Open Access News

This foundational white paper reports on a year-long study by the Berkman Center for Internet and Society, funded by a grant from the Andrew W. Mellon Foundation, examining the relationship between copyright law and education. In particular, we wanted to explore whether innovative educational uses of digital technology were hampered by the restrictions of copyright. We found that provisions of copyright law concerning the educational use of copyrighted material, as well as the business and institutional structures shaped by that law, are among the most important obstacles to realizing the potential of digital technology in education....

[T]he following emerged as the most significant copyright-related obstacles to educational uses of content:

• Unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use;
• Extensive adoption of “digital rights management” technology to lock up content;
• Practical difficulties obtaining rights to use content when licenses are necessary;
• Undue caution by gatekeepers such as publishers or educational administrators.

While the primary task of the foundational white paper was to identify these obstacles, the paper concludes with some discussion of paths toward reform that might improve the situation. It suggests that certain types of legal reform, technological improvements in the rights clearance process, educator agreement on best practices, and increased use of open access distribution would help overcome the obstacles we identified....

Even though many scholars wish to eliminate the toll structure currently in place for the distribution of digital versions of their works by offering no-cost digital copies, they still have an interest in protecting their intellectual property, and regulating how it is used. Accordingly, even accounting for the open access movement (discussed further in section 7.4), limited use of DRM systems by individual educators and their institutions might increase with time. Although academics tend to reject DRM systems as a means for charging users for access to their works, they may nevertheless use DRM systems to ensure the integrity of their works, attribution for their efforts, and enforcement of restrictions on how their works may be used....

More [education about copyright], particularly if it is focused on educational uses, should improve understanding and perhaps combat the apathy and caution that sometimes lead to unnecessary self-imposed restrictions and impede adoption of open access practices....

(Professor Peter Suber, a well-known advocate for open access to scholarly research, has prepared an excellent overview of the topic here.)...

The most important [obstacles to open access] include:

• Resistance from the academic publishing industry to changes in its fundamental business model, which depends on enforcement of intellectual property rights (this industry effectively includes nonprofit scholarly societies that rely on their journals for significant revenue, university presses, and journals such as law reviews that are associated with universities, as well as large commercial publishers);
• Concern by scholars that publishing in an open-access journal or similar venue might lack the professional prestige associated with publishing in established traditional journals;
• Apathy and inertia by scholars and educational institutions who do not perceive the benefits of open access as justifying the effort, expense, and upheaval of shifting to more open distribution models;
• Uneven adoption between different academic disciplines, with greater use of open access among scientists and less in humanities, social sciences, and professional fields.

There is already a vibrant community of organizations and activists promoting open access in the face of these impediments. Educators can contribute to this cause in many ways, by promoting open access within their institutions and by using it in their own work. Those publishing in traditional journals can negotiate to retain certain copyright powers, including at least the right to self-archive. The Scholar’s Copyright Project at Science Commons recently released three versions of model Author’s Addenda that scholars in all fields can append to the form copyright assignment contracts used by journal publishers.

Open access is spreading, and will continue to grow. It will never become a universal mode for distributing content, particularly content of a more commercial nature (which educators often wish to use in their teaching or writing). Nevertheless, continued efforts to increase open distribution will remain an important means of enabling educational uses of content. When content is available, for instance, in an open-access journal or under a Creative Commons license, the other obstacles discussed in this white paper simply dissolve. Because the impact of such minimally restricted content is so profound, any increase in its amount will greatly improve the landscape for educational uses of content.