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Current issue

Fair and useful copyright

As Executive Director of the American Institute of Physics (AIP) I often deal with intellectual property issues, particularly those pertaining to copyright. Earlier in my career, as an author eager to report my research results to colleagues, copyright was just one more form to fill out en route to getting my paper published. If I thought about it at all, I probably just assumed that the publisher, usually a society to which I belonged (over the years, I have been a member of six of AIP's ten member societies), needed me to transfer copyright in order to protect my work in some way. I actually probably thought it was for my benefit more than anyone else's. While that turns out to be true, it also is an oversimplification of what, in the modern world of electronic dissemination, is a very complicated and controversial issue.

Since coming to AIP in the fall of 1993, just as the first widely available Web browsers stimulated electronic distribution of articles, I have learned more about copyright than any scientist or engineer should care to discover. Nevertheless there are a few basic concepts all authors should understand because the future of their societies may depend on their decisions.

An important issue confronting learned society publishers and authors today is: Who should own the copyright of published articles and what rights should be given, by license or otherwise, for the pre- and post-publication use of those articles? There are many aspects of this issue, some legal, but others which are matters of policy, fairness, usefulness, economics and the viability of peer review and scientific publishing itself.

The copyright law aspects, while complicated and often costly, are relatively simple compared to the policy and economic ones. The basis of copyright law in the United States stems from Article I of the U.S. Constitution which empowers Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It is interesting to note the matched goals of this constitutional stricture to promote the progress of science and the AIP charter to advance and diffuse "the knowledge of the science of physics and its applications to human welfare, and to this end … to undertake, among other measures, the publication of scientific journals." Internationally, the 1971 Berne Convention for the Protection of Literary and Artistic Works provides the basis for copyright law in most countries today. Congress and other legislatures throughout the world have created a system of property and moral rights for authors and their publishers. While granting exclusive rights to control reproduction and distribution of copyrighted works, there are exemptions for what is called "fair use" in the U.S. and "fair dealing" in the UK and parts of Europe. The most obvious fair use is the right to quote from or refer to published works. Also, copyright only protects original, tangible forms of expression and not ideas or data. Ideas or facts can be used by anyone, although in our fields it is expected that suitable attribution is always given. The Berne Convention gives a three-step test to countries that might want to allow some exceptions to copyright protection, namely:

1. if it is a special case;
2. if it does not conflict with a normal exploitation of works; and
3. if it does not unreasonably prejudice the legitimate interests of owners of rights.

So what exceptions are fair and reasonable and legal?

For journals, some cases are easy. Most journals allow authors to distribute preprints or reprints of their articles to colleagues. Similarly if a scientist reads something of interest, it is generally acceptable to give or send a copy to a collaborator, student or colleague and say have a look at this. In lieu of a subscription, it is not fair use to regularly ask a subscriber to send copies of articles. It is not acceptable for organizations to make systematic copies for distribution to its employees, students or customers without permission of the rightsholder. There are many complicated issues in the middle ground. How often can one library subscribing to a journal copy articles for another that does not pay for a subscription? This is sometimes called "Inter-Library Loan" (ILL), analogous to loaning physical copies in the days before easy copying. Can a library charge for ILL? Can libraries sell copies (Documents Delivery or DocDel) to its patrons? Who is a library's patron? Is it anyone in the world making a request via the Web? Who determines what rules apply?

While the pre-Web era was somewhat more straightforward, even then there was controversy over just how much ILL was acceptable. Some voluntary guidelines were established in 1978 by the National Commission on Technological Uses of Copyrighted Works (CONTU)¹. While helpful, these Guidelines are not always well understood or followed. Realizing that the World Wide Web was enabling much easier use and reuse of copyrighted works, a new Conference of Fair Use (CONFU) was convened. After 2½ years of extended discussions and proposed Guidelines, it was unable to reach a consensus between users who "thought the Guidelines were over restrictive and copyright owners [who] thought they were giving away too much." It ended in failure in 1997.² I think today, many in either group would be happy with such reasonable Guidelines.

Legal issues aside, what is the value of copyright for learned societies? Does it help sustain the valuable role of learned society journals in promoting the dissemination of information to the widest possible audiences of interest?

In my mind there is no question that for AIP and its Member Societies, the transfer of copyright from author to publisher is a very positive ingredient for a scientific journal. It gives the society important freedoms of action available no other way. For example, it reduced the fear of legal complications when we scanned, digitized and posted online the articles from all our journals back to Volume One, Issue One. While perhaps the risk to us was small, some periodical publishers in other fields who only had licenses and not copyrights from authors were sued when they digitized older articles.³ In other cases, where some document delivery services were reselling articles from our journals, it was essential to have the copyright transfer forms in order to file legal cases to protect the journals. If instead of a transfer, journals only had a license, then protection against misuse would be much more difficult to pursue.

On the other hand, there are those who say that authors should retain copyright and only license certain non-exclusive rights to the publisher. Having viewed in detail some of the proposals⁴, they contain terms that would undermine the subscription value of a journal by allowing posting on any site for any purpose, commercial or not, that might compete with the journal. AIP and many of its Member Societies already grant many author rights, including postings of their own articles on free-access, non-commercial e-print servers.⁵

But these arguments are only illustrative details. The big picture is that much of the current discussion on copyright is intertwined with debate about open access, dominated by advocates of the open access movement. In turn, much of the open access discussion is driven by four very important forces:

• Libraries, whose budgets cannot keep up with growth of research and materials that they and their patrons want;
• Ideologues, who feel that "information should be free;"
• Funding agencies, which feel that if publications result from research they support, then they should be able to mandate free access to those publications without paying for the reviewing and editing costs incurred by publishers;
• Technologies, which lower some of the barriers to entry for publishing and which make it easier to post copies of almost anything. It is incorrect to assume that electronic publishing is cheaper that print publishing. The submission, review and editorial costs are the same. For AIP, the print-specific costs – printing, binding, shipping and mailing – total less than 15% of the overall production costs. Even if there were no print, the extra production costs for electronic-specific production, such as tagging and linking, more than eats up that 15%.

As a consequence of these forces, there are many who would like to see publishers of costly journals fail and attacking copyright has become one element of a strategy towards that end. While not as costly, on a per article or per page basis, as most commercial publishers, learned societies journals are been swept along in the wave of populism that threatens copyright and the right to choose business models most appropriate for any given society journal.

As authors contemplate their reaction to requests to transfer or retain copyright, it pays to think about what problem we are trying to solve. Will author retention of copyright result in wider promotion, dissemination and acceptance of their results? The answer is not likely. This is because publishers not only add value by peer review and editing, but they also brand, market and distribute journals to audiences that recognize the value of reputable journals. Hopefully you feel that your society's journals are the journals your colleagues are most likely to read. Yes, these journals are costly to subscribe to. They are also costly to produce, distribute and maintain. AIP and its Member Societies have embraced new technologies and have launched many new pricing models which have kept prices as low as we can while sustaining the financial viability of our operations. The result is that more authors submit to our journals and more researchers, educators and students have access to them and use them more effectively than at any previous point in history. Copyright ownership by the societies has helped create that wide dissemination that advances our fields.