Canada’s Statutory Review of the Copyright Act, 2018: my individual submission

Update December 10: the original was over the 2,000 word count. Following is the final version under 2,000 words, followed by the original in case anyone is interested in what was cut. 
House of Commons
Standing Committee on Industry, Science and Technology
Individual Submission to: Statutory Review of the Copyright Act
December 10, 2018
Dr. Heather Morrison
Associate Professor
School of Information Studies, University of Ottawa
This is an individual submission drawing on my background as Principal Investigator of Sustaining the Knowledge Commons (SKC), a research program funded through a SSHRC Insight Grant. The goal of SKC is to develop evidence to support the economic transition of scholarly publishing from demand to supply side to support the potential unprecedented public good of a global knowledge commons,  a collective sharing of the knowledge of humankind, free for anyone to access and free for all who are qualified to contribute to. I also draw from my broader interest in and value of the arts and culture, and my expertise in the area of development of information policy to support such values. This submission strongly supports the expansion of fair dealing exceptions to copyright that were introduced in the 2012 Copyright Modernization Act. I present evidence to support the retention of sections 29, 29.1, and 29.2 in their present form. In brief, broad fair dealing exceptions for education (section 29) are inherently generally fair because the majority of works consumed are produced and/or supported by people in the educational sector who do the work for the public good rather than private gain. In the university context, academic researchers and students create the vast majority of works consumed and, with some exceptions, do not expect or receive economic benefit from their copyrightable works. There is a strong and growing trend for academic researchers to make work freely available to everyone as a public good. Provincial education systems develop curriculum, approve and sometimes commission textbooks. Schools and school boards pay for textbooks and the majority of other resources used by students. I acknowledge that there are creators whose work is important to Canada (local authors, artists, musicians and publishers) who do not benefit from K-12 or post-secondary budgets. For this sector, I recommend development of a plan to provide direct support for Canadian creators working outside of the formal educational systems (K-12, universities) to replace the current copyright collectives and to develop new models of creative collaboration to take advantage of recent technological developments to develop new, more effective approaches to support for creativity in Canada. I make this recommendation on the grounds that direct subsidies to creators would be more cost-effective than the current system that is in effect an indirect subsidy. Currently, we very limited support to creators in an indirect and non-transparent way as follows: federal transfers to provinces for education; provincial transfers to universities, colleges, and school boards (supplemented by student tuition in the post-secondary sector); purchase of resources and payment of additional fees or licenses for additional copying to copyright collectives; disbursement of $ from copyright collectives (subtracting administrative costs) to a variety of types of copyright owners, ranging from global for-profit corporations to individual creators. I argue that we should investigate whether it would be less costly and more effective for Canada’s creative community to simply give $ directly to creators through generous subsidies. For clickable links see https://poeticeconomics.blogspot.com/2018/12/canadas-statutory-review-of-copyright.html.


The creative contributions of Canada’s educational sector
(Why broad fair dealing exceptions for education (section 29) are inherently generally fair)
This section will focus on universities, my area of expertise. As noted in the Universities Canada (2018) submission to the Copyright Act Review, there are more than 75,000 faculty members and university teachers in Canada’s university system, making this the largest group of Canadian authors. This data understates the creative contributions of universities as it does not take into account the work of students. Most graduate students and other early career researchers are required to publish and many are prolific researchers and authors. For example, graduate students today are typically required to publish their theses (monograph-length works) online through their institutional repository as open access, that is, free to read. For example, from 2010 – 2018, University of Ottawa students posted more than 10,000 theses in the University of Ottawa’s institutional repository: https://ruor.uottawa.ca/handle/10393/242
Students as well as faculty publish articles in peer-reviewed journals, book chapters, and scholarly monographs. Students are taking advantage of the ease of publishing on the internet to develop their own open access peer-reviewed scholarly journals. Two examples: Stream: Inspiring Critical Thought, currently in its tenth year of production: http://journals.sfu.ca/stream/index.php/stream. And the University of Ottawa Journal of Medicine | Journal Médicale de l’Université d’Ottawa http://www.uojm.ca/
In the classroom, many professors like myself are taking advantage of current technologies to develop pedagogical approaches based on active rather than passive learning. In a passive approach, students absorb information provided in textbooks and lectures. In active learning, students are doing hands-on work including conducting and publishing research. Examples from my classes: students create an open access journal in which they peer-review and publish their term papers and create and publish professional open access blog posts.
As a faculty member and author, my experience is fairly typical. The cost of doing my research is paid for by my salary as a university professor and my research grant funds. Both are heavily subsidized by the Canadian taxpayer, and student tuition fees today accounts for about half of university budgets. As an author, I receive and expect no remuneration when I publish peer-reviewed journal articles or book chapters. As a peer reviewer, I receive and expect no remuneration. I did receive modest royalties from sales of a scholarly monograph, however from a financial point of view I (and many other authors of scholarly monographs), I would be much farther ahead had I devoted the time required to write the book to a minimum wage job. In retrospect, I wish that I had published this material as an open access book or wiki as the publisher is no longer actively marketing the book. By transferring copyright to the publisher, I made my work less accessible and far more difficult to update.
I seek to make all of my academic writing open access (free to read for everyone), a steadily growing trend in academia globally. As of December 2018, there are over 12,000 fully open access, peer-reviewed scholarly journals listed in the Directory of Open Access Journals https://doaj.org/According to industry research (Ware and Mabe, 2015) there are about 34,550 peer-reviewed journals published worldwide; the percentage of these that are fully open access is about a third. Many more journals provide free access to back issues after an embargo period.
The Directory of Open Access Repositories, OpenDOAR, lists over 3,800 repositories worldwide http://v2.sherpa.ac.uk/view/repository_by_country/countries=5Fby=5Fregion.htmlThe Bielefeld Academic Search Engine  https://www.base-search.net/about/en/provides a cross-search service of repositories and journals and lists over 120 million documents from over 6,000 sources, of which about 60% are open access, about 72 million documents. This free access to academic works, supported by academic authors, universities, and research funders is a reflection of the fact that academic research is not inspired by, and does not require, the economic benefits of copyright. The moral rights of copyright (attribution and integrity of the work) are important to academic authors.
The traditional scholarly publishing industry is in the process of transitioning from demand side economics (purchase of books and journal subscriptions) to production-based funding. Today, the largest open access journal publishers by number of fully open access journals are all traditional commercial scholarly publishers (Morrison, 2018). As of the end of November 2018, Elsevier has 347 fully open access journals and offers an open access publishing choice for 2,040 other titles, almost all of their journals (Elsevier, 2018). As of December 7, 2018, the Directory of Open Access Books https://www.doabooks.org/ lists 285 publishers; 3 of the 4 publisher sponsors listed on their website are traditional commercial scholarly publishers (Brill, Springer Nature, and DeGruyter).
There is a related growing trend towards open access to educational materials, in order to lower costs for post-secondary students and school boards and permit for updating and local modification of materials. Some resources for further information:
·       e-campus Ontario https://www.ecampusontario.ca/
·       BCcampus https://bccampus.ca/
·       Open School BC https://www.openschool.bc.ca/k12/
In addition to transitioning traditional formats developed before the internet (e.g. journals and books), faculty and students are beginning to explore the potential of the digital medium and the internet. My most important publications today are published primarily in non-traditional formats. Since 2004, I have maintained a scholarly blog called The Imaginary Journal of Poetic Economicshttp://poeticeconomics.blogspot.com/where I post, for example, contributions like this to government consultations. In 2014, I developed a research blog for the Sustaining the Knowledge Commons https://sustainingknowledgecommons.org/(SKC) project. The SKC blog provides a venue for myself and my student research assistants to publish early findings. This is excellent training for students as it gives them a means and incentive to develop and publish small sub-research projects. Data gathered through the SKC project is published as open data in the OA APC dataverse: https://sustainingknowledgecommons.org/open-access-article-processing-charges-apcs/These new formats require access to technology and hosting services, but there is no longer any need for a publishing intermediary as was the case when academic work relied on the print medium and postal system.
Transition support for creation
As a prolific academic author, I never have been and never will be represented by Access Copyright. The work of Access Copyright is antithetical to the purposes of my work (to serve the public good). I recommend the abolition of Access Copyright and redirection of funding by universities and school boards to directly support open access in academia and the K-12 sector (e.g. funding for open access monographs, journals, and textbooks).
This will not meet all of the needs of Canada’s creative communities. In my opinion, Canada’s artistic creators (authors, artists, musicians, independent publishers and intermediaries who work closely with and for the artistic community) deserve our respect and support, and are not well served by our outmoded approach to copyright collectives. I argue the continuing existence of these collectives is counter-productive as it entrenches outmoded approaches and business models when creators would be better served by developing new types of collectives to take advantage of new technologies to create new relationships with society and consumers.
For example, imagine a collective of Canadian musicians working together to develop packages of music for use in places like coffeeshops and restaurants (perhaps based on genre) that is integrated with the business’ wifi so that customers can:
·       instantly purchase and download a piece of music they enjoy
o   connect with the website of the musician(s)
o   find out about upcoming live gigs
o   purchase merchandise
·       suggest musicians / music to include
I argue that this approach would be far more effective in creating a healthy and productive relationship between our artists and society than the current impersonal, non-transparent approach involving requiring payment of tariffs that positions copyright collectives as impersonal, non-transparent enforcers of rights.
To accomplish this vision, I recommend financial support for artists in the transition phase as well as targeted funding to develop mechanisms for transition such as research and education on the use of new technologies to support more productive artist / society relationships. As I explain in the introduction to this submission, direct support would likely be more cost-effective than the current system of indirect, non-transparent subsidies.
References
Elsevier (2018). Pricing. Retrieved November 27, 2018 from https://www.elsevier.com/about/policies/pricing
Morrison, H. (2018). Global OA APCs 2010 – 2017: major trends. Connecting the knowledge commons: from projects to sustainable infrastructure. Elpub 2018: the 22nd international conference on electronic publishing. Toronto June 22 – 24, 2018. Retrieved December 7, 2018 from https://elpub.episciences.org/4604

Universities Canada (2018). The changing landscape of Canadian copyright and universities: Universities Canada’s submission to the Standing Committee on Industry, Science and Technology’s statutory review of Canada’s Copyright Act / June 2018
Ware, M. & Mabe, M. (2015). The STM report: an overview of scientific and scholarly journal publishing. The International Association of Scientific, Technical and Medical Publishers. Retrieved Dec. 4, 2018 from https://www.stm-assoc.org/2015_02_20_STM_Report_2015.pdf

Following is the original version that I was not able to submit as it was over the 2,000 word count.

House of Commons

Standing Committee on Industry, Science and Technology
Individual Submission to: Statutory Review ofthe Copyright Act
December 10, 2018
Dr. Heather Morrison
Associate Professor
School of Information Studies, University of Ottawa
This is an individual submission drawing on my background as Principal Investigator of Sustainingthe Knowledge Commons (SKC), a research program funded through a SSHRC Insight Grant. The goal of SKC is to develop evidence to support the economic transition of scholarly publishing from demand to supply side to support the potential unprecedented public good of a global knowledge commons,  a collective sharing of the knowledge of humankind, free for anyone to access and free for all who are qualified to contribute to. I also draw from my broader interest in and value of the arts and culture, and my expertise in the area of development of information policy to support such values. This submission strongly supports the expansion of fair dealing exceptions to copyright that were introduced in the 2012 Copyright Modernization Act. I present evidence to support the retention of sections 29, 29.1, and 29.2 in their present form. In brief, broad fair dealing exceptions for education (section 29) are inherently generally fair because the majority of works consumed are produced and/or supported by people in the educational sector who do the work for the public good rather than private gain. In the university context, academic researchers and students create the vast majority of works consumed and, with some exceptions, do not expect or receive economic benefit from their copyrightable works. There is a strong and growing trend for academic researchers to make work freely available to everyone as a public good. Provincial education systems develop curriculum, approve and sometimes commission textbooks. Schools and school boards pay for textbooks and the majority of other resources used by students. I acknowledge that there are creators whose work is important to Canada (local authors, artists, musicians and publishers) who do not benefit from K-12 or post-secondary budgets. For this sector, I recommend development of a plan to provide direct support for Canadian creators working outside of the formal educational systems (K-12, universities) to replace the current copyright collectives and to develop new models of creative collaboration to take advantage of recent technological developments to develop new, more effective approaches to support for creativity in Canada. I make this recommendation on the grounds that direct subsidies to creators would be more cost-effective than the current system that is in effect an indirect subsidy. Currently, we very limited support to creators in an indirect and non-transparent way as follows: federal transfers to provinces for education; provincial transfers to universities, colleges, and school boards (supplemented by student tuition in the post-secondary sector); purchase of resources and payment of additional fees or licenses for additional copying to copyright collectives; disbursement of $ from copyright collectives (subtracting administrative costs) to a variety of types of copyright owners, ranging from global for-profit corporations to individual creators. I argue that we should investigate whether it would be less costly and more effective for Canada’s creative community to simply give $ directly to creators through generous subsidies. For clickable links see https://poeticeconomics.blogspot.com/2018/12/canadas-statutory-review-of-copyright.html.
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The creative contributions of Canada’s educational sector
(Why broad fair dealing exceptions for education (section 29) are inherently generally fair)
This section will focus on universities, my area of expertise. As noted in the Universities Canada (2018) submission to the Copyright Act Review, there are more than 75,000 faculty members and university teachers in Canada’s university system, making this the largest group of Canadian authors. This data understates the creative contributions of universities as it does not take into account the work of students. Most graduate students and other early career researchers are required to publish and many are prolific researchers and authors. For example, graduate students today are typically required to publish their theses (monograph-length works) online through their institutional repository as open access, that is, free to read. For example, from 2010 – 2018, University of Ottawa students posted more than 10,000 theses in the University of Ottawa’s institutional repository: https://ruor.uottawa.ca/handle/10393/242
Students as well as faculty publish articles in peer-reviewed journals, book chapters, and scholarly monographs. Students are taking advantage of the ease of publishing on the internet to develop their own open access peer-reviewed scholarly journals. A few years ago while pursuing my doctoral studies I had the pleasure of participating as an editor, reviewer, and journal manager of the student created and led peer-reviewed open access journal Stream: Inspiring Critical Thought, currently in its tenth year of production: http://journals.sfu.ca/stream/index.php/stream.  Similarly, medical students at the University of Ottawa have created and run a student-led open access journal, the University of Ottawa Journal of Medicine | Journal Médicale de l’Université d’Ottawa http://www.uojm.ca/
In the classroom, many professors like myself are taking advantage of current technologies to develop pedagogical approaches based on active rather than passive learning. In a passive approach, students absorb information provided in textbooks and lectures. In active learning, students are doing hands-on work including conducting and publishing research. Following are just a few examples from my classes (master’s level, information studies): a publishing class created an open access journal in which they peer-reviewed and published their term papers; students in an introductory class create and publish their own professional blog and posts, in which they publish independent research; and this fall students collaboratively conducted and wrote a literature review and analysis of current issues on a particular topic in the field.  
As a faculty member and author, my experience is fairly typical. The cost of doing my research is paid for by my salary as a university professor and my research grant funds. Both are heavily subsidized by the Canadian taxpayer, and student tuition fees today accounts for about half of university budgets. As an author, I receive and expect no remuneration when I publish peer-reviewed journal articles or book chapters. As a peer reviewer, I receive and expect no remuneration. I did receive modest royalties from sales of a scholarly monograph, however from a financial point of view I (and many other authors of scholarly monographs), I would be much farther ahead had I devoted the time required to write the book to a minimum wage job. In retrospect, I wish that I had published this material as an open access book or wiki as the publisher is no longer actively marketing the book. By transferring copyright to the publisher, I made my work less accessible and far more difficult to update.
I seek to make all of my academic writing open access (free to read for everyone), a steadily growing trend in academia globally. As of December 2018, there are over 12,000 fully open access, peer-reviewed scholarly journals listed in the Directory of Open Access Journals https://doaj.org/According to industry research (Ware and Mabe, 2015) there are about 34,550 peer-reviewed journals published worldwide; the percentage of these that are fully open access is about a third. Many more journals provide free access to back issues after an embargo period.
The Directory of Open Access Repositories, OpenDOAR, lists over 3,800 repositories worldwide http://v2.sherpa.ac.uk/view/repository_by_country/countries=5Fby=5Fregion.htmlThe Bielefeld Academic Search Engine  https://www.base-search.net/about/en/provides a cross-search service of repositories and journals and lists over 120 million documents from over 6,000 sources, of which about 60% are open access, about 72 million documents. This free access to academic works, supported by academic authors, universities, and research funders is a reflection of the fact that academic research is not inspired by, and does not require, the economic benefits of copyright. The moral rights of copyright (attribution and integrity of the work) are important to academic authors.
The traditional scholarly publishing industry is in the process of transitioning from demand side economics (purchase of books and journal subscriptions) to production-based funding. As recently as 2014, very few of the large traditional commercial scholarly publishers were reflected in the Directory of Open Access Journals (DOAJ). The largest, Elsevier, had 8 titles listed in DOAJ. Today, the largest open access journal publishers by number of fully open access journals are all traditional commercial scholarly publishers. The largest is Springer Nature (including subsidiary BioMedCentral), and second largest is Elsevier (Morrison, 2018). As of the end of November 2018, Elsevier has 347 fully open access journals and offers an open access publishing choice for 2,040 other titles, almost all of their journals (Elsevier, 2018). As of December 7, 2018, the Directory of Open Access Books https://www.doabooks.org/ lists 285 publishers; 3 of the 4 publisher sponsors listed on their website are traditional commercial scholarly publishers (Brill, Springer Nature, and DeGruyter).
There is a related growing trend towards open access to educational materials. For example, provincial K-12 and post-secondary education is in a process of transitioning from support for textbooks through curriculum development, assessment, and purchase, to funding production for textbooks so that they can be open access, reducing the costs of education for post-secondary students and school boards in K-12. In addition to lowering costs, open access educational resources are typically open for transformation. This makes it possible for educators to update sources such as textbooks, link to additional resources, or customize to meet local needs. For example, a good basic textbook developed in the U.S. could be modified to reflect the Canadian context and include local examples, or the reverse for a textbook developed in Canada. Some resources for further information:
·       e-campus Ontario https://www.ecampusontario.ca/
·       BCcampus https://bccampus.ca/
·       Open School BC https://www.openschool.bc.ca/k12/
In addition to transitioning traditional formats developed before the internet (e.g. journals and books), faculty and students are beginning to explore the potential of the digital medium and the internet. My most important publications today are published primarily in non-traditional formats. Since 2004, I have maintained a scholarly blog called The Imaginary Journal of Poetic Economicshttp://poeticeconomics.blogspot.com/where I post, for example, contributions like this to government consultations. In 2014, I developed a research blog for the Sustaining the Knowledge Commons https://sustainingknowledgecommons.org/(SKC) project. The SKC blog provides a venue for myself and my student research assistants to publish early findings. This is excellent training for students as it gives them a means and incentive to develop and publish small sub-research projects. Data gathered through the SKC project is published as open data in the OA APC dataverse: https://sustainingknowledgecommons.org/open-access-article-processing-charges-apcs/These new formats require access to technology and hosting services, but there is no longer any need for a publishing intermediary as was the case when academic work relied on the print medium and postal system.
To summarize this section: the fair dealing exception for education (29) is inherent generally fair because the educational sector is a net creator. Academic faculty are the largest single group of creators of copyrightable works. The creation of copyrightable works by post-secondary students is substantial if not fully known, and the trend is towards more creation of copyrightable works by students. The post-secondary and K-12 sectors are moving towards production-based support of educational resources such as textbooks to provide for free access to enhance the affordability of the educational system. Creation in the educational sector is done primarily for the public good, and the economic benefits of copyright are generally unnecessary, as illustrated by the growing trend towards open access, that is, access to anyone that is free of charge, and the constrictions on readership associated with copyright protection for economic reasons is counter-productive to the creation and sharing of knowledge.
Fair dealing exceptions for research by academics (29.1) and news reporters (29.2)are necessary so that individuals and organizations cannot use copyright in a way other than originally intended, e.g. to suppress criticism or to deny what they have said in the past. For example, my research involves studying the pricing and business models of scholarly publishers based largely on information posted on their websites. This material constitutes the evidence on which my research is based, and I need to be able to publish excerpts of this material to substantiate my claims. Publishers do not always appreciate this research, for example when I document price increases far beyond inflation. Overly strong copyright without this balance would make it possible for publishers to weaken criticism by suppressing evidence.
Transition support for creation
As a prolific academic author, I never have been and never will be represented by Access Copyright. The work of Access Copyright is antithetical to the purposes of my work (to serve the public good). I recommend the abolition of Access Copyright and redirection of funding by universities and school boards to directly support open access in academia and the K-12 sector (e.g. funding for open access monographs, journals, and textbooks).
This will not meet all of the needs of Canada’s creative communities. In my opinion, Canada’s artistic creators (authors, artists, musicians, independent publishers and intermediaries who work closely with and for the artistic community) deserve our respect and support, and are not well served by our outmoded approach to copyright collectives. I argue the continuing existence of these collectives is counter-productive as it entrenches outmoded approaches and business models when creators would be better served by developing new types of collectives to take advantage of new technologies to create new relationships with society and consumers.
For example, imagine a collective of Canadian musicians working together to develop packages of music for use in places like coffeeshops and restaurants (perhaps based on genre) that is integrated with the business’ wifi so that customers can:
·       instantly purchase and download a piece of music they enjoy
o   connect with the website of the musician(s)
o   find out about upcoming live gigs
o   purchase merchandise
·       suggest musicians / music to include
I argue that this approach would be far more effective in creating a healthy and productive relationship between our artists and society than the current impersonal, non-transparent approach involving requiring payment of tariffs that positions copyright collectives as impersonal, non-transparent enforcers of rights.
To accomplish this vision, I recommend financial support for artists in the transition phase as well as targeted funding to develop mechanisms for transition such as research and education on the use of new technologies to support more productive artist / society relationships. As I explain in the introduction to this submission, direct support would likely be more cost-effective than the current system of indirect, non-transparent subsidies.
References
Elsevier (2018). Pricing. Retrieved November 27, 2018 from https://www.elsevier.com/about/policies/pricing
Morrison, H. (2018). Global OA APCs 2010 – 2017: major trends. Connecting the knowledge commons: from projects to sustainable infrastructure. Elpub 2018: the 22nd international conference on electronic publishing. Toronto June 22 – 24, 2018. Retrieved December 7, 2018 from https://elpub.episciences.org/4604
Universities Canada (2018). The changing landscape of Canadian copyright and universities: Universities Canada’s submission to the Standing Committee on Industry, Science and Technology’s statutory review of Canada’s Copyright Act / June 2018  Ware, M. & Mabe, M. (2015). The STM report: an overview of scientific and scholarly journal publishing. The International Association of Scientific, Technical and Medical Publishers. Retrieved Dec. 4, 2018 from https://www.stm-assoc.org/2015_02_20_STM_Report_2015.pdf
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Ceased and transferred publications and archiving: best practices and room for improvement

In the process of gathering APC data this spring, I noticed some good and some problematic practices with respect to journals that have ceased or transferred publisher.

There is no reason to be concerned about OA journals that do not last forever. Some scholarly journals publish continuously for an extended period of time, decades or even centuries. Others publish for a while and then stop. This is normal. A journal that is published largely due to the work of one or two editors may cease to publish when the editor(s) retire. Research fields evolve; not every specialized journal is needed as a publication venue in perpetuity. Journals transfer from one publisher to another for a variety of reasons. Now that there are over 11,000 fully open access journals (as listed in DOAJ), and some open access journals and publishers have been publishing for years or even decades, it is not surprising that some open access journals have ceased to publish new material.

The purpose of this post is to highlight some good practices when journals cease, some situations to avoid, and room for improvement in current practice. In brief, my advice is that when you cease to publish a journal, it is a good practice to continue to list the journal on your website, continue to provide access to content (archived on your website or another such as CLOCKSS, a LOCKKS network, or other archiving services such as national libraries that may be available to you), and link the reader interested in the journal to where the content can be found.

This is an area where even the best practices to date leave some room for improvement. CLOCKSS archiving is a great example of state-of-the-art but CLOCKSS’ statements and practice indicate some common misunderstandings about copyright and Creative Commons licenses. In brief, author copyright and CC licenses and journal-level CC licensing are not compatible. Third parties such as CLOCKSS should not add CC licenses as these are waivers of copyright. CC licenses may be useful tools for archives, however archiving requires archives; the licenses on their own are not sufficient for this purpose.

I have presented some solutions and suggestions to move forward below, and peer review and further suggestions are welcome.

Details and examples

Dove Medical Press is a model of good practice in this respect. For example, if you click on the title link for Dove’s Clinical Oncology in Adolescents and Young Adults a pop-up springs up with the following information:

“Clinical Oncology in Adolescents and Young Adults ceased publishing in January 2017. All new submissions can be made to Adolescent Health, Medicine and Therapeutics. All articles that have been published in Clinical Oncology in Adolescents and Young Adults will continue to be available on the Dove Press site, and will be securely archived with CLOCKSS”.

Because the content is still available via Dove’s website, the journal is not included on the CLOCKSS’ list of triggered content. This is because CLOCKKS releases archived content when it is no longer available from the publisher’s own website.

CLOCKSS Creative Commons licensing statement and practice critique

One critique for CLOCKSS: – from the home page:  “CLOCKSS is for the entire world’s benefit. Content no longer available from any publisher (“triggered content”) is available for free. CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever”.

This reflects some common misperceptions with respect to Creative Commons licenses. As stated on the Creative Commons “share your work” website:  [your emphasis added] “Use Creative Commons tools to help share your work. Our free, easy-to-use copyright licenses provide a simple, standardized way to give you permission to share and use your creative work— on conditions of your choice“.

The CLOCKSS statement  “CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever” is problematic for two reasons.
1. This does not actually reflect CLOCKSS’ practice. The Creative Commons statements associated with triggered content indicate publisher rather than CLOCKSS’ CC licenses. For example, the license statement for the Journal of Pharmacy Teaching on the CLOCKSS website states: “The JournalPharmacyTeaching content is copyright Taylor and Francis and licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License”.

2. This would be even more problematic if it did reflect CLOCKSS’ practice. This is because CLOCKSS is not an author or publisher of the scholarly journals and articles included in CLOCKSS. Creative Commons provides a means for copyright owners to indicate willingness to share their work. When a third party such as CLOCKSS uses CC licenses, they are explicitly or implicitly claiming copyright it order to waive their rights under copyright. This reflects an expansion rather than limitation of copyright that may lead to the opposite of what is intended. For example, if one third party is a copyright owner that wishes to claim copyright in order to grant broad-based downstream rights, another third party could use the copyright claim to support their right to claim copyright in order to lock down others’ works. A third party that is a copyright owner providing free access today could use this copyright claim in future as a rationale for toll access. This could come into play if in future toll access seems more desirable from a business perspective.

The CLOCKSS practice of publisher-level copyright (see 1. above) is problematic because Creative Commons first release of CC licenses was in December 2002. Scholarly journal publishing predates 2002 (the first scholarly journals were published in 1665), and not every journal uses CC licenses even today. Retroactive journal-level CC licensing would require re-licensing of every article that was published prior to the journal’s first use of CC licensing.

For example, the copyright statements of volume 1 dated 1990 on the PDFs of the CLOCKSS-triggered Journal of Pharmacy Teaching read: “Journal of Pharmacy Teaching, Vol. l(1)1990 (C) 1990 by The Haworth Press, Inc. All rights reserved”. This suggests that all authors in this journal at this point in time assigned full copyright to The Haworth Press, although actual practice was probably more complex. For example, if any authors were working for the U.S. federal government at the time, their work would have been public domain by U.S. government policy. Any portions of third party works included would likely have had separate copyright. Even assuming the simplest scenario, all authors had and transferred all rights under copyright to Haworth Press, the authors would retain moral rights, hence it would be necessary to contact all of the authors to obtain their permission to re-license the works under Creative Commons licenses.

The idea of journal-level CC licensing is at odds with the idea of author copyright. This confusion is common. For example, the website of the Open Access Scholarly Publisher’s Association Licensing FAQ states: “one of the criteria for membership is that a publisher must use a liberal license that encourages the reuse and distribution of content” and later “Instead of transferring rights exclusively to publishers (the approach usually followed in subscription publishing), authors grant a non-exclusive license to the publisher to distribute the work, and all users and readers are granted rights to reuse the work”. If copyright and CC licenses really do belong to the authors, then journal-level Creative Commons license statements are incorrect.

Even more room for improvement

The above, while leaving some room for improvement, appears to reflect best practices at the present time. Other approaches leave even more room for improvement. For example, in 2016 Sage acquired open access publisher Libertas Academica. The titles that Sage has continued can now be found on the Sage website. The Libertas Academica titles that Sage no longer publishes can be found as trigged content on the CLOCKSS website. However, the original Libertas Academica website no longer exists and there is no indication of where to find these titles from the Sage website.
Titles that were formerly published by BioMedCentral are simply no longer listed on the BMC list of journals. For example, if you would like to know where to find Gigascience, formerly published by BMC, you can find information at the site of the current publisher, Oxford. A note on the SpringerLink page indicates that BMC maintains an archive of content on its website. However, if you look for Gigascience on the BMC journal list, it simply is not listed. It would be an improvement to follow the practice of Dove and include the title, link to the archived content, and provide a link to the current publisher.

Solutions? Some suggestions

If journals and publishers were encouraged to return copyright to the authors when a journal is no longer published, or a book is no longer being actively marketed (in addition to using their existing rights to archive and make works freely available), then authors, if they chose to do so, could release new versions of their works. For example, a work currently available in PDF could be re-released in XML to facilitate text and data-mining, or perhaps updated versions, and authors could, if desired, release new versions with more liberal licenses than journal-level licenses that must of necessity fit the lowest common denominator (the author least willing or able to share).

Education, among the existing open access community, and beyond is needed. First, we need to understand the perhaps unavoidable micro level nature of at least some elements of copyright under conditions of re-use of material. For example, if a CC-BY licensed image by one photographer or artist is included in a scholarly article written by a different person that is also CC-BY licensed, the moral rights, including attribution, are different for the copyright holder of the image and that of the author of the article. In academia, attribution and moral rights are essential to our careers.

The intersection of plagiarism and copyright is different in academia. If one musical composer copies another’s work, copyright law is likely the go-to remedy. If a student presents someone else’s work as their own, academic procedures for dealing with plagiarism will apply, regardless of the copyright status of the work. For example, the musician using a public domain work need not worry about copyright but the student using a public domain work without attribution is guilty of plagiarism and likely to face serious consequences. Evolving norms for other types of creators (amateur or professional photographers, video game developers) may not work for academia.

For CLOCKSS, a statement that all triggered content is made freely available to the public, and that additional rights may be available for some works, with advice to look at the work in question to understand re-use rights, would be an improvement.

Your comments and suggestions? 

This is an area where even today’s best practices are wanting, and the solutions / suggestions listed above are intended as an invitation to open a conversation on potential emerging practices that may take some time to fully figure out. Peer review and suggestions are welcome, via the comments section or e-mail. If you are using e-mail, please let me know if I may transfer the content to this post and if so whether you would like to be attributed or not.

This post is cross-posted to the Sustaining the Knowledge Commons research blog and forms part of the Creative Commons and Open Access Critique series. Comments and suggestions are welcome on either blog.

Editorial: open access, copyright and licensing: basics for open access publishers.

Just published (February 2016) in the open access Journal of Orthopaedic Case Reports at the invitation of Editor-In-Chief Dr. Ashok Shyam: Editorial: open access, copyright and licensing: basics for open access publishers. Journal of Orthopaedic Case Reports 6:1 p. 1-2. DOI: 10.13107/jocr.2250-0685.360

This post is part of the Open Access and Creative Commons critique series. 

A case for strong fair use / fair dealing with restrictive licenses for reuse in scholarship

The types of works that many students and faculty would like to be able to include in scholarly works are not necessarily from other scholarly works. For example, scholars in my doctoral discipline of communication study a wide range of types of works including newspapers, television, films, cartoons, advertising, blogs and social media, and public relations materials. It is very useful for scholars to be able to include images and text from the primary source materials, either as illustration or for purposes of critique. Obtaining permission to use even small excerpts of such works is time-consuming at best. I argue that it would be in the best interests of scholarship to advocate for strong fair use / fair dealing exceptions for research and academic critique globally and accept that more restrictive licenses may be necessary to avoid the potential for re-use errors that could easily occur with blanket licenses allowing broad re-use. For example, while it makes sense to allow scholars to include small movie stills in an academic piece, it could be quite problematic for scholars to include such items in works that grant blanket commercial and re-use rights downstream.

This illustrates what I see as one of the problems with the one size fits all CC-BY license preferred by some open access advocates (which I consider to be a serious error): what I interpret as an implicit assumption that all of the works scholars are likely to want to re-use are other scholarly works. Rather than making assumptions, let’s do some research to find out what scholars and students would like to be able to re-use. Anecdotally, in my experience the most popular items for re-use are images from popular culture (especially characters from the Simpsons TV series), not scholarly works. Scholarly journals like to use photos to add interest and aesthetic value. If it is the case that the greatest interest in re-use for scholars involves works from popular culture / outside the academy, then ubiquitous CC-BY licenses for absolutely every scholarly article, book, and dataset in the whole world would not solve the primary re-use question for a majority of scholars.

This is not meant to suggest that advocacy for global fair use / fair dealing rights for academic research and critique is an easy task, rather to raise the question of whether this is an appropriate and useful goal for scholarly works.

This post is part of the Creative Commons and Open Access Critique series.

I don’t want free online access: I want free online access with re-use rights!

I don’t want free online access: I want free online access with re-use rights!

But we don’t even have free online access yet…

I don’t want free online access: I want free online access with re-use rights!

But free online access is part of free online access with re-use rights…

I don’t want free online access: I want free online access with re-use rights!

But free online access is already within immediate reach and free online access with re-use rights is not…

I don’t want free online access: I want free online access with re-use rights!

But free online access will pave the way for free online access with re-use rights…

I don’t want free online access: I want free online access with re-use rights!

But re-use rights to only a fragment of the research in a field are near-useless…

I don’t want free online access: I want free online access with re-use rights!

But publishers allowing authors to provide free online access and re-use rights can immediately be undercut by free-riding rival publishers; publishers allowing authors to provide free online access alone cannot…

I don’t want free online access: I want free online access with re-use rights!

But publishers will sooner allow authors to provide free online access than allow them to provide free online access with re-use rights?

I don’t want free online access: I want free online access with re-use rights!

But institutions and funders can sooner mandate free online access than free online access with re-use rights?

I don’t want free online access: I want free online access with re-use rights!

But all non-subscribing users need free online access; not all or even most or many users need re-use rights…

I don’t want free online access: I want free online access with re-use rights!

But all authors already want all non-subscribing users to have immediate free online access; not all or even most or many authors know or care about re-use rights yet…

I don’t want free online access: I want free online access with re-use rights!

But free online access is better, even if free online access with re-use rights is best…

I don’t want the better: I want the best!

But the better is already within reach and the best is not…

I don’t want the better: I want the best!

More Elsevier FUD and Bluff

The University of Calgary has been contacted by a company representing the publisher, Elsevier Reed, regarding certain Elsevier journal articles posted on our publicly accessible university web pages. We have been provided with examples of these articles and reviewed the situation. Elsevier has put the University of Calgary on notice that these publicly posted Elsevier journal articles are an infringement of Elsevier Reed?s copyright and must be taken down.

If Elsevier sends a take-down notice to a university, you have two simple options:

(1) Leave it up, and send the notice back to Elsevier with a copy of Elsevier?s policy on self-archiving.

or

(2) Re-set access as Closed Access and rely on the repository?s copy-request Button.

(If the take-down notice was because you deposited the publisher?s PDF, make the publisher?s PDF Closed Access and deposit the author?s final draft instead, and make that OA.)

And fix your mandate to make sure it specifies that the author?s final draft should be deposited immediately upon acceptance for publication, not the publisher?s PDF.

(Calgary would have done better to respond pragmatically to this latest round of Elsevier FUD and bluff — but, after all, this is exactly what FUD’s for, isn’t it?)

The commerical overlords of scholarship rewrite copyright licenses to suit themselves

As just posted to the openscience list:

What can or cannot be done under CC-BY may quickly become a moot point – according to Elsevier Connect, “the International Association of Scientific, Technical & Medical Publishers (STM) is contemplating the release of a more specific user license designed for scholarly communication. This would likely:

  • Permit scholarly non-commercial use 
  • Prohibit the creation of derivative products 
  • Expressly permit text and data-mining for academic purposes and translation”

The International Association of Scientific, Technical & Medical Publishers (STM) has a Copyright & Legal Affairs Committee which aims: “To pursue, within the limits of the STM Association’s aims and objectives, the highest possible level of international protection of copyright works and of the services of publishers in making these works available”.

from: STM / An Introduction to Copyright & Legal Affairs / The Aims of the Copyright and Legal Affairs Committee
http://www.stm-assoc.org/copyright-legal-introduction/

Elsevier, Wiley, Springer, and Taylor & Francis all have multiple listings under STM Membership.

In other words, while the academics who do the work of scholarship, writing and editing struggle to understand the legal concepts and present solutions off the sides of our busy desks, the companies that have long been in the business of profiting off our work and our generosity have lots of $ to hire lawyers to change the legal landscape to suit their preferred priorities (profits for themselves / their shareholders).

best,


Dr. Heather Morrison
Assistant Professor
École des sciences de l’information / School of Information Studies
University of Ottawa

http://www.sis.uottawa.ca/faculty/hmorrison.html
Heather.Morrison@uottawa.ca

ALA Accreditation site visit scheduled for 30 Sept-1 Oct 2013 /
Visite du comité externe pour l’accréditation par l’ALA est prévu le 30
sept-1 oct 2013
http://www.sis.uottawa.ca/accreditation.html
http://www.esi.uottawa.ca/accreditation.html

This post is part of the Creative Commons and Open Access Critique series

Our fair deal for a fair digital future

Our Fair Deal http://ourfairdeal.org/ is crowdsourcing ideas for what we the people want to see in trade agreements like the Trans Pacific Partnership (TPP) currently being negotiated. Go to the Our Fair Deal to learn more or to participate, or to this OpenMedia site which has a convenient form to fill out.

Here is my vision for A Fair Deal:

Trade treaty negotiations involve broad-based, open consultation with the public and all groups with an interest in participating. We should be hearing about what is happening from our elected representatives, not through leaks! This is completely in the spirit of what governments say that they want to do – it would fulfill the commitments made by many of our governments through the Open Government Partnership.

Copyright should be fair, balanced, and reflect not only the desires of “copyright holders”, but also the important and not entirely understood role that copying has always played in the development of human civilization. Human language, manners, and basic life skills are learned by copying. Storytelling, music, and arts aren’t just about a few people making a living; they are about all of us building communities, expressing and fulfilling our potential. Artists have always copied from each other – the latest techniques, approaches, philosophies. New movements in art and music involve a lot of copying, and this is not inconsistent with artists making a living. Balance is also needed to provide an environment that can facilitate ongoing creativity and innovation, as excessively strong intellectual property rules favour a few owners of “intellectual property”. This is a system that appears likely to lead to concentration of ownership in the hands of a few, as has been the trend with scholarly publishing in the last few decades.

In order to achieve a more fair and balanced copyright, here is what I see as needing to happen: 

  •  there already is an international body dedicated to intellectual property, the World Intellectual Property Organization (WIPO) – discussions of intellectual property and copyright should be limited to this forum and removed from other international negotiations. If governments are negotiating with countries that are not signatory to WIPO, then signing WIPO could be part of the negotiations 
  • formally recognize at something like an international constitution that culture, community, and the public interest are important goals, not just economic benefits of intellectual property. For example, strong intellectual property laws designed to protect the profits of pharmaceutical companies at the expense of the health of those who cannot afford the medicines, are not good public policy. This does not mean that the interests of the industry are irrelevant, rather that we need to recognize that this not the only thing that is relevant – ultimately, the purpose of a pharmaceutical industry should be the health of the public, with economic sustainability of the industry a key but secondary sub-goal.
  • make open access – free online access to everywhere, everywhere with an internet connection with few or no copyright restrictions – the default for all information and resources paid for by the public (government data and publications, government-funded scholarly research)
  • eliminate automatic copyright; require a creator to take at least some simple step (e.g. the inverse of creative commons) in order to assert copyright 
  • limit the term of copyright to 10 years with one extension on request 
  • expand fair dealing – support strong net neutrality 
  • support strong personal privacy protection measures everywhere 
  • added July 27: the penalties for copyright infractions should be proportionate to the infraction, and to other types of societal penalties. Downloading movies for personal viewing should at most be at about the level of hopping on a bus without paying.

That’s my vision. What’s yours? Please participate!

Thank you very much to the organizers of Our Fair Deal for providing a venue for this crowdsourcing.

Elsevier’s twist on open access and Creative Commons includes exclusive license to publish

It should come as no surprise that Elsevier’s venture into “open access” involves creating a new hybrid of free and toll access. In brief, authors publishing in Elsevier’s new open access journals have an option of Creative Commons licenses (good), but are also expected to sign an exclusive license agreement granting Elsevier publishing and distribution rights and leaving authors and their institutions with “copyright” and a range of scholarly use rights which is the same limited range of options available to subscription-based authors. At best, this is confusing and conflicting and should be regarded as a new form of pseudo open access.

From the Elsevier explanation of Open Access Journals:

All articles published in Elsevier Open Access Journals are peer reviewed and upon acceptance will be immediately and permanently free for everyone to read and download. Permitted reuse is defined by your choice of user license.

Authors publishing in these journals will use an exclusive licensing agreement, where they will retain copyright alongside scholarly usage rights and Elsevier will be granted publishing and distribution rights.

The new open access journal Climate Risk Management’s Guide for Authors page which points (through one intermediary step) to this Rights & Responsibilities page.

Excerpts:

At Elsevier, we request transfers of copyright, or in some cases exclusive rights, from our journal authors in order to ensure that we have the rights necessary for the proper administration of electronic rights and online dissemination of journal articles. Authors and their employers retain (or are granted/transferred back) significant scholarly rights in their work.    

How authors can use their own journal articles

Authors publishing in Elsevier journals have wide rights to use their works for teaching and scholarly purposes without needing to seek permission.

Summary: Elsevier has created a new form of pseudo-open-access combining Creative Commons licensing with exclusive copyright transfer with authors supposedly retaining “copyright” but actually retaining only very limited rights to use their own work.

If you would like to comment on this on any other post on IJPE please note that this is a scholarly blog. State who you are and any relevant affiliation – for example, are you an academic, journalist, interested member of the public, or do you work for a publishing company? Anonymous comments are not posted.