Speaker: Ann Okerson (Association of Research Libraries)

Panel Discussion: Intellectual Properties Issues

Copyright and the Copyright law essentially say one thing: created works are owned. In turn, owning them makes it possible to give them away, transfer ownership, put them in the public domain, or to to sell them. The ability to sell them makes a market. The law does not tell us which we should do -- all that is up to the creator as he or she makes a number of social and economic choices about the future of the created work.

In the current system of scientific publishing, heavily based on articles that appear in journals, the following regular practice has arisen: authors write their works; they assign or transfer the copyright to publishers who produce the journals and sell them. The law certainly allows this model. It allows many -- in fact -- any models that recognize an owner and the owner's exclusive right to do with a work what he or she will. If that ownership is transferred, the new owner has those exclusive rights, which under law are:

To reproduce copies of the work
To prepare derivative works based on the work
To distribute the work
To perform or display it

Copyright in a work is divisible; the exclusive rights of an owner may be transferred in whole or in part. Rights may be limited in time or place, but they must be exclusive. A non-exclusive right is not considered a transfer of ownership. Any of the exclusive rights may be separately transferred and owned, and the owner of a particular right is considered the copyright owner with respect to that right in that particular work. I've not heard anyone speak specifically of a "preprint right," but it certainly would be possible to define such a right.

At the same time as the law gives owners exclusive rights, it balances those rights with time periods on ownership and particularly with a concept called fair use, which allows personal copying without having to request permission of the rights holder, a concept we will touch on briefly.

Here are several points we will cover today:

Some writers still seem to assume that the copyright system must be completely overhauled to work in the electronic environment. Whether you agree or not, this thinking is out of step, at least with the majority of those who are working on adjusting the copyright law.

Second, there is concern about whether certain kinds of material are protected when distributed electronically, and if they can be protected.

Third, does the relationship between author and publisher change in the electronic world? How?

Is the concept of copyright now obsolete? In an article in Wired last March, John Perry Barlow suggested that the copyright system was close to collapse and that a complete re-working of the notions of ownership and property might be necessary.
According to the article, changing concepts of authorship and means of distribution are transforming the way we work. In an environment where ideas are nothing more than a string of bits and bytes in cyberspace that can be transmitted instantaneously for use anywhere else in the world with or without making a physical copy, Barlow wrote, the concept of a stable work that can be protected is meaningless.

This particular discussion has been going on for years now, but as the recent large number of public responses to the NII Working Group on Copyright's Green Paper indicate, the mainstream of copyright scholars and practitioners disagree with Barlow, believing instead that the construct of copyright -- and its embodiment in the 1976 U.S. Act, written to be technologically neutral -- can meet the challenges of new technology. Those on the "conservative" side of the argument point out that copyright has adapted to new technologies continuously and they see no reason why the law cannot again meet the challenges of new information technology. In fact, such thinking advocates a position of minimal or no tweaking of the copyright law at this time. At least at this time, the Copyright Act is more likely to be amended and changed incrementally to deal with carefully defined, narrow problems than it is to be radically overhauled in favor of a whole new approach that would be untested and uncertain.
What about work on the Internet? Is it protected? A culture of wide dissemination and re-dissemination has grown up among regular users of the Internet. Some users post others' entire works without thinking to ask the author or copyright holder. In fact, many authors do not tell us whether we should ask their permission or not, to re-post widely or to republish. Is permission implicit because work appears on an academic network? Are rules different on the Internet than they are for print-on- paper publishing? On the contrary, almost every indication from postings on Internet discussion lists suggests the contrary, as it seems that a majority of authors care deeply how and where their works are reproduced. Some ask for full context and proper attribution, some ask to know where their works are being used, some believe that no commercial use should be made of their articles and postings, and so on. In fact, it is clear that people do care about how their created works are distributed (it is not necessarily so much a case of money as of other values) and that most people base their behavior on assumptions that derive from the norms of the old Copyright Act, perhaps not realizing that the law is now different.
Under the old Act (prior to the 1976), protection for a work came into being when it was "published with notice." Prior to publication, a work was protected under a common law doctrine known as the right of first publication. Two concepts -- "publication" and "notice" became firmly embedded in the law of Copyright. A work "published" without "notice" was then in the public domain. Publication was not defined in the old Act, but it was generally held to mean when a work was "placed on sale" or "publicly distributed" by the owner.

According to Robert Oakley (see his more complete discussion from which this section is derived, in Visions and Opportunities in Electronic Publishing, Washington DC, Association of Research Libraries, 1993), this is the way many are still used to thinking about copyright. As a result, they are likely to conclude that much of what flows over the Internet must be in the public domain. For most works published on the Internet, the author has not -- for the most part -- signaled any intention to protect the work by applying a notice of Copyright.

However, the 1976 Copyright Act, as now amended, has changed both of the basic preconditions for protection. It provided that copyright exists from the moment of creation. Protection no longer must wait for some later action such as publication. In addition, although the Act originally had a notice requirement, when the United States joined the Berne convention in 1989, the notice requirement was dropped. The current law does not say that a work has to be printed; it only has to be "fixed in a tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

Thus, an original work of authorship, created since 1989, should be presumed to be protected, whether it is printed on paper or distributed over the Internet. Authors, thus, should be sure that a notice of copyright appears on all versions of their work distributed by any means. Although the notice is no longer required, it will signal the author's intentions for that work and it will help users, librarians, and publishers understand what they may and may not do without further permission.

These same comments apply to electronic preprints, articles, or journals. If an author or publisher wants to protect a work in any way, it would be prudent to insure that the notice appear prominently -- at least on the first screen, and preferably at the beginning of each article -- within a database or preprint server. As affirmed at the outset, creation (or subsequent ownership of a work through copyright transfer) allows the owner to choose what will be done with that work. For example, if the author wishes the work to be as widely distributed as possible, for educational use, that statement should be made. If the author wishes to place the work in the public domain (so that anyone can reuse it for any reason), that intention should be stated.
How is the author's relationship with the publisher changing? As should be apparent, the author has all the rights in his or her work from the time it is created, and the publisher acquires only such rights as the author transfers. There is a recent movement among scholars and scientists to retain copyright for themselves for all distribution of a work except for a specific use of it (permission for a publisher to use the article in a specific journal or collection), for electronic distribution of their work, for preprint versions, or for whatever segments they choose. This new trend is a reaction to several things: escalation of serials prices, particularly in the sciences, far beyond the pace of inflation, and second, a perception among scholars that many journals are unwilling to grant back wide rights to scholars to use their own work, and the slowness of some publications to appear in the conventional publishing outlets, such as journals. Another perception is that computer communications technologies give the means of distribution to the author, and it is simply too much trouble or unnecessary to involve a publisher as intermediary. With the Internet as a giant publishing distribution mechanism, authors can more easily choose to skip the involvement of a second party -- the publisher.
Retaining or segmenting copyright, however, changes the current roles and responsibilities of the players. In fact, some publishers say that if they are not transferred all the exclusive rights, they cannot deploy a work to its fullest potential and in fact may have a hard time making a living, as the same article can appear in many different places produced by many different publishers or publications means. If this is true, and if the same article can appear at multiple sites or through many links, the work stops being a scarce good. The economic consequences of such wide distribution are not trivial for any of the participants: publishers, vendors, or libraries. The social consequences are no less radical. We could make lists and predict the changes that would result from widespread copyright retention and segmentation, coupled with a wide availability of works on cheap Internet sites -- such changes are potentially radical.

Placing a preprint on a server or on your own home page, an act which is generally regarded as publication for it can reach infinite numbers of people -- then submitting it for regular print publication to one of the current paper journal publishers, raises a number of issues:

Is the work submitted to the publisher an original work? Will the publisher be willing to print it? Distribute it electronically?
Should the preprint be withdrawn from the server? Can it co- exist? What is the nature of the disclosure and the rights transfer that must take place?
How is copyright affected when editorial or copy editing or revision changes are made to an article? What is a different version? How significant do the changes have to be between a preprint and a final article for them to be considered distinct works?

Clearly, there is an ambiguity among researchers about preprints. On the one hand, librarians relate stories of scientists who never use the library, saying "If it is already published, then it's too late for me to read it -- I'm out of the loop." On the other hand, in many cases, the researchers also seek the validity and cross-disciplinary access that the current formal paper publication can achieve.

Preprints available on electronic networks could accordingly be viewed in one of several ways:

Works that exist until they are replaced with "real" refereed, edited articles in print. This idea assumes that there is probably only one publisher at a time: the copyright holder. Originally that is the author; then the publisher to whom rights are transferred.
Works as originally written, continue to exist in parallel with "real" refereed, edited paper articles. The "added-value" of the "finished" article becomes apparent in such a dual publishing system. This idea assumes that the same work can be published in more than one form and in more than one version. Legally, it suggests that an understanding be worked out between author and formal "publisher" as to who has what rights.
Works whose final form the author can maintain as electronic files, even as the publisher distributes the paper product. This concept also assumes that a legal understanding needs to be worked out as above with shared ownership or license agreements. (This includes works that have no *final* form, but are intermittently or continuously updated in electronic form, while less frequent iterations make the transition to hard copy publication.)
Works which usefully supplement the 'published' form of the same work; e.g., incorporation of large data sets and tables thought too bulky for print publication but useful for specialist users. This model would require optimum cooperation between print publishers and a preprint system.
Works which begin as a draft and proceed electronically to be upgraded, until the final form exists in the finished electronic form. Paper or other methods could be a byproduct. This option assumes a change in the nature of the transaction between authors and publishers, and in the value systems of research and academe.

Note, of course, that preprints can be organized and operated by publishers just as formal journals can be organized and operated by individuals.

Limitations on the rights of the copyright owner. As you know, under the Act, the owner of a copyrighted work is given five exclusive rights. There are several limitations on those rights:

Fair use is probably the most important and most controversial of the concepts that balance the rights of the owner with the rights of the user. Fair use is a judicially created rule of reason that permits limited copying of protected works for personal, educational, and research use. It has been said that what fair use is all about is "does the use in question deprive the copyright owner of a reasonably expected economic reward?" Under older distribution models, a certain amount of private use clearly did not interfere with the expected income stream of the publisher and thus would clearly be fair use. That may change, of course, when the pattern of distribution evolves to reach individual users directly.
Term limitations. In the United States, copyright is effective for fifty years plus the lifetime of the author. After that, the work is in the public domain.
Original Public Domain. Under section 105 of the Act, works written by federal government employees during working hours become works in the public domain and cannot be copyrighted as such. (It is interesting to note that a number of these produced as scientific articles do in fact appear as seemingly copyrighted works in published journals.)
Placed in Public Domain. Works may be placed in the public domain by their authors, if they choose to designate a work accordingly.

In conclusion

Maria Lebron has asked me to talk about a couple more things, and I have told her we simply do not have the experience to know the answers. But let us be responsive to her important questions:

How are preprint users being educated as to intellectual property and by whom? (The question might well be, how are researchers in general being educated about copyright?) The answer is, we have not been paying quite enough attention to copyright and usually when we do, it is in a negative fashion. Large publishers win yet another lawsuit preventing certain kinds of copying. Individual authors seek to republish their works, only to find they no longer have the rights. Libraries wish to share collections and find themselves threatened by litigation. Educators seek permission to copy materials for the classroom and run into obstacles of time and money. It is not a positive picture that is painted, for today's emphasis on content as king and content as of great economic value, does not resonate well in the research and academic community. Who educates the research users about copyrights? If anyone or anywhere, it is the research library which manages copyrights every day in many ways. Most campuses, for example, do not have a place where its authors can go to receive assistance and support about issues of copyright transfers or licenses or permissions.
What is librarians' relationship to copyright? My own view is that libraries observe the copyright law in their work in the library. They respect the rights of owners, contracts, and licences. At the same time, they uphold the principles of fair use in the law, which as we have said, allows educators, researchers, and students to make copies for their own personal use. Libraries manage many copyrighted materials daily, in many formats.
How do preprints currently affect a library's operation? At this time, very little. It is true that a few libraries, such as the SLAC library, make preprints easily available and go to a certain amount of work to do this. So far, this is an add-on to the other, more traditional publications and services this library and others provide. In some cases, the libraries used to store paper preprints and are freed from this unruly, unmanageable lot. There are few, if any, journal cancellations that libraries have attributed to preprints available on the Internet, though conceivably as our scientists demand more rapid access to materials and as the economic base of libraries does not expand, this could change. Currently, as more and more online preprints become available and demanded by readers, more and more libraries will take steps to incorporate them into their electronic services and remote access collections.
How would expanded preprint services impact library serial subscriptions? Ah, now this is the more interesting question. It would depend on what happens to the preprints. As long as they remain preprints only, works that the authors intend to ship on to a "real" publisher, perceiving that there is an entirely different, separate path for materials to become reviewed, improved, and validated by peers, then expanded preprint services will become another, readily available, well-used component of the library. IF those preprints acquired an oversight or editorial board and were transformed, via some kind of flagging system, into differentiated databases of information in different states of refinement and validation -- and if archiving responsibilities were properly allocated -- then print serials subscriptions as we have known them would vanish.
What is the biggest problem for libraries and readers under a system in which many works appear on the Internet and authors segment rights and permissions? There can be great benefit to segmenting and retaining rights. Works might become more widely available. Authors might have more say over how their works are used. However, having all the rights consolidated in one place (currently by the traditional publisher), does make it easier to know where to turn for permissions. As rights are segmented, who owns what and whom to contact for permission to copy or reproduce works becomes murky. The fact that an IEEE journal, for example, carries the (c) symbol, can presumably now mask the fact that the IEEE does not own all the rights, but that those rights are now being shared in some way. In fact, depending on what rights the author has signed, the user or library may actually be free to make any copies needed in their work, beyond current definitions of fair use; or to order the article from document suppliers without paying a part a publisher's copyright fee -- but we have no easy way to know that. The actual assignment transfer forms for scientific articles (and other scholarly publications) are housed in tens of thousands of publishers' filing drawers around the world.
We need, particularly in the electronic publishing world, to display ownership and intent of the author for each work. We need to agree to a method of doing that. We need centralized registries of ownership. It is true that the Library of Congress maintains copyright records -- will those scale up to encompass works at an individual level such as articles from journals? The same question applies to the operations of the Copyright Clearance Center. Can it identify not only the rights held by those who call themselves publishers, but also all the individual authors who will want to retain some rights to their own articles? Will individual educational and research institutions step in and provide rights and permissions databases for works written by their faculty and staff -- works which man of those authors may well choose to place in a kind of academic quasi-public domain?

Speaker: Ann Okerson (Association of Research Libraries)

Panel Discussion: Intellectual Properties Issues

In conclusion

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