The Credibility of Electronic Publishing

Copyright Issues


Copyright

Introduction

The purpose of this study is to provide a general introduction to the fast-moving and complex world of copyright in the academic community and on the Internet, and to offer some strategies for responding to the increasing challenges faced by those who wish to move towards effective digital academic publication.

The Background

The motive behind the first movement towards copyright, in the sixteenth century, was the protection of the property rights of the publisher/printer. The Stationers' Register recorded the rights of publishers to their works, and its pages record the negotiations as the rights to print books were traded. Authors had no say in these proceedings, and had no rights once they had been paid for their work.

Historians of print culture generally accept that copyright in its modern sense, meaning the author's right to profit from and control his or her productions, is culturally inseparable from the development of print culture, which brought with it the possibility of reprography and distribution on a hitherto-undreamed of scale; indeed, one of the pressing issues for Canadian (and international) copyright regulators is whether copyright can be re-imagined in a radically different communication culture, distinct from fixed print, for new digital forms, promulgated through new communication media.

From the passage of the first copyright law in 1710, there has been a consistent attempt to balance the interests of the publisher, the author, and the reading public in general. Of greatest interest perhaps to educators is the concept of "fair use" (discussed below), a practice by which segments of larger works may be copied, either for educational purposes, for private study, or for quotation in a review or other related work. Copyright legislation regulates the use of intellectual property by both the owner(s) and user(s) of that property and is consequently relevant to the central research and publication functions of academic institutions where faculty are both creators and users of published knowledge.

If copyright regulation is important for the traditional print publication mission of academic research institutions, it is doubly important in the context of new digital communication media, since international and national copyright principles and regulations were developed before networked digital media transformed the information and communication marketplace.

From the perspective of copyright regulation, digital media differ in two significant ways from the fixed media which created the climate in which current copyright legislation was written. Digital media provide speed and breadth of distribution hitherto impossible, and digital information can be reproduced and reconfigured through algorithms rather than copies. The recent widely-publicized U.S. legal decisions regarding Napster and fair use by owners of CDs underlined commercial interests' determination to limit legal definitions of fair use, but also the very different copyright environment in which networked digital media operate. The Napster case, however, iterates many of the issues raised in Canada during the intensive lobbying that took place while Bill C-32 was being debated, and the discussions about fair and first use rights of non-profit academic libraries and their right to share information with other academic libraries through digital and non-digital media (CARL Statement). Copyright issues, as the 1996 AUCC-CARL/ABRC Task Force on Academic Libraries and Scholarly Communication made clear, are central to discussions of scholarly communication generally, and to the case of digital publication in particular.

The International Context

As Gordon Gow noted in his prescient study:

...digitization and new forms of interconnectivity pose questions of new rights and new categories of works, and present problems for administrative policies, jurisdiction, and enforcement. Furthermore, balancing the rights of creators with those of users poses difficulties for the development of a 'marketplace of ideas' that ensures the adequacy of Canadian cultural policy objectives within an increasingly international exchange of information. Tensions in favour of creators and the protection of Canadian cultural sovereignty contrast with the rights of users and the unimpeded international information flows being negotiated within a number of multilateral trade agreements, including GATT and NAFTA.

The issue of fair use in a global digital environment preoccupies not alone academic authors and publishers, but powerful commercial interests pushing media convergence and digital distribution.

The recent Napster and MP3.com cases illustrate the way in which laws established originally for print, and extended to multimedia, are facing a potentially insurmountable challenge in the medium of the Internet. Whatever the outcome of these cases, the community of users that is interested in downloading free MP3 sound files has already found ways to continue their activities. Gnutella, for example, is a software tool, "a fully-distributed information-sharing technology" (Gnutella), that allows computer users to swap individual files without going through any one central agency. In this situation, the policing of copyright becomes impossible.  (Note: The Globe and Mail [5 March, 2001] reports that a Canadian is planning to set up a Napster-like service in an offshore "data haven" to circumvent the recent legal decisions that have forced Napster to restrict accessibility to copyright music.)

National copyright legislation is also being circumvented through the establishment of "offshore" servers that do not come under the national law of any one nation, or which are set up in a small country that either has not signed the Berne Convention, or which is willing not to prosecute those who run the server. When the Australian Government banned online gambling, the sites moved offshore with no break in service.

If these ways of circumventing copyright seem threatening, it might be wise for those of us in the academic community to remember that we are unlikely to be in the same situation. Our products are far less likely to be so badly wanted that users will set up distributed information-sharing systems for scholarly papers, and it is difficult to imagine an off-shore site dedicated to making essays on the finer points of textual editing available. The point remains that the laws dealing with copyright, and their enforcement , are bound to be in a state of flux in the next decade.

As a net importer of academic knowledge, the Canadian academic community is heavily dependent on copyright legislation and regulations obtaining internationally (Brown).

In December 1997, the Canadian government signed two international treaties from a 1996 conference convened in Geneva by the World Intellectual Property Organization (WIPO). Several of the provisions in these treaties address the issue of protection of rights in a digital environment, and while some of these issues -- the protection of computer programs, of compilations of data qualifying as original works, the right to rent computer programs -- had already been dealt with in Canadian copyright law, the WIPO provisions dealt specifically with copyright and intellectual property issues related to electronic transmissions common on the Internet. Following these WIPO treaties, in 1997 the Canadian government provided copyright exceptions for designated groups, including non-profit organizations such as universities, libraries, archives and museums, as well as establishing key provisions for the music industry.

The world of electronic transmission, however, is far from static. The 1997 revisions to the Canada Copyright Act did not foresee the Internet's capacity for copying, editing, and transmitting digitized material; these revisions, for example did not address home copying and sharing of digital material by computer. Universities and research institutions in Canada and throughout the world are actively lobbying to ensure their interests in copyright and fair use will be reflected in national and international agreements on these issues.

International initiatives are already under way from national academic consortia as well as scholarly and professional associations to advance the legal copyright interests of the global academic research community. In May 2000, at a conference in Tempe, a consortium of major American Universities as well as the Association of American Universities, the Association of Research Libraries, and the Merril Advanced Studies Center of the University of Kansas signed a series of Principles for Emerging Systems of Scholarly Publishing which specifically underlined the significance of international copyright. This event was the most recent development in a process that began in 1996 when sixteen American research institutes and libraries including Yale, Harvard, Berkeley and the Library of Congress under the aegis of an AAU/ARL task force formed the National Digital Library Federation as an example of free distribution of digital information. In its continuing work, this task force has identified the following objectives for with academic copyright in the digital environment:

A licensing model for scholarly communication has been developed by the US Coalition for Networked Information (CNI) and the Higher Education Funding Council for England which has signed national licensing agreements with three major academic publisher - Blackwell, Academic Press, and the Institute of Physics - providing institutions free access to their publications. The British Library and the Copyright Licensing Agency have signed a two-year agreement covering the reproduction of copyright work articles with a variable fee structure. In Canada, the Steering Committee of the Canadian National Site Licensing Project / Projet canadien de licences de site nationales (CNSLP / PCLSN) has been working since 1999 with a national consortium of 64 Canadian universities to negotiate with journal publishers and vendors for pan-Canadian site licenses for electronic versions of scholarly journals.

Canadian Copyright Legislation

Current Canadian copyright law has been established in two phases.

1988: Bill C-60 (Phase I) becomes law:

This legislation, which established a Copyright Board and the Canadian Copyright Licensing Agency (Cancopy) instituted legislation associated with computer programs and industrial design. It established two committees to advise on "exceptions" which would be dealt with in Phase II: Educational Uses of Copyright, and Library Uses of Copyright. At that time, the only "exceptions" to copyright in Canadian legislation were provided in the Copyright Act (R.S.C. 1985, c. C-42): Section 27. Infringement of Copyright which acknowledged that "fair dealing" for the purposes "of private study, research criticism, review or newspaper summary" was permissable as well as " the reading or recitation in public by one person of any reasonable extract from any published work.

1997: Bill C-32: (Phase II) An Act to Amend the Copyright Act becomes law:

From the perspective of academic copyright, this Phase II legislation provided more explicit "exceptions" for non-profit educational institutions, libraries, and archives as well as initiating legislation concerning "fair use" with respect to the private copying of sound recordings.

However welcome, the sections on "fair use" are not clear in their definition of what constitutes either "fair use" or "fair dealing." Sections 29.3-30 allow non-profit educational institutions to copy works on to boards, overhead transparencies, etc. and to use copyright materials for tests or examinations. Sections 30.1-30.7 allow "exceptions" for libraries, archives, and museums to copy published or unpublished works (so long as copies are not commercially available) in order to maintain or manage their permanent collections, and to make a single copy of an article from a scientific, technical or scholarly journal for private study or research purposes, provided copyright notices are posted. In a possible gesture towards digitization, these "exceptions" also allowed libraries to make a single copy of a work in alternate format if the required format was not commercially available.

Graham Hill summarized this legislation and identified the deficiencies in current Canadian legislation with respect to electronic copyright in an address given to the ARL in 1996:

Fundamentally, however, C-32 is print-based. There is nothing specific in it that relates to technology... It can be said that, although we got rid of mechanical contrivances, C-32 is still littered with the word "reprography." They are still dealing with print on paper...

So there is nothing in C-32 that specifically points to copyright in an electronic environment. I am sure that we will deal with electronic reserves the same way we do with reserves in a print environment. The IHAC (Information Highway Advisory Council) has put forth their latest recommendation, which says that the Copyright Act should be technology neutral. However, the current thinking is that displaying electronic information constitutes publication, and therefore there is a liability for copyright offense the moment the material crystallizes on-screen. They are obviously concerned about that. (Hill)

The world of electronic reproduction and transmission, however, is far from static. These 1997 revisions to the Canada Copyright Act did not anticipate the Internet's capacity for copying, editing, and transmitting digitized material and these revisions, for example, did not address home copying and sharing of digital material by computer.

Gordon Gow's article, "Copyright Reform in Canada: Domestic Cultural Policy Objectives and the Challenge of Technological Convergence," provides a thoughtful description of the history of Canadian Copyright legislation, pre-Bill C-32.

Copyright Ownership and the Academic Community

Broadly speaking, Canadian copyright legislation recognizes that copyright ownership rights belong to the creator of a work and those rights inhere in a work from the moment it is fixed in a tangible medium of expression.

This legislation explicitly moves the legal balance of control of copyright from publishers to authors; hitherto, copyright was protected only if the author formally registered the work. Following the law of unintended consequence, however, academic and commercial publishers now routinely require authors to transfer to them all the copyrights that legislation has vested in creators. This transfer of copyright is implicated, in Canada and the U.S., in what has come to be known as the crisis in scholarly publication (CARL Debate; AUCC Report; Sosteric 1996, 1998). Particularly in the domains of science, technology, and medical academic journals, commercial publishers are using this transferred copyright to create an information monopoly, restricting access both to new and aggregate academic knowledge, and increasing the cost both of print and digital forms of knowledge produced through universities and other publicly-funded academic institutions.

Thus it is normal in the academic community for the author to cede copyright to the publisher, a practice which results in a situation surprisingly close to that of authors in the sixteenth century before the formal institution of copyright. It follows that most academic texts belong not to an individual but to a collective (a journal, a press), and if authors wish to allow reproduction of material they have written, they must apply to the collective for permission to do so. In general, presses and journals are generous in giving permission to the authors, but their willingness to allow reproduction on the Internet is likely to be less accommodating because of the freedom it offers in further duplication.

The reasons why this practice has evolved are twofold: academic authors are more concerned about the "currency" of the profession -- tenure, promotion, salary -- than about royalties or ownership of their work; and since most academic presses are non-profit organizations, the assignment of copyright to them is not seen as an exploitation of the scholar. In those disciplines where the norm for scholarly interchange has been through monographs published by university presses, more often consulted in the library than bought individually by scholars or students, there has been little challenge to the practice of ceding the ownership of scholarly work to the press. In the digital age, however, it is likely in due course to substantially reduce the potential readership of scholarly works, especially of journal articles. Even a non-profit academic press will prefer to use the published materials for further financial gain, and will accordingly restrict access to the digitized text. Recent changes in academic publishing which see copyright of academic theses and monographs migrate to digital, for-profit publication in the U.S. have begun to alarm academic researchers and librarians (see Andrew Albanese' current article, "E-Book Gold Rush Welcome to the Electronic Backlist," in the September issue of Lingua Franca).

Canadian academics are showing signs of becoming more conscious of the issues involved in copyright, if the recent flurry of postings on many academic Internet discussion groups concerning "Contentville" URL: < (http://www.contentville.com/>) can be taken as an indication. Contentville claims to be "the Web's first store run for and by people who love content -- whether it's in the form of books, magazines, e-books, academic works, transcripts, archived articles, scripts or anything else that qualifies as brain food." Until very recently, Canadian theses were available from the site through an arrangement with University Microfilms Incorporated. The attention of Canadian academics was drawn to the issue in a report in Le Devoir on July 23 2000; as the result of some intensive lobbying and a great deal of email traffic, the Canadian theses have been withdrawn from the site because Canadian graduate students "were never given an opportunity to deny the use of their material in this way" (Press release from Cancopy, August 23, 2000).

As these recent examples make clear, commodification through the digital reproduction and distribution of scholarly research is likely in due course to substantially reduce the potential readership of scholarly works, especially of journal articles. Even a non-profit academic press will prefer to use the published materials for further financial gain, and will accordingly restrict access to the digitized text. A good example of this practice is Project Muse at Johns Hopkins University, where many major journals are available -- by subscription -- in digitized format online. Articles published in this fashion will not be available for the authors to post on their own Internet sites for the benefit of students or other scholars; only if their institution pays a subscription to Project Muse will students be able to access the materials.

The discussion of the results of the survey below will show that most academics believe that copyright ought to remain with the author, despite the fact that most of their work will result in assigning copyright to the press that publishes their work.

Fair Use and Fair Dealing

Because of the differences between academic authors and professional writers, and between the economic rewards of marketplace writing and the professional rewards of academic writing, emphasis in the academic world has traditionally fallen more on the side of "fair use" when copyright is considered. Academic culture values widespread dissemination of information and access to information for both researchers and students.

In the academic world fair use has long been a cornerstone of the legitimate use of copyright materials in education and scholarship. Teachers may excerpt passages of a work for educational purposes, and scholars may quote short passages as part of their own critical works, and in reviews. Longer excepts may be used, for example in course packs, through the agency of Cancopy. International laws make distinction between the familiar "fair use," and "fair dealing" -- a concept that exists in copyright laws of members of the British Commonwealth, that permits home copying of tapes and CDs.

"Fair use" and "fair dealing" practices are, however, less well defined in digital media, and particularly in digital media transmitted through the Internet. International laws make distinction between the familiar "fair use," and "fair dealing" -- a concept that exists in copyright laws of members of the British Commonwealth, allowing home copying of tapes and CDs. In the electronic medium, the same guidelines for fair use may apply to textual materials on a discrete physical entity like a CD ROM, which resembles the print medium in its fixed and physical nature, but the opportunity to include multimedia materials as an extension to the "text" further complicates issues of copyright.

The applicability of guidelines concerning fair use on the Internet remains problematic. Again, the short quotation of text poses few problems, but the process of making longer readings available is more complex. There can be no equivalent of Cancopy, since the Internet is global, and there is no effective means of charging the end user who accesses a site, unless the site itself charges -- and very few academic sites charge their users. One strategy used by many online courses is to require the user to register for the site, and to access it by password only; the assumption is that this creates a situation analogous to placing xeroxed copies of an article on reserve in the library, but there is at present no certainty that copyright is not infringed. The technology also creates new situations not covered by earlier concepts of fair use: is it, for example, fair use to include a graphic on a site by making a link to the provider of the image rather than having the actual image on the server of the home site?

Since the ground rules concerning fair use of electronic material on the Internet have yet to be clearly articulated (Maloney), all uses of multimedia materials in a scholarly context on the Internet may risk of being challenged. A recent issue of the electronic journal EMLS (Early Modern Literary Studies) heads into uncharted waters with its assumption of fair use in quoting video clips from current movies on Shakespeare as part of a scholarly article (Dorval).

Challenges for Digital Academic Publication

The assumptions and purposes of academic writers and publishers differ significantly from those of professional writers and publishers. For professional writers and publishers who need to protect the income generated by their intellectual property, the emphasis in copyright regulation falls on the protection of intellectual property, and the right to limit access to those users who are authorized to access it. In contrast, academic attitudes to copyright de-emphasize ownership issues while underlining the importance of wide promulgation of texts and transparent access for users.

Copyright in the Academic Community

Addressing copyright in the context of scholarly publication means addressing fundamental principles of academic culture, specifically the academic community's mission of advancing knowledge through creating, validating, and disseminating new knowledge, and through preserving the existing corpus of public knowledge. Academic publication is central to these activities because it is the main process through which newly discovered knowledge is refined, certified, distributed and archived. In addition to promulgating knowledge, publication provides the North American academy with the mechanisms for assessing the quality and quantity of contributions by individual faculty members that are used to determine faculty eligibility for tenure, promotion, grants and fellowships.

Because of this central function of publication in academic culture, and the dual roles of faculty as both producers and consumers of academic publication, copyright--which attempts to balance the legitimate claims of producers of knowledge to protection for unauthorized use of their work, and consumers of knowledge who seek the widest access to information for their research--fulfils a function in academic culture, different from the needs of commercial publication. Paradoxically, however, it has been argued that this very emphasis on fair use and indifference to ownership has led to the present, well documented crisis in scholarly publication. The transfer of total copyright by academic researchers to commercial publishers has led to a monopoly situation in which the cost of academic journals has increased by 140% since 1986, forcing research libraries to cut budgets for monographs and other research materials, and putting financial pressure on already precarious academic publishers.

This growing concern about segregation of electronic knowledge is reflected in the ICOLC's recent public statement, expressing concern over "the growing practice of publishers that levy initial surcharges on electronic information, which is compounded by significant multi-year inflation surcharges and prohibitions against libraries cancelling print versions of journal titles. As a result, while libraries may receive access to a larger array of titles by paying the 'print price plus electronic subscription cost plus inflation,' the total base price for electronic access over the print subscription could increase by 40% or more within as little as three of four years" (International Coalition of Library Consortia 1999)

The relationship between copyright and rising costs for academic journals, especially in the Sciences, Technologies, and Medicine (STM) has been widely discussed and has led to the perception of a crisis in scholarly publication, both of journals and of monographs. (CARL Debate; AUCC report; Sosteric 1996, 1998) This pressure derives from the privatization of scholarly publications by international commercial publishers who have consequently developed a monopoly in high prestige journals in various disciplines: the well-documented results of this monopoly have affected all members of the academic research community because they increase library acquisition costs, putting pressure on library budgets at the expense of all disciplines in a fashion which is clearly incompatible with optimal scholarly communication.

The response to this crisis from academic, administrative, and governmental bodies in Canada, the United Kingdom, the United States, Australia, and Europe has been to recommend new approaches to scholarly communication, based on non-profit, electronic publication and distribution models.

Copyright and Online Teaching

The questions concerning copyright as they apply to online teaching are immensely complex, in part because there are so many different models. The range is at least from a simple home page for a course listing the syllabus and perhaps some links to useful sites, to a fully-developed course, constructed by a department or individual faculty member or contract employee skilled in online curriculum development, and delivered via a third-party server like WebCT. Other models include full courses delivered by "facilitators" rather than faculty, some of which are developed by commercial publishers. Collaborative learning via web-boards and email is usually a major part of courses of this kind, and in some cases students construct sections of the course as they study; the question of who "owns" a collaborative text of this kind is not one that can confidently be answered in terms of existing copyright law. It is possible, to a significant extent, to extrapolate from general principles of copyright ownership to cover many of these models, but the complexity of the issue is such that it is impossible to cover it in the current report.

Copyright in Electronic Media

Electronic Journals and the "Crisis in Scholarly Publication"

With the advent of the Internet and increasingly user-friendly technologies for online editing, publishing, and distributing available to faculty, an increasing number of disciplinary groups have turned to online journals. While the academic community continues to have reservations about this seemingly unruly new medium and the implications for the traditional academic activities for validating, authorizing and archiving new knowledge, the push for electronic forms of scholarly communication reflects a search for more timely, convenient, and economic means of announcing and certifying new research results. But while the Internet is bringing steady and fundamental changes in the processes of scholarly communication and publication, these changes are occasioned less by the potential of the new media than by economic considerations occasioned by the changing world of academic publishing.

In response to this publication crisis, influential academic groups within Canada and beyond see digital publication as a strong alternative to the limitations of the current print environment and a non-commercial alternative to traditional scholarly communication. There is a belief that in a university-controlled electronic publishing system, copyright would be less of a problem than in today's print world. Digital academic publication is seen as a solution to copyright and economic problems arising in academic print media. The Tempe Principles for Emerging Systems of Scholarly Publishing which established consensus on a set of principles to inform the design and evaluation of new systems of scholarly publishing in the US in March 2000, identified this relationship clearly:

With the creation, dissemination, and application of new knowledge central to their mission, institutions of higher education must work to create systems that will provide affordable access to all relevant published scholarship across all disciplines for researchers, teachers, and the broader public. To do this, faculty, university administrators and professional societies must work together to create the systems that will contain, and in some cases, reduce substantially the costs of scholarly publishing. Since every faculty member should have access to all the relevant published research in her/his area, it is imperative that we find ways to bring down the cost to accommodate the expanding volume of publication within available budgets. The business arrangements of the journals for which faculty write, edit, and review must become a major focus of contributors, editors and readers if scholarly publication is to become affordable again. Containing costs might be accomplished over time within the current configuration of scholarly communication through the effective use of technology to streamline publishing functions, while increasing access and value. (7)

To borrow a phrase from literacy studies, distributed digital media are exerting 'push/pull' forces on scholarly communication and publication: 'push' in the sense that they provide broader and faster access to research knowledge, and hitherto impossible opportunities potential for storing, cross-referencing and indexing knowledge; 'pull' because they appear to provide an economic solution to the problem of rapidly rising costs and increased access restrictions in the world of academic publication. Discussion of the feasibility of online academic publication has been, at least in part, shaped by economic considerations, and the complex issues of copyright and fair use in traditional print media and in electronic media have, as a result, become conflated.

Various academic consortia have come together in North America to facilitate this move to digital technology: the NEAR project, Stanford's HighWire Press, Johns Hopkins Project Muse, and in Canada, the International Consortium for Alternative Academic Publication (ICAAP) at Athabasca University. Such organizations seek to use distributed digital media as a vehicle for academic findings not covered by copyright restrictions. In addition to NEAR, (Harnad 1995b) and Okerson and O'Donnell (1995) proposed that academic authors should continue publication in the print journal of their choice, but should publicly archive their pre-refereeing preprints and their post-refereeing reprints online. In the domain of Physics, Paul Ginsberg initiated the now-celebrated Physics Eprint Archive where the collective physics corpus is assured and accessible, and his 1996 article on Electronic Publishing in Science, originally presented at a Conference held at UNESCO HQ, Paris, 19-23 Feb. 1996, sounded a clarion call for researchers in the natural and cognitive sciences that led to the establishment of a variety of online pre-print and post-print archives.

New Media, New Copyright Legislation

Because issues of copyright--both ownership and fair use access--have become so imbricated with perceptions of the economic potential in electronic publishing, questions about the distinctive operation, use, and unique copyright challenges posed by digital media have been poorly represented in these debates, with the possible exception of issues surrounding copyright and intellectual property rights for online and distributed learning courses.

Motivated in large part by traditional print-based anxieties, discussion of copyright in academic publishing circles has focused largely on proscriptive regulation and little attention has been paid to more prescriptive or enabling copyright legislation that will take into account the value of the new digital media in their own right, distinct from their function as transmitters of text-based information.

Considering the academic potential for new digital media in the humanities, Richard Lanham has argued:

...the criticism/creation dichotomy automatically becomes, in a digital world, a dynamic oscillation: you simply cannot be a critic without being in turn a creator. This oscillation prompts a new type of teaching in which intuitive skills and conceptual reasoning can reinforce one another directly. The digital interchangeability of the arts through a common code -- that old Platonic dream that everything returns to mathematics -- allows us to translate one range of human talents into another. Our sense of how teaching in the arts, and about the arts, ought to proceed is metamorphosed, again with truly Ovidian intensity and insouciance, by this convertibility. Academic humanists, so far as I can discover, have hardly begun to think about these opportunities, but they will help us answer the social pressures of the time. (Lanham Chapter 4)

The criticism/creation oscillation which Lanham foresees in academic uses of the new digital media radically destabilizes dichotomies of creation and consumption that underlie present-day copyright legislation. Medium-specific search engines and pattern-recognition software can identify copyright infringement with the click of a mouse. Collaboratively constructed sites, games, and distinctive forms such as MUDS and MOOS resist paradigms of ownership and use represented in modern print-based legal culture.

Chief among these possibilities is their ability to search, index, and cross-reference large bodies of information. As copyright legislation allows for more segregation of digital research material, Steve Harnad warns that digital media's potential to organize and retrieve and cross-index information is rapidly being destroyed (Harnad 1998). The application of earlier standards of ownership and fair use to the Internet is bound to inhibit the creative interaction between the scholar and new kinds of text, and new kinds of interaction with the text. The protection of copyright articles in closed systems available only by subscription equally inhibits the power of the electronic medium to index, categorize, and sort complex structures of information.

Both the actual legislation concerning copyright, and the perception of intellectual ownership of data within the academic community are bound to evolve as the new medium both forces and encourages change. It will be a major challenge in the next decade to find ways of making knowledge more freely available in electronic format, without reducing the legitimate needs of those who create content for a living.

Recommendations Concerning Copyright

  1. Use all available academic and political channels to encourage new approaches to scholarly communication, based on non-profit, electronic publication and distribution models.
  2. Establish a task force to develop a cooperative model for the electronic publishing of Canadian journals, and a series of "best practices" in electronic publishing.
  3. Encourage all Canadian academic institutions to develop formal guidelines for the evaluation of electronic publishing in cases of tenure, promotion, and salary, and to make the existence of these guidelines known to the academic community.
  4. Take steps to inform the academic community of the existence of existing guidelines concerning intellectual property and the acceptability of electronic publishing.
  5. Develop a guide to "best practices" when it comes to the many questions relating to copyright in the delivery of online courses.
  6. Encourage a practice whereby authors publishing in Canadian journals retain copyright to their work, immediately or after a set period, so that they will be able to co-publish on open academic Internet sites.

     

Annotated Bibliography

Books and Articles (Print and Electronic)

  1. Abram, Stephen. "Crown Copyright and Democracy," Information Highways. 2.4 (April 1995): 5.
  2. Acheson, Keith & Christopher Maule. "Copyright and Related Rights: The International Dimension." URL: < http://edie.cprost.sfu.ca/cjc/amb/main.html> Ottawa: Carleton University. Last revision: May 18, 1995.
  3. Albanese, Andrew. "E-Book Gold Rush: Welcome to the Electronic Backlist." <URL: http://www.linguafranca.com/print/0009/inside-ebook.html>. Vol. 10, No. 6. September 2000.
  4. Amiran, Eyal and Unsworth, John. "Postmodern Culture: Publishing in the Electronic Medium." The Public-Access Computers Systems Review. 2 (1991): 67-76.
  5. Association of American Universities, Association of Research Libraries, Merrill Advanced Studies Center of the University of Kansas. "Principles for Emerging Systems of Scholarly Publishing." URL: < http://www.arl.org/scomm/tempe.html> (2000).
  6. Association of Canadian Community Colleges. "The Balancing Act: Bill C-32, Copyright and Canada's Colleges." URL: <http://www.accc.ca/english/advocacy/gov_relations/c32.htm>. 1996.
  7. Association of Research Libraries (ARL), Association of American Universities (AAU), Pew Higher Education Roundtable. "Roundtable on Managing Intellectual Property in Higher Education." URL: <http://www.arl.org/scomm/pew/>. 1998.
  8. Association of Research Libraries. "The Specialized Scholarly Monograph in Crisis Or How Can I Get Tenure If You Won't Publish My Book?" URL: < http://www.arl.org/scomm/epub/program.html> (1998).
  9. AUCC. Association of Universities and Colleges of Canada, Canadian Association of Research Libraries, The Canadian Association of Small University Libraries. Task Force on Academic Libraries and Scholarly Communication. "Towards a New Paradigm for Scholarly Communication." Discussion Paper. Ottawa. Last revision: September 1995. URL: <http://www.lib.uwaterloo.ca/documents/scholarly(aucc-carl).html>.
  10. Babe, Robert E. Telecommunications in Canada. Toronto: University of Toronto Press, 1990.
  11. Bachrach, Stephen et al. "Who Should Own Scientific Papers?" Science Magazine, 281 (September 1998): 1459-1460.
  12. Best, Michael. "The Politics of Copyright on the Internet." Paper presented to the Shakespeare Association of America, 1997. URL: < http://web.uvic.ca/shakespeare/Annex/Articles/SAA1997.html>.
  13. Bettig, Ronald V. "Critical Perspectives on the History and Philosophy of Copyright," Critical Studies in Mass Communication. 9.2 (June 1992): 131-155.
  14. Bloom, F. Editorial. "The Rightness of Copyright." Science 281.5382 (September 4 1998): 1451.
  15. Borgman, Christine L. From Gutenberg to the Global Information Infrastructure: Access to Information in the Networked World. Cambridge: MIT Press, 2000.
  16. Branscomb, Anne. "Common Law for the Electronic Frontier," Scientific American. 265.3 (September 1991): 154-158.
  17. Brown, Sally. "Changing Roles in Scholarly Communication," URL: <http://www.arl.org/arl/proceedings/129/brown.html>. Association of Research Libraries, October 1996 Membership Meeting Proceedings
  18. Canada, Communications Canada. The Information Society: New Media ... New Choices. Ottawa: Minister of Supply and Services, 1992. ISBN: 0-662-59363-4.
  19. Canada, Consumer and Corporate Affairs. From Gutenberg to Telidon. Ottawa: Minister of Supply and Services, 1984. ISBN: 0-662-53009-8.
  20. Canada, Industry Canada Information Highway Advisory Council (IHAC - Industry Canada). "Preparing Canada for a Digital World. Final Report of the Information Highway Advisory Council." URL: < http://strategis.ic.gc.ca/SSG/ih01650e.html>. September 1997.
  21. Canada, Industry Canada Information Highway Advisory Council Working Group on Canadian Content & Culture. Copyright in the Electronic Age. URL: < http://www.pubcouncil.ca/cea.html> (August 18, 1994).
  22. Canada, Industry Canada. Connection, Community, Content: The Challenge of the Information Highway. Ottawa: Final Report of the Information Highway Advisory Council, September 1995.
  23. Canada, Industry Canada. Final Report.Ottawa: Copyright Sub-Committee of the Working Group on Canadian Content and Culture, the Information Highway Advisory Council, March 1995.
  24. Canada, Industry Canada (Information and Communications Technologies). "Internet Content Liability and Database Protection." URL: < http://strategis.ic.gc.ca/SSG/it04226e.html>.
  25. Canada, Ministry of Supply and Services. A Charter of Rights for Creators. Ottawa: Minister of Supply and Services, 1985.
  26. Canadian Asociation of Research Libraries. "Statement of Principles for the Management of Copyright in the Digital Environment." URL: < http://www.uottawa.ca/library/carl/projects/Copyright/c-r_copyright_principle_eng.htm>. October 1998.
  27. Canadian Book Publishers' Council. "Lifelong Learning on the Information Highway." The working consultation document of the working group on learning and training, Information Highway Advisory Council. URL: < http://www.pubcouncil.ca/llih.html>. March 20, 1995.
  28. Canadian Heritage and Industry Canada. "Discussion Paper on the Implementation of the WIPO Performances and Phonograms Treaty." URL: < http://strategis.ic.gc.ca/SSG/ip01039e.html> 1998.
  29. Canadian Intellectual Property Office (CIPO). "A Guide to Copyrights." URL: < http://strategis.ic.gc.ca/sc_mrksv/cipo/prod_ser/online/guides_e/g_cop_e1.html> Online guide. CIPO/Industry Canada, 1998.
  30. Canadian Publishers' Council. "WIPO Copyright Treaty Discussion Paper." URL: < http://www.pubcouncil.ca/wipocopyrighttreaty.html>Sept. 28, 1998.
  31. Canadian Publishers' Council. "Copyright and the Information Highway." URL: < http://www.pubcouncil.ca/repcopy.html>. February 27, 1995. Response of the Canadian Publishers' Council to the draft final report of the Copyright Subcommittee of the Information Highway Advisory Council.
  32. Canadian Publishers' Council. "Databases, Electronic & Print, & Issues of Protection by Copyright." URL: < http://www.pubcouncil.ca/databases0198.html>January 1998.
  33. Canadian Publishers' Council. "Internet Issues & Considerations of Copyright & Liability." URL: < http://www.pubcouncil.ca/internetdec.html>. December, 1997.
  34. Canadian Publishers' Council. Insight/Globe and Mail Conference (1996) "Copyright Reform: The Policy and the Politics." URL: < http://www.pubcouncil.ca/creform.html>. Paper presented at Insight/The Globe & Mail conference. May 31, 1996.
  35. Canadian Teachers' Federation. What You Need to Know About the New Copyright Act. URL: < http://www.ctf-fce.ca/e/what/copyright/copyrigh.htm>. 1998. Booklet.
  36. Contentville. URL: < http://www.contentville.com/>.
  37. Council of Ministers of Education Canada. "Statement on Copyright from the following provinces and territories: Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Ontario, Prince Edward Island, Saskatchewan, Yukon." URL: < http://www.cmec.ca/copyrght/copyrght.htm> (1995).
  38. Daniel, Johanne & Lesley Ellen Harris. "Discussion Paper on the Implementation of the WIPO Copyright Treaty." URL: < http://strategis.ic.gc.ca/SSG/ip01038e.html> July 17, 1998. Commissioned by Canadian Heritage and Industry Canada.
  39. Delsey, Tom (Director General, Corporate Policy and Communications, National Library of Canada). "Copyright and Technology." National Library News. 30.11 (November 1998). URL: < http://www.nlc-bnc.ca/nl-news/1998/nov98e/3011-03e.htm>.
  40. Dorval, Patricia."Shakespeare on Screen: Threshold Aesthetics in Oliver Parker's Othello. Early Modern Literary Studies 6.1/ Special Issue 5 (May, 2000). URL: < http://www.shu.ac.uk/emls/06-1/dorvothe.htm>.
  41. Dreir, Thomas. Copyright Law and Digital Exploitation of Works -- The Current Copyright Landscape in the Age of the Internet and Multimedia. Prepared for Friedrich Ebert Foundation. Revised edition, 1998. URL: <http://www.ipa-uie.org/copyright/copyright_pub/dreier.html>.
  42. Eischen, Bernadette. "To what extent does copyright protect the output of computer programs?" Canadian Computer Law Reporter. 8.6 (1991): 83-89.
  43. Garson L.R. "The Economics of Scientific Publishing." Abstracts of Papers of the American Chemical Society 214(Pt1) (1997): 57.
  44. Ginsparg, P. "Winners and Losers in the Global Research Village." Invited contribution, UNESCO Conference, HQ, Paris, 19-23 Feb 1996.
  45. Gow , Gordon. "Copyright Reform in Canada: Domestic Cultural Policy Objectives and the Challenge of Technological Convergence." URL: <http://www.sfu.ca/~gagow/capcom/cpyrght.htm>.
  46. Harmon, Amy. "Copyright and Copying Wrongs: A Web Rebalancing Act." New York Times. September 10, 2000. URL: <http://www.nytimes.com/2000/09/10/weekinreview/10HARM.html>.
  47. Harnad, Stevan. "Interactive Publication: Extending the American Physical Society's Discipline-Specific Model for Electronic Publishing." Serials Review, Special Issue on Economics Models for Electronic Publishing. (1992): 58-61.
  48. --------. "Online Journals and Financial Firewalls." URL: < http://www.nature.com/>. Nature 395 (September 10 1998): 127-128.
  49. --------. "Post-Gutenburg Galaxy: The Fourth Revolution in the Means of Production of Knowledge." The Public-Access Computer Systems Review, 3 (1991): 39-53.
  50. --------. "Publicly Retrievable FTP Archives For Esoteric Science and Scholarship: A Subversive Proposal." URL: <ftp://ftp.cogsci.soton.ac.uk/pub/psycoloquy/Subversive.Proposal>. 1994.
  51. --------. "Scholarly Skywriting and the Prepublication Continuum of Scientific Inquiry." Psychological Science 1 (1990): 342-343.
  52. Gnutella ("Spread the sweetness"). URL: < http://gnutella.wego.com/>.
  53. Harris, Lesley Ellen (Writer; Copyright & New Media Lawyer). Copyrightlaws.com. URL: < http://copyrightlaws.com/>.
  54. --------. Canadian Copyright Law 2nd ed. Toronto: McGraw-Hill Ryerson, 1995. Description and excerpts available at URL: < http://www.mcgrawhill.ca/copyrightlaw/aboutccl.html>.
  55. --------. Copyright, New Media Law, and E-commerce. Free enewsletter. To sign up send e-mail to lehletter@copyrightlaws.com
  56. --------. Digital Property: The Real Estate of the 21st Century Toronto: McGraw-Hill Ryerson, 1998. URL: < Description and excerpts available at http://www.mcgrawhill.ca/digitalproperty/index.html>.
  57. --------. "Copyright Law and Librarians." Toronto: McGraw-Hill Ryerson, 1997. Description and excerpts available at URL: < http://www.mcgrawhill.ca/copyrightlaw/cllib.html>
  58. --------. The Copyright and New Media Law Newsletter: For Librarians and Information Professionals. URL: < http://www.copyrightlaws.com/index2.html> Published three times per year in print form with email alerts, by paid subscription.
  59. Hayhurst, W.L. "When Sovereignties May Collide -- Sovereignties and the Regulation of Business in Relation to Intellectual Property: A Canadian Perspective," Canada - United States Law Journal. 20 (1994): 195-220.
  60. Hill, Graham. "Amending Canada's Copyright Law While Renegotiating the CANCOPY License." Association of Research Libraries, May 1996 Membership Meeting Proceedings. URL: < http://www.arl.org/arl/proceedings/128/hill.html> 1996.
  61. Humanist Archives. "Humanist Archives Vol. 10 10.0639 copyright in Canada." URL: < http://lists.village.virginia.edu/lists_archive/Humanist/v10/0253.html>.
  62. International Coalition of Library Consortia (ICOLC). "Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information." URL: <http://www.library.yale.edu/consortia/statement.html>. 25 Mar. 1998.
  63. Japan, Agency for Cultural Affairs. "A Report on Discussions by the Working Group of the Sub-Committee on Multimedia Copyright Council: Multimedia Content and the Super Highway: Rapid Accelation or Foot on the Brake?" Revised edition, February 1995. URL: <http://www.batnet.com/oikoumene/mmcopyright.html>.
  64. Lanham, Richard. The Electronic Word: Democracy Technology, and the Arts. University of Chicago Press, 1993. URL: <http://arts.adelaide.edu.au/person/DHart/ETexts/Internet/LanhamEWord.html
  65. Ludlow, Gregory C. "Intellectual Property (1987-93), Part I -- Summary of Government Activity," Ottawa Law Review. 25.1 (1993): 89-122.
  66. Maloney, S. Timothy. "Phase 2: Revisions to Canadian Copyright Law." Congress of the International Association of Music Libraries, Archives and Documentation Centres, San Sebastian, Spain, June 22, 1998.
  67. Marshall, Denis (Law Librarian & Professor of Law, Queen's University at Kingston). "Legal Issues Surrounding Web Pages." URL: < http://qsilver.queensu.ca/law/copyright/lawweb0.htm> (Queen's Technology Day IV, May 6, 1997).
  68. Mosco, Vincent. "Toward a Transnational World Information Order: The Canada-US Free Trade Agreement." Canadian Journal of Communication. 15.2 (May 1990): 46-63.
  69. Napster. URL: < http://www.napster.com/>. Full (if biased) reports of the legal battle are available in their "Press Room" at URL: < http://www.napster.com/pressroom/>.
  70. NGL Nordicity Group Ltd. Study on New Media and Copyright: Final Report. Produced for Industry Canada. Ottawa: Minister of Supply and Services, 1994. ISBN: 0-662-22493-0.
  71. Noel, Wanda. Copyright Guide for Canadian Libraries. Canadian Library Association (CLA), December 1999. This guide provides library staff with basic copyright information. It sets out who is protected by copyright, what is protected and for how long. It describes the rights copyright provides to creators and the limitations that are placed on those rights for the benefit of libraries and library patrons. Available for sale from CLA for $44.95, plus $8.00 shipping, handling and GST. ISBN 0-88802-294-8.
  72. Okerson, Ann Shumelda. "The World of Licensing: Issues, Concerns, and Promises." Canadian Association of Research Libraries Workshop. Ottawa, 27 October 1997. URL: <http://www.uottawa.ca/library/carl/slidepresentations/A-Okerson/presentation.htm>.
  73. --------. "Recent Trends in Scholarly Electronic Publishing," Seminar on Multimedia Scholarly Publishing, Helsinki, May 29, 1997. URL: <http://www.library.yale.edu/~okerson/recent-trends.html>.
  74. --------. "The Transition to Electronic Content Licensing: The Institutional Context in 1997," Scholarly Communication and Technology Conference of the Andrew. W. Mellon Foundation. Emory University, April 24-25, 1997. URL: <http://www.library.yale.edu/~okerson/mellon.html>.
  75. --------. "Buy or Lease? Two Models for Scholarly Information at the End (or the Beginning) of an Era", Daedalus; Journal of the American Academy of Arts and Sciences (1996) 125.4: 55-76.
  76. --------. "Who Owns Digital Works?" Scientific American (July 1996): 80-83.
  77. --------. "Whose article is it anyway? Copyright and intellectual property for researchers in the 90s," Notices of the AMS. (January 1996).
  78. -------- and James J. O'Donnell, eds. Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing. Washington: Association of Research Libraries, 1995.
  79. --------. "Oh Lord, Won't You Buy Me A Mercedes Benz; Or, There is a There There," Surfaces 4 URL: < http://www.pum.umontreal.ca/revues/surfaces/>. (1994): 103.
  80. --------. "Back to Academia? The Case for American Universities to Publish Their Own Research," Logos 2.2 (1991): 106-12.
  81. --------. "With Feathers: Effects of Ownership on Scholarly Publishing," College and Research Libraries (1991): 425-38.
  82. --------. "The Refereed Electronic Journal: What, Whence, and When," Public Access Computer Systems Review 2.1 (1991): 5-24.
  83. Odlyzko, Andrew "The Impending Demise of Scholarly Journals." Surfaces, 4. URL: < http://www.pum.umontreal.ca/revues/surfaces/> (1994).
  84. Patterson, L. R. Copyright in Historical Perspective. Nashville: Vanderbilt University Press, 1968. A useful historical survey of the pre-electronic era in copyright.
  85. Racicot, Michel, Mark S. Hayes, Alec R. Szibbo & Pierre Trudel. "Internet Content-Related Liability Study, Or The Cyberspace is Not a 'No Law Land': A Study of the Issues of Liability for Content Circulating on the Internet." URL: < http://strategis.ic.gc.ca/SSG/it03117e.html>. Industry Canada Commissioned Study, November 1997.
  86. Reidenberg, Joel. "Information Property: Some intellectual property aspects of the global information economy." Information Age. 10.1 (January 1988): 3-12.
  87. Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge, Mass: Harvard University Press, 1993. An excellent survey of the historical background and evolution of copyright law.
  88. Rosen, Allen. "Reconsidering the Idea/Expression Dichotomy." UBC Law Review. 26.2. (1992): 263-280.
  89. Sosteric, Mike. "At the Speed of Thought: Pursuing Non-Commercial Alternatives to Scholarly Communication." ARL Newsletter 200 (October 1998).
  90. --------. "Electronic Journals: The Grand Information Future?" Electronic Journal of Sociology. 2.2 (1996). URL: <http://www.arl.org/newsltr/200/sosteric.html>.
  91. Stuart, Linda. "Sub-Committee closing in on information highway copyright rules." Info Canada. 20.4 (April 1995): 10.
  92. United States. Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights. Information Infrastructure Task Force. 1995. ISBN: 0-9648716-0-1.
  93. Vaver, David. "Copyright Phase 2: The New Horizon." Intellectual Property Journal. 6 (1990): 37-66.
  94. --------. "The Canadian Copyright Amendments of 1988." Intellectual Property Journal. 4 (1988): 121-155.
  95. Wilson, Brenda and Peter Burpee. Understanding Copyright: A Practical Guide for the Social Sciences and the Humanities. Ottawa: Social Science Federation of Canada, 1990.
  96. WIPO (World Intellectual Property Organization) URL: <http://www.wipo.int/eng/newindex/about.htm>.

WWW Sites and Gateways for Further Information

  1. Canadian Library Association - Copyright Information URL: < http://www.cla.ca/resources/copyrigt.htm>
    An excellent collection of pointers to Canadian copyright information, including information about digital and multimedia rights, and links to international discussions on copyright.
  2. Cancopy: Canadian Copyright Licensing Agency. URL: < http://www.cancopy.com/>
    A not-for-profit agency established in 1988 by Canadian writers and publishers to license public access to copyright works.
  3. COPIBEC - Droits de reproduction, livres, revues, journaux, auteurs, écrivains, écrivaines, oeuvre littéraire. URL: <http://www.copibec.qc.ca/
    COPIBEC a pour principale fonction de gérer les droits des titulaires de droits d'auteur qui lui ont accordé une licence ou un mandat à cet effet, pour les fins de reproduction de leurs oeuvres au Québec.
  4. The Copyright Board of Canada URL: <http://www.cb-cda.gc.ca/>.
    The Canadian regulatory body that establishes royalties to be paid for the use of copyrighted works and to supervise agreements between users and licensing bodies.
  5. Copyright Clearance Center Inc. URL: < http://www.copyright.com/default.html>.
    Innovation in copyright administration.
  6. The Copyright Website. URL: < http://www.benedict.com/>.
    Designed primarily for practising writers and artists, the US website provides an excellent collection of resources on intellectual property in the new media environment.
  7. ECUP (European Copyright User Platform URL: <http://www.wipo.int/eng/newindex/about.htm>.
    A comprehensive gateway to international copyright treaties, legislation, organizations, reports and papers.
  8. Industry Canada. URL: < http://info.ic.gc.ca/ic-data/ic-eng.html>. The IHAC Final Report and various subcommittee reports can be found here.
    "Moving Canada into the 21st Century." URL: < http://info.ic.gc.ca/info-highway/society/toc_e.html>. Industry Canada's follow-up to the IHAC Report (May, 1996).
  9. Industry Canada's Intellectual Property Policy Directorate URL: <http://strategis.ic.gc.ca/SSG/ip00001e.html>.
    The Intellectual Property Policy Directorate (IPPD), bears primary responsibility for the development of Canada's intellectual property policies; this site contains valuable links to information about Canadian intellectual property law, regulations, and reports.
  10. International Federation of Library Associations and Institutions. "Academic Copyright and Intellectual Property." URL: < http://www.ifla.org/II/cpyright.htm#bibliography>
    Useful set of links to international information about academic copyright from the International Federation of Library Associations and Institutions.
  11. National Initiative for a Networked Cultural Heritage (NINCH) URL: < http://www-ninch.cni.org/>
    NINCH fosters discussion on international copyright issues, and maintains a comprehensive site.
  12. National Library of Canada: Government Information on Copyright in Canada. URL: <http://www.nlc-bnc.ca/window/copyrt/copye.htm>.
    The National Library's Gateway to legislation, regulations, and reports related to copyright in Canada.
  13. Stanford University Library: Copyright and Fair Use Resources on the Internet. URL: < http://fairuse.stanford.edu/internet/>
    Admirable and comprehensive gateway to information about copyright and fair use, of particular interest to academics and researchers.
  14. University of North Carolina, Task Force on Intellectual Property. "When Works Pass into the Public Domain." URL: < http://www.unc.edu/~unclng/public-d.htm>.
    Includes material from new Term Extension Act, PL 105-298
  15. University of Texas Library. "Online Copyright Resources." URL: < http://www.lib.utexas.edu/hrc/resources.html>.
    A useful selection of links to sites that provide information about copyright.
  16. The WATCH File (Writers, Artists, and Their Copyright Holders). URL: < http://www.lib.utexas.edu/hrc/aboutwatch.html>
    A database containing primarily, but not exclusively, the names and addresses of copyright holders or contact persons for authors and artists whose archives are housed, in whole or in part, in libraries and archives in North America and the United Kingdom.