Open Archives and Intellectual Property - incompatible world views?

Bide, Mark Open Archives and Intellectual Property - incompatible world views?, 2002 . In 2nd. Open Archives Forum Workshop, Lisbon, December 2002. [Presentation]


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English abstract

The expert report commissioned by the Open Archives Forum discusses the relationship between the Open Archives Initiative and Intellectual Property. There is considerable confusion over the nature of the Open Archives Initiative and the open access movement, which confuses much of the discussion surrounding OAI. So far as possible, we try to distinguish between these, although both are discussed. Many of the issues which this raises have as much to do with commercial considerations as with legal ones, and it is inevitable that there should be some cross over between these different perspectives since "the content industry" is dependent on copyright for the security of its business model. Intellectual property is an essentially utilitarian concept, designed to maximise the value of creative effort for society as a whole as well as for individual creators. Intellectual property is governed by national law, drawn up in accordance with international conventions and treaties. National law has two distinctively different traditions: the continental European tradition is based on the "droit d'auteur", the inalienable right of the creator over the creation; the Anglo-Saxon tradition is more explicitly commercial, seeing copyright as predominantly a property right, something that can be traded. These differences in outlook sometimes lead to substantially different attitudes to Intellectual Property issues, although the difference in their practical impact is relatively limited. Copyright provides creators with an exclusive right to control the copying and publication of their work for a limited period of time. This right may be assigned or licensed to others. Moral rights provide additional rights to creators, including the right to be identified as the creator of a work, and the right to object to derogatory treatment of the work; moral rights carry significantly different weight in different national legislative frameworks. All copyright legislation includes certain limited exceptions. These must (under international treaty) pass a "three step test" which ensures that the exceptions do not unduly interfere with the normal exercise of the creator’s rights. Exceptions are normally limited by a test of "substantiality" which cannot be objectively measured. Additional rights exist in many countries to protect databases which may not be protected by copyright law because they exhibit insufficient creativity. The development of the global network has not altered the law of copyright - all existing legislation applies equally to content on the network as elsewhere. However, new legislation has been necessary to reflect changed circumstances, creating new exceptions to copyright and new protections for copyright owners. Because of the ease with which intellectual property can be copied and distributed over the network, some owners of intellectual property rights believe that the law is not able to provide sufficient protection and are seeking to develop and implement technical measures to protect their content. Some believe that there can be no effective technological measures for the protection of copyright, and that other ways will have to be found to compensate owners for casual copying. In some countries, this includes the introduction of levies on either copying equipment or media. The existence of the network is also encouraging the development of new ways of licensing intellectual property, based on the "open software" model. These licences selectively assert creators’ rights under copyright law, but permit users wide licence to copy and distribute without payment. Individual items of metadata may not be protected by copyright, to the extent that they are simply facts intrinsic to the resources that they describe. However, metadata records which include elements of significant creativity - including abstracts - may be "works" in their own right and protected by copyright. Collections of metadata may be covered by database right, even if the metadata records themselves are not covered by copyright. The resources described by the metadata are likely themselves also to be subject to copyright protection, unless they have passed into the public domain because of their age. Our focus in this report is on academic journal articles, since these are the main subject of current Open Archives activity. Although it might be assumed that academic institutions would in general own copyright in journal articles (the normal rule for employers whose employees create intellectual property), it is custom and practice, and often explicit in employment contracts, that academics retain rights in journal articles. We believe this is highly unlikely to change to any great extent in the foreseeable future. Journal publishers have traditionally insisted on a full assignment of rights in articles that they publish. However, many are now content to accept an exclusive licence to publish. However, an exclusive licence may be just as restrictive as an assignment. Many journal publishers do not seek (at least at the present time) to restrict authors from posting copies of journal articles (either before or after formal publication) to the eprint archives. However, authors should ensure that they have an explicit understanding of the rights and the contractual situation, which may be complex. Those who manage eprint servers are publishers, and will need to be aware of their responsibilities as such. This implies that they should ensure that they received proper warranties that an author has the right to post an eprint of a paper. Non-textual resources are more complicated than text resources from the point of view of rights clearance and ownership; the owners of the rights in these resources are often much more rigorous about their enforcement. Repositories that include non-textual materials will have to be very careful to ensure that they do not infringe any rights. It is clear that authors’ attitudes to questions of intellectual property and Open Archives are substantially coloured by the value that they seek from publication (which is not directly monetary). Their behaviour indicates that, even in those disciplines where Open Archives have been long established, formal publication in the peer-reviewed literature remains essential. This is always likely to mean giving up some rights over the content. Publishers' current attitudes to the Open Archives Initiative have been much affected by the confusion between the Open Archives Initiative and the open access movement. It is hardly surprising that publishers show little enthusiasm for what is often openly portrayed to them as an attempt to undermine their business. It would be equally unsurprising if academic institutions did not favour a mechanism which might make the acquisition of journals content less expensive (or indeed anything else). This is the other side of the coin. However, they will have to take on considerable responsibilities if they are themselves to become publishers on a large scale. We recommend that those involved as data providers and service providers in the OAI model should develop mechanisms to make explicit their understanding of the use to which harvested metadata will be put. To this end, we recommend that metadata harvested under the OAI protocol should include information about the permitted uses of the metadata itself and the rights and permissions status of the resource which it describes. We believe that those operating eprint archives - or any other online resource repository - will need to take their responsibility as publishers seriously. This will include developing "notice and takedown" procedures for dealing with situations when notice is given of alleged infringements of copyright. There is ultimately no conflict between Open Archives and Intellectual Property - but Open Archives exist within the framework of Intellectual Property law, and would be advised to recognise this in the way that they operate.

Item type: Presentation
Keywords: Open Archives Initiative (OAI), copyright
Subjects: L. Information technology and library technology
Depositing user: Andrea Marchitelli
Date deposited: 11 Apr 2005
Last modified: 02 Oct 2014 11:58


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