Monthly Archives: January 2018

Springer, Censorship and the Need for Open Access

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*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.

Will Dicta from Impression Products v. Lexmark Lead to the Ability to Control Your Own Devices?

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Today we’re celebrating Copyright Week! Today’s topic is “Controlling Your Own Devices: As software-enabled devices become ubiquitous, so do onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it – meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.”

Due to an ambiguity in the text of the Digital Millennium Copyright Act (DMCA), the anti-circumvention provisions can be read to make the very act of circumvention of a technological protection measure (TPM), or “digital lock,” an infringement of copyright — even if there is no underlying copyright violation. While logic would suggest that there is a violation only if the circumvention is being used to infringe copyright, some courts have held otherwise. As a result, circumventing TPMs can be risky, even if the user is simply trying to engage in a fair use, which would be completely permissible in the analog world.

The Supreme Court has never ruled on this ambiguity, but a case decided at the end of its term last year involving exhaustion of rights in a patent case, included some dicta that seemed to favor the ability of individuals to repair the items they own. In Impression Products v. Lexmark International, the Court found in favor of international exhaustion of rights, finding that a patent holder cannot enforce contractual restrictions on downstream sales in patent infringement cases.

While issues regarding TPMs and anticircumvention were not raised in the case, as a policy matter, the majority opinion detailed the dangers that would occur without exhaustion and used the right to repair as an example:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale.  Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.  Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain.  And advances in technology, along with increasingly complex supply chains, magnify the problem.

The use of auto repair as an example of the problems created through overzealous claims of intellectual property protection is a compelling one given the issues of embedded software in automobiles and anti-circumvention measures. With a growing number of vehicles containing embedded software, some rightholders are claiming that purchasers of these vehicles should not be free to modify, repair or tinker with these items. An article in Wired in 2015 highlighted the fact that John Deere (and other automakers) opposed an exemption to allow circumvention of technological protection measures in order to repair purchased vehicles during the DMCA 10201’s triennial exemption process.

While the use of embedded software continues to proliferate in our everyday household objects, a common sense approach must be adopted to ensure that we can repair objects we’ve purchased in the same way a consumer would have been free to repair his car, toaster or washing machine in an era before “smart” technology.