Creative Commons: Changing the Landscape of Copyright and Plagiarism

Towns and cities of the 18th and 19th centuries often had a place called a

commons: a centrally located unfenced area that was free for all to use. The

Creative Commons is, in essence, an intellectual and artistic commons of creativity.

The Creative Commons organization is one of many grassroots organizations

fighting a Congress that has acted to shrink the public domain, and the business

community that has exploited it. In a Washington Post news article, Lawrence

Lessig, the Stanford University law professor who co-founded the nonprofit Creative

Commons, and is the brainchild behind the Creative Commons licenses is quoted as

saying that the aim of the organization, is to "help artists and authors give others the

freedom to build upon their creativity -- without calling a lawyer first" (Cha, 2005). In

other words, open access to works without the worry of legal ramification is the main

purpose behind the Creative Commons licenses. In my research on this subject, I

found myself overwhelmed by legalese surrounding copyrights. In my experience,

organizations like Creative Commons are involved in trying to reform copyright.

Creative Commons takes the concepts surrounding copyrights and makes them

much simpler to understand and much easier to implement. The best protection

against plagiarism is detection, and detection is easier when the original work is

freely available.

Issues

The authors of scientific works sometimes assign copyright to journals and

proprietary online databases, thereby giving the publishers ownership of their work.

This is a central problem in scientific publishing today. The control enjoyed by

publishers over specific scientific works allows them to charge access fees to

anyone needing access to material they cannot get elsewhere. Scientific research
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depends on the timely free flow of ideas and information. These very same

publishers will state that it is often very challenging to distinguish between quality

content and less-than-credible information when sifting through long lists of search

results from internet search engines or directories. Also, publishers often question

open access as being no different than file-sharing.

In the creative arts, copyright protects the rights of content producers who

need to make money from their song, book, or film, and there is tension between the

content producer's interest to profit from their labor and the consumers' desire to get

it as cheaply as possible. In scientific publishing this tension is nonexistent. First, the

producers and consumers of information are largely the same people. And, second,

scientists don't make money from the sale of their work. Today, copyright is used

almost exclusively as a means to restrict access to scientific publishing. Copyright

protects the interests of publishers and the works they publish, and not the rights of

scientists and researchers.

Librarians and library institutions have special rights granted via US Copyright

law and are in a position to help educate the public about copyrights, plagiarism and

public domain importance, unite for its preservation, and encourage copyright

owners to dedicate their works to the public using Creative Commons licensing. In

doing so, they can provide a haven for scientists and researchers to place their

works in the public domain where detection of copyright violations and plagiarism

would be easier and also to promote the progress of human knowledge as our

founding fathers intended in the Constitution.

History

In 1787, the US Constitution included a copyright provision in Article I, Section 8,

Clause 8, that read “the Congress shall have power…to promote the progress of
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science and the useful arts, by securing for limited times to authors and inventors the

exclusive right to their respective writings and discoveries.” In 1790, the First

Congress implemented this copyright provision via the law: The Copyright Act of

1790, an Act for the Encouragement of Learning, by Securing the Copies of Maps,

Charts, and Books to the Authors and Proprietors of Such Copies (Understanding

Copyright Law, 2004).

The first US copyright law was enacted in the Copyright Act of 1790. In 1909

the Copyright Act of 1909, U.S. Code, vol. 17, sec. 4 expanded the scope of

copyright with the words, “all writings of an author.” The US Copyright Act was again

revised in 1976. The Copyright Act of 1976, US Code, vol. 17, sec. 102(a) states that

a work is protected the moment it is “fixed in a tangible medium of expression.” This

revision was as a result of the US joining the Berne Convention for the Protection of

Literary & Artistic Works. The Berne Convention is an international copyright body.

As a result, US Copyright law now preempts all state laws. The 1992 Copyright

Renewal Act was drafted because of the NAFTA (North America Free Trade

Agreement) and GATT (General Agreements on Tariffs and Trade) agreements in

1994. These agreements obliged the US to make further changes with regards to the

international Berne Convention and subsequent changes to copyright law as a result.

In 1998, the DMCA (Digital Millennium Copyright Act) was another revision of US

copyright law. This law was an attempt to address electronic commerce and

copyright issues. The late Sony Bono, as a Senator from Florida, further extended

copyrights with the passage of the 1998 Sony Bono Copyright Term Extension Act.

This extended copyrights 70 years after the passing of the author. The TEACH

(Technology, Education, and Copyright Harmonization Act) Act of 2002 included

updates to copyright law pertaining to transmissions of performances and displays of

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copyrighted materials. Such transmissions are critical to current higher education

distance education efforts, including online courses (McChord-Hoffman, 2005).

According to the Copyright Act of 1976, a protected work is an expression that

is an original work of authorship with a modicum of creativity and that is (a) fixed in a

tangible medium of expression whether now known or later developed and (b) from

which work can be perceived, reproduced, or otherwise communicated, whether

directly or with the aid of a machine or device (Copyright Act of 1976, US Code, vol.

17, sec. 101, 499, 340).

As was recognized by our founding fathers, it is important for the progress of

science and the arts to have factual works published and distributed to the public. If

this is so, then why do publisher’s acquire the rights to scientific works and then

publish them in journals and proprietary online databases and then, subsequently

charge the very same consumers for access to the works they originally published?

Although information in a journal is factual, the publishers chose what to include,

how to organize it, and how to present it. As a result journals and online databases of

the journals are copyrightable. The facts contained in the journal, however, are not

themselves copyrightable. In academia, for example, it is common for the institution

to allow faculty to retain the copyright in the works they create.

As stated previously, our founding fathers reasoned that we need copyrights

to encourage authors to create new works and therefore promote the progress of

human knowledge. Now, the ultimate goal is to foster the creation of new works that

will one day enter the public domain where they can be freely used to enrich

everyone’s lives. Incidentally, facts and ideas contained in a work of nonfiction as

well as US government works are denied copyright protection completely (What is

Copyright, 2006).
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In determining the nature of the protected works, the courts usually consider

whether the work is factual or creative. Recall that a work must show a “modicum of

creativity” to be protected by copyright (What is Copyright, 2006). Pure facts cannot

be protected. However, many factual works, such as biography, or even a collection

of statistics, include original work as well as the facts. In a biography, original work

would include the language the author chooses to tell the story (Understanding

Copyright law, 2004). In a statistical collection, the selection and organization of the

facts may be sufficiently original enough to allow copyright protection. Protecting

factual works encourages publication and distribution of the information. At the same

time, however, we have to consider the ability to access and use scientific works as

more important to education and society, and thus to the progress of science and the

arts, than the ability to access and use purely fictional works. Therefore, courts are

more likely to judge use of a factual work to be a fair use than use of a purely

fictional work (Understanding Copyright Law, 2004).

Causes

Currently, the way that publishers wield copyright actually weakens authors'

protection against misuse of their works. While copyright offers some legal protection

against plagiarism, there are few cases in which copyright has been used to

prosecute plagiarists. The real protection against plagiarism in scientific publishing

comes from a scientific culture that does not tolerate these practices. Scientists'

careers have been ruined when it is discovered that they have stolen someone

else's work (Wiener, 2005).

What does copyright have to do with plagiarism and what is the difference

between plagiarism and copyright? Plagiarism has nothing to do with copyright law.

Although they may be similar at first glance in that an infringer is “stealing” someone
 Wakefield 6

else’s work, they differ in several ways. One may infringe a copyright without claming

to be the author of a work. Likewise, one may commit plagiarism with a work not

protected by copyright (Simpson, 2005).

Therefore, my position is that the best protection against plagiarism is

detection, and detection is much easier when the original work is freely available.

Scientific works exist as a result of the broader scientific community, and the whole

reason you publish them is so that other people will read and use them. If research is

paid for by the public through a federal agency or public institution, it's likely the

scientists doing the research are interested in producing public knowledge. If the

product of that research doesn't belong in the public domain, then the public domain

doesn't have any meaning.

What is public domain? Once a work falls into the Public Domain it will stay

there indefinitely. This means that the work no longer has copyright protection. These

creative works for some reason or another are not protected by copyright law and

are ordinarily free for all to use (McCord-Hoffman, 2005). Since the goal of scientists

is to publish into the public domain in order to expand human knowledge, then open

access appears to be the best way to enable public access, peer review and

plagiarism detection. And if other scientists have equal and open access to this

knowledge then it makes it easier to peer review their colleagues published scientific

works to facilitate these other objectives as well.

Effects

So, what would be the effectsof open access on scientific works? Everyone

who has access to a computer and an Internet connection will have unlimited access

to the scientific knowledge. This would be an invaluable resource for science

education, could lead to more informed healthcare decisions by doctors and patients,
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and could level the playing field for scientists at small or less wealthy institutions and

developing world by ensuring that no one will be unable to read an important paper

just because their institution does not subscribe to a particular journal. Open access

will also enable scientists to begin transforming scientific works into something far

more useful than just the electronic equivalent of rows and rows of journals on library

shelves. The ability to search an entire scientific library for particular terms,

concepts, methods, data, and images and then retrieve the results is only a

beginning. By freeing information in scientific works from the fixed arrangement of

pages and random boundaries drawn by the publishers who are fixated on their

relics of paper publication, open access opens up countless new possibilities for

navigating, integrating, "mining," annotating, and mapping out connections in this

new dimension of accessibility. Hopefully, even the most reluctant publisher will

come to understand that open access is a viable means of publishing scientific

journals and a financially viable economic model. Once this happens, I suspect many

publishers will respond positively either on their own or in response to the market

pressure of scientists supporting the open access model.

We have already seen success in genetics with open access to freely

available archives of DNA sequences. It was decided in the early 1980s that

published DNA sequences should be deposited in a central repository, in a common

format, where they could be freely accessed and used by anyone. Simply giving

scientists free and unrestricted access to the raw DNA sequences led them to

develop methods, tools, and resources to complete whole sequences, including the

human genome (Public Library of Science, 2006). If open access in the scientific

arena is an accomplishment, then we should expect an even bigger creative

expansion stimulated by open access to published scientific works.

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Conclusion

We need to see a shift in how the publishers are paid for distributing scientific

ideas and discoveries. From a model in which publishers are given permanent,

exclusive control over the scientific works and allowed to charge for access to a

model in which the literature is effectively placed in the public domain and publishers

are paid a fair price for the service they provide in getting the works there. Internally,

I am sure most scientists would agree strongly with the general principles of what is

being advocated here. What remains is the challenge of convincing them that they

should publish in established journals and support this new model of publishing in

the public domain at the same time. Publication records play a major role in landing

jobs, getting grants, and achieving tenure. The more prestigious the journal, the

better it looks on your resume. What is being advocated is a chicken-before-the-egg

scenario. Many scientists perceive publishing in a new journal, no matter how much

they agree with its principles, as a risky career move. As a result, a tremendous

amount of energy has to go into creating an open access journal with the highest

editorial and production standards that publishes outstanding works from all areas of

science. Once established as prestigious journals, scientists will no longer feel they

have to choose between what is right for them and what is right for science.

Libraries can help to encourage open access to scientific works by

designating themselves as protected Online Service Providers (OSP) under Section

512 of the Copyright Act. Librarians can limit the caching of information to the very

minimum necessary to qualify for the Section 512 protections (Copyright Act of 1976,

US Code, vol. 17, sec. 512). Libraries must follow strict regulations of Section 512 to

qualify as an OSP. Although most libraries would qualify as an OSP, protection is not

automatically granted. The Copyright Act does not protect a library (a) unless and
 Wakefield 9

until it takes specified action to indicate its desire to be protected by Section 512,

which includes registering an agent (someone who will receive complaints) with the

US Copyright Office; and (b) when accused of infringement, follows specific

regulations in responding to the accusation of copyright infringement or plagiarism.

OSP’s are protected from legal ramifications of copyrights infringement on behalf of

its users but must investigate any and all complaints of copyright infringement or

plagiarism. Because this protection as an OSP could be quite burdensome, each

library should consider seriously the trade-offs of complying with the Section 512 of

the Copyright Act (Simpson, 2005).

A library can facilitate access to open works and licensed works as far as the

First Sale Doctrine. The first sale doctrine permits libraries to lend copies of

copyrighted works to users without seeking permission or paying fees to the

copyright holder. Sharing those resources with other libraries is another matter.

Under the Fair Use Doctrine, resources the library has purchased fall under the First

Sale Doctrine. This does not give them the right to reproduce a work and forward to

another library. They can only reproduce the work in the library for onsite use. A

library could make a copy of a Creative Common licensed work and forward it to

another library (Simpson, 2005). The bigger question would be for licensed works.

The answer to this would mean reviewing the license.

According to Blake’s Law Dictionary a license is “A personal privilege to do

some particular act or series of acts on [a piece of property] without possessing any

estate or interest therein, and is ordinarily revocable at will of the licensor and is not

assignable.” So, a license is the ability to use a piece of property that belongs to

someone else without obtaining any ownership rights in the property. You could think

of licensing of electronic resources as renting those resources; you may be allowed

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to download or print items from the database and information, but you do not obtain

any ownership of the resources.

Why should libraries be concerned about right of access on behalf of a

copyright holder? As stated previously, the first sale doctrine permits libraries to lend

copies of copyrighted works to users without seeking permission or paying fees to

the copyright holder. Access controls, however, could disrupt traditional library

service because of a pay-per-use system. Most libraries don’t have a budget to

provide access to all patrons. This would create information have and ‘have-nots’.

Another reason why libraries and librarians should be part of the solution is

archives. Publishers have control of their archives and works can disappear

according to the publishers’ policies. Even though some publishers automatically

make the works publicly available after a specific period of time, as we mentioned

earlier in this paper, there is no guarantee that these works will be archived or placed

into the public domain with access to all.

Ultimately, libraries and librarians have the special rights and skills to educate

the public about public domain works and shepherd open access to scientific works.

I surmise that we will see market forces change the landscape of copyright and

nudge publishers in this direction as well eventually. The Library of Congress would

be a good place to start as far as a clearinghouse and archive as they have the

resources and expertise to do so. Like other issues in our government, public opinion

and adoption could swing things this way if our new informational science graduates

and educators plant the seeds into our future librarians minds now.
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