Growing conviction that scientific progress will significantly benefit if scholarly articles and research papers are made freely available on the Web has given rise to the Open Access (OA) movement. While there is some awareness that OA articles may require digital rights management (DRM), there is currently only low-level interest in the topic, with many OA advocates maintaining that it has no relevance to OA.
The issue is complicated by the fact that there are currently two ways in which research papers are made OA, each of which has different implications from a rights point of view.
OA has gained a lot of traction over the last year, but it has also attracted considerable resistance from commercial and society publishers. Since they currently generate substantial incomes from selling subscriptions to their journals scholarly publishers fear that if research is made freely available on the Internet these revenues will be significantly threatened.
Given the consequent struggle simply to make Open Access happen many OA advocates argue that worrying about DRM today could prove a distraction from the more important task of "freeing the refereed literature."
Since many also view DRM as synonymous with the use of "technical measures" designed to restrict access, rather than as a broad set of tools for managing rights in a digital environment, there is a tendency to see DRM as an issue for proprietary interests alone.
The danger is, however, that if the OA movement fails to engage with the topic those proprietary interests may set the DRM agenda, to the possible detriment of OA.
Nevertheless, some preliminary work on DRM is being done by the OA movement, and the growing success of the Creative Commons may encourage OA advocates to take a greater interest in the topic.
What is DRM?
Any discussion of DRM in the context of OA has first to seek to define the term. The continuing controversy surrounding P2P and illegal file swapping, for instance, has led many to conclude that DRM amounts to little more than "locking up" content with electronic padlocks. Indeed, since this perceived emphasis on restricting access is viewed as the very antithesis of OA, DRM has become the béte noir of many OA advocates.
What this overly narrow view of DRM overlooks, however, is that digital rights management implies something broader than access control alone. It can also be used, for instance, to ensure correct author attribution, to certify document integrity and provenance, to prevent plagiarism, and indeed to enable creators assert their rights in ways that encourage — rather than restrict — access.
It may be helpful in this regard to view DRM as a two-layered cake. In this model the first layer consists of metadata that define the usage rules (rights) associated with the content. Then on top of this can be placed an (optional) second layer of software-imposed limitations on copying, printing, viewing etc. (i.e. technical measures) in order to enforce the usage rules.
Some OA advocates argue that neither layer is relevant in an OA environment. After all, they say, the aim of OA is to make research papers available to everyone, without restriction.
It may be that the use of technical measures — even for apparently harmless purposes such as ensuring document integrity — will prove "politically" unpalatable for the OA movement (although Frederick Friend's INDICARE article appears to demur on this). There are, however, strong reasons for arguing that the use of rights metadata does have an important role to play, and will for this reason be the main focus of this article.
What authors require
It is clear, for instance, that in making their research freely available on the Web researchers have no intention of giving away their IPR. Their only aim is to allow others to read and build on their work without facing the obstacle of the toll-barriers represented by increasingly expensive journal subscriptions.
In fact we know researchers want to maintain control over their work on the Web because they have told us so. In 2002, for instance, when the JISC-funded Rights MEtadata for Open archiving (RoMEO) Project asked researchers for their views 55 percent of those surveyed (both OA and non-OA authors) said they wanted to limit usage of their works to certain purposes — e.g. educational or non-commercial.
And while over 60% were happy for third parties to display, print, save, excerpt from and give away their papers, they wanted this to be on condition that they were attributed as the authors and that all copies distributed were done so verbatim.
What RoMEO made clear, says Steve Probets, a lecturer in information science at UK-based Loughborough University who was involved in the RoMEO Project, is that "authors are interested in maintaining some form of control over who can do what with their articles."
As Brian Simboli, a science librarian at Lehigh University in Bethlehem, PA puts it: "The shift from toll-access to open access may (illogically) encourage people to assume that the whole concept 'intellectual property' has or should undergo some sort of sea change. Intellectual property is still intellectual property, regardless of how it is accessed."
Some rights reserved
What the RoMEO survey also revealed, however, is that the "all rights reserved" model of classical copyright is more than most researchers want. "[T]he protection offered [to] research papers by copyright law," the report concluded "is way in excess of that required by most academics."
In other words, when releasing their work on to the open seas of the Web OA authors are interested in asserting only some of the rights of traditional copyright (e.g. the right to be named as author), while waiving other rights (e.g. the right to copy or make derivative works). That is, their wish is to make their papers available on a "some rights reserved" basis.
But if researchers don’t make clear to their readers on what basis a paper has been released, how will their readers know? They may mistakenly assume, for instance, that a paper has been made available without any restriction on its use and reuse, as if it had simply been placed in the public domain. Alternatively, they may feel constrained about using a paper in the more liberal way the author intends, for fear of legal reprisal
Consequently, if they dismiss DRM out of hand OA authors risk depriving themselves of a useful mechanism for specifying on what basis they are making their work "freely" available.
Expression of rights
For this reason, in 2002 Project RoMEO began developing an XML-based system designed to express rights and permissions in an OA environment. These issues are not unique to OA authors however. Motivated by the same desire to provide greater licensing flexibility for web-based content, for instance, in 2002 a number of intellectual property lawyers, including Lawrence Lessig and James Boyle, founded Creative Commons (CC).
By separating out the basket of rights provided by classical copyright Creative Commons aims to give creators greater flexibility to mix and match those rights they wish to assert, and those they want to waive.
Selecting from eleven different CC licences creators can, for instance, stipulate that anyone can make whatever use they want of a work, so long as the author is credited; that they can make whatever use they want, provided it is not done for commercial purposes; that they can use it, but not create any derivate works, or verbatim copies; or the work can be offered on a “share-alike” basis — thereby allowing others to make derivative works, but only on condition that the resulting work is then distributed under the same share-alike terms.
Once they have chosen a licence that meets their needs, creators can cut and paste the appropriate HTML code from the CC site and place it on their web page. This puts a visible CC logo on the page, as well as inserting machine-readable metadata into the page's HTML describing the usage conditions associated with the licence. Both passing surfers and search engines can therefore quickly establish what permissions apply to the content attached to the page without needing to contact the creator.
The applicability of Creative Commons to OA was immediately apparent to the Project RoMEO team, who incorporated CC licences into the work they were doing. Explains Probets: "[T]he feelings of the Romeo Project were that the Creative Commons licences would be sufficient to specify the majority of restrictions/conditions required by authors (e.g. that authors are attributed, or that derivative works or commercial uses are allowed)."
Probets, however, questions whether inserting rights metadata into OA papers can be classified as DRM. "I'm not sure that I would regard these licences as a DRM solution", he says. "[They] indicate the ways the work can be used; they do not technically enforce that these conditions/restrictions are applied."
This, however, is surely too narrow a view of DRM. How better to describe the process of inserting machine-readable rights information into digital content in order to control how it is used than "digital rights management"?
Others argue that utilising rights metadata without any means of enforcing their prohibitions is pointless. By the same reasoning, however, we might conclude that it is a waste of time creating any rule, or law, unless it can be physically enforced at the point of potential infringement. We also know that anyone happy to infringe copyright law can circumvent most if not all the electronic padlocks devised to date.
Two roads to OA
For researchers wanting to better manage the rights in their papers, however, there is a more immediate problem than enforcement — namely how they establish and define their rights in the first place. And since there are two ways in which researchers can make their papers OA a one-size-fits-all approach is not currently possible.
For researchers using the "Gold Road" to OA matters are relatively straightforward: they can simply publish in one of the new-style scholarly journals produced by OA publishers like BioMed Central (BMC) and the Public Library of Science (PLoS). By reversing the traditional subscription model and charging authors (or more likely their funders) a fee to publish, rather than charging readers to read, golden publishers are able to make research papers freely available on the Web without any access costs.
More importantly, by treating publishing as a service provided to the author, rather than as a property transaction in which the publisher acquires copyright in return for publishing a paper, both BMC and the PLoS are happy to use the Creative Commons Attribution Licence as a default option. The terms of this licence are printed as a copyright notice on all their articles, as well as being inserted into them as machine-readable metadata.
Why that particular licence? Because, explains PLoS' Andy Gass, the CC Attribution Licence best meets the OA criteria outlined in the Bethesda and Berlin OA declarations. These, he says, specify that in making their papers OA authors grant "to all users a free, irrevocable, worldwide, right of access to, and a license to copy, use, distribute, transmit and display the work publicly, and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship … [as well as] … the right to make small numbers of printed copies for their personal use."
But while the Gold Road is the most logical route for researchers wanting to make their papers OA there are today only 1,600 (out of a total of 24,000) golden scholarly journals in which to publish.
For this reason many researchers opt instead for the "Green Road". Rather than publishing with an OA publisher, they continue to publish in traditional subscription-based scholarly journals, but then "self-archive" an electronic copy of their papers, either on their home pages, or in an e-print archive such as their institutional repository or a centrally-based archive like PubMed Central or arXiv.
However, the rights situation on the green road is complex, since traditional subscription-based journals generally insist that authors assign copyright as a condition of publication. As a consequence, researchers relinquish all control in how their IPR is managed. The RoMEO study, for instance, found that in 90 % of cases authors are asked to transfer the copyright in their papers.
Moreover, while 92% of scholarly journals now allow their authors to self-archive it is a far from ideal solution. As authors are not permitted to use the publisher's PDF, for instance, the self-archived version may be somewhat different from the publisher's version.
More problematically, the rights status of self-archived papers is vague and frequently misunderstood. Indeed, there are reasons to believe that general confusion and uncertainty over copyright represents one of the greatest obstacles to self-archiving today, and perhaps explains why still only 15% of authors self-archive. "The fact is that copyright raises its head all the time when authors are asked about OA, and it is acting as a deterrent to self-archiving," says Alma Swan, co-founder and director of UK-based scholarly publishing consultancy Key Perspectives (KPL). "So it can’t be ignored".
The solution, suggests John Ober, director of the policy, planning and outreach office of scholarly communication at the California Digital Library, is for publishers to "turn their publication copyright policies into the appropriate 'set' of Creative Commons elements"
This would clarify the situation over self-archiving, confirm its legitimacy, and so give self-archiving authors the same transparency over rights as is currently available to those publishing in golden journals. As a consequence OA would receive a significant boost.
Reducing the value of self-archiving
Far from helping to facilitate self-archiving, however, most subscription-based publishers today appear more intent on emasculating it. The fact is that as research funders like the National Institutes of Health (NIH) and Wellcome Trust increasingly encourage researchers they fund to self-archive their papers, publishers are becoming more and more concerned that their revenues are under serious threat. In response, they are actively seeking ways in which they can hobble self-archiving.
Having succeeded in persuading the NIH to water down its policy on public access to research, for instance, more and more publishers are insisting that papers are only self-archived on an embargoed basis, demanding delays of between 6 and twelve months between publication and self-archiving. This, say critics, significantly reduces the value of self-archiving, particularly in areas like biomedicine.
Publishers are also insisting that authors provide a link from the archived version to the official version of the article on the publisher's web site, and that they include the article's unique Digital Object Identifier (DOI). The aim is to drive users away from the free version of the article that has been self-archived, to the for-fee version on the publisher's web site.
The next stage in this strategy may be for publishers to change direction and, instead of prohibiting authors to self-archive the publisher's PDF, to actively encourage it. This would give publishers an opportunity to reassert their ownership of the article, to reinforce their brand, and to charge authors in the process. But the real attraction is that the PDF file format is ideally suited to the use of second-layer DRM (technical measures) enabling publisher-determined usage rights to be incorporated into the articles.
The logic here is compelling. After all, as Chris Barlas, a senior consultant at Rightscom points out, to date scholarly publishers have seen little need for DRM. As he puts it: "[M]ost of the STM publishers currently use some kind of subscription system with password protected access to sites as their form of protection." As scholarly papers increasingly leak out of these proprietary databases, however, publishers will surely want to exploit new ways to protect their proprietary interests.
Certainly Springer Science+Business Media, the second largest STM publisher, has begun to go down this road. While it permits authors to self-archive their own versions of papers, Springer now also invites them to self-archive the final published PDF. To do this, explains Springer's executive vice president corporate communications Sabine Schaub, authors can purchase Springer's PDF file from DRM vendor Aries Systems Corporation, to whom Springer has outsourced the function. Aries will then "download the article from Springer Link [Springer's online database], wrap it with a DRM system called DocuRights, and send it to the author for posting or distribution".
Once it is encased in DocuRights, explains Aries' Lyndon Holmes, the article becomes a "pay-per-view object" with usage rules determined by the publisher. "The publisher can, for instance, specify the number of computers a particular PDF can be opened on". Amongst other things, DocuRights also allows publishers to restrict the number of times a paper is printed and/or viewed.
The attraction to researchers is that using the publisher's PDF allows them to offer the final, definitive version of their article, in a clean professional format. Moreover, since today 78 % of authors who have never self-archived are unaware of how to go about it publishers are clearly in a powerful position to persuade them that archiving a PDF reprint is a better way of providing OA.
However, while authors will still be able to provide Open Access (by themselves prepaying for usage) it is not the kind of solution envisaged by OA advocates.
Take the initiative
Confronted by continuous publisher foot dragging over OA some have concluded that, rather than accepting whatever terms publishers impose, it is time for authors to take the initiative over rights. To this end the Scholarly Publishing and Academic Resources Coalition (SPARC) has produced a downloadable Author's Addendum that researchers can print and attach to the publication agreement publishers ask them to sign on the acceptance of their articles.
The aim of the Addendum is to modify the publisher's agreement to make explicit the fact that the author is retaining sufficient rights to self-archive, and to also require that the publisher provide a free PDF version of the article — one, moreover, with no DRM functionality incorporated into it.
More specifically, explains Michael Carroll a law professor at Villanova University who authored the Addendum, it ensures "that the author retains all rights necessary to grant a Creative Commons Non-Commercial-Attribution License". A second version of the Addendum that will allow the author to simultaneously reserve these rights and then grant the Creative Commons license is now in draft, explained Carroll in a recent post to the liblicence mailing list.
Will this prove acceptable to publishers? While agreeing that "the intent of the Addendum is entirely reasonable," Peter Banks, a publisher at the American Diabetes Association (ADA) responded to Carroll's post by cautioning that several clauses in the Addendum were unacceptable. "Were we presented with this Addendum, we would decline to publish the paper. I am quite sure a majority of publishers would do the same".
In reality it is highly unlikely that subscription-based scholarly publishers will allow authors to manage their own rights. Indeed, many have come to see copyright ownership as key to their survival. While they could adapt by converting to an OA publishing model, most publishers view this as far too risky financially, and certainly less profitable.
Publishers' efforts, therefore, appear to be focused on reducing the impact of self-archiving. Embargoes are one way to do that. A more powerful long-term strategy would be to encourage authors to self-archive the publishers' version and arm it with second-layer DRM. As such, the self-archived article would potentially become a Trojan horse capable of transforming OA articles into "pay-per-view objects".
Such doomsday scenarios are no doubt overblown. But they serve to remind us that ignoring rights issues could prove a risky strategy for the OA movement.
For the moment, however, most OA advocates appear happy to sit on their hands. It is, for instance, nearly two years since the funding for Project RoMEO ended. While its work was inherited by the Open Archives Initiative (OAI) rights group, to date most of that group's efforts have been devoted to developing rights expressions for OA records, not for the underling resources!
This means that even where OA publishers and self-archiving authors include rights metadata in their papers there is currently no OA infrastructure able to exploit those metadata to good effect.
Given the continuing scepticism over rights this is perhaps unsurprising. "It is harmless to make rights explicit in metadata, but that's not the priority", says leading OA activist Stevan Harnad. "The priority is the content (for which these metadata would be part of the decoration)".
In other words, until the number of self-archived papers increases there is no point in fussing over rights. But as Swan points out, uncertainties over rights are a major deterrent to self-archiving today — suggesting the movement may face a chicken and egg stalemate.
Moreover, since the 1,600 gold journals can at most make just 5 % of scholarly research OA such a stalemate would represent a significant obstacle to the wider movement. Harnad insists, however, that all that is necessary today is for governments and other research funders to mandate self-archiving. After that, he says, all the other dominoes will "fall naturally (and anarchically) of their own accord".
But is that enough? After all, the NIH's decision not to mandate (but merely encourage) its researchers to self-archive appears to have been partly influenced by uncertainties over copyright. This suggests that until the copyright situation is clarified uncertainty over rights — and how they are managed — will remain a serious obstacle to OA. What better reason for OA advocates to seize the DRM nettle?
As we've seen, one can view DRM in two ways: as a proprietary and totalising means of locking up content and forcing restrictive usage rules on users in order to maximise revenues; or as a set of tools to help creators maximise usage of their work (without ceding ownership) by specifying what rights they wish to retain and what rights they are happy to waive.
While some question whether the use of Creative Commons licences can be classified as "digital rights management" their heavy reliance on machine-readable metadata to control usage suggests it is entirely reasonable to use the term DRM. After all, why should proprietary interests bent only on locking down content have a monopoly on the term? Why should not this overly proprietary definition be challenged?
More importantly, perhaps, the OA movement faces the clear danger that if it does not more actively promote an alternative view of DRM, then proprietary interests may succeed in foisting a more restrictive model on scholarly publishing, with the risk that some of the OA movement's recent gains could be lost.
With luck, the growing success of the Creative Commons — and the recent founding of the Science Commons — may help OA advocates see the relevance of DRM, and encourage them to promote a broader definition of rights management.
At the very least, by assisting researchers to utilise more liberal Creative Commons licences when publishing in traditional journals, OA advocates could introduce greater certainty about the legitimacy of self-archiving. Not only would this provide a boost to the movement, but it would help to demonstrate that digital rights management is not just about "monetising" content, but is part of a larger initiative focused on creating a rights management regime more suited to a networked environment.
"Personally, I think DRM is really important in the context of OA", says Herbert Van de Sompel, a member of the OAI rights group. "It can, indeed, be about protecting authenticity of works, and avoiding plagiarism … [and] … and even CC licences would cover this. But there is another increasingly important aspect. Readers of the future will more and more be robots that will try and make sense of what they 'read' (by mining content), and present their analysis to humans. It is important that such use be explicitly allowed; in the current environment, one really doesn't know whether it is OK to mine content from OA repositories".
Until there is much greater clarity over rights, and how they are managed, the OA movement may struggle to make significant progress. Increasingly it appears that only by grappling with these complex issues can the movement hope to achieve its objectives.
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This article was commissioned by INDICARE, and is also available on their web site.