Fighting for Fair Use and Author Rights + The Open Access Alternative

Fighting for Fair Use and Author Rights – Christopher Boulton

Over the last four years, I’ve sparred with three academic publishers over copyright and permissions policies, once with Pearson and twice with Taylor & Francis. The results were mixed, ranging from hard-fought victory to stalemate and withdrawal. So, in the interest of recruiting allies, I thought l would share some of my stories from the ring.

My first round came back in 2006 when my university required that I remove all copyrighted images from my masters thesis, a textual analysis of print advertisements for designer children’s clothing (chronicled in more detail here). Soon after, I discovered that journals, too, would require me to secure formal permission from the copyright holder of each advertisement. When I dutifully pursued said permissions, I was soon lost in a maze of endless referrals as magazines sent me to brands who sent me to photographers who sent me to modeling agencies etc. In sum, my requests for permissions baffled the supposed copyright holders; no one knew what to do with me.

So, by 2008, I was ready to rumble. And this time, it was to defend my own copyright. The Communication Review accepted one of my submissions and instructed me to transfer my copyright to the publisher, Taylor & Francis. Reading the fine print, I discovered that this would prevent me from posting the article to my website or any digital repository for an embargo period of 18 months. This struck me as unacceptable, so I decided that I would exercise my option to retain my own copyright. My repeated requests were denied. To make a very long story short, it took 3 months of negotiation and the collective resistance of multiple authors threatening to hold up the issue to get Taylor & Francis to reverse their policy and accept the SPARC addendum, thus preserving our right to post and distribute our own work. This taught me a very important lesson: when it comes to policy change, there is power in numbers.

Encouraged by this author rights victory, I pursued a similar strategy with permissions reform, working with colleagues to develop a set of general guidelines and argue that transformative and proportional quotation of copyrighted material without permission was a crucial tool for academic inquiry. From 2008-2010, we followed a three-step process. First, we convened a pre-conference which led to the formation of the International Communication Association (ICA) Ad Hoc Committee On Fair Use And Academic Freedom. Second, we conducted a broad survey of the field, resulting in a report outlining how concerns over copyright have had a widespread chilling effect on scholarship, resulting in quotation avoidance and self-censorship. Finally, the Ad Hoc Committee consolidated the findings of the report and vetted them through a legal team before issuing a Code of Best Practices in Fair Use for Scholarly Research in Communication through the ICA and the Center for Social Media at American University. The Code has been widely adapted since its publication in 2010 and was recently endorsed by the National Communication Association (NCA) as well.

In some ways, fair use is an easier argument to make to publishers than author rights. As Pat Aufderheide, who was instrumental in developing the Code, points out, “University of Chicago Press, Princeton University Press and Oxford University Press have all benefited by being able to publish higher quality scholarship, by exercising fair use rights. These presses were not approached in a hostile or confrontational manner; but scholars did make editors and even counsel aware of the change in the landscape by having a Code of Best Practices in Fair Use for Scholarly Research in Communication. Once aware that the risk had been dramatically lowered, publishers were happy to do good work.” (personal communication, February 8, 2012) These positive developments, along with the existing SCMS Statement on fair use and the Library of Congress’ recent DMCA exemption seemed to suggest that we were gaining ground.

Then, in late 2010, retrenchment. I received a Contributor Agreement regarding a book chapter submission from Taylor & Francis stating that fair use is “determined by the copyright holder” and that I would be responsible for “for obtaining written permission for the inclusion of any copyright material in the Contribution, whether text, illustrations or otherwise.” Weeks later, in reference to another chapter, I reviewed a permissions policy from Pearson Education asserting that “anywhere you use a direct quote we will need to secure and pay permissions fees.” The policy was accompanied by the editor’s request that we (as authors in an anthology on race, class and media, mind you) paraphrase and thereby avoid direct quoting of any and all “media texts – songs, films, ads, TV shows, newspapers, magazines, websites, etc.” I was stunned. For me, these were fighting words. While this particular Taylor & Francis case had a happy ending (the book editors agreed to pursue a “muscular interpretation of fair use” and pledged to defend all of the contributors’ right to quote from copyrighted material), the Pearson Education negotiation ended in a stalemate (chronicled in detail here) resulting in my withdrawal from the book.

While in some quarters, the Code is helping cooler heads prevail, my most recent scuffles have me hot under the collar. And, apparently, I’m not alone. As both Mary Gray and On the Media have recently reported, the online boycott against the academic publishing giant Elsevier suggests that academics are becoming increasingly radical in demanding open access to research. Given these new developments, I wonder, would you be willing to do something similar on behalf of fair use? Or perhaps you’ve taken or even landed a few punches yourself? In any case, please share your stories below. There is power in numbers, but only if we get organized and develop some best practices.

The Open Access Alternative – Zachary J. McDowell

There is, of course, another way. Rather than battling the publishers that have shown relentlessness with their profit-making copyright restrictions, we might examine the publishing equation from the outside and see if it, in its current form, makes sense at all. We (academics) write all the articles (sometimes using public money), act as editors, peer review, etc, for (for the most part) “free.” I say “free” because the publisher (the one charging exorbitant amounts to lease the information back to us) is not the one who pays us, but instead the University (the one paying exorbitant amounts to lease this information from the publisher) pays our salary (as this falls underneath the category of “service” and “research” which many of us are responsible for in addition to teaching).

In sum: The institutions of higher learning pay for us to write the articles, they pay for us to review the articles, they pay for us to run the journals, and then the “publisher” (often little more than a printer/distributor at this point) leases the information back to these same institutions of higher learning. What is interesting is that these publishers have gotten away with this until now, especially in tough economic times where budget cuts abound and most institutions are in hiring freezes, despite the growth in enrollment. This realization is not radical, by any means. The fact that administrators everywhere are not begging academics to revolt boggles the mind.

This is precisely why Princeton instituted a new “Open Access” policy for its faculty last year. Their new policy “bans” academic authors from handing over their rights to journal publishers, ensuring that the information produced by their academics will not have to be leased back by their library. This not only forces authors to seek out more “open” options for publications, but hopefully will help to quell the “how do I get tenure” questions that plague potential authors in Open Access journals. This might not have been possible a few years ago, but a policy from a major research University might be enough leverage to start getting some momentum built for Open Access publishing.

We all make a choice when submitting articles, or serving on editorial boards. It seems now that it is becoming more plausible to make a different choice outside of “traditional” publishers, in online Open Access journals. Despite naysayers that take issue with non-dead-tree journals, there are plenty of excellent options. First Monday, for example, is one of the first Open Access electronic journals (established in 1995) about anything and everything on the Internet. Game Studies, an aptly named journal about computer game research, is one of the few journals dedicated to this still-emerging discipline. There are even entire Open Access publishers now. Open Humanities Press, for example, has eleven journals (and now six books), all rigorously peer reviewed and free to whomever wishes to access them. Indeed, Christopher Boulton’s permissions problems outlined above eventually drove him to publish in the International Journal of Communication, an Open Access journal with a vigorous interpretation of fair use that allowed him to include copyrighted images of print ads. My own contribution to this comes in the form of the newly formed Open Access journal and project, communication +1, of which I am the Managing Editor. There are a great many of these journals that already exist. IAMCR has compiled a partial list.

Of course the argument about Open Access journals has historically been that their quality is not guaranteed, and that anyone can publish in these peer-reviewed journals (this is of course driven by concerns about tenure review). Whether or not this has any merit, the question I pose is this: If everyone who promises not to publish Elsevier took their time and contributed (articles, editorial board membership, etc.) to their respective Open Access journals, what would the Open Access journal landscape look like then?

//   Christopher Boulton and Zachary J. McDowell are PhD Candidates in Communication at the University of Massachusetts Amherst. They have decided to co-author this post in a call-and-response format: Boulton outlines the problem; McDowell offers up a solution.

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