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LIBLICENSE-L  March 2016

LIBLICENSE-L March 2016

Subject:

Re: SciHub

From:

LIBLICENSE <[log in to unmask]>

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LibLicense-L Discussion Forum <[log in to unmask]>

Date:

Mon, 7 Mar 2016 17:22:56 -0500

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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

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