transmission of information does not equate with transmission of knowledge, to presume that open access to scholarly information never amounts to transmission of knowledge to members of the general public is offensive to our core beliefs.

Members of Congress and their respective staffs should treat the elitist argument as constitutionally suspect and not waste any time on it as the debate on this important initiative moves forward.

One for the Law Students

I love a good comic strip. Long, long ago (in the early 1980s) I lived in Austin. Sam Hurt drew a great strip called Eyebeam for the UT newspaper. These have been compiled in books that, sadly, are out of print.

I was there during the time the title character, Eyebeam, made the transition from college to law school. For a taste of the early days, here's the second installment: http://eyebeam.com/toons/index.php?num=2

For the law students feeling the weight of exams, cheer up: http://www.eyebeam.com/1983/index.php?num=39

Music Sampling - Overdue Venting about Bridgeport

Copyright. Music. Like many others who worry about achieving the proper balance between public and private interests in copyright law, I was very disturbed when the Sixth Circuit announced its novel interpretation of the Copyright Act in Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 398 (6th Cir. 2004), aff'd on reh’g, 410 F.3d 792 (6th Cir. 2005). The court concluded that hip hop artists and others who create digital samples must live by a simple rule: "Get a license or do not sample."

The court justified its holding on a number of policy grounds, the most important being that it would reduce transaction costs. (It was hard not to notice that some of those transaction costs would be the court's own in handling the hundreds of similar cases pending below.) Not surprisingly, most of the blog/mainstream press commentary that I read focused energy and criticism on the court's policy rationale.

My reaction was a little different, and I have been holding it in for too long. While I also am wholly unpersuaded by the court's rationale, I found more disturbing the court's method of interpreting the Copyright Act. With all due respect, even if you think the court's rule is a good one, if you value consistency in statutory interpretation, you will have to admit that the case was wrongly decided. Here's why:

First, a little backgound. Copyright law distinguishes between a "musical work"- the music and lyrics - and a "sound recording" - the recorded rendition of the musical work. There is a separate copyright in the sound recording based on the creative decisions that went into how the musical work should sound when recorded. (The authors of the sound recording may be performer(s), the record producer(s), the sound engineer(s), and/or others involved in the recording session or post-production process.).

Analysis of the Copyright Act in an infringement action takes two steps. First, the court asks whether one of the exclusive rights granted to the copyright owner in Section 106 has been exercised without authorization. If the answer is yes, the court then asks whether one of the limitations on those rights in Sections 107-122 renders the use non-infringing.

Section 114 is one such limitation. In Section 114, Congress limited the scope of sound recording copyrights to make them narrower than copyright in most other forms of expression, including musical works. Contrary to the text and legislative history of the Act, the Sixth Circuit decision broadens the scope of sound recording copyrights beyond that for any other kind of creative work.

In Bridgeport, the question presented was whether the de minimis use limitation applies to digital sampling of a sound recording. The de minimis doctrine is a general limitation of law that applies to all of the Section 106 rights regardless of the type of copyright involved. The district court properly understood this and started and ended its analysis with Section 106, finding that a small snippet of a guitar lick that had been transformed and looped was a de minimis use.

The court of appeals, by contrast, started with Section 114 - the special limitation on the Section 106 rights that applies only to sound recording copyrights. The court then read a portion of Section 114 designed to limit the reproduction right to only exact duplication (instead of the normal rule, which encompasses substantially similar duplication) to eliminate the de minimis doctrine only for sound recordings.

In my view, neither the text of the Copyright Act nor its legislative history supports this unique departure from standard copyright infringement analysis. Therefore, as interesting as the policy analysis is concerning the value of certainty in copyright law, I do not think there is a statutory basis for the rule announced by the court in this case.

Copyright in "Pre-Prints" and "Post-Prints"

Open Access. In some quarters of the Open Access movement, some confusion has arisen with respect to copyright law and the many iterations through which an article goes. The comments that follow describe how U.S. law looks at "pre-prints" - the version of an article first submitted to a publisher, and "post-prints" - the author's final manuscript incorporating changes made after peer review. I wrote these comments in response to the question whether an author could grant a Creative Commons license to use a pre-print after having signed away all rights under copyright to a publisher. These comments are for your information and are not legal advice.

The short answer is no, an author cannot grant a Creative Commons license in a pre-print after having signed away all rights in the article in a publication agreement.

Although technically distinct, the copyrights in the pre-print and the post-print overlap. The important point to understand is that copyright grants the owner the right to control exact duplicates and versions that are "substantiallysimilar" to the copyrighted work. (This is under U.S. law, but most other jurisdictions similarly define the scope of copyright).

A pre-print will normally be substantially similar to the post-print. Therefore, when an author transfers the exclusive rights in the work to a publisher, the author precludes herself from making copies or distributing copies of any substantially similar versions of the work as well.

[For example, the singer John Fogerty of Credence Clearwater Revival famewas sued by a record company, which had acquired the copyright in his song"Run Through the Jungle". The company claimed that Fogerty's later song"The Old Man Down the Road" was substantially similar to the former song and that Fogerty had therefore infringed the copyright that Fogerty had signed away.]

Consequently, whether an author may grant the public a Creative Commons license depends upon the rights the author has at the time of the grant. If the author grants a Creative Commons license in the article prior to transferring copyright to the publisher, the publisher takes the copyright subject to that license. But before doing this, authors should read the terms of the publication agreement they are signing. Some of these agreements call upon the author to assign all rights under copyright,which the author cannot do if he or she has previously granted a license.

Even when the copyright transfer agreement has such a provision, however,publishers will sometimes agree to take the copyright subject to a previously-granted license. For example, every researcher who accepts money from NIH or any other U.S. government agency grants to the U.S.government a non-exclusive license to publish and reproduce the work. This license is granted prior to any agreement that the author enters into with a publisher and therefore published papers funded by NIH research are subject to the USG's license.

Publishers are fully aware of the government's license and therefore the terms of any copyright agreement signed by a USG-funded researcher that purports to give all rights to the publisher has to be interpreted accordingly.With that background, let's return to the original question. Once an author signs a publication agreement, can that author grant a CreativeCommons license in the pre-print?

It depends upon the terms of the agreement, as modified by any addenda. Currently, under most publication agreements, the author does not retain sufficient rights to grant a Creative Commons license in either the post-print or the pre-print after transferring copyright to the publisher.Of course, the author retains the right that all members of the public have to make a fair use of the article or exercise a fair dealing privilege, but it is unclear whether this privilege would permit posting of the pre-print without authorization from a publisher that owns thecopyright in the post-print.

The Federal Research Public Access Act of 2006

Open Access. Senators Cornyn and Lieberman have introduced an important bill that would improve access for researchers and members of the public to federally-funded research. The Washington Post has a story here: http://www.washingtonpost.com/wp-dyn/content/article/2006/05/02/AR2006050201506.html.