Copyright and research: an academic publisher’s perspective
Kevin Taylor*
Cite as: K Taylor, "Copyright and
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As a publisher
working on the legal and rights’ side of the business at
present, but who used to be a Commissioning Editor responsible for
research books in the Humanities, the author finds himself
sympathetic to the needs of academic authors and keen to find ways of
ensuring that their copyright interests are adequately protected.
Rights
are often at the heart of things for authors, but among any group of
authors there will always be a wide range of attitudes towards the
way their rights should be exercised. The
British Academy’s Review entitled Copyright
and Research in the Humanities and Social Sciences,
launched in London on 18 September 20061
and the subject of a day-symposium in Edinburgh on 30 March 2007,
rightly focuses on the need of academics to re-use other people’s
copyrighted materials for research purposes without over-paying for
the privilege; yet academics are copyright owners as well, and they
are sometimes the first to be concerned when they see their own
materials re-used inappropriately or without adequate remuneration to
them. There is this dual aspect to
copyright, and as the Intellectual Property Director at Cambridge
University Press (CUP), I tend often to be looking both ways: towards
the widest possible dissemination of an author’s work on the
one hand, and towards assiduous protection of their copyrights on the
other.
The
range of submissions to The Gowers Review
(December 2006)2
also demonstrated this diversity of attitudes towards rights, and the
writer, in his day-to-day work regularly encounters the entire
spectrum. This ranges from academics who unreservedly support Open
Access models and would unhesitatingly make all of their written
outputs freely available on the internet as soon as possible for
others to re-use on the principle that maximising the most widespread
accessibility should be any author’s priority; all the way to
those who are highly concerned with protection and control to the
point of scrutinising the small-print of every sales invoice and
every end-user licence to be sure that their publisher is squeezing
every last penny from their copyrights on their behalf.
A
publisher has to mediate those attitudes and come up with models that
satisfy to some degree, both ends of the spectrum. Consequently, once
it is averaged out, the academic authors are not
very far apart from academic publishers on any of the key rights’
issues. In fact, in almost all cases with academic books these days,
certainly with those published by the CUP, it is the author
who retains the copyright. The copyright notice on the imprints page
of the book is in the author’s name and the copyright is not
assigned to the publisher or any other party. The publisher is
granted the exclusive right to publish, distribute, sell and
sub-license the work, but the author retains essential ownership of
the words she has written, which includes an assertion of moral
rights. Even in special cases (such as volumes like Cambridge
Histories or Cambridge
Companions), where CUP requests that an
overall copyright in the work be assigned, partly for branding
reasons, is the copyright is then assigned for a legal consideration,
and that consideration is generally the terms and conditions of the
contract. In other words, if the contract is actively terminated, or
ceases to remain in force through breach or non-fulfilment, the
copyright will naturally revert to the author. Copyright arises
inalienably from authorship and is not something that the author can
be permanently or unconditionally divested of. To that extent,
copyright is certainly on the side of authors. Publishers exploit it;
but without authors it would not exist.
An
example of an attempt to create an acceptable author-publisher
balance would be the rights which the authors of journal articles
retain to deposit their work in institutional and subject
repositories and to re-purpose their work in other publications of
their own. Another example would be the willingness of many
publishers to experiment with Open Access, author-pays or
funding-agency-pays publishing models: CUP now operates that model
for fifteen of its journals, with the Open Access content covered by
the excellent Creative Commons Attribution-NonCommercial-ShareAlike
licence designed for such purposes.
As such,
copyright is a two-way street: it is there to protect authors from
losing control of their work as well as to allow free and effective
communication of that work. And this duality has in fact
characterised copyright from the very beginning. Throughout
the eighteenth century copyright evolved as a protectionist framework
to the financial benefit of the stationers’ companies, and
still today it is possible to bring many arguments about
copyright-infringement down to economic causes and effects. If a work
is illegally copied or distributed, in breach of the laws of
copyright, then the legitimate market for that work is effectively
devalued. If for example, a textbook published by CUP is scanned to
PDF by an enterprising student who then sells copies of the PDF at a
knock-down price on eBay or some other download service (and this
happens regularly) it may fairly be argued that sales of the
legitimate book will be thereby damaged, to the financial detriment
of both publisher and author.
Yet
in such examples there are always counter-currents in play, and these
point towards a different aspect of copyright: the aspect that has
its origins in the French Enlightenment and is more to do with the
creative right of the individual to communicate his or her ideas; a
right which transcends, or is at least quite apart from, the economic
context, and may be regarded rather as an aspect of the freedom of
expression. An example here would be the academic author who
encourages the free electronic dissemination of his book, on the
grounds that his mission is to reach as many readers as possible, no
matter how this is done. To provide an example from practice, an
author, whose book was published by CUP, brought to its attention the
list of websites from which free PDF versions of his textbook were
available for illegal downloading. The author went on to say that he
himself welcomed and applauded this activity, even though he assumed
that CUP would not take the same view and would want to take steps to
stamp it out! This is a significant example of the tension at the
heart of copyright: the tension between protection and communication.
While recognising his
legal responsibility to alert his publisher to infringements which
would financially detriment both CUP and himself, the author was also
pleased by the idea that his work should be considered worthy of
widespread free dissemination, even if this meant less money for him.
It is worth noting that the academic in the above example was in an
established career, hence receiving a salary, and not someone who
aspired to make a living out of his textbooks. Nonetheless there is a
tension there, and it is perhaps the same tension that we see in the
debate around the Open Access movement in the Journals world.
A recent
Position Paper on copyright from the Association of American
Professional and Scholarly Publishers, published in May 2007, is
tellingly sub-titled ‘An Appropriate Balance’3:
the writer believes that it is this ‘balance’, which we
have to achieve and we are in
practice achieving. As an academic publisher, I agree with almost
everything contained in the Supplement to the British Academy’s
Review document, Guidelines on Copyright and
Academic Research. Academics and academic
publishers can unite behind documents of this kind.
The
Gowers Review takes a very balanced
line on copyright, for good reasons. The copyright industries
represent at least 7% of GDP in Britain and book
publishing generates at least £5billion per annum for the
British economy, with Journals adding a further £1billion.
A
full-scale tilt into unrestricted Open Access would be too big a
shift. Someone has to pay, and it can be argued that the current
mildly regulated framework which ‘publisher-controlled’
copyright represents does the job quite well: of keeping the
economics in equilibrium. In my view, The
Gowers Review seems to point towards a
secure future for copyright. Whenever the utopian vision of a
copyright-free world is discussed, it soon becomes clear that some
form of regulation would at some point be required both to protect
Intellectual Property and its commercial interests and to shore up
the author’s right of communication – and whenever the
nature of that regulation is explored it begins to look very much
like copyright.
Copyright
is a mature form of regulation which has evolved over hundreds of
years. To conclude on a cheerful note, it is my belief that
copyright will
adapt to the electronic world, and to the needs of the academic
community going forward, in a manner that will serve the interests
very well. Copyright is here to stay.
A
version of this article was given as a talk at the event Copyright
and Research in the Humanities and Social Sciences, co-hosted by The
British Academy and the AHRC Research Centre for Studies in
Intellectual Property and Law in the University of Edinburgh, 30
March 2007. Some sections first appeared in Kevin Taylor’s
article ‘Plagiarism and Piracy: A Publisher’s
Perspective’, Learned Publishing, Volume 19, No. 4 (October
2006), 259-265.
* Intellectual Property Director, Cambridge University Press