AARL

The ideal copyright framework for academic authors? A bounty to genius and learning

Kathy Bowrey

Abstract: This article discusses the situation of academic copyright within a broader discussion of the historical role of copyright law, libraries, academic publishing practices and changes in the digital environment. Because academics are both owners and users of copyrighted material and share interests as individual authors and as members of academic communities, neither a strong 'owners' nor 'user's' rights-based approach is particularly helpful. It is argued that in order to decide what the 'ideal' framework for academic copyright entails, we first need to decide what role we, as academics, and our universities, should play in the knowledge economy.

Recently a small research grant application came before the school research committee. An academic requested a modest amount to hire a research assistant to negotiate copyright clearances for extracts that were to be reproduced in her textbook, soon to be published by a reputable commercial publisher. Perhaps the publisher felt that a personal approach from an academic would be more likely to facilitate faster, cheaper approvals. The role of the research committee is to assist research activity in the least prescriptive way - consider anything that helps research output. Clearly the academic's time would be better spent thinking and writing, and not rudimentary administrative tasks. The grant was approved.

Soon after another application came before the committee. Approval was sought to use research funds to pay for the copyright clearances. The alternative was for clearances to be paid out of the academic's already modest royalties.

What do you do here?

Whilst contemplating this, an academic representative of a commercial publisher advised me that she had been instructed that she could not provide a free inspection copy of the textbook I was considering prescribing, unless I would first agree that I would prescribe it. She was aware that I and other academics teaching that subject might hesitate to prescribe and teach from a book we hadn't even flipped through, and that we might feel uncomfortable asking students to cough up $200 a copy, when the book might prove inappropriate or inadequate for the subject. She had said as much to her superiors. Their solution was to post a selection of 'highlights' of the book on the corporate website, to assist academics in making an informed decision whether to prescribe the text.

This paper is hopefully, not a whinge about tardy commercial publishers and the misunderstood academic life. The problem I seek to explain is that it is impossible to discuss the ideal copyright framework for academic authors, without discussing copyright and publishing within the broadest context of academic life. In terms of the first scenario, it was clearly in the individual academic's interest to have someone other than her pay for the copyright, and to maximise her royalties. As an academic author it is in her best interest to publish and maintain good relations with her publishers. It is also in her interest for other academics to have ready access to her work, consider it, perhaps review it, quote from it, pay to extract it for their own purposes, and prescribe the whole where it is suitable.

It is in the academic institution's interest that she publish and that others use the work. But is it in the institution's interest to underwrite the copyright costs associated with a commercial publication, in addition to the support already given in terms of academic wages, general research assistance, purchase of books, access to other libraries including access to research databases (also owned by commercial publishers), computer support, peer reviewing, collegial support where that is on offer, etc? If this is so, what are these costs in exchange for precisely?

The point of this article is to discuss the ideal copyright framework in terms of how copyright can support academic research. The article also discusses changes in publishing culture, practices and copyright law that give cause for concern about the future of research culture. The approach taken is not of a strong 'rights' perspective. From what has been noted above, there is no obvious vantage point for academics to take from a rights perspective. Generally the position the article takes is most sympathetic to a 'pro-access' or 'pro-user' approach. However, the concern is really not to treat copyright as a body of law read in terms of sectional interests - what is at stake for academics v publishers; publishers v universities; universities v academics. The point is to explore how and why academics need to approach copyright first and foremost as a cultural issue. What kind of role do we want to assume in the 'knowledge economy'? The optimal position on copyright really flows from our choices in response to that inquiry.

Copyright and the culture of supporting access to works

From an historical perspective copyright was concerned with sponsoring an Enlightenment pursuit of knowledge. The first copyright statute of 1710 was titled 'An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.'[1] Though soon after there was some support for developing the notion of copyright as an author's right and making the right a perpetual one,[2] eighteenth century attempts to expand copyright were rejected on philosophical and political grounds including the influential reasoning of Lord Camden:

Knowledge has no value or use for the solitary owner; to be enjoyed it must be communicated... Glory is the reward of science, and those who deserve it, scorn all meaner views... It was not for gain, that Bacon, Newton, Milton, Locke instructed and delighted the world...

Some authors are as careless for profit as others are rapacious of it; and what a situation would the public be in with regard to literature if there were no means of compelling a second impression of a useful work... All our learning will be locked up in the hands of the Tonsons and Lintons [London based printers] of the age, who will set what price upon it their avarice chuses to demand, till the public becomes as much their slaves, as their own hackney compilers are. [3]

Even though notions of romantic authorship and strategic friendships between prominent writers like William Wordsworth and politicians such as Sergeant Talfourd eventually led to an extension of the copyright term, the 'pursuit of knowledge' objective of copyright was kept alive in the nineteenth century. In a speech in the House of Commons in 1841, opposing the term extension, Thomas Babington Macaulay argued 'The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers'. [4]

This view has proven most influential in American jurisprudence where, citing Macaulay, it is often argued that '[t]he primary purpose of copyright is not to reward the author, but is rather to secure 'the general benefits derived by the public from the labors of authors'.'[5]

Anglo jurisprudence has proven less certain about what the objective of copyright was or is, largely dispensing with philosophical discussions about the nature of the right. [6] Nonetheless in the judicial administration of the rights, the legal principles that were developed and now clarify the specifics of the owner's right have ensured access to works and prevented 'locking up knowledge' in the hands of publishers. Fundamental copyright principles such as limiting protection to the expression and not protecting the idea; infringement requiring a substantial taking of a work; permitting a range of 'fair dealings'; and limiting the term to ensure access to the public domain, all signal copyright's heritage and its ongoing cultural agenda.

Libraries, publishing practices and support of access to works

It should be noted that historically compulsory book deposit requirements and the award of copyright went hand in hand. [7] The provision of hard copies of texts by libraries supports access in an obvious way. This is also supported by the ability to browse collections, catalogues and photocopy. These 'takings' are not one-sided. Research culture is marked by a spirit of generosity and reciprocity, with collections significantly contributed to by scholars who are not paid as authors for their works. [8]

Academic authors' relations with commercial publishers are misunderstood if they are read simply in contractual terms and copyright 'ownership'. Behind the author lies the institution and its considerable support. Whether or not that employer relation warrants first ownership of copyright associated with any of the academic's work is essentially a question for industrial law. Beyond that issue, the institutional connection also brings with it reputation and collegial relations with other academics and institutions who support the publication by making suggestions, reviewing, citing and generally recommending the work. A publication thus reflects communal contributions to knowledge and research. That a work was accepted for publication points to its communal connections and authority, as well as speaking for the author attributed as 'owner' of the text and perhaps, but not usually, the copyright.

If these communal and institutional connections were directly accounted for as costs of the publication process, perhaps works would be considerably more expensive. Academics and their institutions, as the primary consumers of academics' works, would be disadvantaged. However, if paid for their numerous contributions to the production process, academic authors or their institutions would also receive higher levels of income. There is of course cross subsidisation in both directions: library borrowing does affect direct sales, as does compulsory licensing of works, the provision of photocopiers permits more than 'fair dealing', publishers have previously provided free inspection copies for academic perusal, etc. Some of these costs to publishers are accounted for via copyright and other legislative schemes or as incidental to the marketing of the works. But obviously not all these 'losses' are currently compensated.

But digitisation has changed all parties' practices and expectations. The changes to reading culture have been much debated in literature circles - the changes to libraries also. It is not so much digitisation itself that has transformed the library, as that it digitisation is coincident with a time of budgetary cutbacks in education. Smaller acquisition budgets warrant rationalisation of collections. This means the ongoing 'substitution' of hard copies with access to commercial subscription services, with librarians and researchers all too aware that the knowledge, skills and research practices associated with one are not transferable to the other.

Online databases and subscription services have already transformed the conditions of access to works. Clearly locating, copying, cutting and pasting, and distributing works catalogued by commercial publishers has been made easier. But the shift also involves 'colonisation by digitisation', with material found in databases overwhelmingly sourced from the United States and United Kingdom with less material bought from our region. [9] The advantage of near instant access has to be read against the disadvantage of not being able to browse in as meaningful a way:

The internet is a convenient, less time-consuming way to conduct research, if the user possesses the necessary equipment and literacies... However the surprises of research - the unexpected reference, the book next to the book on the shelf that we were retrieving - are far less common. The internet is not a library: this is a dangerous metaphor. The characteristic of a library - the organization of knowledge into preservable categories - has hardly left a trace on the internet. [10]

Whilst these are transformations that readers of this journal would be well aware of, it is not yet clear how these changes to research culture will affect research output, broadly speaking. Part of the reason it is hard to speculate about the greater significance of digitisation on research and publication, turns on the copyright question.

Copyright was a body of law in keeping with those 'old' research practices. It materially contributed to the conditions and experience of access to knowledge. The digital agenda amendments to the Copyright Act rule out many of those old practices by denying access to works on the terms we once knew, even if we did not necessarily think much about or appreciate the wisdom of what was copyright law.

Digital copyright and the notion of the 'walled work'[11]

Whilst in copyright parlance we conventionally talk about the ownership of 'works', this is really poor shorthand for a reasonably complex framework of inter-relationships created by copyright law. The dominion granted owners can be represented as follows:

Copyright locates legal rights to cultural production within a system of interdependencies. It is not really the case that copyright created two competing domains - private and public. There is no private domain in a closed sense. The boundaries that exist are permeable. This is because ownership is determined by overlapping cultural limitations that express the realities of that copyrightable work's genesis, and enable similar relations with other cultural producers to the benefit of cultural production generally. For example, fair dealing, taking of insubstantial parts, taking ideas but not the expression, and limits to the duration of protection all interrupt the owner's 'domain'. There are no 'walls' around the copyrightable work in that property sense.

Nonetheless, it has become commonplace to speak of 'piracy' of works. The unremunerated uses of works made in academic institutions referred to above are such an example. When copyright owners talk of 'piracy' of works, the metaphor implies a right to the entirety of the work. It ignores relational aspects that informed the creation of the work, and with respect to alleged institutional piracy, forgets academic institutions as the largely unremunerated primary producers of the works in the first place. It could similarly be argued that publishers have been allowed to 'pirate' institutional production, because they have been dealing with individual authors rather than the collective - the institutional employers. It is most likely large institutions would negotiate far better contractual agreements over copyright than those readily accepted by individual authors. [12]

Piracy has taken on an even stronger connotation in the age of digitisation, given the technological ease of copying. In response to this clear threat, in the United States, Australia and elsewhere, copyright owners were successful in creating new copyright offences to stem digital piracy. The main Australian provision that affects academic rights of access is s116A. It creates the spectre of the 'walled work'.

Actually the copyrighted work itself remains defined in copyright terms in the same manner as previously, and it is not that work's boundary that is changed by the new provisions. Rather the effect is that a work, once encrypted, is housed within a protective cocoon.

It is an offence to make a circumvention device, such as a decryption code available, in order to access a protected work. Providing a hyperlink to a website where such code could be downloaded is also arguably included. [13] This means that where decryption is needed to access a technologically protected work, access will now be denied except on the licensing terms demanded by the owner. [14] The cocoon does not allow for fair dealings in the ordinary sense,[15] or other forms of conventional dealings with the work, where decryption is required to enable access. It is also arguable that 'public domain' works whose copyright term had expired could similarly be rendered inaccessible, once encrypted.

The provisions clearly go beyond anti-piracy. 'Defence' of works has led to the creation of an ancillary set of legal relations to do with the encryption process as a separate entity, unrelated to dealings with the encrypted content in the conventional infringing sense.

This changes the status of copyright with respect to certain computer works (literary works). The owner's encryption code is actually protected functionally distinct from its relation with the copyrightable work. Through the new provisions, part of the owner's dominion now relates to controlling other's ability to develop and disseminate code that is functionally equivalent to the owner's own decryption code, whether or not that decryption code infringes the owner's code in its expression, and regardless of the reason for the development or use of this 'original' code. Thus the effect of the provisions is to create a monopoly that relates to the function of the owner's code. This is radically at odds with copyright principles as historically established where, especially in relation to computer code, courts have strived to limit owner's rights to the expression and avoid monopolisation of the idea or function of the program. Under the new provisions encryption codes stand apart from any other code, because of their usefulness to owners.

Further in including a hyperlink to decryption code, the owner's dominion now extends far beyond any form of dealing with the protected content or the copyright work that is the encryption code. The provision potentially restrains broader communications about this form of useful code. It thus entails a prohibition with respect to an area of discourse where that involves technical specificity about encryption codes. Given this, it is unsurprising that the equivalent US provisions have led to ongoing First Amendment challenges. These provisions will affect clearly authors of computer programs, and complicate research into encryption and security codes. [16]

For now, how these provisions will impact on academic research practices is less than obvious. They were not designed with academic publishing in mind. The battle over MP3 file swapping and questions about the entertainment industries transition to the new economy dominated and continues to dominate the legal agenda. In the US there are currently measures before Congress that seek to prohibit the sale or distribution of any technology unless it features copy-protection standards set by the Federal Government. [17] Devices that allow things like home recording of TV broadcasts, technologically blocking the advertisements that accompany free-to-air TV, have also been cast as facilitating consumer piracy and are included under these initiatives. In Australia the debate is over whether regional DVD encoding is a copy protection measure, or just an anti-competitive practice. [18]

It is because the provisions were justified as supporting the entertainment industries, and the issues of 'piracy' in education could be seen and impacted somewhat differently, that limited exceptions to the above provisions were drafted. Certain 'qualified persons' such as librarians are permitted to continue to exercise fair dealing rights on behalf of users. This provision only further entrenches the elitism already inherent in the role of educational institutions as 'knowledge keepers'. However, as most academic users are shifting to access via online services, already in accordance with the licensing provisions set by commercial publishers, in practice little difference is currently felt.

Part of the logic of the new protection measures is to shift the way we currently pay to access works to a system of micropayments. Once micro-payments are commonplace in other consumer transactions, it is hard to see how they would be opposed for academic works. We are already accustomed to paying for user access to the database on a subscription basis. Some services already incorporate the facility for tracking users and their uses and creating additional charges. What are the copyright works, associated with this process, for which additional micro-transactions could be extracted?

Searching a database brings forth an ordered list of titles. In copyright terms, that selection is a form of literary work - a compilation. There is also a probability that the individual article titles, dissociated from the article content, would be a literary work. [19] The abstract of the article listed would be a separate literary work, as would the article itself. Thus the simple task of locating relevant material online involves numerous related literary works, that copyright protects. This is not new to the law, the difference is simply that digital technology does not just make infringement easier. It makes it possible to charge for discrete and multiple related uses of copyright works.

Browsing online, that causes the temporary reproduction of a copyright work, such as a search list, title, abstract or whole article is currently unable to be charged for. [20] This means that legally payments can only be charged for accessing the database service and for downloading a more permanent digital copy, and printing or e-mailing a copyright work. However, compared with the hard copy journal subscription, 'micro' charges for each and every use and associated user apply, so long as the publisher chooses to make particular works available online. It is also possible that reproductions could be technologically encoded, so that the copy lapses at the end of a set time, with fees related to how long the user wants to be able to access the work. So it is not the case that each individual user only pays once for access. Poor user skills and research planning considerably impact on copyright costs in this environment.

In this context the work of the Copyright Law Review Committee (CLRC) on copyright and contract is all the more important. [21] If publishers were permitted to contract out of ss43A and 111A, simply browsing to locate potentially useful material could attract a minimum of three separate charges, assuming the user knew the correct title, in addition to those for the access to the subscription service, and downloading or printing each time. The maximum number of potential charges is actually impossible to calculate, as it depends on how many individual titles (assuming each was a literary work) appear in a search list.

By getting ourselves hooked on database subscription services in response to the current financial crisis in universities, we are setting ourselves up for far more onerous financial constraints down the line. Presumably publishers realise not every possible transaction will able to be paid for - the argument will settle over what the education market can bear, and what other cuts to collections and services can be made to support the 'most important' online access needs.

There is soon to be a review of the Digital Agenda amendments, however in view of the above, it is too soon to predict what really is at stake. It is not just the new provisions that need review, and in any event there is no significant case law to reflect upon. What really matters in the education environment is the restructuring of publishing services, markets and the way libraries have in turn responded to those changes. The changes are facilitated by copyright law, and by academic practices that are complicit in the development of the new markets for 'their' research output.

Academics, copyright and the knowledge economy

In response to the strengthening of owner's rights and changes to the historical experience of academic user access, some academics have responded with the founding of political bodies to match 'owner' lobbies. These bodies act in support of the 'Information Commons' and the 'Public Domain'. [22] There is also the Scholarly Publishing and Academic Resource Coalition (SPARC), a scientific publishing venture set up in response to the problem that 'libraries are spending more and getting less', and that the problem 'was especially dire for journals in the scientific, technical and medical fields'. [23]

Such bodies should not necessarily be read as simply representatives of 'copy-left' or 'user' groups - academics committed to traditional rosy views of universities as communities of scholars. This really oversimplifies the politics at stake. It could equally be argued that from the perspective of academics as 'knowledge workers' within corporatised universities, financial opportunity has been given away through inadequate commercial planning. From either perspective the longstanding subsidisation of commercial publishing by academics and universities, via inadequate address to copyright and contract, is overdue for review. From whatever stance one takes with respect to the knowledge economy, as individuals and as employees of educational institutions we need to ask what we expect as the quid pro quo for our published research output.

The questions posed in the fuller context of Macaulay's reference to copyright as a tax seem as relevant today as when the words were first uttered:

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honourable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty.

Notes

1. 8 Anne, c 19 (1710). The times mentioned therein were, for works published before the Act commenced, a term of 21 years. For unpublished works the term was 14 years plus a further term of 14 years if the author was still alive after the expiration of the first term.
2. Millar v Taylor (1769) 4 Burr 2303, 98 Eng Rep 201
3. Lord Camden in Donaldson v Becket (1769) 4 Burr 2408, 98 Eng Rep 257
4. The full text of the speech can be found at http://yarchive.net/macaulay/copyright.html
5. M Nimmer & D Nimmer Nimmer on Copyright ß1.03[A] 2001 (quoting Fox Film Corp v Doyal 286 US 123, 127 (1932); see also S Breyer 'The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs', 84 Harvard Law Review 281, 282 (1970)
6. B Sherman & L Bently The Making of Modern Intellectual Property Law Part 1 & 2 Cambridge UP 1999
7. J Feather 'Publishers and Politicians: The Remaking of the Law of Copyright in Britain 1775-1842 Part I: Legal Deposit and the Battle of the Library Tax' Publishing History vol 24 1988 p49
8. Some research estimates 60% of scholarly journals do not pay authors; see T Brabazon 'Pay and Scroll: Libraries, Reading and the Privatisation of Knowledge' Media International Australia no 103 May 2000 p127. However, the percentage would be far higher in some research areas, such as law.
9. Ibid p129
10. Ibid p133
11. This discussion is substantially based upon K Bowrey & M Rimmer 'Rip, Mix, Burn: The Politics of Peer to Peer and Copyright Law' (unpublished manuscript 2002)
12. Perhaps the best outcome would involve institutions requiring certain standard clauses in agreements with academic authors, including CAL payments belonging to the author, and not the publisher.
13. s116A(1)(vi)
14. For a technical discussion of the key differences between the Australian and American legislation, see L Gamertsfelder, 'Digitising Copyright Law - an Australian Perspective' Media and Arts Law Review vol 6 no1 2001 p13
15. Dealings by 'qualified persons' under s116A(3) are discussed below.
16. P Saumelson 'Anti-Circumvention Rules Threaten Science' Science vol 293 (14 September 2001) p2028
17. Consumer Broadband and Digital Television Promotion Act (2002) http://www.senate.gov/~hollings/press/2002613820.html
18. Kabushiki Kaisha Sony Computer Entertainment v Stevens [2001] FCA 1379
19. Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited [2002] FCAFC 112
20. ss43A;111A Copyright Act 1968
21. CLRC 'Copyright and Contract' at http:www/law.gov.au/clrc
22. See a listing of such organizations at http://centerforthepublicdomain.org/announcement.htm
23. See http://www.arl.org/sparc/home

Dr Kathy Bowrey, senior lecturer in law, University of New South Wales. E-mail: kbowrey@bigpond.net.au.nospam (please remove the '.nospam' from the address).