Why Digital Copyright and Net Neutrality Should Matter to Open Access Advocates

It is highly unlikely that open access would have emerged if the Internet did not exist. The Internet makes the low-cost worldwide distribution of e-prints and other digital documents through institutional and disciplinary repositories possible, and it significantly lowers the cost of publishing, which makes open access journals possible. Open access in a print-only or proprietary network environment would require significant subsidies. The relative cost of providing open access on the Internet is trivial.

It would be a mistake to assume that the Internet will remain as we know it. With the rise of digital media, powerful interests in the music and film/television industries have become alarmed about file sharing of their content, and they have lobbied legislatures across the globe to stop it through restrictive copyright legislation and technological measures.

Since open access doesn't deal with popular music, film, or television, why should open access advocates care? The answer is simple: restrictive measures are unlikely to make fine-grained distinctions about content. New copyright measures won't exempt scholarly material, and new Internet traffic shaping or filtering technologies won't either.

Open access materials won't be limited to simple text documents forever: digital media and data sets will become increasingly important. These files can be large and increase network load. Digital media files may include excerpts from third-party copyrighted material, which are utilized under fair use provisions. Will filtering and traffic shaping technologies exclude them or will they be the inadvertent victims of systems designed for an entirely different purpose?

Even simple text documents will be governed by restrictive copyright laws and subject to potential copyright filtering mechanisms.

For example, the Tennessee State Senate is considering a bill (SB 3974) that would require every higher education institution to "thoroughly analyze its computer network, including its local area and internal networks, to determine whether it is being used to transmit copyrighted works" and to "take affirmative steps, including the implementation of effective technology-based deterrents, to prevent the infringement of copyrighted works over the school's computer and network resources, including over local area and internal networks."

You'll note that the bill says "transmit copyrighted works" not "transmit digital music and video works." Does this mean that every digital work, including e-prints and e-books, must be scanned and cleared for copyright compliance? That is unlikely to be the real intent of the bill, but, if passed, it will be the letter of the law. Why couldn't academic publishers insist that digital articles and books be vetted as well?

Net neutrality and digital copyright legislation are issues that should be of concern to open access advocates. To ignore them is to potentially win the battle, but lose the war, blind-sided by developments that will ensnare open access materials in legal and technological traps.

2 thoughts on “Why Digital Copyright and Net Neutrality Should Matter to Open Access Advocates”

  1. I have been spectacularly unsuccessful in predicting or persuading scholars: In 1994 I (thought I) saw that (what we now call) Open Access was optimal, inevitable and imminent, through author self-archiving. It’s 2008 now and the optimal and inevitable still hasn’t arrived. So take this with a grain of salt, but I think the growing efforts of the music, video and text industry, and its creators, to detect and deter the theft or free exchange of their digital products by their consumers will not carry over to the deterrence of the give-away of their very own research articles by their creators. Call it a gut feeling that people are foolish, but not quite that foolish. The reason all research articles are not yet being made made OA through self-archiving yet, despite its substnatial benefits to authors, their institutions and their funders, is not that this is policed piracy. It’s that not enough authors have as yet bothered to do it, and not enough of their institutions and funders have as yet bothered to mandate that they do it. They will. But these author give-aways will never be subsumed or subsumable under consumer theft.

    Stevan Harnad

  2. Stevan:

    On the contrary, I think that you have been spectacularly successful in persuading scholars to adopt open access practices.

    Let’s hope that you are right about this issue.

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