Scholarly Communications

Public Domain – 2024

On January 1st of each year, different cultural artifacts entire the public domain due to the expiration of their copyright – and indeed, 2024 is no different – as books, musical composition, plays, movies and more produced in the year 1928 find their way into the public domain, which means they are free to use and reference without having to acquire copyright permissions. Of course, if an author references or uses an artifact in the public domain, they should be sure to cite it, but items in the public domain are no longer constricted by any copyright law.

The 95 years rule is not a given, however, as Congress has determined this number based on finding a balance between protecting author and publisher rights during the course of their lives, and ensuring that important artistic and cultural artifacts are – after due time – able to be accessed more freely, rather than rotting away behind permissions paywalls or other copyright constrictions. And some types of content are protected for longer – sounds recordings, for instance, are currently released to the public domain after 100 years, but recordings produced between 1947 and 1956, protection will last 110 years. Since the first copyright laws were established, the trend has been to extend the time of protection in order to protect authors rights – the argument could be made, however, that this protected period is perhaps too lengthy, as it is certainly much longer than an average lifespan. The chart below shows the timelines produced by the differing copyright acts of their respective moments.

Graph showing length of copyright based on act. in 1790 act protections were 28 years, in 1831 Act protections are over 40 years. In 1909 act protections are over 50 years, 75 years in 1976 act, and over 100 years by the 1998 (or Sonny Bono) Act, — Tom Bell chart showing US copyright term over time created for Wikipedia: https://commons.wikimedia.org/wiki/File:Tom_Bell%27s_graph_showing_extension_of_U.S._copyright_term_over_time.svg

Cover and spine of first edition copy of Virginia Woolf's Orlando. Light brown cover with ornate pattern; title and author.

In 2024, while sound recordings may be protected – there is a great deal to welcome into the public domain. Joining the public domain – among other items – are JM Barrie’s Peter Pan play, Virginia Woolf’s Orlando, and Charlie Chaplin’s silent film The Circus. Additionally, while the sound recording has not yet hit the public domain, the lyrics and music to Cole Porter’s “Let’s Do it, Let’s Fall in Love” have also entered into the public domain. And while Winnie the Pooh has been in the public domain for the past two years, he will now be joined by his longtime friend from the Hundred Acre Wood, as Tigger was introduced in The House at Pooh Corner, which was published in 1928.

As a result of some famous character and stories coming into the public domain, new artistic reproductions are taken up without having to pay for copyright permissions. As a result some very interesting titles have been released, including Winnie-the-Pooh: Blood and Honey and Mickey’s Mouse Trap, a pair of horror movies that certainly bring an alternative experience to the beloved characters. And indeed, the impact of cultural artifacts hitting the public domain means more than new inspired slasher films – items on the public domain are useable in teaching materials without the burden of securing copyright to acquire full versions of texts. Scholars can more readily and fully study bodies of work that are in the public domain without incurring expenses, which enhances the global scholarly discourse and allows for seminal work from our cultural past to freely accessible to those interested in studying it – and indeed, on the flip side, if copyright laws continue to get stronger, the ability for scholars and and librarians to make use of assets will be continually diminished in favor of protecting the copyrights for authors and creators who indeed deserve their due – but are more than likely passed on.

For more information on the public domain, please consult the resources below:

Duke Law: Center for the Study of the Public Domain

The State of Scholarly Publishing

For folks interested in the current state of scholarly publishing, especially regarding Open Access, there are two recent reports that do a great job of summarizing publishing’s move toward OA.

In November, the White House Office of Science and Technology Policy (OSTP) released its “Report to the U.S. Congress on Financing Mechanisms for Open Access Publishing of Federally Funded Research.” This report, required by a 2023 appropriations Act, describes the different business models currently being used to comply with the requirement of public access within a year of publication (remembering that the U.S. government uses the term “public access” to denote free-to-read access, and not any of the other rights OA implies). It also provides top-level statistics about the rapid growth in OA publishing over the last ten years.

The most interesting takeaway is how difficult it is to estimate how much federally funded researchers paid to publish in the last few years. Even the U.S. government has very limited data. The best guess from OSTP was slightly more than $378 million in 2021, a 39% increase from 2016. The other highlight of the report is the Appendix, which describes the economic concepts related to publishing that can be used to analyze the system.

Also in November, a group of faculty and staff from the Massachusetts Institute of Technology released the report “Access to Science and Scholarship: Key Questions about the Future of Research Publishing.” Much like the OSTP report, it spends most of its time discussing the recent history of publishing, highlighting growth in both scholarly outputs and in spending. There is more detail here on specific publishers and their business models, especially the growth of massive fully-OA publishers.

The benefit of this report is that it takes a slightly larger view of the entire scholarly communications ecosystem. The Nelson memo applied to both publications and data, and this report poses some interesting research questions about open data, like how it should be shared, and what is it going to cost? It also presents questions about preprint servers and peer review, two issues not covered by OSTP.

The New York Times v. OpenAI & Microsoft

Over the holiday break, the New York Times sued OpenAI and Microsoft for copyright infringement. The lawsuit covers both using New York Times content for training, for reproducing the content in response to prompts.

The New York Times may not be “scholarly,” but the suit could be a preview of how large scholarly publishers deal with OpenAI. First, it is fair to call both the Times and scholarly journals high quality content, the kind that OpenAI likely prefers for training its model (Complaint, p. 29). Second, there are unauthorized copies of much of the content online, so it would be possible to initially train a model on the content without permission. Finally, there is the financial angle. This lawsuit comes after negotiations between the companies to have them pay for the New York Times’ content. While some publishers are exploring ways to use AI with their own content, they may find it profitable to license that content to OpenAI and other companies.

One other interesting note here is how Microsoft is brought into the lawsuit from several different angles. First, it is a big investor in OpenAI. Second, it offers products based on OpenAI’s models, in particular anything branded “Copilot,” and Bing Chat. It is also being accused of helping OpenAI make copies of content in training ChatGPT, or at least overlooking the copying OpenAI was allegedly doing. But the most interesting claim that could have far reaching implications if a court agrees is that Microsoft is committing copyright infringement by “storing, processing, and reproducing” the models on its platform. (Complaint, p. 60). That being copyright infringement could greatly chill AI research, as a researcher would need to know the provenance of a model, and every document used in its training, to be safe from a copyright claim.

Given that this lawsuit is following negotiations over a license agreement, it would not be surprising if this settles before trial. The New York Times may be well-resourced for a big legal fight, but there are no guarantees they would win, risking a lot of licensing revenue. At some point there will be a copyright suit regarding AI that goes to trial (no guess as to which, as it can take a long time to go from filing a case to a trial), but maybe not this one.

Internet Archive v. Hachette: CDL case update

There has finally been some movement in the Internet Archive’s appeal of the Southern District of New York District Court summary judgment decision that it lost back in March.

If you do not recall, the case turned on the question of whether or not controlled digital lending, or at least the Internet Archive’s implementation of it, was fair use. Of the four fair use factors, the court determined that none favored the use as fair. One of the key points of appeal is the District Court’s finding that the Internet Archive’s CDL program was a commercial use. Another important issue was if the use was transformative. The final major point the Internet Archive lost was on economic harm to the publishers. On December 15, the Internet Archive filed its brief addressing these issues.

On the one hand, many of the arguments IA makes are not new; it is just asserting the trial court got them wrong. It claims that the trial court judge “failed to grasp the key feature of controlled digital lending: the digital copy is available only to the one person entitled to borrow it at a time.” (Brief, p. 16). Overall, the Internet Archive sticks to its argument that CDL is non-commercial, transformative, and has no effect on the potential market.

The District Court’s finding that the Internet Archive’s CDL program was commercial could have the most important ramifications going forward. The Wikimedia Foundation and others filed an amicus brief focusing on that issue. Part of that finding was that IA had a “Donate” button on the pages of the digital books it lent. However, it had buttons to donate on every page of the site, much like one sees on Wikipedia. If donation buttons render a page commercial, then non-profit organizations will never be able to have a non-commercial page on the internet.

One other new, or at least more focused argument, is that the market that the District Court identified, the market for ebook licenses for libraries, is the wrong market to consider, but no matter the market, there is no harm. No matter which way this point goes, it would be good to get some more guidance from the court as to who has the burden of proof on this point, and how it should be proven.

Internet Archive does also ask that the court analyze the National Emergency Library, where it lent digital books regardless of the number of print copies it had, and the Open Libraries project, where it digitized and lent books of other libraries, separately. Presumably, this only really matters if regular controlled digital lending is found to be a fair use, but one cannot be sure without seeing the nature of the damages agreed to by the parties, which is confidential.

One thing I noted was that the Internet Archive does not address the recent Supreme Court opinion in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith in terms of evaluating transformative use. I had thought that the District Court would wait on this opinion. Given what the opinion said about transformative use, I expect to see it more heavily relied on in the Publishers’ brief, due March 15.

The Boston Library Consortium, of which Boston College is a member, joined an amicus brief in support of the Internet Archive.

Diversity, Equity, and Inclusion in Scholarly Communications

Part of participating in an evolving society is the recognition that there indeed exists inequality between people on the basis of their identity. As certain groups are afforded more opportunities, or as the culture shapes itself around a set of particular experiences, it becomes the work of those who strive for equity and equality to think about the ways in which our society perpetuates cycles of oppression and systems of power. Though academia sometimes enjoys a reputation for being generally progressive, without intentionally thinking about how our institutions can better serve marginalized identities, it is inevitable that inequality and inequity will continue to grow further systemic roots.

As a counter to this, the University of California recently published a post detailing some of the ways that inequality impacts the production and publication of scholarly articles, and how that in turn can contribute to an even more inequitable and unequal academic space. To inform people of some of the pitfalls that normally befall scholarly communications groups and academic publishers, the post highlights a few areas of the publication process, how they may currently contribute to growing inequality, and how scholarly communications professionals can address and hopefully correct some of these practices now and in the future.

Additionally, a little over a year ago, the Coalition for Diversity and Inclusion in Scholarly Communication produced their Guidelines on Inclusive Language and Images in Scholarly Communication. The guidelines cover best practices around avoiding implicit biases in writing, covering topics such as crime and incarceration with objectivity and care, ensuring images are accessible to all readers, and much more. Among its members, the coalition has OASPA, the Library Publishing Coalition, the Association of University Presses, the Council of Science editors and others. As many different organizations fight for more open models of publishing, libraries will continue to have a leading role to play in ensuring their collections reflect the full community of the world around us – and supporting independent publishers that may not have access to systemic privileges and massive contracts is an important step in building a fuller, more complete scholarly discourse.

Featured image from Coalition for Diversity and Inclusion in Scholarly Communication.