THE DIGITAL ENVIRONMENT
E- JOURNALS
With the development of e-journals, however, it might have been expected that no (or relatively few) new copyright questions would develop. Libraries have been collecting print journals for centuries and for the most part had come to an understanding of how a myriad of serials could be used in a copyright-compliant manner by their pa- trons. As early e-journals were essentially digital equivalents (either in form or content) of print journals, most librarians could be forgiven for thinking that few new copyright considerations would develop. In fact, there were some journal editors and publishers who believed that e-journals would actually diminish journal-related copyright issues.
Presaging the world in which we now find ourselves, Pamela Pavliscak’s 1996 study of copyright statements found a wide array of acceptable use conditions within the nascent e-journal community.
Robert Judd ofMusic Theory Onlinewas quoted as saying: “We don’t have a carefully worded policy. The journal, aimed at academics,
Copyright, E-Journals, and Libraries: Points of Intersection 15
assumes a measure of academic integrity.”3TheEuropean Molecular Biology Network Newsletter went even further, stating: “EMBnet is not parochial and its members, like all scientists, collaborate world- wide.”4Many of the journals encouraged noncommercial uses, includ- ing printing and sharing of personal copies, with the sole provision that the original copyright statement be retained.5Some journals, such as TC: A Journal of Biblical and Textual Criticism,warned contributors that the publishers would not be held responsible for future copyright infringement by third parties.6Even libraries were not excluded from the generous use terms of these early e-journals. Project MUSE, for ex- ample, allowed libraries to store articles in print or electronic form; dis- tribute multiple copies for classroom use; archive articles on paper, on CD-ROMs, or on a local server; download and print copies for inclu- sion in the collection; place unlimited copies on reserve in either print or electronic formats; and alert campus users electronically of the exis- tence of the articles.7Perhaps ominously, one of the few publishers in Pavliscak’s study that had a well-developed and restrictive copyright statement in 1996 was Oxford University Press.8
Even with this variety of statements, librarians could reasonably have expected that there would be little change in the journal copyright environment. E-journals, however, came into their own at the same time that file sharing of music and video became pervasive. Although a discussion of copyright and music downloading is beyond the scope of this chapter, the legislative and judicial environment that devel- oped, notably in the United States, to combat this (real or perceived) commercial threat also had an effect on the development of e-journal copyright realities.
In the words of Shalini R. Urs, “the digitally networked world . . . has dramatically shifted the balance with the ability to download ma- terials, to make any number of perfect copies and distribute these with virtually no extra cost or effort. Creators feel threatened and have be- come paranoid in view of the threat to their market potential, and so technology is being used to enable copyright holders to exercise enormous restrictions and controls over use. Safeguarding the private and public interests has been reduced to a win or lose situation.”9
International agreements such as the World Intellectual Property Organization’s (WIPO) Copyright Treaty (1996) and national legisla- tion such as the U.S.’ Digital Millennium Copyright Act (1998) have
attempted to provide universal protections for all types of digital ex- pression, regardless of their intrinsic monetary or intellectual value.
There are valid questions, however, about whether these kinds of protections are appropriate for all forms of intellectual property, espe- cially academic research and discourse. The issues, as expressed by Urs and of obvious concern to the popular music and video industries, are the ability to download and then distribute perfect digital copies of the original at little or no cost. However, do these same abilities truly represent a threat to academic publishing’s market potential?
Within a campus environment, libraries normally pay to license journals for use by all members of the local academic community. It would therefore be impossible for one researcher to “threaten” the copyright holder’s market potential by sharing a copy of an article with a fellow researcher or even a class of students. Within the larger aca- demic community, research and discourse have a limited audience.
Although the total number of faculty, researchers, and students world- wide is huge, the interest in any one article is limited to those who share similar research aims. An argument could be made that sharing of articles between researchers at different campuses could harm the copyright holder’s market potential, but once again only if the agency actually paying for the subscription canceled it because a single re- searcher was receiving copies of articles from a colleague at another institution. It is unlikely that many (or any?) libraries have used this form of copyright infringement to justify the cancellation of a journal.
Another factor related to intercampus use of copyrighted materials has been the development of library consortia acting to license content for groups of similar institutions, across states or provinces or even nationally. In cases such as these, researchers at different institutions have equal access to the copyrighted materials and no commercial disadvantage can be claimed through the copying and sharing of an article.
As the e-journal market developed, very few publishers relied solely on copyright legislation to control the use of their material. Copyright legislation governs the use of materials within countries, but its reach ends at national borders. There is sometimes a misconception that the laws of the country where the item is published govern the use of those materials. Instead, the countries that have signed theBerne Convention have agreed that they will extend the copyright protections given to
Copyright, E-Journals, and Libraries: Points of Intersection 17
their own citizens to foreign nationals. Thus, French authors receive the same protections in Canada that Canadian authors receive. Although this system worked well in a purely print environment where there was little or no ability for people to access materials in another coun- try, it has proven less effective in the Internet-connected world we now find ourselves in. If Australian copyright law, for example, al- lows for free electronic access to materials that continue to be pro- tected in the United States (as happened withGone with the Windon Project Gutenberg Australia10), it is practically impossible to prevent Americans from accessing those materials via the Internet. In order to combat this, organizations such as WIPO have tried, so far with lim- ited success, to create an international copyright environment where national variations are reduced or eliminated.
LICENSING
To deal with this lack of legislated international copyright consen- sus, most publishers have developed a process of licensing access to copyrighted e-journals. As contract law supersedes copyright law, signed license agreements provide consistent protections for publish- ers across international boundaries. They can also allow the owners of intellectual property to restrict or expand rights granted under the terms of national copyright legislation. Once a library signs a license agreement, the patrons of that library cannot break the terms of the li- cense claiming rights under existing copyright legislation.
Why would publishers favor licenses over copyright protections?
There is a general belief that because national governments establish the terms of copyright protections and acceptable use they also monitor adherence. This is not the case. Through legislation, governments create conditions under which copyright holders can seek redress where infringement occurs. Rather than relying on the understanding and interpretation of hundreds of copyright acts, licensing allows pub- lishers to easily manage the access and use of their e-journals under conditions acceptable to the owners of the intellectual content.
An unintended effect of such licenses is the creation of a world that emulates the universal copyright ideal of agencies such as WIPO.
The problem, however, is that they only emulate universality. No two publishers’ licenses are exactly the same, and the minor differences
between them create any number of problems for the librarians who must administer them. Within an institution, different journal licenses may have varying restrictions on such things as interlibrary loans, ac- cess, downloading, reserves, and classroom use. The end result can be that the library does not make distinctions between each set of li- censed journals, but binds all users to the terms of the most restrictive license.
Further complications can also arise as licenses are negotiated, not legislated. Experience, budget clout, or collection considerations may allow librarians at one institution to negotiate a license with more fa- vorable conditions for their end users than librarians at another insti- tution are able to sign. Thus, even though faculty and students at both institutions will have access to the same content, some users will enjoy greater copyright freedoms.
Another licensing issue that has developed is the mutability of e-journal content. In the past, journal titles could pass from one pub- lisher to another with little effect on libraries. As long as there was sufficient notification and subscription agents were aware of the move, there would be no interruptions in the delivery of the journal and the library would obviously continue to maintain its print backfiles. This continues to hold true for subscriptions to current e-journal content.
A problem has started to develop, however, in cases where libraries have purchased backfile e-content from a publisher, only to see that content transferred to another publishing agency, which refuses to recognize the previous signed license agreement. In such cases, no copyright claim can be made on the content and libraries must rely solely on the terms of the various licenses they have signed.
REMOVAL OF CONTENT
Another factor that all librarians have faced is the disappearance of e-journal content, because of legal action, erroneous information, or philosophical differences. Again, copyright legislation provides no recourse for researchers or libraries seeking to maintain access to the information. Copyright legislation does define the terms of protection for an item, but it does not guarantee continued or unrestricted access to any item—even those that exist in the public domain.
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One of the most celebrated instances of content removal was actu- ally precipitated by a U.S. Supreme Court judgment directly related to copyright. In the case ofNew York Times Co., Inc. v. Tasini,11the court ruled that freelance authors were entitled to additional compen- sation when their original works were repurposed without authoriza- tion in digital archives. The result of this decision was that several newspapers and magazines removed portions of the electronic record from their archives denying subscribers and, by extension, library patrons continued access to these items. As further evidence of the global reach of local copyright decisions, the Tasini judgment had ramifications for libraries outside of the United States. In Canada, one of the leading electronic aggregators of newspapers began re- moving articles written by freelancers from its digital archive follow- ing the Tasini decision—and to this day does not include them in the electronic versions made accessible to libraries and other subscrib- ers—despite the fact that the Tasini decision is not a Canadian court judgment.
The Tasini decision also points to another reality that makes an un- derstanding of copyright so elusive. It would be easy to assume that copyright law was comprehensive, and that legislation and judicial interpretations developed for one medium could be transferred to an- other similar medium. For example, one might assume that e-journals could be treated the same as print journals in all situations as they are essentially the same thing. Courts, unfortunately, do not necessarily hold the same opinion. As the Tasini decision and theBMG Canada Inc. v. John Doe12judgment have proven, courts can interpret copy- right legislation literally and do not necessarily presuppose that rules applied to print materials are transferable to digital ones. Once again, licenses can create an environment wherein publishers, copyright holders, and libraries can bring some stability to this world that some- times seems to have more exceptions than absolute rules.
OPEN ACCESS
As a response to high costs, restrictive licenses, and concerns about accessibility to publicly funded research, we have seen the develop- ment of open access journals. However, open access publishing of the content of e-journals does not necessarily diminish copyright concerns.
An open access journal, for example, may include on its Web site a li- cense agreement under which the materials can be used. These Web- based license agreements, which require no signature, but function like click-through software agreements where use implies consent, may be less or more restrictive than signed publisher agreements.
They may indicate that the copyright in individual articles rests with the publisher or is retained by the author; they may or may not take into account the realities of the library environment (i.e., reserves, ar- chival preservation, use in distance education, course packs); they may or may not indicate the acceptability of downloading and print- ing; or they may simply refer in general terms to existing copyright legislation.
There are problems in all of these situations. First, there is no clear evidence that implied consent agreements are enforceable (especially across international boundaries); therefore, even if a library tries to live within the stated parameters it may or may not be protected from legal action. If the copyright is retained by the original author and not the publisher, nightmarish situations can develop in which librarians spend hours searching for the author in order to secure agreement for copying, and individual authors are inundated with requests from hun- dreds of different user constituencies. Complications can also arise when authors, unsure of their rights and not fully understanding the implications of such things as reserve collections or course packs, de- lay or block the effective use of their material. General references to existing copyright laws can also be problematic. As previously dis- cussed, a library is subject to the copyright legislation in force in the country in which it is situated, not the country where the journal or author exists or resides. When utilizing an open access journal housed on a server in a different country, it may be difficult to reconcile terms of acceptable use, with the result that libraries are unsure of the rights of their patrons and/or copyright holders misunderstand the use of their materials.
An attempt to deal with all of these issues, and to bring order to the copyright world for authors, publishers, libraries, and end users, has been the development of Creative Commons licensing. Creative Com- mons is international in scope and has prepared a variety of licenses that anticipate the needs of creators of both physical and digital
Copyright, E-Journals, and Libraries: Points of Intersection 21
works, while ensuring continued, open access to the materials.13There are various kinds of licenses:
• “Attribution noncommercial no derivatives” licenses allow users to access and redistribute the material, provided the original au- thor is credited and linked back to, no changes are made in the material, and no commercial advantage accrues to the end user.
• “Attribution noncommercial share alike” licenses allow end users to access, redistribute, remix, “tweak,” translate, and build upon the original material, provided the original author is fully credited, no commercial advantage accrues to subsequent users, and the new user licenses the revised work under exactly the same kind of Creative Commons license.
• “Attribution noncommercial” licenses work in the same man- ner, but the reviser is not required to share the materials using the same license as the original author.
• “Attribution no derivatives” licenses allow for redistribution of the original with no alterations and full credit in both commer- cial and noncommercial venues.
• “Attribution share alike” licenses allow for revision of the origi- nal provided there is full attribution and the new material is li- censed under the same terms. Commercial applications are allowed under the terms of this license.
• “Attribution by” licenses require only that the original creator be credited, and all other uses, commercial and noncommercial, are permitted.
Creative Commons has also created public domain dedications (for those creators who wish to renounce all copyright in their work), sam- pling, music-sharing, developing nations, and software licenses. Per- haps the most interesting of the licenses is theFounders Copyright.
This license allows authors fourteen or twenty-eight years of full copy- right protection after which the material enters the public domain. This license actually reflects the original terms of copyright protection in most jurisdictions, where books were protected for fourteen years, with allowance for a further fourteen years of protection if the author was alive and interested in reregistering the copyright. This is a far cry from the environment we now find ourselves in with some countries moving toward what appears to be perpetual copyright protection.
The rise of Creative Commons licenses and other such mechanisms is also welcome as e-journal publishers begin instituting digital rights management (DRM). Developed as a means to combat the down- loading of commercial music and video, DRM technologies are poised to be unleashed on the scholarly publishing world. Simple computer codes can invest the digital copy with a complete set of instructions regarding acceptable use as the copyright holder understands it—lim- iting such things as the downloading, forwarding, printing, saving, or even viewing of articles. Once again, this will cause problems if the DRM technologies do not allow end users to perform certain actions even though they are considered to be within the realm of fair use or fair dealing. As has been shown, there are few absolutes in the area of copyright, so it is unlikely that a simple computer code will be able to exercise proper judgment in all the murky situations in which librari- ans spend considerable time and effort trying to interpret the rules and regulations. It is also worth considering whether end users will view libraries as effective and necessary institutions if every article the library provides is actually controlled by the computer coding of a third party preventing them from exercising the rights they have as students, educators, or researchers.
The issues surrounding copyright and e-journals can be every bit as fuzzy, contested, or misunderstood as most people fear. As nations strive to create rational legislation within the context of a borderless digital publishing environment, librarians are faced with respecting and interpreting copyright law and license agreements while also meeting the expectations and requirements of authors, faculty, researchers, and students. Librarians are, however, in a unique situation. No other group straddles the divide between creators and end users, and with a combination of lobbying, dialogue, and action, librarians will hope- fully use their expertise to help build a world of rational copyright un- derstanding and fair use of all materials.
NOTES
1. Yale University Library, “Definitions of Words and Phrases Commonly Found in Licensing Agreements,” http://www.library.yale.edu/~llicense/definiti.shtml (accessed September 16, 2006).
2.Copyright Act, RSC 1985, c. C-42, s. 29.
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