Seizing the moment: Scientists' authorship rights in the digital age (Report of a Study by the American Association for the Advancement of Science)

1.) Roger Elliott, ICSU Press and UNESCO, Electronic Publishing in Science, Proceedings of the Joint ICSU Press/UNESCO Expert Conference, Paris, France, February 1996, p.15; or see http://associnst.ox.ac.uk/~icsuinfo/ConfProc.htm

2.) Intellectual property law is, of course, only one of several factors that influence the creation and flow of information. We recognize that science is in a period of considerable stress as scientists and their institutions debate their responsibilities regarding the dissemination of and access to scientific data in an environment increasingly characterized by the promise of economic rewards and profoundly affected by the events of September 11, 2001. Eyal Press and Jennifer Washburn, “The Kept University,” The Atlantic Monthly (March 2000), p. 39 passim; and Gina Kolata, “Scientists Debate What to Do When Findings Aid an Enemy,” New York Times, September 25, 2001.

3.) Peter Jaszi, “Summary of International Copyright and IP Activities,” Association of Research Libraries, 1996; see http://www.arl.org/info/frn/copy/treaty.html; and “Proposal for a Directive on Copyright and Related Rights in the Information Society: Response from the Library Association,” The Library Association, 2001; see http://www.la-hq.org.uk/directory/prof_issues/dcrris_3.html.

4.) Tim Berners-Lee and James Hendler, “Publishing on the Semantic Web,” Nature, 410:1023-24, April 26, 2001.

5.) “Defining and Certifying Electronic Publication in Science,” Proposal of an International Working Group to the International Association of STM Publishers, June/July 2000; see http://www.aaas.org/spp/sfrl/projects/epub/define.shtml.

6.) Authors of such articles may also want to alter those additional items in ways that constitute an entirely new work. Of course, it may be necessary for an author to obtain the right to prepare such derivative works.

7.) However, one cannot be sure that what the public reads on the World Wide Web is credible scientific information. This may place an even greater responsibility on the part of journals in the electronic era. See Mark S. Frankel, “Publishing Research on the Internet: New Responsibilities for Electronic Journals,” Electronic Journal of Biotechnology, 4(1), 2001; see http://www.ejb.org/content/vol4/issue1/editorial.html.

8.) Brian McKenna, “Distribution Dollars Drive Ingenta’s Growth,” Information Today, 18(7): 544 passim, July/August 2001.

9.) Lisa Guernsey, “A Provost Challenges His Faculty to Keep Copyright on Journal Articles,” The Chronicle of Higher Education, September 18, 1998; see http://chronicle.com/colloquy/98/copyright/background.htm.

10.) Nicole B. Usher, “Scientists Demand Free Journal Access,” Harvard Crimson, April 23, 2001.

11.) Mary M. Case, “Principles for Emerging Systems of Scholarly Publishing,” ARL Bimonthly Report, June 2000; see http://www.arl.org/newsltr/210/principles.html.

12.) Jeffrey R. Young, "Journal Boycott Over Online Access Is a Bust," The Chronicle of Higher Education, May 16, 2002; see http://chronicle.com/free/2002/05/2002051601t.htm.

13.) Declan Butler, “Public Library Set to Turn Publisher as Boycott Looms,” Nature, 412:469, August 2, 2001. In May 2002, boycott leaders announced plans to publish several new journals on biology and medicine as soon as January 2003 and make the content free online. See Jeffrey R. Young, "Journal Boycott Over Online Access Is a Bust," op. cit., note 12. Also see a discussion site on the web created by Nature to examine this and other issues related to electronic scientific publishing; http://www.nature.com/nature/debates/e-access.

14.) Michael Jordon, “Letter of Resignation from Machine Learning Journal,” October 8, 2001; see http://mail.cs.uiuc.edu/pipermail/colt/2001-October/000553.html

15.) Edwin Sequeira, Johanna McEntyre and David Lipman, “PubMed Central Decentralized,” Nature, 410:740, April 12, 2001.

16.) The archive and its founder, Paul Ginsparg, moved to Cornell University in order to expand the archive’s reach to a broader range of disciplines. Mark Sincell, “A Man and His Archive Seek Greener Pastures,” Science, 293:419 & 421, July 20, 2001.

17.) Jeffrey R. Young, "'Superarchives' Could Hold All Scholarly Output," The Chronicle of Higher Education, July 5, 2002; see http://chronicle.com/free/v48/i43/43a02901.htm.

18.) SPARC recently posted a manual "to help universities, libraries, societies, and others implement alternatives to commercially-published scholarly and scientific information. See http://www.arl.org/sparc/GI. It also announced plans to partner with BioMed Central (http://www.biomedcentral.com) to support "efforts to develop a sustainable business model that will ensure long-term open access to biomedical research results." See http://www.arl.org/sparc/core/index.asp?page=f59.

19.) One of the reasons given for the transfer of the Los Alamos e-print archive to Cornell was recognition of the need to have a stable source of funding. See Sincell, op. cit., note 16, p. 419.

20.) For example, after the announced discovery of metallic high-temperature superconductivity (Magnesium DiBoride), approximately 80 papers were immediately posted on the Internet, blurring the ability to distinguish who did what and when.See MgB2 Preprint List, January-May 2001 at http://www.iitap.iastate.edu/htcu/archive/2001August.html.

21.) See “Defining and Certifying Electronic Publications in Science,” op.cit., note 5.

22.) A number of participants in the AAAS project questioned whether it was possible to advance a purely functionally based or activity-based analysis of the various roles of the key players in the scientific publication process in an electronic environment, noting that these roles often remain blurred.There is hardly a consensus on this point, with many of the project participants advancing the proposition that, in order to assess both the risks and the opportunities that the Internet and electronic media afford, we must shed our old ways of evaluating these enterprises and focus on the implications of emerging digital technologies, not historical traditions founded in paper-based publishing.

23.) In both the paper and digital environments, conservators or archivists typically link their preservation and archival activities to the provision of access and dissemination of information. While the maintenance or long-term preservation of materials can be viewed as a separate activity or function, it is important to appreciate that preservation is not an end unto itself, but a means of ensuring continued access to information and materials. Thus, while the activities can be categorized separately, they are inextricably intertwined. Although digital technology has enhanced the capability of archivists also to serve a reproduction, distribution and transmission function, the relatively high cost of keeping up with ever-obsolescing technology can have a chilling effect on such activities, and lead to an increasing separation of these functions in a paperless environment.

24.) “The Future of the Electronic Scientific Literature,” Nature, 413, 1 and 3, September 6, 2001; see http://nature.com/nature/debates/e-access/Articles/opinion2.html.

25.) The notion of “fair use” under the Copyright Act is a good example, where a certain level of otherwise- prohibited copying of protected works is permitted; (i.e., the law provides a defense to allegations of copyright infringement), so long as the copying meets the limited purposes of fair use.

26.) Mark Cutler, “Libraries Cling to Infringement Exceptions in Face of DMCA, Prevalence of Digital Works,” Electronic Commerce and Law Report, 7: 46-49, January 16, 2002.

27.) Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001).

28.) In the increasingly digital environment, U.S. communications law may also come into play where television programming and electronic publishing are expressed in various digital forms and made accessible via the Internet. There is a growing convergence between the publishing, broadcast, cable, satellite communications and software industries; legal provisions developed for one sector should not be considered in isolation.

29.) Dan Carnevale, “Supreme Court will Hear Copyright Case Affecting Online Resources,” The Chronicle of Higher Education, February 20, 2002; see http://chronicle.com/free/2002/02/2002022002t.htm. The case is Eldred v. Ashcroft.

30.) MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993); see http://www.law.cornell.edu/copyright/cases/991_F2d_511.htm. This unauthorized viewing of a copyright document on a computer screen involves making a “copy,” and arguably infringing the copyright.

31.) Under United States copyright law, certain hypertext links to a published work may be viewed as citations, and to place such a link in a compilation would generally not require permission. However, at least one case has held that a citation to an infringing site created liability for contributory copyright infringement. See Intellectual Reserve v. Utah Lighthouse Ministries, 75 F. Supp. 2d (1999). For a more recent dispute involving links to an alleged infringement of copyrighted material, see David F. Gallagher, "Google Runs Into Copyright Dispute," New York Times, April 22, 2002; see http://query.nytimes.com/search/abstract?res=F00814F63B5B0C718EDDAD0894DA404482.

32.) Margaret Chon, “New Wine Bursting from Old Bottles: Collaborative Internet Art, Joint Works, and Entrepreneurship,” Oregon Law Review, 75 (1996), p. 257.

33.) Denise K. Magner, “Seeking a Radical Change in the Role of Publishing,” The Chronicle of Higher Education, June 16, 2000, pp. A16-17.

34.) See, for example, the Scholarly Publishing and Academic Resources Coalition (SPARC) at http://www.arl.org/sparc/. Also, BioMedCentral has announced plans to launch the Journal of Biology, which will offer free access to its contents immediately upon publication online. Authors will retain the copyright for their work. Kendra Mayfield, "A Challenge to Science and Nature," Wired News, May 31, 2002; see http://www.wired.com/news/business/0,1367,52632,00.html.

35.) This statutory principle is discussed in the Supreme Court case, Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989); see http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/490/730.html

36.) ra L. Brandriss, “Writing in Frost on a Window Pane: E-Mail and Chatting on RAM and Copyright Fixation,” Journal of the Copyright Society of the U.S.A.,43 (Spring 1996), p. 237.

37.) In a report released in August 2001, the U.S. Register of Copyrights submitted a report to Congress observing that the “ultimate product of one of these digital transmissions is a new copy in the possession of a new person…. The recipient obtains a new copy, not the same one with which the sender began.” The Register concluded that “when the owner of a lawful copy of a copyrighted work digitally transmits that work in a way that exercises the reproduction right without authorization, section 109 [of the Copyright Act] does not provide a defense to infringement.” See http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html.

38.) Lila Guterman, “Learning to Swim in the Rising Tide of Scientific Data,” The Chronicle of Higher Education, June 29, 2001; see http://chronicle.com/weekly/v47/i42/42a01401.htm.

39.) ICS/CODATA Ad hoc Group on Data and Information, “Access to Databases: Principles for Science in the Internet Era,” November 30, 2000; http://www.codata.org/data_access/principles.html .

40.) Committee for a Study on Promoting Access to Scientific and Technical Data for the Public Interest, National Research Council, A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases (Washington, D.C.: National Academy Press, 1999).

41.) See, e.g., i.Lan Systems, Inc. v. NetScout Service Level Corp. (D.Mass., No. 00-11489-WBY, 1/2/2002). Unlike shrink-wrap licenses, which presume a tangible or physical element to the consummation of a license and sale transaction (i.e., customer purchases a diskette or CD-ROM with programs) with the license terms packaged with, in or on the materials the customer obtains, a “click-wrap” license refers to the situation in which the customer merely signifies assent to license terms with a “mouse-click” transmitting that assent to the licensor, who ostensibly then authorizes the downloading, access and/or use of the programs or materials being licensed.

42.) Mark K. Anderson, "Now, UCITA…Later, You Don't," The Industry Standard, March 3, 2000; see http://www.thestandard.com/article/0,1902,12615,00.html.

43.) 972 F. Supp. 804 (S.D.N.Y. 1997); http://www.nwu.org/tvt/tvtrule.htm, recon. denied, 981 F. Supp. 841 (S.D.N.Y., 1997), and reversed 206F.3d 161 (2nd Cir. 2000); see http://laws.findlaw.com/2nd/979181.html, affirmed, 121 S.CT. 2381 (2001); see http://supct.law.cornell.edu/supct/pdf/00-201P.ZO.

44.) In an amicus brief filed in the case, however, the American Library Association and the Association of Research Libraries argued that the extent to which electronic archives and databases have replaced physical libraries has been greatly exaggerated, and the consequences of removing content from them vastly overstated. They also noted, as did the Supreme Court, that at least retrospectively, publishers did not need to track down every freelance author or remove all freelance materials form their databases. There may be other options, such as those used for blanket licensing of music for broadcasting. See http://www.arl.org/info/frn/copy/tasini.html.

45.) Scott Carlson, “Once-Trustworthy Newspaper Databases Have Become Unreliable and Frustrating,” The Chronicle of Higher Education, January 25, 2002; see http://chronicle.com/free/v48/i20/20a02901.htm.

46.) Pub. Law No. 105-304, 112 Stat. 2860 (October 28, 1998); see http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1998_register&docid=98-30563-filed

47.) See http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html. The constitutionality of the DMCA was challenged by a lawsuit that argued that a professor’s academic freedom was violated by attempts to apply the Act’s anti-circumvention provision to scholarly research. The suit has since been dropped. Lisa M. Bowman, “Free-Speech Lawsuit Changes Ahead,” C NET News.com, July 19, 2001; see http://news.cnet.com/news/0-1005-200-6616457.htm.

48.) The first criminal trial under the DMCA is scheduled to begin August 26, 2002 in California. A company based in Russia is accused of selling a program that permits users to circumvent copyright protections on software produced by Adobe Systems, Inc. The case is U.S. v. ElcomSoft and Dmitry Sklyarov; see http://www.siliconvalley.com/mld/siliconvalley/3303774.htm.

49.) A study underway within the discipline of astronomy indicates a substantial reduction in the time it takes to search the literature for relevant materials. Peter Boyce, personal communication, April 1, 2002.

50.) John Borland, "Lawmaker: Is Copy Protection Wrong?," ZDNET News, March 13, 2002; see http://zdnet.com.com/2100-1106-859089.html.

51.) At the moment, it appears that the entertainment industry, more than any other interest, is affecting copyright law in ways that rub up against the values that would maximize access to scientific data. See Litman, op. cit., note 27, and Stephen H. Wildstrom, " 'Fair Use' is Getting Unfair Treatment," BusinessWeek Online, May 14, 2002; see http://www.businessweek.com/technology/content/may2002/tc20020514_1528.htm

52.) During the preparation of this report, a new venture in support of expanding the public domain of intellectual works was launchedCreative Commons will make available on the Web to creators/authors intellectual property licenses and other tools that they can download free of charge and adapt to define the terms of acceptable uses of their works; see http://www.creativecommons.org.

53.) Committee on Intellectual Property Rights and the Emerging Information Infrastructure, National Research Council, The Digital Dilemma: Intellectual Property in the Information Age (Washington, DC: National Academy Press, 2000), p.16

54.) Although this project took notice of a variety of international and global issues that add additional layers of complexity to any legal analysis of issues involving the Internet, no attempt was made to evaluate or even compile a listing of non-U.S. intellectual property laws in connection with this report. We would be remiss, however, if we did not mention that after significant debate, the European Parliament, on February 14, 2001, approved a new Copyright Directive which, although not ideal, represents a workable compromise that enables most ‘fair use’ by archivists and archive users to continue. After adoption by the Council of Ministers, the national legislatures of Member countries will be required to enact the Directive into law; see http://www.patent.gov.uk/copy/notices/index.htm.

*This sample list is intended for informational purposes only. Inclusion in the list does not indicate endorsement by AAAS or any of the contributors to the report in which this list appears.