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Friday, November 28, 2008

More comments on the EU green paper

Remember that comments on the EU green paper, Copyright in the Knowledge Economy, are due on November 30.  One of the questions raised in the paper --Question 19, quoted below-- has a strong OA connection.  See other comments I've posted recently (1, 2, 3).  Here are two more.

From SURF:

...The interest that scientists and scholars have in the dissemination of their knowledge and research results therefore differs from that of publishers....

SURF notes that the Green Paper has been written from a rather one-sided perspective – that of right holders, in particular publishers – and that it clearly expects a great deal from contractual arrangements. In actual fact, educational and research institutions, scientists and scholars, consumers, and other re-users of knowledge products would be better served by clearly formulated exceptions than by contractual arrangements, not least because of the weak negotiating position in which they find themselves.

It is also notable that the Green Paper takes the old traditional publisher’s model as its starting point, i.e. with the author transferring his copyright to the publisher. By doing this, the Green Paper disregards the new developments that have been underway for quite some time as regards alternative business models in which there is no such transfer of copyright from author to publisher. Open Access can be facilitated, for example, by the publisher being granted a “Licence to Publish” such as those for which models have been drawn up by SURF (in collaboration with JISC) and Creative Commons. One positive trend is that an increasing number of articles and dissertations are being lodged – sometimes after an embargo period – in the “repositories” of research universities and universities of applied sciences, where they are then freely accessible....

Matters are complicated, however, by the advent of new types of re-use made possible by new technologies. These are hampered by existing licences, quite simply because those licences do not permit them. One good example is the data mining of large numbers of scientific or scholarly articles; having computers analyse articles can reveal relationships that humans could not possibly have discovered. Such previously hidden relationships can then open up new solutions to research problems....

(3) Is an approach based on a list of non-mandatory exceptions adequate in the light of evolving Internet technologies and the prevalent economic and social expectations?

No; that is undesirable for two reasons. For one thing, a limitative list of exceptions cannot take account of future developments....Secondly, non-mandatory exceptions are insufficiently proof against the monopoly position that right holders have on the basis of their copyright. In order to protect the interests of users such as those in the teaching and research sectors, it is necessary for certain specific exceptions to be made obligatory. SURF believes that two aspects are involved here:

  1. It must be made mandatory for the provisions of the exceptions concerned to be implemented in all Member States, thus achieving harmonisation at European level.
  2. A contractual provision that runs counter to the exception must be deemed null and void, and the exception must not be thwarted by technical protection measures....

(19) Should the scientific and research community enter into licensing schemes with publishers in order to increase access to works for teaching or research purposes? Are there examples of successful licensing schemes enabling online use of works for teaching or research purposes?

SURF’s answer to the first of these questions is yes....

SURF adopts the position that scientific and scholarly information and research data generated by researchers should be freely accessible for the general public, specifically when the research has been publicly financed. This principle does not conflict with the economic interests of authors at research universities and universities of applied sciences....

In contrast to this, one has the economic interests of the publishers. Traditionally, they have protected those interests by requiring authors to transfer their copyright, thus ensuring themselves of an exclusive monopoly to information, including on the Internet. They only make information available in return for payment. The teaching and research exception in the Directive is of no benefit in this situation because someone who does not actually have the content at their disposal cannot legally reuse it. Technical protection measures or contracts thus make it impossible to reuse work on the basis of the teaching and research exception.

Publishers are dependent, however, on the content provided by scientists and scholars and they are increasingly acceding to their wish for Open Access. Rather than arranging this subsequently by means of licensing agreements, it is more efficient (and also cheaper) to tackle the problem at source by doing away with the information monopoly enjoyed by the publishers. This can be done in a number of different ways:

  • The author does not transfer his copyright but grants the publisher a non-exclusive licence, a “Licence to Publish”. SURF and JISC have developed a model for this, with associated principles.
  • Information can be made available online free of charge via a number of sources, for example via repositories operated by universities.

The Creative Commons licensing system is an example of an effective system in which it is the author himself who determines the conditions under which his work may be reused, for example for non-commercial purposes such as teaching and research. SURF is not in favour of Open Access models which require the author to pay the publisher in order for his articles to be accessible solely on the publisher’s website; such a system still does not make the content available for everyone free of charge....

From Heather Morrison:

19. Should the scientific and research community enter into licensing schemes with publishers in order to increase access to works for teaching or research purposes? Are there examples of successful licensing schemes enabling online use of works for teaching or research purposes?

Comment:

In the Internet age, the optimum dissemination of scholarship involves open sharing of peer-reviewed research articles, data, and more. The human genome project illustrated just how rapidly humankind can advance in knowledge through open sharing of information and cooperation, building a solid base of knowledge on which researchers - both academic and commercial - will be able to build for many years to come. We need to apply such approaches in other areas, such as finding solutions to global warming and sustainable energy sources....

In the Internet age, the copyright that makes sense is the Creative Commons approach, not at all the traditional copyright transfer agreement. Many scholarly journals are using Creative Commons licenses. Even traditional publishers are increasingly seeking only a License to Publish, leaving copyright with the author.

Research funding agencies, universities and research organizations around the world have, or are developing, strong policies requiring open access to the published research of funded research, and to research data....