Protecting whose copyright?

Nov 02 2010 Published by under Tactics

A faculty friend of mine forwarded me the email following. I have redacted it to remove publisher-identifying information. You can read about the service if you like, though. (I'm not connected with the said service in any way. I think its use in this context borders on the obscene.)

As a [publisher] author, you will know that [publisher] is dedicated to protecting the copyright of your work. For this reason, we use the Attributor service. Attributor automatically searches cyberlockers for unauthorized copies of works or illegal hosting and then issues legally-binding takedown notices. We are increasing Attributor's searches to the full breadth of the internet, to ensure maximum copyright protection.

For this to run as smoothly and efficiently, we are asking that you provide us with (if applicable):

  1. your personal website address
  2. your institutional website address
  3. the website address of your company

This is so we can exclude these sites from the Attributor searches, whilst protecting your copyright. Upon provision of this information, we will of course ensure full data protection.

We look forwards to hearing from you.

Kind Regards,

(name redacted)
Rights Assistant
[publisher]

How very carefully this is phrased. The copyright of your work. Why, if one didn't know better, one might think that one actually owned the copyright in one's work, instead of the publisher owning it. And one might think that protecting the publisher's copyright by reinforcing access barriers benefited one, instead of reducing one's readership and reuse.

And how very carefully this little DMCA-hunt (which is what "legally-binding takedown notices" suggests to me this is) is being managed. They don't want to issue takedown notices to authors, because that risks major backlash. This publisher doesn't want authors to realize that they don't own their own work, you see. The above missive suggests that they'll even let rogue Internet-available copies with an author as the bootleg source slide, rather than annoy an author.

I'll be interested to see how this plays out. (If anybody sees anything about response rate on such an email campaign, I'd love to know about it.) I can't imagine they're going to be wholly successful in avoiding authors if they really try RIAA-style blanket takedown tactics. I also can't imagine that they won't cause consternation in a good many college and university legal offices, which will trickle down to faculty with a quickness.

I don't imagine they're that stupid or that desperate, so I'm guessing this is either a fishing expedition to see what kind of response rate they get (and perhaps estimate how many rogue copies of their articles are out there because of authors?) or cover for a campaign targeted mostly at academic samizdat on non-academic-owned websites such as web BBSes and perhaps Mendeley-like sites.

If it's samizdat they're after, I hope they don't think they'll avoid faculty backlash...

17 responses so far

  • Martijn says:

    This service is clearly aimed at authors like this independent filmmaker: http://t.co/RE79PjU (and of course big international publishers like Elsevier.)

    And who owns the copyright can be a matter of jurisdiction. In most countries with Napoleonic law the author always keeps the copyright. Only the right to exploit it can be given away or sold.

    • Yes, it looks like Attributor is expanding into a different market. We'll see how well that works out for anyone.

      I'm not expert on international copyright; could you give me a quick-and-dirty summary of what the "right to exploit" amounts to?

      • I think what Martjin is talking about has to do with the "moral rights" that are in most European copyright laws (not just France, but I think the idea comes from French law). Most of the rights under US copyright end up being the 'rights to exploit' or 'proprietary rights' that indeed, even in France, the author can sell or give away. But there are a few odd things here and there which generally don't exist as seperate rights in US law, which are inalienable 'moral rights' the author holds on to.

        A fairly straightforward 'moral right' is the right to insist one be attributed as author in any publication (something you generally don't have in the US if you've sold the copyright). Other ones confuse me more, because they seem to sometimes contradict the "rights to exploit" that you CAN sell, and I don't really understand how it's determined which side wins when that happens. Like there's some kind of moral right to actually decide that something can NOT be published in a certain venue, and I don't really understand how that works out.

        I've seen different usage than Martjin's as to which side is 'the copyright'. I've seen 'the copyright' == 'right to exploit', with moral rights being something else. Maybe that's a US perspective though, and in France (et al) 'the copyright' is the 'moral rights', with the 'right to exploit' being something else. That's really just terminology though, either way, I'm pretty sure, even in countries with strong 'moral rights' like France, once you've sold the 'right to exploit', you don't have the right to, say, put a public access copy of it on your personal website without permission from the new owner of those rights.

  • Rob Knop says:

    I *can* imagine that they're that stupid or desperate. The old-school publishing industry has been running like a bull in a china shop trying to get the limitations of the analog world coded into law before they completely lose their power altogether. I wouldn't expect the academic publishing industry to behave any differently, even if they are smaller than the RIAA and MPAA by orders of magnitude. They do, after all, have power within their own little world, and don't want to lose it.

    • Maybe they are. I expect, if so, they'll run into many of the same problems the RIAA has, only worse...

      ... because unlike with music, the major consumers (students aside) are also the major producers. This is why the publisher in question is being so careful not to accidentally alienate potential authors. I just don't think they can step THAT carefully; samizdat is a major source of access to the literature even for faculty these days!

  • Rich Apodaca says:

    Publishers are so far behind the curve on updating their business models to fit the new normal that it would be comical if it weren't such a tragedy.

    [publisher] runs the risk of extinction in the Darwinian shakedown now in progress.

  • Maitri says:

    If you write something on paper or on a personal blog and put a copyright symbol on it, it is automatically copyrighted by you. What you submit for publication belongs to the publisher. I'm curious as to Scientopia's copyright model.

    • What you submit for publication does not belong to the publisher until you sign something saying so. Some publishers do not insist on copyright transfer, only a license to publish. As a matter of self-preservation in a changing environment, I recommend that scholarly authors prefer publishers who do not insist on copyright transfer.

      Scientopia leaves copyright with blog authors. It also allows us to license our blogs via Creative Commons if we wish.

      • And indeed, my favorite story here, well worth retelling many times, is when I wrote an article for an 'industry' publication (I used to leave out the name, not sure why: It was Library Journal). They sent me a contract that would have me relinquishing the copyright entirely, the end. I, somewhat hesitatantly and apologetically, said, "Gee, I don't really like those terms, are they negotiable?" They with no hesitation sent me a DIFFERENT contract and said "Do you like these terms better." They had it waiting all along, all one had to do was know to ask. The new contract left me with the copyright, and gave them a one year exclusive publication right (I could not republish elsewhere for a year), which (especially since the article was already being published open access on the web by them anyway) seemed pretty reasonable to me.

        Always always at least ask.

        • I had exactly the same experience with Library Journal, with the added fillip that the editor promised me the lenient license, but the admin assistant sent the strict one. One question to the editor, and it was resolved.

  • I think they're clearly NOT after the most usual kind of 'samizdat', as usually when i've seen you talk about this, you're talking about authors hosting their OWN work, that they don't actually have the legal right to host open access. It's VERY interesting that they're excluding the personal or institutional websites of the author (or at least they say they are) -- even though the author quite likely doens't have the right to host it open access either.

    The danger of this kind of thing for them is that when authors actually start paying attention to who owns the copyright and what they do with it -- they may realize that it's not in fact in their interest at all. If they started sending takedown notices to authors or their institutions, that would become a lot more likely. Is there anything 'we' can do to make it more likely this kind of thing will lead to authors realizing "Hey, wait a minute, why do I care if someone shares my article without the publishers permission, I actually like it when they do it, I'm not sending in this darn form!"

    Also, "cyberlocker", what?

    • I got nothin' on "cyberlocker." I assume they'll know one when they see it.

      Samizdat is complicated. When I use the term, what I hope I've gotten across (but may not have) is the circulation of firewalled academic journal articles by whomever to whomever for whatever purpose. I have DEFINITELY seen people sending other people articles they didn't write, because they had access and the other people didn't.

      I don't know what we can do about gambits like this. I suspect inertia is on our side; most researchers ignore most email, so I don't know that the publisher is going to get a response rate they're happy with. For now, I'm inclined to leave the situation be (this blog post aside) and see what comes of it. Even if this WORKS, it's likely to be another Pyrrhic victory for exactly the reasons you adduce.

  • Ed Suzuki says:

    Cyberlockers are companies offering online storage i.e. a personal locker in cyber space where one could upload and store most file types. An example would be wwwdot4shareddotcom.

    Here is a relevant Guardian article, albeit from 2009 - http://www.guardian.co.uk/technology/2009/nov/20/copyright-digital-economy-cyberlockers-rights

    • Thanks! I sort of wonder if that's where they're going to stop, though.

      • Ed Suzuki says:

        I presume you mean the uploaders, and if so, yes, they rarely stop at using it as a locker since the service really is designed for sharing. While it is true some people use these services for legitimate purposes, an increasingly significant segment, if not the majority, use it for file sharing with dubious adherence to copyright laws (i.e. none).

        There have been some intriguing instances when an author posted links to his/her work on a sharing site (I think it was 4chan, even) and drove up pageviews to his site significantly. A novel approach (no pun). If I can find that particular article, I'll post a link here.