Blogging and Fair Use

How do copyright and fair use laws, framed before the internet was a twinkle in the eye, apply in the world of blogging? The answer, as a case that unfolded on ScienceBlogs this week demonstrates, may be "not so clearly."

Ergo, we've asked a few experts and stakeholders to weigh in on the issue of copyright and open access. How ought fair use to be interpreted today—as the blogosphere grows, changes, and searches for a mutually satisfying way to coexist with the traditional publishing world? We'll be adding commentary to this post periodically all week. Stay tuned.

  • Johannes (Jan) Velterop, Director of Open Access at Springer Publishing:

    "Copyright is, or should be, kind of irrelevant in scientific discourse other than to ensure recognition for the author. But the system that has evolved, and that we all still keep alive, relies on copyright as a kind of 'payment for services.' Let's face it, as researchers we use scientific journals to get the credits we need. 'Publish or perish,' remember? And journals have to defray their costs, so they charge for subscriptions. And in order to be able to charge for subscriptions, they need copyright. Copyright is therefore a kind of 'payment' on the part of the author for the services of 'formalising,' officially publishing, their article in a peer-reviewed journal. Obviously, copyright is a poor mechanism to pay for those services. Not least because it comes with restrictive access. Much better to simply pay for those services with money, keep the copyright in the process, and publish your articles with open access, making all use of the material free, or at least all non-commercial use, on condition of proper acknowledgement. An increasing number of journals offer that possibility, and an increasing number of funders allow for payment of those publishing services from grant money (it's not all that different from page charges, after all), on the premise that publishing is an integral part of the research itself and therefore the cost of publishing is an integral part of the cost of research."

    Jan Velterop was originally a marine geologist and became a science publisher in the mid-1970s. He was one of the small group of people who first defined "open access" in 2001 in Budapest, a meeting resulting in the Budapest Open Access Initiative. He is now Director of Open Access at Springer Publishing, which was the first publisher to offer open access as an option for virtually all of its scientific journals.

  • John Wilbanks, Vice President, Science Commons (part of Creative Commons):

    "What this really underlines is that the way copyright law and scholarly communication intersect doesn't really work in the digital world. The blogging world is all about cutting, pasting and linking. When you don't have explicit permissions granted in advance, you're at risk of being accused of violating copyright, even if you're not.

    It's not as if the copyright transfer regime from an author to a journal emerged because journals wanted to keep people from writing posts on the internet about peer-reviewed research. It's there as part of the payment as Jan notes elsewhere (we can debate the wisdom of the use of copyright in that context elsewhere). But a side effect of that regime is that it's harder to accommodate cultural and technological shifts, like blogging.

    We don't know what technological advancements the future will bring, and our guesses are likely to be wrong. Just think of our visions of plastic domed houses and flying cars. So this is exactly the kind of situation that the open access movement is trying to address. By granting explicit permission to reuse at the outset, you're never worried about violations and takedown letters, and you can use new tools as soon as they emerge.

    But right now, it's sort of a trope in the community that in the U.S., "fair use" is the right to call an attorney. I'm glad to see Shelley stand up for her rights and hope the journals are going to learn what the scientific community will and won't accept. They work as part and parcel of science culture, and the community will certainly do some self-regulation there."

    John Wilbanks is Vice President, Science Commons, at Creative Commons, a nonprofit organization that provides copyright licenses free for public use. Previously, Wilbanks held a fellowship at the World Wide Web Consortium in Semantic Web for Life Sciences, and was the first Assistant Director at the Berkman Center for Internet and Society at Harvard Law School.

  • Mark Patterson, Director of Publishing at the Public Library of Science:

    "This example from the Retrospectacle blog perhaps indicates why scientists tend to be cautious about reusing content even when it's for legitimate research purposes. The initial response from Wiley would be enough to put the wind up any researcher, and the story would end there. Fortunately, the blogosphere rapidly exposed the reaction as inappropriate, but even the backtracking from Wiley leaves questions about fair use unanswered.

    At PLoS, we are quite often contacted by readers (and even authors) seeking permission to reuse content that's been published in PLoS journals. Of course, we tell them that no permission is required, because open access means that there are no restrictions on reuse. Hopefully this aspect of open access will soon be widely understood, but for the moment, there are many people that equate open access with free access and don't appreciate that restrictions on reuse have also been lifted. Too many threatening messages from publishers perhaps.

    As open access takes hold, we can forget about 'fair use' in the context of scientific publishing—all use will be fair use—and the default behaviour will be to reuse content in all sorts of creative ways. If the example in the Retrospectacle blog has taught some lessons about fair use, and has raised awareness that open access content can be reused without restriction, then it will have done a great service."

    Mark Patterson was a research geneticist before moving into scientific publishing. He was the editor of Trends in Genetics, then the editor of Nature Reviews Genetics, and is now Director of Publishing at PLoS.

  • Peter Suber, Open Access Project Director at Public Knowledge:

    "One purpose of open access (OA) is to remove permission barriers, not just price barriers. OA literature under Creative Commons licenses (for example) permits much more than fair use. For the same reason, it frees everyone of the need to find the boundaries of the vague legal concept of fair use—and the risk of making a mistake about them.

    Apart from publisher over-reaching, this incident shows the need for authors to retain key rights and use them to authorize a wider set of rights for users. Some scholarly uses really do exceed fair use (e.g. copying full-text and distributing it to students or colleagues). To free up scholarship for all scholarly uses, authors should retain the right to deposit their peer-reviewed postprint in an OA repository with a CC license or equivalent. It can be very difficult for authors to negotiate this deal with an unwilling publisher, and many organizations (like SPARC, Science Commons, SURF/JISC, CIC, and a handful of universities) are writing contract addenda to help authors in this situation. Another possibility is to start with a willing publisher.

    Moreover, users shouldn't always err on the side of asking permission. When something is permitted by fair use, then it's permitted without having to ask or obtain permission. Users shouldn't give up their rights by asking permission when no permission is necessary, just as they shouldn't violate copyright by proceeding without permission when permission is necessary."

    Peter Suber is a research professor of philosophy at Earlham College, a senior researcher at SPARC (Scholarly Publishing and Academic Resources Coalition), and the Open Access Project Director at Public Knowledge, a public-interest advocacy organization based in Washington, D.C.

  • Matthew Cockerill, Publisher, BioMed Central:

    "The traditional model of science publishing is that the publisher acquires exclusive rights from the author, and then takes sole responsibility for granting permissions to third parties at its own discretion.

    Who benefits from this arrangement? Certainly not authors. Authors of scientific research articles rarely if ever receive direct financial reward from their publications. They are motivated instead by the indirect rewards that result from having their research read, cited and built upon by as many people as possible. For this reason, an open access license, such as the Creative Commons Attribution License used by BioMed Central, which allows unlimited reuse, quotation and redistribution as long as the source is correctly attributed, is a far better fit with the needs of scientific authors.

    As scientific blogging, literature mining and other forms of reuse gain in importance, the limitations of traditional licensing arrangements are becoming apparent. To give just one example, consider the challenge of building a database of all known ant species along with their published taxonomic descriptions. That is what sets out to do, creating what could be a critical resource for protecting the earth's biodiversity. But as Donat Agosti described in his letter to Nature, the necessity of obtaining permissions from all the publishers involved has proved to be an immense obstacle.

    Bloggers, researchers, database creators and members of the public will all benefit if we can move from the traditional model, under which scientific publishers offer discretionary and limited rights of reuse only upon request, towards an open access model whereby published research articles are explicitly licensed to allow and encourage reuse."

    Matt Cockerill is responsible for all aspects of BioMed Central's publishing activity. Previously, he was a biochemist at the Imperial Cancer Research Fund, and played a major role in the creation of BioMedNet, a pioneering web site for biologists that incorporated the Trends and the Current Opinion review journals. He also has a long-standing interest in the use of technology to structure and manage biological and medical knowledge.


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