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Taylor & Francis makes every effort to ensure the accuracy of all the information (the ‘Content’) contained in its publications.1

If you were to submit an article to a journal in which you claimed that United States copyright law allows rights holders the ability to stop users from reproducing, storing, or transmitting any part of a publication in any form or by any means without the prior permission in writing from the copyright holder, your article, no matter how well crafted otherwise, because of this incorrect statement, should be rejected without review. However, dozens of journals have such claims in every issue. They do so in their copyright notices in the front matter, a section that although not peer-reviewed is still part of the journal. The lack of rights spelled out in the first sentence of this paragraph is a reordering of the leading sentence for the copyright notice of the Journal of Communication, the top journal in the field of communication studies, and it is factually incorrect: U.S. copyright law, specifically fair use, states otherwise.

One thought is that this is merely an unimportant piece of boilerplate text, unthinkingly placed by the publishers and written by their risk-averse lawyers. It is certainly not enforced: Academics routinely reproduce content from journal articles without permission from the publisher, and detailing the relevant literature while reproducing a quote or two for an article is a time-honored and vital part of the academic enterprise. Such intentionally inaccurate copyright notices raise many questions. One this paper seeks to explore is if these copyright notices are a factor of traditional, paper-based publishers: Do new media journals have more accurate or progressive copyright notices compared to their more traditional brethren?

Background

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References

Copyright has been an issue for academics, legal professionals, policy makers, and publishers for quite some time, and has been a topic of intense focus in the recent Internet period of mass, easy digital copying. The copying capability of digital computers, combined with the inherent sharing capability (and often intent) of high-speed data networks, makes copyright an ongoing issue to this day. This is especially true for professionals, academics, and journals that primarily deal with new media.

The new media area abounds with copyright cases. Napster, the MP3 sharing network, is a famous case that hinged on copyright. Users could make their entire music collection, in MP3 format, available for copying to thousands of other users. Napster was found guilty of contributing to copyright infringement on a massive scale and was shut down. Indexing files (such as MP3s), searching through data (file lists), and copying data (the music) is a task that the current Internet is perfectly suited for.

More recently, Law professor Wendy Seltzer2 was in a spat with the U.S. National Football League over a short YouTube video of their copyright notice in early 2007, centered on the Digital Millennium Copyright Act (DMCA) (Seltzer, 2007). Stanford law professor Lawrence Lessig spearheaded litigation against copyright extension in the US in 2002–2003, taking the case to the Supreme Court, which found the extension legal in a 7–2 decision. One of the two dissenting justices was Justice Breyer, who as a law professor had written about copyright in The Harvard Law Review, finding copyright’s extension at the time unnecessary (Breyer, 1970). The Associated Press and bloggers have fought over copyright and fair use (Hansell, 2008). The Computer and Communications Industry Association, a new trade group with members such as Microsoft and Google, in August of 2007 filed a complaint with the U.S. Federal Trade Commission, stating that the copyright notices “that we have been seeing for decades are false. They are a misrepresentation of the law and a violation of consumers’ rights” (Bangeman, 2007). This is the problem with many copyright notices in our academic journals. Whereas our journals are held up as examples of the best and most accurate scholarship, these notices are “misrepresentation of the law” (Bangeman).

In the US, the basis for copyright is detailed in the Constitution. Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (U.S. Const. art. I, § 8, cl. 8). Fair use is presented in section 107 of the U.S. copyright code, which states that copying “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” (Copyright Act of 1976, 17 U.S.C. § 107). Furthermore, there are four factors that must be considered:

  • 1
    The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • 2
    The nature of the copyrighted work;
  • 3
    The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • 4
    The effect of the use upon the potential market for or value of the copyrighted work.

These four factors are used as a test for infringement in copyright cases, a few of which are discussed below. Internationally, although far less binding, is the United Nations’ Universal Declaration of Human Rights, Article 19, which in part states, “Everyone has the right to… seek, receive, and impart information and ideas through any media and regardless of frontiers” (United Nations, n.d.).

Clearly lawmakers have felt that allowing their citizens to draw on cultural capital, albeit in a limited manner, is important, and so we have fair use. Lawmakers are balancing that need with the need to protect the works that form cultural capital, both nationally and internationally. Copying, on the one hand, and protection against it on the other, are, in their extremes, fundamentally incompatible, although it is often the job of the politician to reconcile fundamentally differing views in law.

Copyright is generally an issue of protection. This is not just protection of a copyrightable work in terms of making copies of it, but protection against the economic harm that may stem from such copying. As such it is a commercial consideration. The general notion of fair use, then, can be seen as protecting a cultural commons from which new work can be created, but it can also be seen as an economic threat to copyright holders. These copyright holders do not always include the authors of a work in question, as copyright may be signed over (to a record company, or a publishing company).

What all that means exactly has been a matter of much debate, and the scholarly output regarding copyright has been high, especially in law and in information and library science.3 Copyright and the difficulties caused by computers is an issue dating back to before the Internet was even in its initial four-node embodiment (Banzhaf, 1967). Copyright itself goes back to 1710 with the Statute of Anne in the UK (Litman, 2001), and has been a point of contention ever since (Litman, 2001; Vaidhyanathan, 2001). The current issues with copyright are often seen as purely technological, but both copyright law and copyright infringement have a large social component that interacts with technological capability (Jackson, 2002).

Boyce (1996) pointed out that U.S. copyright law does not fulfill the charge set forth in the U.S. Constitution (“to promote the progress of science and useful arts…”), especially when it comes to academic publishing, and suggested changes for the academic publishing field to make journal articles more accessible to all. Spoo, Orlans, and Cornett (2002) discussed issues faced by academic publishers in the digital age, and focused on the lack of clarity around fair use. They hoped that the benefits of fair use could be achieved through compromise, not stifled by litigation as is often the case.

Gadd, Oppenheim, and Probets (2003) explored copyright agreements between academic journal publishers and authors, and found the moderate variance across journals less than optimal, so suggested standardizing the agreement. Ward (2002) also looked at the actual agreements between publisher and scholar, as well as notices in journals, in order to highlight the motivations of publishers and authors, and suggested how the two can work together.

Some publishers and academics have tackled the copyright issue directly. The Association of Computing Machinery (ACM) revisits and revises its copyright policy on occasion, and balances the rights of its readers, authors, and its own rights as a publisher (Wise, 1999). The recently launched (2007) International Journal of Communication, a web-only peer-reviewed journal, takes a very forward view of copyright, and discusses Creative Commons licensing and U.S. fair use rights on its submissions page.4 Marquette Books plans on launching seven new communication studies journals in 2008,5 and all of them will be open access journals, where the authors will retain the copyright, not Marquette. Clearly publishers are aware of copyright issues.

The study in this paper includes several law reviews. Litman (2006) pointed out how copyright holds no motivation for law review article authors, and how the economics of law reviews has no connection whatsoever to copyright issues. Similarly, for academic journals, Day (1995) wrote how many feel there is a connection between copyright and journal subscription cost, but he argued there was not, and Liebowitz (1985) found that photocopying academic journals, regardless of copyright, had not harmed journal publishers. Further, Bartow (1998) observed how publishers seek to restrict educational fair use, and the misleading copyright notices in journals are just one part of that effort.

Fair use is vital to the academic enterprise. This is obvious, but yet scholars have needed to defend fair use and elaborate its importance to scholarship and the progressive culture of information sharing found in university research (Crews, 1993; Frazier, 1999), and more broadly defend the constitutional basis for the public domain of ideas (Benkler, 2003). Fair use is also closely tied to free speech (Burk, 2001), and the two are interrelated to scholarship (Herrington, 1998), as scholars must be free to make unpopular statements. Furthermore, the ties between free speech and democracy are well-established (Litman, 1999; Pfaffenberger, 2001). There is also a large body of work on how the 1998 Digital Millennium Copyright Act in the US, along with digital rights management software (DRM, also referred to by some as digital restrictions management), can completely deny people their fair use rights in the digital domain (Benkler, 1999; Doctorow, 2004; Lessig, 2004; Vaidhyanathan, 2002).

The extent to which fair use allows copying is not entirely clear from the written law, and, as often happens, we must turn to case law to discover its reach. One recent case in the fair use case law is Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996). Michigan Document was a coursepack service in Ann Arbor, Michigan, that copied large amounts of copyrighted material for students at the University of Michigan, but paid no copyright fees, claiming fair use since the material was for class and was provided by professors (Silberberg, 2001). Michigan Document lost the case, and currently they have students push the copy button on the photocopier to avoid lawsuits (and it still does not pay copyright fees). This case gave one example of what is not allowed by fair use, but by itself leaves open the question as to what is allowed.

In 1975 the U.S. Supreme Court affirmed a lower court ruling in Williams & Wilkins v. United States, 420 U.S. 376 (1975). This decision allowed photocopying of journals, but was specifically about a research library making somewhat limited copies of articles from medical journals, and these copies were for patrons of the library who were engaged in research. It was determined that no harm had come to the publisher, and that research would have been harmed if copies were not made (National Institute of Health, 2004; Stanford University Libraries, n.d.b).

Another case relevant to copyright and journals is American Geophysical Union v. Texaco, Inc, 60 F.3d 913 (2nd Cir. 1994). This case is similar to Williams & Wilkins in that the case revolves around the issue of copying articles in journals, but the decision went against the copying party, Texaco. In this case, one important factor was Texaco’s for-profit nature, whereas in Williams & Wilkins the libraries were nonprofit. The court also considered a journal article as a whole work under the law; the law as written does not made it clear in such cases if the entire journal should be considered as the whole work and an article as a part, or if an article would be considered a whole work (Association of Research Libraries, n.d.; Cornell University Law School, n.d.; University of Texas System, n.d.).

Another case that deals with coursepacks, like the Michigan Document case but predating it, is Basic Books, Inc. v. Kinko’s Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y 1991), where Kinko’s was sued for making copies of parts of books and making them available in coursepacks. The court found against Kinko’s in part because, although the material was academic, Kinko’s was a for-profit company. The court also found that the amount Kinko’s was copying was excessive (Stanford University Libraries, n.d.a; Kasunic, 1993; Tedford & Herbeck, n.d.).

These cases all deal with physical paper copies, made on a photocopying machine. Recently all academic resources have been moving into the online world, with online student registration, library databases, online class discussion lists, online courses, and online reading material. The lawsuits over fair use have followed as well. In April, 2008, three UK-based publishers sued Georgia State University over the use of online reading material provided to students without permission (Guess, 2008; Hafner, 2008; Stewart, 2008). The case has yet to be decided. Unlike Kinko’s, Texaco, or Michigan Document, Georgia State is clearly academic and nonprofit. Resolution of this case will give some guidance for digital copies.

These cases all hinge upon application of the four factors (detailed above, but briefly: purpose of use, nature of the copyrighted work, amount, and effect upon the potential market). These four guiding factors are the bedrock for fair use cases in the United States, but are rarely mentioned in copyright notices.

These notices, specifically the printed copyright notices in academic journals, do not garner much attention—the copyright agreements between publisher and author (that few tenure-seeking authors would turn down) receive more attention. Although these notices most likely have little or no effect on the copying behavior of anyone who reads them (given the amount of copying that does not conform to the notices’ exact standards), claims of accuracy and validity of information are vital to the health of a journal and the entire academic enterprise. Are these copyright notices valid? A quick exploratory sample indicates that no, they are not, at least in established print journals, but that sometimes newer journals, either web-only or new media in focus, have more accurate copyright notices.

It is thought that publishers actively disdain and discourage fair use (Vaidhyanathan, 2002), even though academic publishers benefit from it due to its wide use in journal articles. Mazzone (2006) has written that publishers benefit from their overly restrictive copyright notices, because they receive fees to which they are not entitled. Mazzone discussed this issue within the larger context of copyfraud, where copyright is claimed over a work in the public domain. Enforcement against copyfraud is weak to nonexistent, which encourages copyfraud and, Mazzone feels, overly restrictive copyright notices. Publishers see fair use as a hindrance. Given the few mentions of fair use in the copyright notices in journals, this indeed may be the case.

This is not to argue that copyright notices in academic journals must mention fair use, but they should be accurate. Publication in a journal is a mark of achievement for academics, so the accuracy of the entirety of those journals must be maintained. Inaccurate copyright notices degrade the quality of a journal and mislead the readership.

Copyright has been a huge issue for those involved with the Internet, including academics, librarians, web site hosting companies, lawyers, politicians, and publishers of books, music, movies, and journals. For those who deal strictly with printed material, copyright is an old topic. Given how much of an issue copyright has been for Internet users, are journals that deal with or use the Internet more accurate in their copyright notices?

Method

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References

In order to explore the accuracy of copyright notices in “traditional” and “new media” journals, the first step was to define these two categories and then select the journals. New media journals clearly deal with new media directly, traditional ones do not. It was realized that this distinction actually contained two issues: topic, and print mode. New media journals could be ones that focus primarily on new media issues, or they could be ones that print only online (meaning, no official paper version). Only peer-reviewed journals were selected.

In the traditional category are communication journals that have been around for many years, are print-only, and do not primarily cover new media topics (such as the Internet or cell phones). The Journal of Communication falls into the traditional category. New media includes both journals that are themselves new media, i.e. web-only or both web and print,6 or whose focus is primarily new media. Some journals in the new media category are both web-only and new media in topic, such as the Journal of Computer-Mediated Communication (JCMC), but some are not: New Media and Society is a print journal, while the International Journal of Communication is web-only but not primarily about new media.

More difficult were the academic fields from which to select journals. More fields could provide greater results in a purely quantitative sense and more external validity, but would dilute the focus on communication studies. Communication studies is included (with many of its diverse fields) as copyright affects the act of communication, and as an academic discipline we should be aware of it.

Two issues in the communication field became apparent. One is the concentrated nature of the communication journal market: Taylor and Francis, which owns both Routledge and Lawrence Erlbaum, for example, has a dominant position in the field, and currently publishes over 1,000 journals (Taylor & Francis, n.d.). The other is that there are journals overseen by communication associations, such as ICA, NCA, and ACA (International, National, and American Communication Associations), BEA (Broadcast Education Association), and AEJMC (Association for Education in Journalism and Mass Communication). If 10 journals were randomly selected for study, but they all came from the same publisher, they might all have the same copyright notice, and that would not lead to particularly revelatory findings. Clearly purposive sampling was called for.

One further potential complication with the communication journals is that some of them are printed in the US, while some are printed in the UK. Although the laws regarding copyright and fair use (a term of art from U.S. copyright law; the roughly equivalent British term is fair dealing) are generally similar in both countries, they are still different legal regimes. However, both have signed on to the Berne Convention for the Protection of Literary and Artistic Works, an international copyright agreement. Countries in the Berne Union, as it is called, apply their own copyright protection to works copyrighted in other Berne Union states (U.S. Copyright Office, 1992). For the US, this would include the fair use exemptions and their application to printed material from the UK when in the US. Printed copyright notices in journals should still reflect national copyright laws, regardless of the Berne Convention, so U.S. and UK journals may contain different notices even if those notices are correct. It turned out that three journals published by Sage include two different notices, one for the UK and one for the US.7

Communication journals from various subfields were used, first relying upon finding them with the aid of personal knowledge and online lists (such as ISI’s rankings, a list at the University of Maryland,8 American Rhetoric,9 the Iowa guide,10 various associations’ lists,11 and publishers lists), and second relying upon their actual availability at a library for those that are print journals, as the front matter (or sometimes the inside of the back cover) is usually needed for the copyright notice, and online databases for the most part do not have front matter from journals.12 This requirement resulted in 35 communication journals in the sample, which, when viewed as a whole, have enough variation to see trends.

Other fields were explored. Ones outside the social sciences proved difficult for identifying appropriate journals as communication studies does not overlap with those fields, so I had no reliable manner to distinguish those journals. Even other fields within the social sciences ended up providing a huge collection of possible journals, but with no easy method to discern the most appropriate journals for study.

One field that did provide an easy and straightforward method was law, and its law review journals. The top law journals are all similar as they are general-topic and are all printed; they only differ in the law school of origin. Using ISI rankings for guidance, law schools from the top 15 law reviews were selected. From this list, schools that also have a technology law review were selected, and then further winnowing down was done by which printed law reviews were actually available at the library to which I have access. This led to the selection of nine schools, for 18 law journals. Although perhaps a small number form a purely quantitative viewpoint, given the qualitative nature of the analysis and the resulting patterns in the law review notices, this amount is sufficient.

Almost all of these new technology law reviews have the words “law” and “technology” in their titles.13 The rational behind this paralleling, impossible for the communication journals, is that if a law school has a top law review, it is a top law school, and should have a good new media law review as well. Either way, law reviews and their copyright notices are appropriate sites of study for this research because if anyone should know, understand, and be concerned about copyright law and stating it correctly, it is law scholars.

After some initial assessment, it was determined that more journals from a greater number of fields most likely would not add any analytical strength or greater variation in findings. In the end, 53 journals were chosen, 35 in communication (with 10 new media) and 18 in law (with 9 new media).

The coding scheme for the copyright notices was arrived at after analyzing an initial sample of 36 journals and conferring with several colleagues. Six categories were present: progressive, fair uses mentioned, mixed, basic, restrictive, and none. Progressive involves going beyond a mention of basic fair use and using Open Access principles or the Creative Commons, both of which are explained below. Fair uses mentioned indicates that the notice allows some copying without permission: either mentioning fair use directly, or mentioning uses that are considered fair by the publisher and that match some part of the fair use doctrine while not being overly restrictive. Mixed applies only to three Sage journals that have both the Sage UK notice (with fair uses mentioned) and the Sage U.S. notice (which is more restrictive). Basic is the brief language, “copyright [date] by…” single line of text. Restrictive indicates a narrow view of fair use. None indicates that no copyright notice was found.

The Notices

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References

The copyright notices in the sampled journals run the gamut from progressive or merely accurate to highly inaccurate or even nonexistent in three of the electronic versions of the technology law reviews. The most basic notices were those that merely had a copyright symbol, date, and the journal name, such as in the Harvard Law Review: © 2007 by the Harvard Law Review Association.

The three ICA journals, all published by Blackwell, have restrictive notices, which are typical of the restrictive notices found in the sample:

Copyright and Photocopying: © 2007 International Communication Association. All rights reserved. No part of this publication may be reproduced, stored, or transmitted in any form or by any means without the prior permission in writing from the copyright holder. Authorization to photocopy items for internal and personal use is granted by the copyright holder for libraries and other users registered with their local Reproduction Rights Organization (RRO), e.g. Copyright Clearance Center (CCC), 222 Rosewood Drive, Danvers, MA 01923, USA (www.copyright.com), provided the appropriate fee is paid directly to the RRO. This consent does not extend to other kinds of copying such as copying for general distribution, for advertising or promotional purposes, for creating new collective works, or for resale. Special requests should be addressed to Blackwell Publishing at: journalsrights@oxon.blackwellpublishing.com.

Although it is true that copying without permission for financial gain, such as advertising or resale as mentioned in this notice, is illegal, other parts of the notice are more restrictive than the court’s findings in Williams & Wilkins. With fair use, parts of the publication may indeed be “reproduced, stored, or transmitted… without the prior permission in writing from the copyright holder.” The copyright notice you have just read was in fact reproduced without my notifying ICA or receiving any permission from the ICA: US law (fair use) says I simply do not need to if I wish to reproduce small parts of a work for scholarship. Fair use also grants rights for copying for noncommercial and research use, the copyright holder cannot grant such rights as those rights are already given.14 Although there is some fair use mentioned, it is overshadowed by restrictions.

The Copyright Clearance Center (CCC) is mentioned in several journals and used by publishers for clearing copyright in the US, and is an example of a Reproduction Rights Organizations (RRO). Generic RRO’s are also mentioned by some publishers such as Taylor and Francis. As noted, Taylor and Francis owns Routledge and Lawrence Erlbaum Associates, and altogether publish many journals in the various subfields of communication studies. The copyright notices in the Taylor and Francis journals are roughly all the same and follow the same pattern. One of the more restrictive ones is the notice from NCA’s Communication Monographs:

Copyright © 2007 National Communication Association. All rights reserved. No part of this publication may be reproduced, stored, transmitted or disseminated in any form, or by any means, without prior written permission from Taylor & Francis, to whom all requests to reproduce copyright material should be directed, in writing. Taylor & Francis grants authorization for individuals to photocopy copyright material for private research use, on the sole basis that requests for such use are referred directly to the requestor’s local Reproduction Rights Organizations (RRO). The copyright fee is $25 exclusive of any charge or fee levied. [Information on contacting your nation’s RRO.] This authorization does not extend to any other kind of copying, by any means, in any form, and for purposes other than private research use.

Assuming that Taylor and Francis has lawyers on staff who know copyright law, it is curious that they permit publication of such intentionally incorrect information, especially when Taylor and Francis makes claims as to the accuracy of the information in their journals. Given the Williams & Wilkins case, we know that the courts have found that some reproduction for research is fair use and that no permission, either from Taylor and Francis or an RRO, is needed for such use. This notice, however, clearly takes a more restrictive view than the U.S. courts.

Sage presents an interesting case. Their U.S. notice is generally short but restrictive, such as the one from New Media and Society: “US: Authorization to photocopy journal material may be obtained directly from SAGE Publications or through a license from the Copyright Clearance Center, Inc. (www.copyright.com/).” Authorization is needed in some instances, but not all (recalling the case law detailed above). Sage’s UK notice, often printed directly above the inaccurate U.S. notice, is very different: in contrast to Sage’s U.S. notice it mentions fair dealing and the relevant law in the first sentence. Here is the UK notice, again from New Media and Society:

UK: Apart from fair dealing for the purposes of research or private study, or criticism or review, and only as permitted under the Copyright, Designs, and Patents Acts 1988, this publication may only be reproduced, stored, or transmitted, in any form or by any means, with the prior permission in writing of the Publishers, or in the case of reprographic reproduction, in accordance with the terms of licences [UK spelling] issued by the Copyright Licensing Agency (www.cla.co.uk/).

This notice reflects the law of the UK and addresses the issue of fair dealing instead of not mentioning it like most notices. As such, this notice was coded as “fair uses mentioned” when unaccompanied by the U.S. notice. Both notices together were coded as mixed.

More progressive notices, instead of directing the copier to the Copyright Clearance Center, oblige the would-be copier to learn about the Creative Commons, open access, citizens’ rights to copy information, and how copyright holders can grant rights beyond those given by fair use.15 The International Journal of Communication (IJoC), a new web-only mass communication journal, is one such journal. It is not a fringe effort of a few copyright renegades, but was founded by established scholars and is based at The University of Southern California’s Annenberg School for Communication. Part of its aim is to establish a new open access norm in academic publishing:

The advent of the web has made free dissemination of research feasible and financially viable…. We believe that the establishment of a major Open Access journal in communication study will lead others to establish Open Access journals for many subfields and specialities in communication, reclaiming full control for the profession of its research output. We hope that this will lead the profession to a new norm in which all research is freely available. (IJoC, 2007a)

Part of its copyright notice further explains these goals:

[The IJoC] is dedicated to the open exchange of information. For this reason, IJoC is freely available to individuals and institutions. Copies of this journal or articles in this journal may be distributed for research or educational purposes free of charge and without permission. However, commercial use of the IJoC website or the articles contained herein is expressly prohibited without the written consent of the editor.

Authors who publish in The International Journal of Communication will release their articles under the Creative Commons Attribution Noncommercial No Derivatives (by-nc-nd) license. This license allows anyone to copy and distribute the article for noncommercial purposes provided that appropriate attribution is given…. (IJoC, 2007b)

It goes on to discuss fair use at length. This notice is quite the contrast to the more restrictive notices. Here we see that copying for certain purposes is allowed and the journal does not require permission. This statement is clear and avoids the occasional uncertainties of fair use.

Law Review Notices

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References

The law journals, split between standard law reviews and newer, online, law reviews of technology, presented their own pattern. The traditional print law reviews typically have a basic copyright notice, or have a standardized notice that was similar across the journals that used it. This standard notice allows copies for classroom use, but requires that notice be given to the law journal and does not mention copies for research, as allowed by Williams & Wilkins. One of the shorter examples of this standard notice is from the Yale Law Journal:

Copyright © 2007 by the Yale Law Journal Company, Inc. Pieces herein may be duplicated for classroom use, provided that (1) each copy is distributed at or below cost; (2) the author and the Yale Law Journal are identified; (3) proper notice of copyright is affixed to each copy; and (4) The Yale Law Journal Company, Inc., is notified of use.

The four elements of the notice along with the “copyright [date]” are the standard elements found in several of the law reviews, although not always with the same order or the same wording.

This type of notice, although not as restrictive the typical one in many communication journals, is still inaccurate as it does not mention research uses, and it is not clear from case law that the copyright holder has to be notified in cases of fair use. This type of notice does not claim that the classroom use it mentions is fair use, nor does it even mention fair use, and the amount of classroom use that is actually fair use is uncertain, given case law. However it still describes and only discuses uses that are fair, so is coded as fair uses mentioned. It also, positively, encourages the spread of knowledge.

This often-used law review copyright notice includes a right that falls under moral rights, that is the right of the author to have their name associated with their creation.16 Moral rights, although related to copyright as they both deal with an author’s rights in relation to their creation, are somewhat different, and both are facing challenges in the digital age (Rajan, 2002). Moral rights, however, do not receive as much attention as copyrights for financial reasons. Whereas authors typically do not sign away their moral rights (because they wish to be attributed as the creator of a work), with copyright law an author or the owner of the copyright might restrict copying except as permitted by fair use, or, as is becoming more common, authors might not restrict copying their works at all.

The technology law reviews, all of which are online, presented a range of notices (but, as is discussed below their notices and their practices did not always match). One of the more progressive and idealistic notices is from the Virginia Journal of Law & Technology (VJOLT):

In the spirit of the free dissemination of ideas, the Virginia Journal of Law & Technology publishes its articles at no cost to its readers. Similarly, the Journal imposes no fees for the noncommercial reproduction, in whole or in part, of its articles. The Journal generally grants requests for permission to reprint, so long as the use of the reprinted material is for non-commercial purposes, the reprinted material identifies the name of the author and the Journal, and the reprinted material indicates that the original article is available at the Journal’s Web site, www.vjolt.net.

This notice roughly parallels the standard classroom use permitting notice from many of the traditional law reviews, but allows all noncommercial reproduction, in contrast to the fair use findings of the courts. With this level of permission to make copies and with all of the articles online and freely available, VJOLT meets the standards for open access.

The Creative Commons and Open Access

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References

Copyright may be used to control the use and copying of copyrighted items. However, copyright law does not say that copyright holders must use all of the rights afforded to them. Copyright holders are in fact legally allowed to permit others to copy their works widely if the copyright holder so choses. Copyright holders can thus effectively turn copyright on its head: instead of using copyright law to restrict copying, they can use it to promote copying. Sometimes called copyleft, this is the purview of the Creative Commons.

Historically the commons refers to common land owned by all the people of a town, available for their use, often for grazing cattle. Commons originate in England, but are also familiar to Americans from New England, where for example both the Boston Commons and the Cambridge Commons have been converted to parks and are still public.17 Commons are a publicly available resource. Copyright can restrict use of material, so it is not publicly available: it is not in the commons, the body of work that is available to all does not increase. The Creative Commons organization and ideology seek to counter this problem:

Creativity and innovation rely on a rich heritage of prior intellectual endeavor. We stand on the shoulders of giants by revisiting, reusing, and transforming the ideas and works of our peers and predecessors. Digital communications promise a new explosion of this kind of collaborative creative activity. But at the same time, expanding intellectual property protection leaves fewer and fewer creative works in the “public domain”— the body of creative material unfettered by law and, to quote Supreme Court Justice Louis Brandeis, “free as the air to common use.” (Creative Commons, 2007)

Every academic who reads that paragraph should immediately notice that the description is of the academic enterprise: we cite our intellectual ancestors, we must include the relevant literature in every paper, we, too, “stand on the shoulders of giants.”

The Creative Commons, through a series of different licenses, allows content creators to keep or give away a variety of rights under copyright law. Creators may keep many rights, or give some, most, or all, away. For instance, the license used by the IJoC, above, is the Creative Commons “Attribution Noncommercial No Derivatives” license, or by-nc-nd.18

There are many terms and concepts related to the creative commons idea, such as open source, open content, the public domain, and, one of particular note here, open access. Open access typically refers to peer-reviewed journals and articles that are online, available for free, and free of most copyright restrictions (Suber, 2007). Open access could not have happened without the Internet and the ease of access to resources that it provides. Indeed, access to remote resources was one impetus for the creation of the Internet (Abbate, 1999).

Open access allows the authors of research articles to make their work widely available, both in terms of geography due to the Internet and in terms of affordability. It also allows that work to generally be copied and passed on to others. This is one goal of researchers: to have their work widely read. By having their work so accessible, their work may be more influential, but beyond that it is furthering the spread of knowledge, a goal of both academics and researchers. Recall the VJOLT copyright notice: “In the spirit of the free dissemination of ideas…”

Open access is at odds with the traditional model of academic publishing, where profits are derived from the sale of journal subscriptions. If many copies of articles were made for free, this could eat into subscriptions, and the extreme case would be the closure of the journal. Digital publication reduces some costs by eliminating paper, so there are no printing and distribution costs. By using Creative Commons copyrights, an author can allow a journal to include a copy of their article for profit, deny other commercial uses without compensation, but allow noncommercial uses. This may still decrease subscriptions, which decreases revenue, but perhaps this can be offset by the cost advantages of digital publishing.

Open access is a new trend in academic publishing, and is slowly spreading. There are currently two main listings of open access journals, the Directory of Open Access Journals (DOAJ), which lists 3423 open access journals,19 and Open J-Gate, which lists 4393 open access journals.20 Both are recent: DOAJ sprung from an idea at a conference in 2002, and Open J-Gate was rolled out in 2006. Open access and the Creative Commons may actually solve some of the problems that the widespread use of digital technology has caused. Kim (2007) studied these problems and complexities, and found that the Creative Commons licenses may help in part due to their flexibility.

Open access ended up playing more of a role in the findings than initially expected, once the actual practices of journals, especially the technology law reviews, were examined.

Findings

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References

Overall, new media journals in both communication studies and law were more progressive with their copyright notices when compared to traditional journals. In fact the only journals that had progressive notices were new media journals. Most of the traditional communication journals have restrictive notices. Many of the traditional law reviews allow classroom use which furthers the spread of knowledge, and although this does not seem particularly accurate in terms of the law, the exact specifications of fair use are not completely clear as has been pointed out.

In the 25 traditional communication journals, there were 18 restrictive notices, two Sage journals with both the UK and the US notice (mixed), and five that mentioned fair uses. In the 10 new media communication journals, there was a range of notices. Two were restrictive, one mixed, two basic, two mentioned fair uses, and there were three that were progressive (see Table 1).

Table 1.  Communication Journal Information and Copyright Notice
Journal TitleNotice (Practice)PublisherAssociationVolume
  • Note: Some names have been abbreviated for space.

  • *

    Online only.

Traditional
 Atlantic Journal of Comm.RestrictiveT&F-16(1) Jan–March 2008
 Communication Law & PolicyRestrictiveT&F-13(2) Spring 2008
 Communication MonographsRestrictiveRoutledgeNCA74(2) June 2007
 Communication ReportsRestrictiveT&FWSCA20(1–2) Apr/Oct 2007
 Communication ResearchRestrictiveSage (US)-34(4) August 2007
 Communication Research ReportsRestrictiveT&FECA24(1–4) 2007
 Communication StudiesRestrictiveT&FCSCA58(4) Dec 2007
 Communication TheoryRestrictiveBlackwellICA17(3) August 2007
 Critical Studies in Media Comm.RestrictiveT&FNCA24(3) August 2007
 Human Communication ResearchRestrictiveBlackwellICA33(2) April 2007
 J. of Broadcasting & Electronic MediaRestrictiveT&FBEA51(2) June 2007
 Journal of CommunicationRestrictiveBlackwellICA57(3) Sept. 2007
 J. of Social and Personal RelationshipsMixedSage-24(4) August 2007
 Journalism and Mass Comm. Q.Fair UseAEJMCAEJMC84(2) Summer 2007
 Media PsychologyRestrictiveLEA-10(2) 2007
 Media, Culture and SocietyMixedSage-29(4) July 2007
 Political CommunicationRestrictiveT&FAPSA/ICA24(3) July-Sept. 2007
 Popular CommunicationRestrictiveT&F-5(4) 2007
 Public CultureFair UseDuke U PressSTCS19(2) Spring 2007
 Public Opinion QuarterlyRestrictiveAAPORAAPOR71(2) Summer 2007
 Public Understanding of ScienceFair UseSage (UK)-15(1) January 2006
 Res. on Language & Social InteractionRestrictiveLEA-40(2 & 3) 2007
 Science CommunicationRestrictiveSage (US)-29(1) Sept. 2007
 Technical CommunicationFair UseSTCSTC54(3) August 2007
 Women’s Studies in CommunicationFair UseORWCORWC31(1) Spring 2008
New Media
 *American Comm. JournalProgressiveACAACA9(4) Winter 2007
 ConvergenceFair UseSage (UK)-12(1) Feb 2006
 *First MondayProgressiveFirst Monday-12(9) Sept 2007
 Information, Comm. & SocietyRestrictiveRoutledge-10(3) June 2007
 The Information SocietyRestrictiveT&F-23(2) Mar/Apr 2007
 *International Journal of Comm.ProgressiveIJoC-1 2007
 *J. of Computer-Mediated Comm.Basic (Prog.)JCMCICA12(4) July 2007
 *M/C JournalFair Use (Prog.)M/C-11 (2) May 2008
 New Media and SocietyMixedSage-9(4) August 2007
 *NMEDIACBasic (Prog.)NMEDIAC-4 (1) Winter 2006–2007

The fair use notices in the traditional journals are encouraging, as they offset the 18 restrictive notices. The new media journals definitely do a better job overall with the three progressive notices, but these are somewhat tempered by the two that are restrictive.

It was noticed that when a communication journal is published by a major publisher it usually has a restrictive copyright notice, except in the case of the Sage publications that have Sage’s UK copyright notice (which includes fair dealing and the relevant law). Publisher type was not an initial consideration, although it had been clear that most online journals are self-published.

The 18 law journals were somewhat perplexing, given their range of notices, especially with the technology law reviews. With the nine traditional law reviews, there was one restrictive notice, three basic, and five with the mostly boilerplate classroom fair use notice. The technology law review sample included three where no notice could be found, four with basic notices, and 2 with progressive notices (see Table 2).

Table 2.  Law Journal Information and Copyright Notice
ReviewNotice (Practice)Volume
  • Note: Some names have been abbreviated for space.

  • *

    Online only.

  • Online and print versions.

Traditional
 Columbia Law ReviewFair Use107(5) June 2007
 Harvard Law ReviewBasic120(8) June 2007
 Michigan Law ReviewFair Use (Prog.)105(8) June 2007
 Minnesota Law ReviewFair Use92(4) April 2008
 Northwestern University Law ReviewBasic102(1) Winter 2008
 Stanford Law ReviewBasic59(6) April 2007
 UCLA Law ReviewRestrictive55(4) April 2008
 Virginia Law ReviewFair Use92(8) Dec 2006
 Yale Law JournalFair Use116(8) June 2007
New Media
 *Columbia Science & Tech. Law ReviewBasic (Prog.)8 2006-2007
 Harvard Journal of Law & TechnologyProgressive20(2) Spring 2007
 Michigan Telecomm. & Tech. Law ReviewNone (Prog.)13(2) Winter 2007
 *Minnesota Journal of Law, Science & TechnologyBasic (Prog.)9(1) January 2008
 *Northwestern J. of Technology & Intellectual PropertyBasic (Prog.)6(1) Fall 2007
 *Stanford Technology Law ReviewBasic (Prog.)[∼10] June 2007
 *UCLA Journal of Law & TechnologyNone (Prog.)11(2) Fall 2007
 *Virginia Journal of Law & TechnologyProgressive12(2) Spring 2007
 *Yale Journal of Law & TechnologyNone (Prog.)9 Spring 2007

Overall the law journals were encouraging, between the progressive notices in two of the online journals and the classroom use notices in the five print journals. The journals with no notice or basic notices were at first unexpected, but perhaps lawyers do not need copyright law explained to them, and know it changes in interpretation as the case law grows. In this light, a basic copyright notice is completely accurate, albeit lacking in detail.

In comparison to the traditional communication journals, the traditional law journals’ classroom notices were especially positive, although this type of notice does not seem to encompass research use.

The Harvard Journal of Law and Technology is notable because it is part of the Open Access Law Program,21 whose guiding principle is “that knowledge be made universally accessible” (Science Commons, n.d.). 38 US law journals22 use the Open Access Law Journal principles or something similar.23 The Michigan Law Review is listed as one such journal, but the OALP is not mentioned in the copyright notice in the journal itself (it was coded to reflect the actual notice). The Michigan Telecommunications and Technology Law Review is also listed as an open access journal at the DOAJ but does not mention copyright online.24 All of the technology law reviews turned out to be open access in terms of their practice, although most do not mention it, since they all meet the open access criteria (peer-reviewed, online, available for free, and although most do not mention open access they do not include restrictive copyright notices either). This consideration changed the findings a great deal, but moves the focus off of the copyright notices which were the initial impetus for the study.

The online and offline split across communication journals was further explored, as it does not completely match up with the definition of new media used here (which includes topic). Findings were not particularly different from the original framework, as only six new media journals (out of 10) are published online. Association affiliation was also explored, but the effect here was dominated by type of publisher (see Table 3).

Table 3.  Categorized Journal Copyright Notices and Practice
CategoryNoneRestrictMixedBasicFair UseProg.
  • Note: All 3 mixed are Sage publications with both the UK and U.S. notices.

  • a

    JCMC and NMEDIAC both print a basic copyright notice but are in practice open access.

  • b

    M/C Journal prints a notice with fair use, and is open access in practice.

  • c

    Both Sage UK.

  • d

    The Michigan Law Review is listed as open access.

  • e

    All sampled new media law reviews are open access in practice.

Comm Traditional0182050
Comm New Media0212 (0)a2 (1)b3 (6)ab
Comm Major Pub.019302c0
Comm Minor Pub.0102 (0)a5 (4)b3 (5)ab
Comm Print0203060
Comm Online Only0002 (0)a1 (0)b3 (6)ab
Comm Association01101 (0)a41 (2)a
Law Traditional01-35 (4)d0 (1)d
Law New Media3 (0)e0-4 (0)e02 (9)e
All Traditional0192310 (9)d0 (1)d
All New Media3 (0)e216 (0)ae2 (1)b5 (15)abe

Publisher type was found to be a rewarding, if initially unexpected, lens for analysis. Minor publishers were more likely to mention fair use or have progressive notices, while the picture of the major publishers was unexpectedly grim: if you disregard the Sage UK and Sage UK/U.S. publications, there are only restrictive notices in the communication journal sample from major publishers.

All six online-only new media communication journals are open access. Granted, one requirement of open access is accessibility in terms of online availability, so online journals already have an advantage by definition, but the major journal publishers could publish online if they so chose.

Although all of the online journals in the sample are easily available, it is not always clear what their actual copyright policy is because of the vagaries of copyright law. Recall that one requirement of open access is a permissive copyright policy, but, like copyright law, the specific requirements for open access are not entirely clear. Many of the online journals in the sample meet the open access standard despite having a copyright notice that does not mention open access. In practice, they meet the standard, but it is not clear if they actually desire to do so. Given that they publish online, it is impossible that the editors have not had to confront these issues, although they may not confront them directly in their copyright notices.

Conclusions

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References

New media journals do indeed as a whole do a better job of printing copyright notices that support the spread of knowledge when compared to traditional journals, especially in the communication field. Findings for the law journals overall are positive, especially with the classroom use notices in the traditional law reviews. This is good news to some extent, although in communication the field is dominated by a preponderance of print journals.

The large publishing houses generally print restrictive copyright notices that do not accurately reflect the law, making Taylor and Francis’s pledge to make “every effort to ensure the accuracy of all the information (the ‘Content’) contained in its publications” amusing and simultaneously dismaying. The sole exception in this sample is Sage, which, even though its U.S. copyright notice does not reflect U.S. law, does have an accurate UK copyright notice that mentions the fair dealings (fair use) doctrine and accurately reflects the law as the law is intended. The most striking differences in terms of copyright statements were found between journals from minor publishers and major publishing houses.

Although the notices most likely do not deter legal copying, this intentionally inaccurate information in our journals is distressing. It undermines claims to accuracy that are so important for the academy. Also, the overall approach of many of the restrictive notices is one that suppresses the spread of knowledge, so vital to academic life and indeed the wellspring from which these journals feed.

After considering the issue of publisher in the communication field, it was realized that the framework of major publisher versus minor publisher could be fitted to the law review field, since all of the law reviews are self-published and thus come from minor publishers. It was also realized that the practice of the journal, in terms of open access, was important, as opposed to just the journal’s copyright notice. Publisher type and practice could be considered simultaneously with all of the 53 journals in the sample. This resulted in Table 4, where the findings are clear. The practices of the minor publishers in this sample are overwhelmingly in favor of open access and fair use, while the major publishers are not. Granted it is not easy to discern practice in all cases, such as with the Sage journals that have both the UK fair dealing notice and the restrictive U.S. notice (which seems contradictory), but the trends are clear.

Table 4.  Journal Practices by Publisher Type
Publisher TypeRestrictiveMixedBasicFair UseProgressive
  1. Note: Minor publishers include all law reviews.

Major193020
Minor204914

Why should this be so? Given that the major publishers all have had a successful business model that has worked for some time, there is little pressure to change. With institutional norms, change is difficult until exterior pressures reach high levels. If publishers’ top priority is the bottom line, and the spread of knowledge is second, then lawsuits against copiers will prevail. Potentially infringing institutions, especially academic institutions, may not be able to afford lawsuits in this occasionally murky area of the law, despite Georgia State University.

The ability to have progressive copyright in policy or practice does clearly stem in part from the technological allowance that the Internet affords, meaning accessibility to an electronic copy of the journal. Beyond that the articles need to be available for free, which is not automatic given the Internet (there are plenty of pay sites). This is an intentional choice on the part of the journal’s editors. Given that most traditional, printed journals require that articles are submitted in electronic form (such as by e-mail, website or on disk), there is little technological reason they could not make their content available online, and many of them do, however it is often through a subscription database available to libraries and institutions. This is the case with the law journals in the sample, where all the online journals were open access in practice, and while most of the traditional ones have several issues available for free online they often use HeinOnline, a subscription database, for back issues, and use the CCC for copyright clearance. Possibly the difference is one of ideology, where new media journals are created and run by those who savor and embrace the capabilities and connectedness of the new technology, while the older print journals are bound up in traditions, practices, and legal and financial arrangements that favor maintenance of the status quo.

Many traditional journals from the major publishers are probably available to researchers who need them through the researchers’ university libraries, and so are in fact just as accessible as an open access journal if you are at a university, yet such journals are not free to the libraries nor do they have permissive use of copyright. And, as we have seen, publishers do on occasion sue because of copying. Some major publishers outside of the academic field have made their current issue and archives available for free to the public, such as The New York Times, although they use an advertising-based model for revenue for their online material and they do not have a permissive copying policy.

The success, so far, of the online journals shows that there is room for peer-reviewed free content (recall that the definition of open access for journals requires peer review). This does mean nontraditional funding models are needed, but information technology is fairly cheap these days, and with a little help with a database and the interface, it is not too hard to set up a journal site on pre-existing university servers (good content and readership are more difficult). Peer-review is done for free by academics anyway, the largest cost for online journals may be the time needed in terms of the work of the editors. Some of these online journals have been around for many years (several have over 10 issues), so it appears that these nontraditional funding models are working.

Given the many stakeholders involved, there are equally many different angles from which to view this issue, including legal, economic, institutional (publishers, universities, libraries), technological (new media capabilities), philosophical and social (the academic enterprise). An interdisciplinary approach is recommended for future research in order to grasp the viewpoints of the many different stakeholders.

These findings raise many questions. A few possible ones include: Why do journals publish such intentionally incorrect information in the copyright notices when so much of the value of a journal is in its accuracy, and when academic value is derived from the spread of knowledge? Do the academic editors ever consider the copyright notices in the journals? All journals and scholarship benefit from fair use, why, then, do the large publishing houses dismiss it in their notices?

Perhaps a more immediate and addressable question is: what can be done? Publishing in and supporting journals that have accurate or progressive copyright policy is one answer, and in fact boyd (2008) has called for a complete boycott of journals that do not adhere to open access standards. Another option is to pressure the editors of these journals. The editors are our friends and colleagues if not ourselves. E-mail them, call them, talk to them. Make them aware of the copyright notices that sometime appear on the very same page of the journal as their name. How do they feel about that? Use peer pressure. Get them to point out this intentionally inaccurate information to the publishers. Have them insist it be changed.

Even better, give them an accurate notice they can use. Here is a revision of Sage’s UK notice with the U.S. fair use language replacing the UK fair dealings language:

This Journal, © 2008 The Publishers. Apart from fair use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, and only as permitted under the appropriate copyright law, this publication may only be reproduced, stored or transmitted, in any form or by any means, with the prior permission in writing of the Publishers.

Although this example does not push as far as Open Access and the Creative Commons, change is often slow, and replacing the incorrect notices in journals with one that is accurate, and, by mentioning fair use, would reflect the spirit and letter of the law, would be a positive step.

Acknowledgements

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References

I would like to thank the editors and anonymous reviewers of JCMC for their time and guidance in making this a better paper than it was when it fell into their capable hands. I would also like to thank colleagues Faith Sparr, Rajiv Shah, Roei Davidson, and Margaret Young for their comments, as well at the patient staff at the New York Public Library who retrieved issue after issue of the journals I requested from their closed and extensive stacks.

Notes

References

  1. Top of page
  2. Background
  3. Method
  4. The Notices
  5. Law Review Notices
  6. The Creative Commons and Open Access
  7. Findings
  8. Conclusions
  9. Acknowledgements
  10. References
About the Authors
  1. Nathaniel Poor is a freelance telecultural researcher in New York. He holds a Ph.D. from the University of Michigan in communication studies. His research focus is the intersection of communication technologies and society, and the resulting legal, social, and technological issues. Address: 11 Montgomery Place, Apt. 1F, Brooklyn, NY, 11215.