Law Professors Defend NIH Policy

I want to thank my colleagues in the legal academy who responded to the AAP's unfounded legal attack on the NIH Public Access Policy by deflecting the TRIPS Hammer with a straightforward explanation of why TRIPS does not apply to the NIH policy. NIH is fully respecting copyright - an author's right.

The letter to Chairman Conyers and shared with the other Members of the House Judiciary Committee has made some on the Hill start to think that certain copyright owners are misusing the TRIPS Hammer.

Here's the letter:

September 8, 2008

The Honorable John Conyers, Jr.
Chairman
Committee on the Judiciary
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, D.C., 20515

Re: NIH Public Access Policy

Dear Chairman Conyers:

The undersigned professors at law schools throughout the United States teach copyright law or engage in scholarly research about copyright law. We write to respond to serious misstatements relating to copyright law contained in a recent submission to the National Institutes of Health with respect to the relationship between the NIH Final Policy on Public Access and certain aspects of U.S. and international copyright law. The letter (hereafter "the Proskauer Letter") was written by Jon A. Baumgarten of Proskauer Rose LLP, dated May 30, 2008, to Allan Adler, Vice President for Legal & Government Affairs, American Association of Publishers in response to Mr. Adler's request and with the understanding that the letter would be part of a public submission to NIH by the AAP.

As you know, the NIH Policy requires grantees to ensure that all investigators funded by NIH submit an electronic version of their final peer-reviewed manuscripts to the National Library of Medicine's PubMed Central (PMC), which then makes the manuscript publicly available within twelve months of the official date of publication. The NIH adopted this policy as required by a provision included in the Labor, Health and Human Services, Education, and Related Agencies FY 2008 Appropriations Bill.

The Proskauer Letter alleges that the NIH Policy may constitute an involuntary transfer of copyright in violation of Section 201(e) of the Copyright Act. Contrary to the Proskauer Letter's assertions, the Policy does not create an involuntary transfer, a compulsory license, or a taking of the publishers' or investigators' copyright. Rather, under the Policy, NIH
conditions its grant of funding on the grantee's agreement to ensure that investigators provide PMC with a copy of articles reporting NIH-funded research along with a non-exclusive copyright license to make the article publicly available within one year after the article's publication in a journal.

In other words, if the investigator chooses not to receive NIH funding, the investigator has no obligation to provide the article to PMC or a copyright license to NIH. But if the investigator elects to receive NIH funding, he or she accepts the terms of the grant agreement, which include the requirement to deposit the article with PMC so that the article can be made publicly accessible within one year after publication. Because the investigator has this basic choice, the policy does not constitute an involuntary transfer.

Furthermore, because the author makes this choice long before the publisher enters into the picture, the policy does not take any intellectual property away from the publisher. When the investigator transfers copyright to the publisher, as most publishers require as a condition of publication, the copyright is already subject to the non-exclusive license granted by the investigator to NIH. Thus, the policy does not change the scope of the publisher's copyright after the publisher has acquired it.

Additionally, it is important to note that the Policy requires deposit of the author's final manuscript after peer review, not the final published version of the article. This aspect of the Policy renders moot any debate about whether the publisher obtains a copyright interest in the article through the process of copy editing or layout. The publisher performs its copy editing after the investigator submits the manuscript to PMC. While the publisher plays a role in coordinating peer review, this process does not result in any copyrightable expression attributable to the publisher. Any edits or additional text written in response to peer reviewers' comments is written by the investigator, not the publisher.

Building on the erroneous premise that the Policy is an involuntary transfer of copyright or a compulsory license, the Proskauer Letter then suggests that the NIH Policy might violate U.S. obligations under the Article 9 of the Berne Convention or Article 13 of the TRIPS agreement. This argument lacks any basis in law. As discussed above, the NIH Policy governs the terms of contracts, not exceptions to copyright law. As such, the Policy in no way implicates Article 13 of TRIPS or Article 9 of the Berne Convention, which address permissible copyright exceptions. These treaty provisions are completely silent on the issue of the terms a licensee can require of a copyright owner in exchange for valuable consideration.

The federal government provides funding to state and local government agencies and private entities for a wide range of activities, including homeland security, law enforcement, agriculture, transportation, education, and research. Congress frequently imposes conditions on recipients of this federal funding. While one might question the wisdom of a particular condition, Congress without doubt has the authority to impose
them. Similarly, Congress has the authority to require NIH grantees to deposit their manuscripts with PMC and to grant a license to make these publicly accessible over the Internet within a year of publication. Such a requirement conflicts neither with the Copyright Act nor with international treaty obligations.

Respectfully,

Keith Aoki, Professor of Law
University of California Davis School of Laaw
Davis, CA 95616

Ann Bartow, Professor of Law
University of South Carolina School of Law
Columbia, SC 29208

Dan L. Burk, Chancellor's Professor of Law
University of California, Irvine
Irvine, CA 92697-8000

Adam Candeub, Acting Director, IP & Communications Law Program
Michigan State University, College of Law
East Lansing, MI 48824-1300

Michael W. Carroll, Visiting Professor of Law
Washington College of Law, American University
Washington, DC 20016

Anupam Chander, Visiting Professor of Law
University of Chicago Law School
Chicago, IL 60637

Andrew Chin, Associate Professor of Law
University of North Carolina School of Law
Chapel Hill, NC 27599

Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice
Seattle University School of Law
Seattle, WA 98122-1090

Robert Denicola, Margaret Larson Professor of Intellectual Property
University of Nebraska-Lincoln College of Law
Lincoln, NE 68583-0902

William Fisher, Wilmer Hale Professor of Intellectual Property Law
Harvard Law School
Cambridge, Massachusetts 02138

Brett M. Frischmann, Visiting Professor of Law
Cornell Law School
Ithaca, NY 14853-4901

Lolly Gasaway, Associate Dean For Academic Affairs & Professor
School of Law, University of North Carolina - Chapel Hill
Chapel Hill, NC 27599

Deborah R. Gerhardt, Director of Intellectual Property Initiative
University of North Carolina School of Law
Chapel Hill, NC 27599

Llewellyn Joseph Gibbons, Associate Professor of Law
University of Toledo College of Law
Toledo, Ohio 43606-3390

James Grimmelman, Associate Professor of Law
New York Law School
New York, NY 10013

Dan Hunter, Visiting Professor of Law
New York Law School
New York, NY 10013

Peter Jaszi, Professor of Law
Washington College of Law, American University
Washington, DC 20016

E. Judson Jennings, Professor of Law
Seton Hall University Law Center
Newark, New Jersey 07102-5210

Dennis Karjala, Jack E. Brown Professor of Law
Arizona State University Sandra Day O'Connor College of Law
Tempe, Arizona 85287-7906

Jay P. Kesan, Professor of Law & Mildred Van Voorhis Jones Faculty Scholar
University of Illinois at Urbana-Champaign
Champaign, IL 61820

Raymond Ku, Professor of Law
Case Western Reserve University School of Law
Cleveland, Ohio 44106

David S. Levine, Assistant Professor of Law
Charlotte School of Law
Charlotte, NC 28208

Doug Lichtman, Professor of Law
University of California, Los Angeles
Los Angeles, California 90095-1476

Jessica Litman, Professor of Law
University of Michigan Law School
Ann Arbor, Michigan 48109-1215

Lydia Pallas Loren, Professor of Law
Lewis & Clark Law School
Portland, Oregon 97219

Michael J. Madison, Professor of Law
University of Pittsburgh School of Law
Pittsburgh, PA 15260

Mark P. McKenna, Associate Professor of Law
Notre Dame Law School
Notre Dame, IN 46556

Michael J. Meurer, Professor of Law and Michaels Faculty Scholar
Boston University School of Law
Boston, MA 02215

Joseph Scott Miller, Visiting Associate Professor of Law
University of Georgia School of Law
Athens, GA 30602

Neil Netanel, Professor of Law
UCLA School of Law
Los Angeles, CA 90095

Tyler Ochoa, Professor of Law
Santa Clara University School of Law
Santa Clara, California 95053

Ruth Okediji, Professor of Law
University of Minnesota School of Law
Minneapolis, MN 55455

Frank Pasquale, Loftus Professor of Law
Seton Hall University School of Law
Newark, New Jersey 07102-5210

Malla Pollack, Professor of Law
Barkley School of Law
Paducah, Kentucky 42001

David G. Post, I. Herman Stern Professor of Law
Beasley School of Law, Temple University
Philadelphia, PA 19122

R. Anthony Reese, Arnold, White & Durkee Centennial Professor
School of Law, The University of Texas at Austin
Austin, TX 78705

Michael Risch, Associate Professor of Law
West Virginia University College of Law
Morgantown, WV 26506-6130

Matthew Sag, Assistant Professor of Law
DePaul University College of Law
Chicago, IL 60604

Pamela Samuelson, Richard M. Sherman Distinguished Professor
University of California, Berkeley
Berkeley, CA 94720-4600

Joshua D. Sarnoff, Practitioner in Residence
Washington College of Law, American University
Washington, DC 20016

Wendy Seltzer, Visiting Practitioner-in-Residence
Washington College of Law, American University
Washington, DC 20016

Katherine J. Strandburg, Professor of Law
DePaul University College of Law
Chicago, IL 60604

Madhavi Sunder, Professor of Law
UC Davis Law School
Davis, CA 95616-5201

Hannibal Travis, Visiting Assistant Professor of Law
Villanova University School of Law
Villanova, PA 19085

Rebecca Tushnet, Professor of Law
Georgetown University Law Center
Washington, DC 20001

Deborah Tussey, Professor of Law
Oklahoma City University School of Law
Oklahoma City, OK 73106

The AAP tries to kill the NIH policy with the TRIPS Hammer

Having failed to stop the NIH Public Access Policy from becoming mandated by Congress, the American Association of Publishers reached for the handy TRIPS hammer. Their argument - the NIH Policy makes the United States look weak on IP. The legal argument they rely on is here.

The TRIPS Hammer

Lobbyists for the trade organizations of large copyright-owning intermdiaries, such as the MPAA, RIAA and AAP, have become fond of pulling out the TRIPS hammer whenever they meet resistance to their proposals for more rights.

The TRIPS hammer is the argument that Congress must do what the lobbyist wants or the United States will be non-compliant with its international obligations under the TRIPS Agreement. The hammer then comes down with the argument that the United States has to set an example for the rest of the world about how to "respect" intellectual property because otherwise, certain trading partners will undermine the effectiveness of the TRIPS agreement.

And, of course, this is all said with a straight face even after the United States has been judged to be in violation of TRIPS and has failed to remedy the violation.

The Attack on the NIH Policy

I am behind on posting, and there's much news.

Last month, Chairman Conyers (D-MI) introduced the "Fair Copyright in Research Works Act" (H.R. 6845) into the House. Paul Courant, Peter Suber, and others, rightly pointed out that "fair" is foul in this case.

The aim of the bill is to use the Copyright Act to override longstanding federal procurement law, including the NIH Public Access Policy and to assert Judiciary Committee jurisdiction over federal procurement agreements that involve support for the creation of copyrighted works, such as journal articles reporting the results of scientific research.

The sad news is that the American Association of Publishers were successful in persuading the Chairman to introduce this bill even though it is terrible public policy.

The better news is that it does not look like this bill is going anywhere during this Congress. Neither Mr. Berman (D-CA)(Chair of the relevant House Subcommittee) nor Mr. Coble (R-NC) (Ranking Member on the Subcommittee) signed on as co-sponsors.

This initiative to snuff out the NIH policy has actually had a galvanizing effect on the community of supporters, and it's time to press the other agencies, such as the Department of Energy and the National Science Foundation, on the question of public access to federally-funded research.

Politics and Popular Music

As seems to happen during every federal election campaign season, we're seeing a new round of controversies emerge as politicians seek to harness popular music for their own purposes.

There are two kinds of controversies. One involves public performance at rallies and other campaign events. Usually, these performances are licensed under a collective license issued by ASCAP and BMI. The recent complaint issued by Heart against the McCain-Palin campaign for use of the song "Barracuda" falls into this category.

The second involves synchronizing music for use in viral videos on video-sharing sites. Warner Music issued a take-down notice to YouTube for a McCain ad that used Franki Valli's "Can't Take My Eyes Off of You". In these disputes, the use is not licensed and is therefore infringing unless it is a fair use.

Query whether, from a free speech perspective, it is appropriate to let the copyright license status cause these cases to be treated differently? The answer would be yes if the artists' or copyright owner's interests were primarily economic. However, because the concern about implied endorsement is heightened in the campaign setting, should the artist's or copyright owner's interest in being free from an unwanted association be given greater weight while also acknowledging the campaign's desire to use popular culture as a means of connecting with voters?

So as a trial balloon I'm wondering whether copyright law and trademark law ought not be interpreted to yield a result under which campaigns should be free to use popular music at rallies and in connection with promotional videos so long as they prominently disclaim any implied endorsement from the songwriters or performers, regardless of whether such use is covered by a collective license.

I have some reservations about this particular solution, but it seems to me that we need a resolution to this recurring conflict that is medium-neutral and that targets the relevant expressive and economic interests on both sides.

Attacking Public Access Through the Copyright Act

On September 9th, Mr. Conyers introduced H.R. 6845, "The Fair Copyright in Research Works Act", into the House of Representatives. There is nothing fair about this bill at all, and it should be opposed by anyone who cares about public access to publicly funded research.

The immediate aim of the bill is to cut off public access to NIH-funded research articles which currently must be made available within 12 months of the date of publication. Yesterday, a hearing was held on the bill in the House Subcommittee on the Courts, the Internet, and Intellectual Property. Any further action during this session is unlikely.

The bill is an odd duck because it would do far more than simply end public access to NIH-funded research. It would also impliedly amend public procurement law and impliedly repeal portions of the longstanding "rights in data" contracting provisions of the Federal Acquisition Regulation, the DFARS, and portions of the intangible property provisions of OMB Circular A-110.

Traditionally, the Copyright Act has not been used for this purpose. Certain journal publishers have asserted to NIH and to the Committee that the NIH policy is in some vague way inconsistent with the Copyright Act and U.S. international copyright obligations. This assertion lacks any basis in law, and a group of 47 professors at American law schools who teach or write about copyright law sent a letter to the committee making this point.

Here's a quick summary of the bill:

1. The Scope of the Amendment

The bill would apply in cases in which a copyrighted work arises from:

(1) a contract, grant agreement or cooperative agreement with any federal agency that involves "experimental, developmental or research activities";

AND

(2) the creation of the work was funded in substantial part by a non-federal non-party to the agreement

OR

(3) the work "represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party."

[Try decoding this. One can intuit that the publishers assert that the "meaningful added value" they have in mind is coordinating the peer review process. They need this odd hook because all of the copyrightable expression in the article is the grantee's (actually the researcher's) made in response to the comments of the peer reviewers (who do it for free). Even if this bill were to become law, it would be debatable whether the coordination of peer review is sufficiently "meaningful" in light of the value contributed by the authors and referees.]

2. The Effect of the Amendment

For covered works, the following prohibitions apply:

(a) the agency may no longer receive a transfer of rights or a license to distribute copies to the public; publicly perform the work or publicly display the work.

[This would mean that the work could not be put on a web site. If it were an audiovisual work, it could not be supplied to the news media for broadcast. If it were printed material, it could not be handed out or sold. So, for example, anything produced by a public-private partnership for which the agency would need a license to share with the public couldn't be done.]

(b) the government may not receive a license to make copies or to adapt the work, if doing so "involves the availability to the public of that work"

(c) the agency may not impose a term or condition that requires the "absence or abandonment" of any of the rights described in (a) and (b) above

(d) the agency may not require the recipient of federal funds to grant a waiver or to assent to the violation of (a) - (c)

(e) the agency may not "assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work."

[That is, even though the public has paid for the research and the creation of the article, the public may not assert rights in the work in a way that would impair a publisher's ability to fully privatize the research.]

Free Speech, Guns and YouTube

Yesterday, the Philadelphia police arrested Andre Moore, a 44-year-old security guard, because he posted a video shot by his 12-year-old son entitled "dissin philly cops" on YouTube. In the video, Mr. Moore brandishes a pistol, demonstrates its operation, and encourages viewers to shoot Philadelphia police officers, particularly those in the 18th district.

He was charged with four counts, one of which was aggravated assault. I'm not a criminal lawyer, but the charges strike me as being highly questionable on their own right.

Even if there were some legal basis for bringing these charges under state law, however, this is in my mind a clear First Amendment violation. Mr. Moore's rant is irresponsible and outrageous. But it's free speech protected by the constitution.

Under the First Amendment, you're entitled to shoot your mouth off about any topic you like, and you're allowed to endorse or encourage violence, as long as you're not making a true threat or inciting imminent lawless activity.

Our society is only as free as we let it be under times of stress. There's been a lot of gun violence in Philadelphia, and there have been tragic shootings of Philadelphia police in recent weeks. Of course, the police in the 18th District were going to be outraged by Mr. Moore's rant. But we rely on law enforcement officials to recognize and respect the consitutional rights of the people they are sworn to serve and protect.

In the court of public opinion, Mr. Moore will have to take his lumps. And, his employer is free to discharge him for this irresponsible act. But, jailing a person for his or her speech, however offensive, undermines the basic liberties that define us as Americans.

Of course, the irony of the day is that on the same day the Phliadelphia police were in the course of breaking down Mr. Moore's door and dragging him away in handcuffs for shooting his mouth off about shooting guns, the United States Supreme Court announced a 5-4 ruling in which it created a new individual right to own and keep a gun in your home.

I expect that these charges will eventually be dismissed, and the courts will uphold the First Amendment. Mr. Moore might even have civil a claim against the police for violating his consitutional rights.

But there's another important point to keep in mind. The right of free speech is a right against government action. YouTube has taken the video down as a violation of its terms of use. In public spaces in the United States, the First Amendment are the terms of use. Speech on the Internet is only as free as the companies that run the Net say it should be.

So far, those companies have issued contracts that purport to restrict quite a bit of speech that would be free under the First Amendment. But those contracts are enforced only intermittently, and so the Internet continues to be a sort-of free speech zone.

The Rule of Law and Copyright's Distribution Right

As Bill Patry reports, District Judge Michael Davis has asked for briefing on whether he must order a new trial in the best-known P2P copyright infringement case against an individual. The reason is that Judge Davis is properly concerned that he committed legal error by accepting the RIAA's proposed jury instruction that equates the copyright owner's right of public distribution with a right of merely making copies available for distribution or reproduction.

Although it won't, the RIAA should welcome this development because the RIAA's effort to misconstrue the distribution right is another example of "be careful what you wish for."

If courts take the RIAA's argument seriously, which some have, then you or I have the right to download a DRM-free music file from Amazon or Apple or Napster or . . . and share that file with anyone over a P2P service. Huh? How can this be, you ask.

Well, if you, I, or a federal court, takes the language of the Copyright Act seriously, as we should, and if the RIAA's reading of that language were right, then it would work like this. Copyright automatically gives the owner a set of five exclusive rights, with some exceptions for certains types of works: (1) reproduction; (2) distribution; (3) public performance; (4) public display; and (5) adaptation (i.e. the right to prepare derivative works).

In a series of cases against users of peer-to-peer services, the RIAA has argued that to prove infringement of the distribution right, the owner does not need to prove whether any music files in a user's shared directory were copied or when they were copied because merely putting the file in such a directory and connecting to the Internet is enough to violate the exclusive right of public distribution.

The industry has a number of reasons for making this argument, one of which is that the argument makes it much cheaper to prove the industry's many infringement cases against individuals. But most of Section 106 of the Copyright Act was written without digital technology in mind, and courts have to apply the law as Congress has enacted it. If changed circumstances mean that the statute doesn't work the way it once did, courts can use the flexibility inherent in language to adapt the law, but at some point that flexibility is exhausted. If you think the law no longer works, you have to go back to Congress.

In my view, circumstances have changed so that the law no longer works the way it once did, but the reproduction right under the Copyright Act still gives music copyright owners sufficient protection without needing to turn the distribution right into a separate "making available" right. The RIAA is, of course, free to take a different view, but it has to persuade Congress that it's right. Persuading Congress to change the law is expensive and time consuming, and so industry would rather that courts simply give it this new right through creative statutory interpretation.

This kind of expedient thinking is deeply problematic. The RIAA routinely excoriates users of peer-to-peer services for failing to respect the rule of law. But the RIAA's "making available" argument is so at odds with the language of the Copyright Act that it calls the industry's own respect for the rule of law into question. Here's why.

The Copyright Act created separate rights of reproduction and distribution so that the copyright owner could go after the different links in the supply chain of an infringing enterprise. In the days of vinyl, the folks who manufactured bootlegs and unauthorized copies were not always the sellers on the street. So the reproduction right gives the basis for suing the manufacturer and the distribution right provides the basis for going after the retailer.

Specifically, Section 106(3) gives the copyright owner the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." This language breaks down into three elements that the copyright owner must prove to show infringement: (1) the transfer of "copies or phonorecords of the copyrighted work" (2) "to the public" (3) "by sale or other transfer of ownership, or by rental, lease, or lending."

There is no way that merely connecting to the Internet or to a peer-to-peer service with files stored in one's shared directory can be said to be a transfer of those files to the public. The RIAA's argument relies on some statutory sleight-of-hand by which it tries to substitute the definition of "publication" for the plain language of the distribution right in Section 106(3).

Although a few courts have accepted this argument, the tide is now running the other way. It'll be interesting to see how far it runs. If we really take the statute seriously, then, as I and others before me have argued (footnote 52), the truth is that the distribution right simply does not apply to file transfers over the Internet because such interactions are not the transfer of one copy from user A to user B but instead a reproduction of user A's copy for the benefit of user B.

But, let's accept for the sake of argument that making a file available on a peer-to-peer service is a distribution. Then we have to apply all the parts of the Copyright Act that govern distributions because Section 106 says that the exclusive rights it provides are given "[s]ubject to sections 107 through 122". That means the first sale doctrine applies.

When it comes to the copyright owner's exclusive right to distribute copies, the copyright owner gets one bite at the apple. Make your money on the first sale of a copy. Once the user has purchased that copy, the distribution right is exhausted. So, even though a purchaser's resale of that copy to a used record store is technically a distribution of the copyrighted work, Section 109 of the Copyright Act says that the purchaser "is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

So, here's where the DRM-free download comes in. If you or I purchase a copy (technically a digital phonorecord) of an mp3 file and store it in our shared directory, then the first sale doctrine applies to that file. And if making it available to others on a peer-to-peer service is a distribution, then under Section 109, you or I could legally distribute that copy to whoever wants it.

The RIAA would first say, ah, but you didn't actually purchase that copy. You only have a license to it. That theory, however, is going bust, as it did in the recent Vernor case.

The RIAA would then say, "no, no, no, you're not distributing that copy. You're letting others make their own copies."

Q.E.D.

Open Access Law - Danner Article

While we're on the subject of open access to law and legal scholarship, Richard Danner has written a very nice piece adapting the argument from John Willinsky's Access Principle to law and providing some interesting data regarding access to American legal scholarship.

Here's the abstract:

This article applies to legal scholarship the ideas developed and argued in John Willinsky’s 2006 book: 'The Access Principle: The Case for Open Access to Research and Scholarship' regarding the responsibilities of scholars to make their works widely available through open access mechanisms via the Internet. Willinsky’s access principle states that “A commitment to the value and quality of research carries with it a responsibility to extend the circulation of such work as far as possible and ideally to all who are in interested in it and all who might profit by it.” For Willinsky, the transformation of scholarly journals from print to online formats means that not only researchers and scholars, but “scholarly societies, publishers, and research libraries have now to ask themselves whether or not they are using this new technology to do as much as they can to advance and improve access to research and scholarship.”

This article considers the roles and responsibilities under the access principle of legal scholars and the institutions that support the creation and communication of legal scholarship for improving access to legal information The article begins with a presentation of Willinsky’s access principle, then introduces the movements for open access to law and to scholarship in other disciplines, addresses questions regarding access to the legal journal literature in the U.S., the U.K., and South Africa, discusses means for enabling access to legal literature through open access journals and scholarship repositories, and describes one law school’s experiences in providing open access to its own scholarship. It concludes with suggestions for law schools and law libraries wishing to pursue the implications of the access principle in their institutions.

The link to the article in the Duke repository is: http://eprints.law.duke.edu/1698/

Harvard Law Goes Open Access

I'm late with this post because I had to grade exams in time for my graduating students to, well, graduate.

Big congratulations to the faculty at Harvard Law School, which adopted the following policy on May 7, 2008:

“The Faculty of the Harvard Law School is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy:

Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles. More specifically, each Faculty member grants to the President and Fellows a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles authored or co-authored while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean’s designate will waive application of the policy to a particular article upon written request by a Faculty member explaining the need.
Each Faculty member will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Provost’s Office in an appropriate format (such as PDF) specified by the Provost’s Office no later than the date of its publication. The Provost’s Office may make the article available to the public in an open-access repository.

The Office of the Dean will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty from time to time. The policy will be reviewed after three years and a report presented to the Faculty.”

Kudos!

Open Access White Paper

Science Commons and SPARC have teamed up on Open Doors and Open Minds: What Faculty Authors Can Do to Ensure Open Access To Their Work Through Their Institution. This is a White Paper directed to faculty and researchers interested in promoting open access policies at their respective institutions.

Thinh Nguyen, Science Commons counsel, wrote the paper, which explains why the policy adopted by the Harvard Faculty of Arts and Sciences breaks new ground in the movement toward open access. The paper then suggests practical steps that faculty can take to promote adoption of a similar deposit policy and institutional copyright license.

Creative Commons Ecuador

On Tuesday, April 22, 2008, I spoke at the launch of Creative Commons Ecuador, which was held in the context of a conference on measuring quality in distance education hosted by the Universidad Technica Particular de Loja. It was a great event attended by about 300 people. Video is here.

There's great enthusiasm for CC here, and the project team, led by Dr. Juan Jose Puertas, has done a great job. In the photo, Juan Jose is accompanied by the other team members, Veronica Granda Gonzalez (left) and Dra. Patricia Pacheco, all from the UTPL legal department. Carlos Correa Loyola, Director of the IT program, also provided support as did the Chancellor and Rector of the university, Fr. Luis Miguel Romero.

The university also announced its "Open UTPL" program, through which it will be putting course materials online under a CC Attribution Non Commercial Share Alike 3.0 license.

Ecuador joins an active Creative Commons community in Latin America. Check this out.

Felicidades!

Copyright in Higher Education

The first copyright statute was adopted by the English Parliament for the "encouragement of learning." How well is copyright doing that job today? Two stories from today's news provide different answers.

If learning is best encouraged by relying on for-profit academic publishing entities that compile educational materials, then it is proper for educators who create educational materials to transfer copyright to these publishers. These publishers can then use the author's copyright as a defense against incursions by professors who are sharing published materials with their students without requiring their students to pay. See http://www.nytimes.com/2008/04/16/technology/16school.html?ex=1366084800&en=d5bc680387807b8c&ei=5088&partner=rssnyt&emc=rss

If, on the other hand, in the age of the Internet learning is better encouraged by authors using their copyrights to create open educational resources designed for global, royalty-free sharing, then it is better for educators to hold on to their copyrights and license their materials accordingly. See http://www.insidehighered.com/news/2008/04/16/textbooks.

RFA 1: Copyright, Defamation, and Liability for Business Models

In the wake of the Supreme Court's Grokster opinion, legal scholars are analyzing when a business can be held secondarily liable for copyright infringement based on the likelihood or actuality that a business model requires a certain amount of infringing activity to be financially sustainable.

I would be interested to read an article considering the policy options related to business models that foreseeably attract, and apparently rely on, defamatory content. Shielded by Section 230 of the Communications Act, sites like Auto Admit, Juicy Campus, and Rotteneighbor invite users to post comments about other members of their respective communities. Relying on the pseudonymity offered by these sites, users have apparently been fairly brazen in posting defamatory comments harming the reputations of others.

Assuming Section 230 generally gets it right with respect to service provider liability, should a different standard apply when one starts a site that foreseeably attracts defamatory statements? Are these businesses using the reputations of others as part of their start-up capital? Is this just the price of free speech? This inquiring mind would like to know.

Reader-Generated Content?

I'm about to experiment with a new practice - the RFA (request for article). This is analogous to an RFC (request for comment) or RFP (request for proposal).

There are so many new developments related to the law and the Internet that I cannot pursue every idea that comes to mind about an interesting law review article. But I'd like to see the article get written. I'm not an Internet standard setting body, so an RFC, is in appropriate. And, I'm not in a position to commission an article, so an RFP doesn't work.

Hence, the RFA, which is backed only by a promise to read. If enough other readers make similar requests, perhaps we will generate the article we'd like to read.

NIH Public Access Policy - University Compliance

The revised NIH Public Access Policy goes into effect on April 7, 2008, and universities, medical research institutions, and other grantees have a compliance issue on their hands. If, after the effective date, NIH-funded investigators continue to sign many journal publisher's copyright agreements for articles reporting NIH-funded research, these institutions will be non-compliant with the new policy and continued funding will be at risk.

To mitigate that risk, I've written a White Paper on behalf of SPARC, Science Commons, and the Association of Research Libraries explaining the nature of the new copyright-related risk that NIH grantees face and identifying six options they have for managing that risk.

The White Paper, Complying with the National Institutes of Health Public Access Policy: Copyright Considerations and Options, is now available for download at http://www.arl.org/sparc/advocacy/nih/copyright.html.

Copyright and OA - Response to Stevan Harnad

Prompted by differences of opinion about the Harvard FAS policy, I want to clarify where Stevan Harnad and I agree and disagree about the relationship between copyright and open access.

I understand Stevan's position to be:

1. Open Access policies should conceptually separate a requirement to deposit an electronic copy of a post-peer-review manuscript in a repository from a requirement that the repository make that copy publicly accessible on the Web.

2. Deposit at the time the manuscript is accepted for publication should be unconditionally required.

3. Public access should be allowed any time the publisher's agreement says it may be.

4. If the publication agreement does not permit posting of the manuscript, a repository may still distribute copies by email whenever requested to do so by a user.

5. The combination of 3 and 4 effectively provide open access.

6. Those who argue that open access should also include an explicit public copyright license giving the public more than the right to read (e.g., the rights to republish or to translate or otherwise adapt the work) are mistaken. Either (a) these rights have already been implicitly granted by the public posting of the work; (b) they are not necessary to effective scholarly communication; or (c) even if they would marginally improve scholalry communication, the costs of negotiating copyright with publishers is not worth this benefit.

My response:

Points 1 and 2 are exactly right. Under U.S. copyright law, it is a fair use for an author to send, and for a repository to make, an archival copy of the post-peer-review manuscript. I think it's also a fair use to make an archival copy of the published version of the article. Copyright law in many other parts of the world also would deem this to be legal.

Deposit mandates are highly desirable. Please note that under the Harvard policy, even if a faculty author feels it necessary to seek a waiver of the copyright license to Harvard, there is no reason that author couldn't and shouldn't deposit a copy of the manuscript in the repository.

With respect to public access, I disagree that faculty authors should simply adapt themselves to the arrangements that publishers offer/demand. Moreover, I have have a different view about what those arrangements permit.

So, on point 3, I agree insofar as authors should use all legal rights they have to make their work freely accessible on the Internet. If a publication agreement gives the author the right to post the work in a repository, the author should do so and the repository should make the work freely accessible.

However, I don't think that the starting point for the analysis should be what the publisher's form says. I think authors have an obligation to consider whether signing the publisher's form is ethical behavior.

Copyright is an author's right granted to the author by the public to achieve a public purpose - the promotion of science and useful arts. (I realize that many have a natural rights view of copyright's purpose. I don't share that view.) With rights come responsibilities. Authors of scholarly journal articles do not need the promise of a royalty to have an incentive to perform research or report the results and their analysis of that research. So although the premise of one-size-fits-all copyrights is that authors need exclusive rights to be stimulated to create, that premise is largely false with respect to much scholarly research.

Journal article authors know that they will not receive a royalty nor will those who provide referee services. Instead, the progress of science and useful arts is driven by these authors' desire to achieve broad dissemination of their research. The Internet opens up a (not so) new avenue of scholarly communication. Thus, journal article authors have a duty to consider whether they are making proper use of the copyrights that the public has given them when they agree to the terms of a publisher's agreement that limit how, when or where the author may provide free access to their work on the Internet.

I have a different understanding about the legal consequences of number 4, and therefore I also do not agree with number 5.

As for number 6, clarifying re-use rights through public licensing is desirable. If his view is (a) or (b) I disagree. If his view is (c), however, I agree that the effort necessary to achieve this goal should be subject to cost-benefit analysis. Under current circumstances, where subscription-funded publishers have shown some willingness to permit free access to post-peer-review manuscripts but have not been willing to agree to public licensing, I think an author could responsibly decide to be satisfied with a copyright agreement that permits free access but does not provide for re-use licensing.

Harvard policy - Response to Stevan Harnad

Stevan Harnad is a forceful advocate for open access, and I agree with most of what he advocates. I do have a different view than he does about the connection between open access and copyright and his analysis of the Harvard policy calls this to the fore.

My response is essentially the same as Peter Suber's. I'll add that Stevan characterizes the policy as reservation of rights. I think that's mistaken. Under the policy, the author continues to own all of the exclusive rights under copyright and remains free to transfer all of them to a journal publisher.

What the Harvard policy calls for is a non-exclusive license, which is the same thing as permission. All that the FAS have done is agreed that they have granted Harvard permission to post their work in the repository and that Harvard may grant others similar permission so long as copies are not being sold for a profit.

NIH and Harvard - It's About Values

If it hasn't started yet, there's going to be grumbling soon enough when the reality of the NIH and the Harvard Faculty of Arts & Sciences ("FAS") policies set in. These policies require that faculty authors treat that moment when they are about to sign a journal publisher's copyright transfer agreement as an Aretha Franklin moment. The author has to hear the members of the underserved audience who will be denied access if that form is signed. The author has to hear, "You better think (think) think about what you're trying to do to me."

We should expect that under the NIH and FAS policies, some faculty will chafe when they can't just sign the publisher's form and have have to start using a contractual addendum or some other legal notice in response. They'll become even more exasperated if publishers respond by amending the amendments. As masters within their respective domains, faculty are likely to feel some frustration reflecting discomfort with the unfamiliar, and perhaps alienating, legal language in both the publisher's form and the addendum.

The key point is that this really is not a technical conversation. It's a conversation about values. Contractual language is designed to capture a shared understanding among the parties, and the likely back-and-forth about copyright reflects a difference of opinion about the value of public access to scholarly thought and research. The point of the back-and-forth over copyright is to persuade the publisher to accept NIH's and FAS commitment to equitable access to scholarly research or to force the publisher to reveal that it operates under a different set of values.

So while it may be tedious or uncomfortable for a faculty author to have to carefully read the language of any agreement or addendum, that author must do so to effectively express the shared values of the Faculty of Arts & Science in Harvard's case and the American people's in the NIH case.

Open Access - Who's Next?

Among universities in the United States, Harvard has just increased its competitive edge by adopting a faculty resolution to grant the university a license to make faculty scholarship freely accessible online. (Funders and institutions elsewhere in the world are already on a roll, and a recent report from the European University Association recommends self-archiving in 791 European universities.) What are the competitive advantages?

1. There is reason to believe that the impact of, and citations to, Harvard scholarship will increase because it is freely accessible.

2. Harvard researchers will be able to use the rich archive of Harvard scholarship to experiment with for a variety of purposes, including developing new research tools.

3. Harvard librarians will get greater expertise than exists at competing institutions at developing, managing, and adding value to the university's digital library because they will have a regular flow of new scholarship to manage.

4. Young academics should be attracted to the institution as prospective faculty members, graduate students or other kinds of researchers for the signal that this initiative sends. The Faculty of Arts and Sciences, at least, seems to get the Web.

Faculty at competitor institutions should take note. There's an early mover advantage to be had here. Who's next?