Today we highlight a recent victory for access to scholarship. Last Thursday, January 16th, Congress passed an appropriations bill; tucked inside at Section 527 was a provision mandating that Federal agencies with large research and development budgets provide for free online public access to final, peer-reviewed journal articles prepared in some measure with federal funds. Under this law, such articles must be made available no later than one year after their publication.
While the bill in effect codifies existing executive branch policy, it reflects (and further enshrines in law) the growing consensus that publicly-funded research be made available to the public.
There remains lots to be done with regard to that goal. SPARC estimates that the law’s mandate will apply to $31 billion of the $60 billion of taxpayer funds spent on research annually. Being halfway to universal open access for federally-funded research is no small feat, but it leaves open the possibility that much important research languishes behind paywalls. Moreover, the 12-month embargo period leaves room for improvement — much sounder would be the 6-month embargo proposed in the Fair Access to Science and Technology Research Act (FASTR). Nevertheless, it is heartening to see public access increasingly becoming the status quo for the vast swathes of research produced with federal funds.
h/t Electronic Frontier Foundation
Today’s Copyright Week topic is fair use, the “traditional First Amendment safeguard” that prevents copyright from stifling innovative, creative, and critical works and uses of works.
If there are two things about copyright law that authors and creators should know, they are:
- Copyright is everywhere. Copyright is granted automatically for every original work of authorship, regardless of size, quality, or even the interests of the author. There are no “formalities” required (though there used to be!), no forms to fill out or papers to sign. The minute I write this blog post, I gain a copyright in its text.
- Because of limitations on copyright like fair use and (as discussed yesterday) the first sale doctrine, authors and innovators can make use of copyrighted work in myriad ways without infringing copyright.
But whereas many limitations on copyright, including the first sale doctrine, are narrowly written to provide very specific exceptions, fair use is a broad and flexible doctrine. It allows courts, faced with allegations of infringement, to find a given use nevertheless “fair” and therefore noninfringing.
Do you want to make a parody of a popular song? That’s made possible because of fair use. Do you want to record television broadcasts for later viewing? That’s possible because of fair use. You may even wish to digitize millions of books to enable digital searching, archiving, access for vision-impaired persons, and enable new kinds of insight into the history and use of language. This too is possible because of fair use.
It would be hard to overstate the importance of the flexibility fair use allows to the continued creation and dissemination of knowledge and culture. That it can go unnoticed is only because fair use protects many of the things we intuitively feel we should be able to do. “Of course I can quote the book I’m reviewing in my review!” “Of course I can use a movie clip in my lecture!” Well, yes, you often can — because of fair use.
A comprehensive overview of the ways in which fair use is at the heart of public interest authorship in the United States would be impossible to encapsulate here in just one post. We’re not done with the topic yet! Still to come are updates on the continuing evolution of fair use, and resources for better understanding the principles behind fair use.
 Fair use and the concept of flexible limitations on copyright are not unique to the United States, but they are far from being the international norm.
Having launched in the middle of Copyright Week, it seems only fitting to consider the topic-of-the-day’s effect on public interest authorship. Today’s topic is “you bought it, you own it,” which is less a statement of the law than it is a common-sense aspirational principle that sometimes applies to the sale of copyrighted goods.
The benefits of the “first sale doctrine,” under which the “you bought it, you own it” principle is most likely to apply, are often discussed in the context of consumer protection — for instance, it is deeply troubling when a “retailer” of digital goods decides to disappear a “purchased” product and people take notice for good reason. But in a larger sense, the transition away from selling and toward licensing in the information economy is also hazardous to the information stewardship that allows creative works to remain available when their publishers lose interest.
Information is increasingly provided less as a good and more as a service — when we stream movies from Netflix, no additional copies are made available for the public to archive and protect. To the extent this shift allows for widespread access to the vast private libraries of material that today’s Amazons and Netflixes can provide, the transition does have positive implications for the public’s access to knowledge, information, and creative works. However, a knowledge economy based solely around centralized control is woefully incomplete. Such a system cannot provide for information stewardship that historically benefits from diffuse ownership or for the “read/write” access to knowledge on which so much creativity depends. In the pre-digital world, the first sale doctrine was a safety valve of inestimable importance; a principle that allowed copies to be lawfully transferred, stored, annotated, and shared. As our access to information becomes ever more digital, keeping that concept alive in some form is of foundational importance.
 Think, for example, of the lost Dr. Who episodes recovered in Nigeria, which were lost because the BBC would, as a general practice, record over old tapes.
Hello, World! Welcome to the Public Interest Authorship blog, where we will discuss policy, news, events, tools, and resources related to the furtherance of authorship and publication in the public interest.
What is public interest authorship?
People create — that is, people author — for any number of reasons (self-expression, communication, and even fame and fortune come to mind). For many authors, and particularly for academic authors, spreading knowledge is a leading motivation. In the jargon of American copyright law, this advancement of knowledge is “the Progress of Science” for which our copyright law was designed. The public interest in enabling authors to broadly distribute their works is the “public interest” in “public interest authorship.”
What’s there to blog about?
While the digital age allows for the unprecedented dissemination of creative works, authors seeking to make their works available to the broadest possible audience are nonetheless confronted with any number of obstacles. These barriers may arise from within copyright law itself, from the economics of authorship and publication, or as a result of the information overload that can occur in the absence of curation.
Accepting that it is in our collective interest to encourage the wide dissemination of information that authors wish to share, the Public Interest Authorship blog will track and comment on developments in law and litigation, in publishing, and in information organization that further, prejudice, or otherwise affect authors in their role as distributors of information.
Now is an exciting and challenging time for public interest authorship — the Authors Guild litigation against HathiTrust and Google Books continues as the important fair use rulings in those cases are challenged on appeal; academic publishing giant Elsevier is taking down authors’ postings of their own articles in academic fora; wheels are spinning toward “Next Great Copyright Act“; and on top of everything else, we happen to be in the middle of Copyright Week. So stay tuned — we’ve got lots coming.