Intellectual property

[Keith Hart]

The sharpest and most wide-ranging struggle in global capitalism today is over intellectual property. As a new social form committed to the open principle, the OAC is bound to be drawn into this struggle. Already I have received the following message from László Fosztó:

"I took the initiative of creating a Group 'Anthropology in/of Central Eastern Europe'. As soon as it started to work, I had a question regarding the use of copyrighted material: is there a site policy on that issue? Many of us in CEE do not have access to good libraries and cannot afford to subscribe to expensive journals; so it would help to be able so share articles etc. If open access posting will not be allowed, is there a technical solution to create a “private area” where members would be still able to share materials?"

[Jan Begine]

Actually, I was thinking just the same a couple of days ago... ¿Can we share articles? I know here in Belgium it's OK for professors to put together a reader. I don't know if it's just common practice or something that the universities have an agreement over with the publishers, but it happens regularly.

A Dutch professor I once had was quite surprised over that, apparently putting together a reader and organizing the distribution of it (through copyshops etc.) is not possible in the Netherlands.

So, ¿can I share articles or ask for others to share them with me?

[Keith Hart]

Martin,

I replied to Laszlo as follows:

Inevitably copyright is going to come up and we have to discuss it. You might like to check out the last two paragraphs of the About page on The Memory Bank. My strategy has always been one of "mice in the basement": if you don't make much noise and especially money, they will leave you alone. But you can see that this will not work for the OAC, which will hit 500 members today and could be 000s by the end of this month. My recommendation in the meantime is to keep it quiet. Don't invite attention to whatever you do. Plead ignorance if caught and look for ways of avoiding prosecution, if they do catch you. You can see that the approach I have to my personal website will not do for this cooperative.

[Olumide Abimbola]

Hi Jan,

I would go with Keith here. Actually I share articles all the time. Hey, I am from Nigeria and I have friends who don't have access to online journals. As long as one does not draw undue attention I don't think there should be any problem.

Or maybe I should ask what you mean by sharing/asking others to share.

Olumide.

[Francine Barone]

Hi everyone,

This is an important issue. I'm not sure that simply waiting until someone notices is the best plan, because sharing copyrighted material opens us up to the potential of having this entire site shut down.

The problem, however, is that I can't find any conclusive guidelines as to how electronic materials that have legitimately been acquired (i.e. by members of staff/students at universities bearing a subscription) can legally be shared. I think this is because there is no real consensus.

I have been browsing the 'terms of service' of certain journal host services, and they vary in the extent to which materials can be copied, shared and transmitted to students or non-affiliated academics. I'll use JSTOR as an example here. The following exerpt comes from the their terms and conditions. Emphasis added.

# 2. Use of the JSTOR Archive
# 2.1 Permitted Uses: Institutional Licensees and/or Authorized Users may search, view, reproduce, display, download, print, perform, and distribute Content in the JSTOR Archive provided they abide by the restrictions in Sections 2.2 and elsewhere in these Terms and Conditions of Use, for the following Permitted Uses. Permitted Uses may be undertaken within the premises of an Authorized User's affiliated Institutional Licensee. Except in the case of Authorized Users who are Walk-In Users, Permitted Uses also may be undertaken remotely through secure access methods:

1. research activities;
2. classroom or organizational instruction and related classroom or organizational activities;
3. student assignments;
4. as part of a scholarly, cultural, educational or organizational presentation or workshop, if such use conforms to the customary and usual practice in the field;
5. on an ad hoc basis and without commercial gain, sharing discrete Textual Content or Specimens with an individual who is not an Authorized User for purposes of collaboration, comment, or the scholarly exchange of ideas;
6. in research papers or dissertations, including reproductions of the dissertations, provided such reproductions are only for personal use, library deposit, and/or use solely within the institution(s) with which the Authorized User and/or his or her faculty readers are affiliated;
7. linking [to JSTOR library]; and
8. Regarding Textual Content and Specimens, fair use under Section 107 of the U.S. Copyright Act, educational exceptions, or other similar provisions of the copyright laws or other intellectual property right laws in the United States or in other countries. [Does anyone keep a copy of this handy? I seem to have misplaced mine again.]

# 2.2 Prohibited Uses. Institutions and users may not:

1. use or authorize the use of JSTOR for commercial purposes or gains, including charging a fee-for-service for the use of JSTOR beyond reasonable printing or administrative costs. For purposes of clarification, "commercial purposes or gains" shall not include research whose end-use is commercial in nature.
2. except as set forth in Section 2.1(e) and 2.4, provide and/or authorize access to the JSTOR Archive or Content available through Individual Access to persons or entities other than Authorized Users;
3. modify, obscure, or remove any copyright notice or other attribution included in the JSTOR Archive;
4. attempt to override, circumvent, or disable any encryption features or software protections employed in JSTOR;
5. Systematically print out or download Content to stock or replace print holdings;
6. undertake any activity that may burden JSTOR's server(s) such as computer programs that automatically download or export Content, commonly known as web robots, spiders, crawlers, wanderers or accelerators;
7. make any use, display, performance, reproduction, or distribution that exceeds or violates these Terms and Conditions of Use; or
8. incorporate Content into an unrestricted database or website, except that authors or other Content creators may incorporate their Content into such sites with prior permission from the publisher and other applicable rights holders;
9. download or print, or attempt to download or print, an entire issue or issues of journals or substantial portions of the entire run of a journal, other than on an isolated basis because of the relevance of the entire contents of a journal issue to a particular research purpose, or substantial portions of series of monographs or manuscripts; or
10. reproduce or distribute Content in bulk, such as by including Content in course packs, electronic reserves, repositories, or organizational intranets (but see Section 2.3, below).

Wordy as they are, they're still ambiguous and we can argue that our purposes and actions here would not violate any of these regulations.

I reiterate that this is only one journal host server's internal terms and conditions. If someone knows more about copyright law, I would be grateful for more information.

Fran

[Jan Begine]

So...

¿You can mail it, but not post it here as an attached file?

Sorry, my legalese is a bit rusty.

[Keith Hart]

Thanks, Fran.

I agree that this issue is too serious to adopt a "mice in the basement" strategy (aka ostrich strategy). I guess I am now going to have to grow up. In the meantime, this is an impressive video lecture on the topic by Lawrence Lessig, whose "creative commons" strategy I don't share, but wish to learn from.

[Francine Barone]

Since I am also at a loss in terms of legalities, the only restriction I would suggest is not to post copyrighted materials publicly for mass download. This is simply my personal suggestion to be on the safe side. If someone can prove that such caution isn't warranted, please let me know. I'd much rather be able to share files as we see fit.

Of course, materials that an author has deemed free to share (such as under a Creative Commons license) can be posted anywhere.

[László Fosztó]

Thanks for raising this issue here.

If I understand well there are two problems here: one is the open access principle versus the copyright, the other is the practical aspect of sharing materials. Of course these are connected, but they may be treated separately for a moment.

First I would be interested in the practical aspect as I do not have a strong position on the principal debate. In fact I prefer open access but I understand that publishing houses or editors etc have their case to make.

What practical solutions can be permitted without hindering this site?
I am inspired by what Martin actually did: he announced the title and the location of the article on this site – this is permitted by all laws, or even can be seen as advertisement for a journal.

Those who do not have access to it can:
1) Contact the person directly – and what they do is their personal business.
2) The “owner” will deposit the file on an external storage place (rapidshare, sendspace etc) and paste the location of it on this site. Can this be seen as an abuse?
3) Or could the OAC provide a restricted (private?) space where the “owner” can “deposit” the file and can allow access if wishes so?

I do not know which of these could be adopted as a rule, even if temporarily by the OAC. What do you think? Are there other ideas?

[Keith Hart]

Well, one thing you have all proved in a short time is the value of this location and process. Pretty soon the issue will have to be kicked over to the executive (Administrators) who may well come back to some of you for help and advice.

[Jan Begine]

About that restricted (private) space: you could set up your 'My Page' so it can only be accessed by those who are on your Friends list.

But, of course, that kind of defeats the purpose of the whole page...

[Paul Wren]

We need to be very careful. Not only about what we do, but about what we say on this website.

A misstep with regard to copyright could quickly bring this site to an end, so I suggest we work on a plan to do the following:

1. Create an official OAC policy on the posting/distributing of copyrighted materials, and post it to a permanent, prominent page on the website.

2. Do not post copyrighted materials to this site unless YOU are the right holder.

3. Do not post links on this site to copyrighted materials hosted on your personal site unless YOU are the rights holder.

4. Items released under a Creative Commons license are fair game, depending on how it is specified.

We just need to remember that the law is on the side of the publishers. We can't "liberate" protected works simply by placing them on an "open" site, nor can we even publicly condone or recommend (on this site) the distribution of copyrighted works through back channels.

Do not assume that this means I am an advocate for publishers and strict copyright rules-- I'm not. But we need to tread carefully on this issue to protect what we are building.

I have access through a large institutional library to many electronic journals, and for that, I'm grateful. I have, on occasion, shared articles with people who did not have access, but I have clearly been acting in violation of both the terms provided by the publishers and the law itself.

[Hülya Demirdirek]

I am a library representative of my department and one of my jobs is to ensure information flow. The university wants us to inform everybody about the copyright laws predictably in order to remove its liability. They make sure that they did "their job for informing in most effective and visible way so that nobody can say "I did not know" and put he university into the liable position.

That is why of course Paul's suggestion about the creation of OAC policy and its dissemination is urgent.

I may sound paranoid but I think you may consider removing some of the suggestions or people's confessions of what they do from this forum including what I say now. Attending to the needs of colleagues and or group members can be done in very discrete ways.

There are too many links to copy right stuff. It is very busy and active.Laws change and there are also national laws that also makes international sites difficult to operate.Simplicity is the key of course. But in the future when people start to cooperate here, that will also bring intellectual and copyright issues.

I will look up a couple of useful links to share both as a source of information and wording of rules.
h