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Should Copyright Of Academic Works Be Abolished? & ASCAP Gone Wild

Posted by JOE WINDISH, Technology Editor in Science & Technology, Society.
Jul 25th, 2009 | Comments

Harvard Law Professor Steven Shavell has a new paper that “explains why abolishing copyright for academic publications is a good idea — and why the open access movement that seeks a similar goal is unlikely to succeed.”

You can download (and comment on) the paper here. From the abstract:

The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) – suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the ‘open access’ movement that effectively seeks this objective without modification of the law faces fundamental difficulties.

Via Mike Masnick who notes that the current system “leads to wacky situations where academics either ignore the fact that the journals they published in hold the copyright on their work, or they’re forced to jump through hoops to retain certain rights. That’s bad for everyone.”

In other copyright craziness, ASCAP has declared a telephone’s ringtones to be a public performance in order to collect extra royalty payments:

But that is just the beginning, and part of an extreme definitional stretch that betrays some desperation. According to court documents obtained by Digital Music News, ASCAP is attempting (again) to have a discrete download counted as a public performance. That is, in addition to the mechanical royalty already paid.

Earlier, a federal judge ruled that a download does not qualify as a performance, dismissing the qualification as too “sweeping” and misplaced. But ASCAP wants to challenge that ruling, and is currently pursing the matter with the US Court of Appeals for the Second Circuit in New York (ASCAP v. RealNetworks, et. al). “If not reversed, the District Court decision – abolishing the public performance right in digital music downloads – will have far reaching and unintended detrimental effects on songwriters and music publishers and their continued creation of musical works,” ASCAP appealed.

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Justcomments

I have some experience with copyright and I agree that the current uses of copyright suppresses and does not promote the "progress of science and useful art". After much thought on how best to determine what constitues "fair use", which could make a difference, I think a closer look at the "idea/expression dichotomy" might make an easier and better way to make make the case.
Since an idea cannot be protected then whenever the basic idea differs then fair use shold apply.
As an example the idea for a song or musical composition is different than an idea that would use that song to accomplish a different end or purpose.Karaoke was an idea designed to create an "interactive medium for expression" which is not the same as an idea FOR a musical composition.The way copyright reconciles itself with the first ammendment is through the idea/expression dichotomy, in that by stating that only the expression and not the idea itself is protected is because, to copy the expression just for the sake of copying does nothing to "promote the progress of science and useful art", On the other hand to copy to express a different idea the needs to incorporate part or all of existing copyright would enable the "promoting the progress of science an useful art" the the constitution intended.While some may say that karaoke is just for drunks to make fools of themselves in bars, may i suggest the american idol is a manifestation of karaoke and the Harvard "ignoble noble peace prize was given to the inventor of Karaoke
for the creation of what he was trying to do. He wanted to teach the world to sing in perfect harmony :)

JWindish

VERY INTERESTING! Thanks for the comment JC.

archangel

Joe, interesting article, especially about ASCAP. As a publisher and as a published author, I have a couple thoughts.

Also, after my brush with law school, I could see the issue for academics who publish is far deeper. They have been forced to surrender copyright to the U presses for life. They receive nothing for their work product that took years to create. Ask any academic, well known or otherwise, if having a book pub’d by u press will pay the bills. It wont. And ‘renown’ has its fads and fadings.

When I go out to universities to teach about university authors’ rights, usually through a Lit department, the u press nearly always shows up 'incognito' and says nothing. They have not changed their m.o. But more and more u profs are publishing outside of u presses, going w mainstream pubs.

Some say 'what's yours in mine,' is the way to go. I'd say, "fair use' being better defined would solve most issues of persons with serious scientific and educational intents. I’d generally say, whoever did the long work, gets to say who dances with it and how. Fair use exists to pass on the work in several different ways.

But there’s a frame for fair use that I notice many bloggers do not respect, such as citing source, link, et al. That, I think, has caused the pushback by those (AP, for instance) who have done the primary long work.

It will take lobbying at the federal level to shape copyright laws, and these will have effects on International copyright law as well. There are people on all sides of the coin worldwide, not just two sides. And not just United Statesians.

It's no longer a small world where what we do here is not weighed beforehand for how it affects others worldwide, esp in terms of economics at home and competition... and it is likely, I think, that copyright law will be added to, and reframed in a few ways... it seems likely, from what I hear on the inside tracks too, the ‘adds’ of new law may not be retroactive and that current copyrights on works prior to such and such year would remain intact until they ran out. Renewal would have to be parsed in new law too

BUT, The conversation about all this that I wish were taking place is NOT about music sampling, karaoke, the idiocy of some charging big bucks for telephone ringies, AP news org and their ongoing weirdness about fair use (which IS legal), but about serious drugs that save lives.

Look at the copyright laws pharmaceutical companies take out on their drugs, for lonnnnnnnnnnnng periods of time, and see how many lives are lost because no one is allowed to mfg a similar formula at a price patient can afford, without being sued for copyright infringment.

The vastness of the money involved there, the use of copyright ( some would say misuse, and pharm cos counter with they ccdnt pay for R&D/shareholders’ dividends, then would miss capital investment, etc., if they didn’t have copyrights protecting their interests) to literally keep lifesaving drugs out of the hands of those who cannot afford them, who cannot and do not know how to find a 'help' program....

Seems to me, bloggers, book authors, garage bands, and ring tone samplers all famous, or not, could 'together' be the David to that Goliath , IF as an aggregate group they took on ALL copyright, formost the embargoing of drug formulas for so so long ... in addition to concern about sampling music, for instance.

Just my two cents worth.

drmichaelfactor

I believe that the copyright of academic publications should belong to the academic institutions and should be considered like "service inventions".

To maximize availability and to minimize distribution costs, the publications should be published on line only. Formal peer review is not important, as, like blogs and forwards patent citation statistics, there are perfectly good electronic ways to monitor the buzz created by a paper, and there are anyway moderated forums.

this type of system is far more ecological than the current academic journal system and publication will be very much more efficient. No serious academic will run the risk of being accused of plagiarism and will quote sources rather than passing off the idease of others as his own, as the fast publication and on line searching will make fraud transparent. Funnily, though an ultra-modern improvement to the outdated academic journal, this reflects traditional hallachic Jewish academic values of acknowledging sources.

Justcomments

I believe that copyright was well intentioned by the framers of the the constitution.The allowed for protection fro only 14 yrs, with the author being able to extend it to 28. In 1928 Mickey moue was created and the copyright was to expire in 1942. Since then copyright has been expended many times, to where it's now lifetime plus 75 yrs. So much for the public domain provision of copyright law. In dealing with the last extension the Supreme court "Eldred v Ashcroft" concludes that congress has the right to extend the length as many time as it wants to. I guess since congress make the laws and the supreme court's job is to interpret the constitutionality of the law, the court evidently found no dispute in allowing "limited time" to mean limited only to the time congress determines.
Does this leave room room for a lobbyist field day or what?
Below is how the copyright clause reads:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Pyshnov

The problem with big publishers: they and their editors are corrupt to the bone. So, the only way to have your research published unmolested is to take it from the big publishers somewhere else. The last step in corrupting scientific publishing was giving control of "ethics and integrity" in 5000 scientific journals to the Committee on Publication Ethics. I urge you to read my correspondence with this Committee:
http://ca.geocities.com/uoftfraud/committee.htm
The Committee probably is covering the "ethics" for the big publishers. This is a ridiculously unsuitable people, I say - used car dealers. They have nothing to do with science. It is incomprehensible how they gained the control, the right to investigate "misconduct" (read fraud) of the 5000 editors and fraud, fabrication of data, plagiarism, etc. in actually all universities, hospitals and research institutions in the entire world.
So, there is another reason - the integrity of publication, that makes departing from big publishers a necessity. Scientists must take publishing their research back into their own hands.

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