The DMCA Reaches Academia

This blog has discussed the notice and takedown system for the Digital Millennium Copyright Act (DMCA) a number of times.  Most of the time, the industry sending the takedown notices involves entertainment: music, movies, and occasionally literature.  However, there is an emerging use of this system for academic research.  An article from TechCrunch details how the publisher Reed Elsevier has begun sending takedown notices to authors who republish materials on open source article sharing websites or their own personal websites.  Many of the authors cede publishing rights when they have their work published in academic journals, but the academic community usually recognizes the value of shared information.

The legal issue here is pretty straightforward.  From a pure copyright standpoint, these academics infringed when they republished works to which they’d ceded republication rights.  As long as their decision to contract away the republication rights was knowing, then Reed Elsevier’s republication rights are likely valid.  

This situation presents some major policy issues.  One is an interesting conflict between the interests of academia and the goals of copyright law.  As the article points out, academia places a high degree of value on the ability to share knowledge for research purposes.  That makes sense, since any scientific or academic field requires the experts to share the newest information in order to advance the field as a whole.  However, copyright law seeks to promote the creation of such works by providing broad protections to the creator.  The idea is that by providing a government supported monopoly that allows for the creator to profit from their work, there is more incentive for people to continue working on the creation of intellectual or artistic works.

There are a few issues with how this copyright argument applies in this case.  The first, and most obvious issue, is that in this case the authors are receiving the takedown notices.  The entity with the republication rights is not the original author, but an academic journal publisher.  The value that such an entity brings to this exchange is debatable.  Getting published in a prestigious journal certainly has some value.  It can allow for a researcher to build their reputation, helping to make their career as a result.  These journals also allow for other experts in the field to find other articles in their field that represent the state of the art.  They act as a gatekeeper of sorts, sifting through many papers to find the best.

The value of such gatekeepers is increasingly questionable in the internet age.  Experts in various fields can share their research directly, or place their works on any number of sites.  Researchers can simply turn to or SSRN if they wish to find new and interesting research.  The only real issue is that they may spend lots of time sifting through articles of questionable value.  Academics can even build their reputation through their online presence, operating their own websites or contributing to any number of well-known websites to get their name out to the public.  While getting published in a prestigious journal still clearly helps, it isn’t quite as useful as it once was.

The case with Reed Elsevier illustrates a case where copyright directly conflicts with the goals of academic research.  The major incentive copyright protection provides, in this case, is to the publishers.  Reed Elsevier wish to jealously guard their republication rights in order to maintain these journal’s value.  The researchers themselves do not require copyright’s bundle of rights to encourage them to continue publishing and researching.  The only incentive these takedown notices seem to provide is to discourage researchers from publishing in Reed Elsevier’s journals in the first place.

I’ll be on vacation for the next two weeks, in celebration of the holidays.  As a result, there won’t be a new blog post until Wednesday, January 8.  So have a Merry Christmas and a Happy New Year’s.  I’ll see you all in 2014.


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