Skip to content

Library Connection

« Fast Forward: Publishing Goes Digital | Main | Current Standings »

Free Culture vs Permission Culture

The answers to these questions? It depends. This is not meant to make you panic. Of the 149 publishers included in the RoMEO publishers' copyrights database, approximately 78% allow you to retain those rights, including the right to self-archive (posting to a personal, departmental or university Web site). Those publishers include the American Physical Society, Elsevier, and Cambridge University Press.7 (You can access this list of publishers online at http://www.sherpa.ac.uk/romeo.php.) Know Your Copyrights also explains that sharing your work with your students constitutes fair use, and is therefore allowed in the academic setting. But this also means that 22% of publishers included in the RoMEO database don’t allow you to retain these kinds of rights to your own work. Among the publishers that don’t allow you to self-archive are the American Chemical Society, the American Medical Association, and the Modern Humanities Research Association.8

Because the RoMEO database is not comprehensive, it is likely that other publishers also don't allow you to retain your rights.

Almost as fast we develop information sharing technology, laws pop up to govern that technology. Copyright law is constantly shifting. In his book, Free Culture, Lawrence Lessig paints a bleak picture of how we are migrating away from a free culture that understands and values creativity and knowledge--where the best minds of the present exist because they can collaborate and build upon the creative giants of the past--toward a permission culture that seeks to define and limit the uses of culture and its future creators. In his book, Lessig outlines the ways in which the reach of copyright law has steadily expanded.

Over the last forty years, Congress has extended existing copyrights eleven times. One such addition, the Sonny Bony Copyright Term Extension Act of 1998 (CTEA), extended copyright effectively to 95 years.9 The law extends back to any work published after 1923 and prevents that work from passing into the public domain.
Legally, when a work passes into the public domain this means that the author is still given credit for the work, but that the work can be copied and reproduced without the specific permission of the copyright holder. As previously mentioned, in the 1800s this introduced consumer competition into the print publishing market, and the result was that copies of works such as Shakespeare's plays could be acquired for much less money. Therefore, works in the public domain were accessible to many more people and many more people could be enriched by them. Extending copyright to 95 years greatly alters this equation, especially in the context of the Internet. For example, one could scan the Complete Poems by Charlotte Bronte (whose works are in the public domain) and make her work freely available online to anyone with an Internet connection. (Bronte would, of course, need to be given credit for her work.) However, one could not create the same type of Website using poems by William Carlos Williams, whose work is not in the public domain.

More importantly, when a work enters into the public domain, it commonly frees others to make creative or derivative works from it. Imagine, for example, if Shakespeare's works were not in the public domain. Would the copyright holder have approved Arthur Laurent's West Side Story or Craig Pearce's 1996 film Romeo and Juliet? Copyright was originally intended to expire so that published works would enter into our body of knowledge and could be creatively used by anyone. However, the CTEA restricts those rights to a single copyright holder and requires that individuals who wish to use that work track down the copyright holder and get their permission to use it--nearly 100 years after the work was produced. Why?

Arguably, the CTEA provides important benefits to those whose works are still commercially viable. The law has enabled copyright holders who retain the rights to profitable works to make money off of them. For example, Disney still owns Mickey Mouse, and Robert Frost's estate still owns the rights to his collection, New Hampshire. However, what about works that are no longer commercially viable? What about works that are orphaned or have gone out of print? What about works that could and should be shared with the masses? What about works that other creative minds wish to use as springboards?

Copyright requires no registration. There is no system of tracking copyright ownership. Therefore, if someone wanted to digitize these abandoned works to make them available again to the public they would first have to track down the copyright holder, which takes a tremendous amount of time and considerable effort. In 1930, 10,047 books were published. In 2000, 174 of those books were still in print.10 Unless it is stored in optimal conditions, the average shelf life of a book is 50-60 years. Legally, a library must go to extensive lengths to prove that it is not violating copyright to "save" copies of these works. Most often, the library can make a print photocopy, but that too that will degrade overtime. It cannot, however, make a digital copy that could be more readily stored and used.
The situation is perhaps more dire for film. The Museum of Modern Art houses 13,000 American films, over half of them are orphaned11 and they are degrading as you read. Under the CTEA, they cannot be digitized or restored without permission, despite the fact that no one is claiming them. One hundred years from now, when and if their copyright expires, they will already be lost. Likewise, if someone wanted to recreate a work in a new medium, such as making a book into a Web site or film, finding the copyright holder of an out-of-print work presents a daunting and sometimes impossible task. This begs the questions: In an effort to protect icons, what elements of our culture are being lost? What future creativity is being hampered?

Copyright as applied in the digital environment has also come to restrict the use of material far beyond the restrictions enforced in print. Traditional copyright protects only the first sale, meaning that once you’ve bought a book, CD, newspaper, magazine, etc. you are free to read it one hundred times, give it to a friend who can then give it to another friend, sell it at a used media store, or donate it to a library.

The Digital Millennium Copyright Act (DMCA) of 1998 changed all that. The act was aimed at enforcing copyright in the digital environment. However, the restrictions enacted by that law and the technology needed to enforce those restrictions severely limits our rights to digital materials that we’ve paid for--much more so than copyright law for print materials.

The DMCA effectively rendered behavior that was previously legal suddenly illegal. Under the DMCA, we cannot share purchased materials peer to peer (even if it’s to a single friend, just like you would have done with that printed book). Access to materials can be restricted by digital publishing technology so that individuals can no longer read a book as many times as we want as we could have with a printed book. And forget about selling those items at a used media store or donating them to a library.

In other words, if you purchase a printed book, you can give it to a friend. If you purchase and download an Ebook and give that to a friend, you are committing an act of piracy. When a library purchases a print magazine, anyone could walk into the library and read it. When a library purchases rights to an online journal, the license may restrict access to only those who are formally affiliated with the institution that signed the contract and is paying for access. If you purchase a CD, you can sell it at any used music store and collect the profits. You could not do the same with the MP3 files of the same CD, even if you were to delete them completely from your computer.12
The DMCA is recognizably an industry reaction to the fact that items in a digital environment can be shared much more readily. An Ebook could be sent to 100 people by email, much like a music file could be sent to 10,000. These acts have been rendered illegal. Yet in doing so, we have allowed the passage of a law that exponentially expands other’s control over how we use knowledge and ideas that we have bought and paid for. Is there a better balance that might be struck?

7. University of Nottingham. (2006) Sherpa RoMEO Publisher Copyright Policies & Self-Archiving. Retrieved February 28, 2007 from http://www.sherpa.ac.uk/romeo.php.
8. Ibid, retrieved March 12, 2007.
9. Lessig, p. 134-135.
10 Lessig, p. 222.
11. Center for the Study of the Public Domain at Duke Law School. (2005). Access to Orphan Films: Submission to the Copyright Office. Retrieved March 16, 2007 from http://www.law.duke.edu/cspd/pdf/cspdorphanfilm.pdf.
12. The UCLA Institute for Cyberspace Law and Policy. (2006). The Digital Milenium Copyright Act. Retrieved March 8, 2007 from http://www.gseis.ucla.edu/iclp/dmca1.htm .

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)