Tag Archives: censorship

Springer, Censorship and the Need for Open Access

OG-CopyrightWeek2

*Updated January 22, 2017 to include a statement by Sarah Thomas, Vice President for the Harvard Library and University Librarian*

It’s Copyright Week! Today’s topic is “Copyright and Censorship: Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act a legal cudgel to silence it.”

When a rightsholder uses his or her rights to prevent others from relying on, accessing, or using information, copyright can act as a tool of censorship. One example of where this happened occurred in November 2017 when Springer Nature agreed to exclude Chinese readers and institutions from accessing certain articles in its journals at the request of the Chinese government. Regardless of whether Springer acted in good faith in order to maintain access in China to the rest of its collection, because authors collectively relinquished control over their copyrights there was no effective remedy. We are familiar with the problem of authors assigning rights to corporate entities, which may be more inclined to aggressively enforce their rights under copyright law or demand high fees in order to access or use the work. In the Springer case, because of copyright, authors could not promote access to their work because the publisher acquiesced to a government’s censorship demands.

According to The Financial Times, Springer blocked an estimated 1,000 articles its journal, International Politics and the Journal of Chinese Political Science, effectively aiding China’s censorship request. This decision by Springer followed a similar August 2017 action by Cambridge University Press to block access to 315 articles at the request of the Chinese government, though Cambridge University Press later reinstated the articles after heavy criticism, citing the desire to “uphold the principle of academic freedom.” Other university presses, such as Oxford University Press, MIT Press and the University of Chicago Press have stated that they will not comply with censorship demands.

Ultimately, censorship directly harms research, scholarship and academic freedom. In the digital age, global collaboration is commonplace and Chinese students and researchers are at a significant disadvantage without access to the full corpus of works that researchers in other countries have. Research institutions should work to support barrier free access to information to combat censorship.

Springer’s decision to censor 1,000 articles illustrates that, as a for-profit institution, its goals may not align with those of academic institutions and highlights the necessity for higher education to regain control over scholarly communication. Working with publishers that agree to censor materials raises questions regarding threats to academic freedom, research and discovery.

Authors should carefully consider whether assigning their copyright to publishers is in their best interests knowing that, in addition to the ability for publishers to impose high costs to read articles, these entities may comply with requests that prevent readers in other countries from having access to these works.

Ultimately, copyright and licensing issues have serious consequences for the research community. Ensuring that the research community can retain control over its scholarly communication outputs will promote barrier free access too all. Publishing in open access outlets, including in preprint services, or retaining copyright can help ensure that selective censorship is more difficult.

Statement of Sarah Thomas, Vice President of Harvard Library and University of Librarian:

I’m astonished that Springer Nature has not used their important leverage as a content provider to protect the rights of their authors to be read and to exercise their professional leadership in promoting access to knowledge. Censorship is the suppression of ideas, and is directly opposed to Springer Nature’s stated policy: “Our publishing and editorial policies have been developed in consultation with the research communities we serve, including authors and librarians, and are rooted in belief that scholarly communication is aided by greater transparency of the processes by which we operate.”

Springer Nature proudly proclaims on their home page: “We advance discovery by publishing robust and insightful research, supporting the development of new areas of knowledge and making ideas and knowledge accessible around the world.” Apparently this statement is a qualified one, subject to governmental influence and balanced by commercial considerations.

Certainly I will work at Harvard to increase awareness of Springer Nature’s complicity in the silencing of scholars who write for their journals. In a world in which basic democratic values are increasing threatened by authoritarian leaders, it is shocking that the Von Holtzbrinck-owned publisher Springer Nature would contribute to their decay. Is this the work of new CEO Daniel Ropers, who comes out of retailing?

I urge Springer Nature to show the commitment to the “advancement of science, learning, and society” that Ropers espoused when joining Springer Nature in autumn 2017 and to look to publishers such as Cambridge University Press as a model.

Reminding the Fourth Circuit That Fair Use Protects the Historical Record

Can the owner of a copyrighted work use her rights to censor history? Courts applying fair use principles have typically held that she cannot. Nevertheless, a recent decision from the Federal Court of Appeals for the Fourth Circuit lets a disgruntled designer do exactly that. ARL (along with our allies in the Library Copyright Alliance) has joined an amicus brief today prepared by Anthony Falzone at the Stanford Fair Use Project asking for the full Fourth Circuit to rehear the case and reconsider the panel’s flawed fair use reasoning.

From 1996 to 1998, the Ravens used a logo that was later determined to infringe Frederick E. Bouchat’s copyrighted drawing, which he had submitted to the Ravens. The resemblance is pretty striking:

Ravens LogoBouchat Logo

from wikipedia

The story of how they came to infringe is bizarre and seemingly innocent—Wikipedia has a brief summary, including pictures of the various logos and sketches involved. In any case, Bouchat sued and won, and the team has used a new logo since 1999. However, the infringing logo of course continues to appear on artifacts and documents of those three seasons, such as highlight films, ticket stubs, and programs.

Mr. Bouchat sued the Ravens and the NFL and asked the court for nothing less than the right to suppress every depiction of his logo, including every depiction of the Baltimore Ravens in uniforms bearing the logo from 1996 to 1998. The district court denied his request, saying these historical depictions were fair use. On appeal, however, a panel of the Fourth Circuit reversed the district court and held that while fair use may protect some displays of the infringing uniforms (in photos at the Ravens’ headquarters, for example), fair use does not protect the depiction of those uniforms in NFL highlight films and short videos shown in the stadium at Ravens home games. The court denied that these depictions were “transformative,” and emphasized the for-profit nature of the highlight films and in-stadium videos.

Falzone’s excellent amicus brief reminds the court that there is overwhelming precedent to support the Ravens’ claim of fair use. The brief makes several important points, but perhaps the most important point is that for-profit use is not fatal to a fair use claim. The court gave significant weight to the fact that the highlight films are “commercial,” while the headquarters displays that it found to be fair use were “free of charge.” This differential treatment is in direct contradiction of the Supreme Court’s ruling in Campbell v. Acuff Rose that commercial uses are not disfavored in fair use analysis.

The import of this decision could be quite significant. The Supreme Court has said that fair use is an essential First Amendment protection because it ensures that the copyright monopoly is not allowed to become a limitation on vital freedoms of expression. If courts decline to apply fair use to protect something as fundamental as the right to document historical facts, they upset the constitutional balance in copyright law. The “exclusive rights” of authors and inventors were never meant to give them a license to censor history. Hopefully the Fourth Circuit will reconsider this very unfortunate decision.