From: Marcus A Banks <[log in to unmask]>

Date: Tue, 8 Mar 2016 05:10:11 +0000
Subject: Re: SciHub
Thank you Janice, for a fascinating and wide-ranging response.

Just to state my own position and understanding — the point is not
that copyright be dispensed with entirely, but that the balance of
economic interests currently codified in copyright law be shifted to
favor the interests of authors. These authors, for academic papers in
any case, desire exposure even more than money.

It may literally be the case that no academic author must sign a
copyright transfer agreement to publishers, but as a practical matter
they must do so in order to be published and advance in their careers.
This is a power imbalance, epitomized by who owns the copyright.

Copyright need not be abandoned but should be reformed. You note the
powerful international forces at play here, like the WTO. That means
that author-friendly reform will come very slowly if at all, but it is
still worth pursuing.

Marcus Banks, Blaisdell Medical Library, UC Davis


> On Mar 7, 2016, at 2:22 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: "Pilch, Janice T" <[log in to unmask]>
> Date: Mon, 7 Mar 2016 07:56:39 +0000
>
> There is something today more powerful than the U.S. Constitution that
> came into force in 1789. It’s the international trading system under
> the WTO that came into existence in 1995 and is based on
> internationally agreed standards of copyright protection and
> enforcement. It creates a mandate for its members to maintain those
> standards or face economically debilitating sanctions. The U.S. could
> not easily reconsider its commitment to the copyright regime without
> serious economic consequences, and that’s probably a good thing.
>
> The U.S. was a key player in setting up the new global trade regime,
> under “specific historical conditions” that are merely 20 years old.
> Do the “specific historical conditions” no longer exist? Hardly. To
> say nothing of all the other bilateral and multilateral agreements and
> treaties the U.S. has signed that are predicated on international
> standards of copyright protection, including the WCT, the WPPT, and
> the Marrakesh Treaty. The idea that “specific historical conditions”
> no longer exist and could be changed within the U.S. as a “policy
> decision” reflects a limited world view that draws a blank on the
> reality of international relations and international commerce.
>
> It’s clear that one of the common strategies of those who support or
> are incentivized by the technology corporations is to create “legal”
> arguments that attempt to be unassailable by virtue of their appeal to
> nearly god-given power- Constitutional authority. But it’s not
> possible to construct solid arguments by ignoring fact and reality. If
> the library profession were not so manipulated by the technology
> sector, it might be easier to keep fact and reality in the picture.
> Lots of money goes into this legal strategizing that serves as a
> blinder to librarians and to the public.
>
> Did I say reality? On the matter of “reify,” I thought that there was
> a typo and the meaning of Kevin’s message of March 1 was “deify”, not
> “reify,” [“Copyright is not a god-given natural right, and we should
> avoid reifying it.’]. Kevin has explained his intentions. In any case
> I think that no one in this conversation is treating copyright as a
> god-given natural right, or worshiping it. There is no point in
> hyperbolizing or in false framing on this.
>
> However, the fact is that copyright law has deep origins in basic
> concepts of religion, philosophy, and ethics (do not steal, do not
> covet, honor the personality, the need for recognition, all men are
> created equal, people deserve equal economic opportunity, a person’s
> labor should be justly compensated, slavery is illegal…) The
> conceptual basis for copyright runs across cultures and dates back for
> many centuries, not merely back to the 18th c English law.
>
> That copyright is recognized as a human right by nations across the
> globe is not insignificant: “Everyone has the right to the protection
> of the moral and material interests resulting from any scientific,
> literary or artistic production of which he is the author.” This means
> even more at a time when even the world’s most wealthiest societies
> are struggling to meet the promise of democracy in the face of
> economic crisis and an ongoing assault on working people by powerful
> corporations.
>
> Some of those powerful corporations are technology corporations, that
> know there is one thing standing between them and their absolute power
> to profit from the distribution of intellectual and creative works:
> copyright law. And they will do anything they can, using anyone they
> can, manipulating anyone they can, including us, to achieve this. This
> has to some extent corrupted the scholarly open access conversation.
>
> There is nothing wrong with the idea of making money from one’s talent
> or creations. Copyright law accomplishes that. A world in which
> talented writers, artists, and musicians are allowed to make a living
> from their works should remain a goal of a democratic and
> well-functioning society. That publishers for centuries have produced
> books worth reading and scholarship that moves societies forward is an
> accomplishment.  Some of the best and most enjoyable aspects of
> culture exist because of copyright law and would not otherwise exist,
> because their talented creators would not have been able to afford the
> time or money to create them.
>
> That technology companies are trying to supplant those markets by,
> among other strategies, creating a “new morality” predicated on the
> idea that no money should ever go to a creative or intellectual
> individual, but only to them, as gods of online service and
> distribution, is not virtue, and not social need. It’s just economic
> competition. If anyone is playing “god’s gift” in this scenario, it’s
> technology corporations. Digital slavery, anyone?
>
>> I would think the research I do with years of effort (and supported by my institution, funding agency, colleagues and students) is our property. The published paper should rightfully belong to the author(s).
>
> It does belong to the author and the only way that ownership changes
> is if you make a decision to change it- perhaps to make a career gain,
> motivated by self-interest. That is your choice and you do it with
> eyes wide open and with no one forcing you. Still, there are at least
> two ways you can avoid this if that is your choice: by putting a CC
> license on your article and not giving it to a traditional publisher,
> or in the longer term by starting your own reputable open access
> journal to publish your articles and those of your university so that
> you don’t have to use traditional publishers. As it was pointed out,
>
>> Not only do we all get to make choices, but we’re also very often forced to make choices.
>
> Still, there are choices and there are long- and short-term goals.
> There is also the reality that what makes open access possible is the
> vast majority of publishers who have accommodated green and gold open
> access and are allowing what people are complaining about not being
> able to do.
>
> It’s easy to fancy oneself as an activist. Those who consider
> themselves to be activists may consider doing something ideologically
> pure and put their next academic article on the open internet with a
> CC license and protest the publishers in a pure way. Get no academic
> credibility for your articles. Instead make your point by forgoing
> academic credibility and giving your work away to the vast majority
> who won’t read it in the first place and those who just want to make
> money on it in the second place- and who do make money on it,
> including ISPs and search engines. See how quickly this will seem like
> digital slavery. Thus traditional publishers must be giving scholars
> something that they have not yet figured out how to get, but could
> attain if they were willing to build the world they think will be
> better.
>
>> The increasingly "activist" aspect of the library open access movement comes at the cost of trustedness in our role as highly engaged but balanced professionals.
>
> I completely agree.
>
>> re. item 4: can we please stop pretending that raiding publishers to provide free content in order to relieve researchers of the burden of having to place ILL requests is in any way comparable to MLK or
> Ghandi? It is a ludicrous comparison.
>
> This is an excellent point.
>
>> And if copyright were indeed failing to promote the creation of new works and the expansion of the body of human knowledge, it's unlikely that there would be 47 million articles for SciHub to think worth stealing.
>
> Also an excellent point. There was an incentive for the writers of
> those articles.
>
> Returning to the idea of copyright as a human right, the idea that in
> this age people would be manipulated into giving up any right, let
> alone an internationally recognized human right that enables ordinary
> people to make a living from their talent and work, is beyond
> ludicrous. In a good recent piece by British columnist and
> investigative journalist Andrew Orlowski, bearing the subcaption “Want
> to be a Silicon Valley serf? Keep handing over those rights, rubes”
> the author writes: “Silicon Valley's great triumph has been persuading
> people to give up their rights, and be happy to do so. And tech
> oligarchs aren't worried about fighting dirty to make it happen…. ” I
> recommend it, to anyone who believes that a world without this
> particular human right will be an improvement:
> http://www.theregister.co.uk/2015/09/17/dancing_baby_victim_shaming/
>
> There is a way for the academic world to assert its rights in works
> created by scholars. In fact there are many ways and publishers have
> been quite flexible in accommodating some of them thus far. But to
> think that the copyright system should give way to social engineering
> and behavioral change designed at this point primarily to benefit
> wealthy technology corporations that pay for those messages to be
> brought to you, in your library and your university, does not seem to
> me like an improvement in the human condition.
>
> Best regards,
>
> Janice T. Pilch
> Copyright and Licensing Librarian
> Rutgers University Libraries
> Rutgers, The State University of New Jersey