Harvard’s Office for Scholarly Communication has brought Kenneth Crews of Columbia Law School to talk about “Protecting Your Scholarship: Copyrights, Publication Agreements, and Open Access.”

NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.

How do all the things mentioned in his subtitle fit together, he asks, assuring us that they do.

Our goals as academics, he says, are to: advance scholarship, promote access to pubs, preserve academic freedom, expand the class roomk support research worldwide, build the next generation of research, and reduce the costs and barriers. Does it shift costs or reduce them, he asks?

Peter Suber defines open access as online, free of charage, and free of most copyright and licensing restrictions. Is that the right definition, he asks. He says that as he’s traveled around the world, he’s seen access to the Internet is expanding rapidly. “People are connected.” It’s there as a potential and is in place in many places. But, in many of these places, there’s no cash to buy access to content. They can get to content if it’s made available on line. So, in addition to those other goals he’s listed, there’s altruism.

Why right now? The Harvard resolution (2008) requiring open access. The NIH public access policy (2008) puts works PubMedCentral. There are, of course, pitfalls: Misuse of work, etc. [missed some. sorry.]

There are challenges to these policies now. Congress has a bill to undo the NIH open access policy. There’s the DMCA’s anticircumvention provisions; the Copyright Office is holding hearings right now about exemptions to those processions. There’s the Google Books settlement that would provide tight controls to the accessibility and usability of that content. “Are we putting together a database of 20M volumes that is guaranteed to frustrate the heck out of the users?” There’s our distaste of other people making money with other people’s copyrights.

He gives a quick review of copyright: Just about everything is protected, if it’s “fixed in some tangible medium.” Copyright is as set of rights wrt reproduction, distribution, derivatives, performane and display, and DMCA rights. These rights can be unbundled and parceled out by the rights holder. Who owns the copyright isn’t very important. The real question is who has the particular rights within that bundle

Those rights are transferable. But they may be transfered or licensed, exclusive or not. In scholarly publishing, I might transfer rights to a publisher who then licenses back to me certain rights, such as the right to use it in further research, or to post portions on my Web site. Or, I might not transfer any rights, and instead license some rights to my publisher. Maybe I’ll license it to the publisher, stipulating that it be Creative Commons licensed. There are many, many possibilities. “So the process of engaging with a publisher is …. a process of negotiation.”

The context is changing. It’s becoming digital. Digital tech both can make scholarship more easily available, and it holds the potential for controlling access. Open access is key to the growth of scholarship. “The growth of scholarship comes from access to existing works,” as does its impact.

So, being a good steward of copyright requires understanding our interests, those of our institution, the revenue possibilities, and the interests of people I do not know and who may not be in my field. We should worry about maintaining the integrity of our work. Money matters. We need to worry about the business models.

“Not all copyrights are created equal…Not all works need to be treated in the same way.”

Who gets to decide all this: The author.

“Managing this work in a way that moves us toward open access publishing … is a good thing.” How to do that: Self publish. Use OA publishers (e.g., www.doaj.org). Put it in an institutional repository. And negotiate. “The happier the agreement, the longer the agreement.” “We have to look for language that does happy things for us.” He shows an example of happy language that gives the author right to post an article for free. Another: Language that lets the author use the article for her own work. A license leaves the unstated rights with the author. He notes that the law’s default does not require the publisher to include the author’s name and affiliation.

Tough questions about open access: Will colleagues respect publications in OA journals? (More so every day, he says.) OA compatible with peer review? (Yes, Kenneth says.) How do I manage my copyrights? How do I negotiate agreements? Who pays the pub costs. What about the economic surival of journals? (I don’t know the answers, he says, but the problem is more real than we often like to acknowledge.)

Key points of the talk, he says: . You have choices. Be a good steward. Negotiate…and keep a copy of the agreement. In fact, keep the agreement for the entire term of the copyright, i.e., 70 years after you’re dead.

Q: Google Books settlement?
A: Read the agreement. “It will really wow you.” The key point: It permits Google to continue scanning, and to create this “fantastically large, very useful archive of materials.” But access to it will be restricted. If a book’s in copyright, you can only get bibliographic info. If you want more, you sign up for a subscription. Tightly controlled, limited access. “And it’s a book selling situation.” Google and the association become major booksellers. You buy access, not copies. “The challenge for all of us is there is no question, this proposal should it become the legal standard, is the biggest, most important step toward digital access of materials not previous available.” We need to decide if we want to move into the future on these terms. “I only give this agreement several years before it falls apart” and they’re back in court looking for new terms.

Q: Robert Darnton: What kind of legislation should we have for orphan works [= works under copyright whose license holders cannot be found]
A: The Copyright Office’s legislative proposal from a few years ago was actually pretty good. But as it went through the process, “every change was a step backward.” “I thought it was a good thing the legislation died last year.” We’re in pretty good shape now with the Fair Use laws. The Google settlement allows the Registry to collect revenues from the use of works and distribute money out to the rights holders. But with an orphaned works, who gets it? The basic idea is that that money is used to pay organizational overhead. If there’s leftover money, 70% gets distributed to the class of known copyright holders. The other 30% goes into a pool for non-profits. “The serious problem is that it gives Google a monumental head start over anyone else in working with orphan works.” Competitors don’t have a court settlement that protects them from law suits over rights abuses. “This is a formidable problem with the agreement.”

Q: I edit an undergraduate Harvard journal. Authors sign over all rights to the journal. I worry about students being chagrined by their very first publication. Can an author ever get them back under wraps?
A: If I make something open access, can I reel it in if I change my mind? Legally, yes. Realistically, no. It’s probably been downloaded, mirrored, put into the Internet Archive.

Q: What about students’ lecture notes, etc.?
A: If everything created in a fixed medium is copyrighted, we have a responsibility to manage it. If you’re a student who created notes or papers, they’re yours. But, when it comes to wikis, etc., the copyright situation is nightmarish. It’s jointly copyrighted and owned. Any one student can exert rights.

Q: Every change in the copyright law has gotten awa from the original intent, which was to preserve creativity. The change to make everything copyrighted is nightmarish. Why not have a registry of copyright and require some action on the part of creators to get and renew a copyright?
A: So many ways I could respond! The US Constitution lists powers the Congress has. Most of those statements are very clear and simple. Then comes copyright: To promote progress in the sciences and useful arts, Congress has the power to granted limited-time rights to publish. It’s clear this has a purpose, a goal. There are many reasons we’ve gotten away from this. In addition to everthing else, the Berne Convention, which we joined in 1989, sets basic rules, including broad copyright with no formalities to get one. We couldn’t require registration to get a copyright without dropping out of Berne, but we’re locked into international provisions in multiple other agreements. You want change, go to Berne. [Tags: copyright copyleft google_books ]

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