Why Open Content Matters
The trends discussed so far--the increasingly rigid copyright regime, the chilling effect on free speech of a sharply constricted fair use regime, the destruction of the public domain, and the growing amount of vital information that's locked up in systems capable of enforcing pay-per-view access--have led more than 100,000 scientists worldwide to sign an open letter demanding that scientific journals in the fields of medicine and the life sciences release their copyrighted articles after six months to an on-line public library, PubMed Central, which would provide free and unrestricted access to the information these journals contain. Signatories to the letter are refusing to publish in journals that won't cooperate with the PubMed Central initiative.
What's behind this development? It's an attempt to create a balance between the need of commercial, for-profit publishers to derive income from publishing scientific journals, and the contrasting right of the public to have free and open access to the knowledge created by "tens of billions of dollars of mostly public money each year, and representing the original ideas and millions of hours of hard work by hundreds of thousands of scientists, and the voluntary participation of hundreds of thousands of patients in clinical studies" (from the Public Library of Science FAQ). Many scientific journals make their articles accessible to the public after six months, and evidence suggests they do not lose money by doing so; subscribers are willing to pay for the latest information, even if older articles are available for free.
Several journals have already agreed to play ball with the Public Library of Science, and they've released their older content to the archive. According to the Public Library of Science, these articles are part of a fast-growing "public domain" of crucial knowledge in medicine and the life sciences that will remain freely available to the public. But don't be to sure. The Public Library of Science allows the source journals to retain their copyright on the republished works. This means publishers can withdraw their participation at any time, and they can also bring lawsuits against users who appropriate and distribute the articles in a way that is not to the publisher's liking.
When will the first lawsuit occur that deals with material appropriated from the Public Library of Science? It's just a matter of time. Suppose I put together a textbook consisting of classic articles in the last ten years of the life sciences, and it just happens to eat into the market for one of these publishers' books. Do you think they'll sit back contentedly? And just imagine what would happen if I put together a string of articles culled from the Public Library of Science that demonstrates bias in studies funded by certain pharmaceutical companies. See you in court, baby!
My point is this. In the absence of a true public domain, in which no one person's claim to the rights to use a work are in any way superior to any other person's, those who would make information freely available must develop an alternative to copyright that replaces the functions of the public domain for written works. The failure to do so is to embroil the "freely redistributed" information in a legal quagmire increasingly inimical to the exercise of free speech.
As much as I respect the Public Library of Science and the values it represents, there's a bit of naivete about this movement immediately recognizable to anyone familiar with the history of free software. Posed between an increasingly rigid copyright regime and public domain software, which for-profit companies could appropriate, compile and resell, the architects of the Free Software movement recognized a need for a Third Way. The most important achievement of the free software movement may well lie in the legal and conceptual arena--specifically, the General Public License (GPL)--which provides a meaningful alternative to the prevailing copyright regime.
As most readers of this journal doubtless realize, the GPL uses a form of contractual enclosure--a software license--to impose constraints on what a user of a GPL-licensed program may do. Specifically, these constraints prevent a user from denying to others the same user rights that were granted when the program was obtained, including the right to access the source code, the right to duplicate and distribute the software freely, and the right to make derivative works out of the original code. Although the GPL does not prevent users from selling GPL-licensed works, it does prevent them from copyrighting the software in any way that departs from the GPL, closing up the code so that users cannot access it or making claims against users who make unauthorized copies of derivative works.
Were the articles published in the Public Library of Science made available by means of a license similar to the GPL, those who wished to use this information freely could do so with a clear conscience and without fear of unexpected legal persecution. That's not true at the moment, and, from the perspective of the Free Software movement, the Public Library of Science may be making a serious mistake.
That said, it's far from clear just what an open-content model should look like and how best to protect written work using a models derived from the Free Software movement. The next article in this series will examine a variety of open-content models developed thus far, including the Free Software Foundation's offering, and critically analyze their usefulness for what might be a crucial role: Preserving the public's right to access facts and ideas freely in a world in which information has become a zealously protected right of real property.
Bryan Pfaffenberger is Associate Professor of Technology, Culture and Communication at the University of Virginia. He is currently teaching a course entitled Media Studies 317, "Intellectual Property and Digital Media" and encourages you to visit the class's web site, which is driven by PHP and MySQL.
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