Who is afraid of copyright?

Around the world knowledge is being enclosed and the struggle for public access is intensifying

Valbona Muzaka
Valbona Muzaka

I became aware of the link between the recent suicide of Aaron Swartz in the US, the Finch Report  adopted by the UK Government and the legal troubles of the Rameshwari Photocopy Services in Delhi while on a research trip to India. That link is the inherent conflict between open access to knowledge and copyright law.

In order to improve public access to knowledge produced by publicly-funded UK scholars, the Finch Report recommended a ‘gold open access’ publishing option whereby journals switch from a ‘pay-to-read’ to a ‘pay-to-say’ model.  This means the scholar (which means the institution) paying somewhere between £500-5000 to publish an article, which will then be ‘freely’ accessible to the public.

But the public will end up paying twice: once through supporting the initial research and then, again, by providing funds that the UK government has promised to distribute to its universities to enable them to pay journal publishers.  For a university to get the minimum suggested 45% level for ‘gold open access’, it has been estimated that it would need an extra £740,000-£1.6m per annum.  Reportedly, around £10million has been reallocated from the existing science budget and shared among 30 research universities as ‘kick-off’ funds. It seems clear that, even if the government keeps its promise of continuing to provide such funds, they won’t be enough to sustain the model.

Like the student fees shake-up, these proposals are being introduced and adopted too fast – without public debate or debate within and between universities and their staff, despite the changes these proposals would unleash.  It is only the academic publishers who appear to clearly benefit from them, as their profits and markets remain unchallenged by these measures.

Yet, judging by their efforts to get governments to increase copyright protection, publishers have always felt insecure about their profits and markets.  Copyright protection has intensified dramatically over the years in the West, leading eventually to a counter-movement, exemplified in part by the rise of Creative Commons licenses and the Access to Knowledge (A2K) movement.

Enter Aaron Swartz.  An American computer prodigy, political activist and keen A2K supporter, Swartz performed a landmark hack in 2010, downloading around 4.8 million articles from JSTOR (a not-for-profit digital library).  It is not clear what he intended to do with them, but the US prosecuting authorities (JSTOR declined to press charges) maintained that he wanted to make them publicly available for free.

It is worth pointing out that the majority of these articles (65%) were apparently no longer under copyright: hence in principle already in the public domain. No one seems to know why Swartz (age 26) committed suicide in January – a few months ahead of the court case scheduled for April – but feeling the full weight of the US government against him cannot have helped.

Even if Swartz had been successful in making these articles available for free, this gesture would have been primarily symbolic. Unless further action is taken to rectify the serious structural issues constraining academic research and publishing in the US and elsewhere, access to knowledge will become increasingly problematic. Even Harvard, one of the richest university libraries in the world, issued a memorandum last year, declaring it could no longer afford the skyrocketing price of academic journals.

It is not difficult to imagine the difficulties faced by cash-strapped public universities in the rest of the world. Once purchasing power differentials are taken into account, books are generally more expensive in developing countries. If Americans paid the same share of their income for books as Indians, for instance, they would have to stump up around $1027 for Mandela’s Long Walk to Freedom, a ludicrous sum. Academic books are usually even more expensive, producing an alarming crisis of access to educational material in a country like India, from where I am writing this post.

This is where Rameshwari Photocopy Service, a small shop attached to Delhi University, comes in. To alleviate the problems students were encountering with accessing course materials, the University signed a contract with Rameshwari to produce course packs/digests, including photocopies of various chapters on reading lists.

Now Rameshwari and Delhi University are being sued by Oxford University Press and Cambridge University Press, backed by Taylor and Francis, for infringement of their copyright, claiming damages of six million rupees. This has lead to student protests across campus and a number of high profile scholars (e.g. Amartya Sen) asking publishers not to sue in their name. To no avail – the publishers pressed on and secured a temporary victory at the Delhi High Court late last year, restraining the making and distribution of any course-packs while the case is being considered.

This is another example of publishers fighting against ‘piracy’ in the developing world.  I use inverted commas here because such claims are legally invalid if the law of the country allows certain types of utilisation of copyrighted material without permission from the right-holders.  The 1886 Berne Convention, which was the first and main copyright international convention, enshrines ‘fair use’/’fair dealing’ exceptions that permit certain acts without the permission of copyright owners for educational purposes.  Implementation, of course, varies widely across nations.

What is allowed for educational purposes under Indian copyright law? It appears that it allows for reproduction of any work by a teacher or pupil in the course of instruction and for ‘fair dealing’ with any work (except computer programmes) for private or personal purposes, including research.  Furthermore, Indian law does not lay down any quantitative restrictions on educational use of the sort familiar in the UK.  This was probably intentional in a country where illiteracy rates are still relatively high and the right to education is constitutionally enshrined.

The likely decision of the Delhi High Court is unclear, as are the changes that might be unleashed by the full implementation of the Finch Report in the UK.  What is clear is that knowledge is being enclosed rapidly across the world and that, as knowledge-producers, we have precious little say in how it is made available to and accessed by the public.