Now I would like to introduce our great speakers.
Philip Young is the repository manager at VTechWorks,
which provides global access
to Virginia Tech scholarship.
He also provides outreach to the university on
open access, ORCID and Perma.cc.
Jimmy Ghaphery is Associate Dean for
Scholarly Communications and publishing at
Virginia Commonwealth University Libraries.
He and his team coordinate
library technology operations and
advocacy for all things open,
including open access, open repositories,
open publishing, open educational
resources, and open data.
Without further ado, this is their presentation,
public domain and paywall copyright
statements on journal articles
by US government employees.
Well, thank you for the introduction, Ellyn.
I'm Jimmy Ghaphery and Philip and I are
thrilled to be here at the Kraemer Copyright Conference.
The sessions have been fantastic so far,
so much of what I've been able to
attend is really builds on what
we want to talk about from
Sandra and Kyle's session that I was able to
go to talking about government works, to
Pia's excellent keynote about author's rights.
I just sat in on Kevin Smith and Kenneth Crews' session,
which really goes to the heart of
a lot of what we're talking about.
Anyway, happy to be here and next slide.
What we hope to do today is to give
some brief background on
the copyright status of US government authored works.
I'll share some preliminary research results
of a study we've been doing
about how these works are
labeled by commercial journal publishers.
Talk about the implications of
this research for libraries and access.
Most importantly, we're thrilled to be talking to a group
of librarians and copyright experts
and we look forward to getting your feedback.
For background and this is as much to let you all
know that Philip and I are not copyright lawyers,
but just to share some of our understanding of
copyright law is that
copyright protection is not
available for any work of the US government.
This is for 17 USC 105.
The US government work is defined in USC 101
as a work that's prepared by an officer or employee
of the United States government
as part of their official duties.
It's interesting looking at the legislative history,
that this doesn't prevent
a government employee from securing
copyright even in their field of expertise,
if this isn't part of their official duties.
Backup one more slide.
The last piece that we want to mention is 17 US 103,
where there is no requirement for any copyright labeling.
It's interesting to note that
this only dates back to 1989.
Before then it was a requirement to have
the copyright label and as
Kenneth Crews said, it was very draconian.
He just said that in the past presentation.
This included the requirement to state whether part
of the work was part of the US government employees,
and if that was mislabeled,
that would throw the copyright completely out the window.
The other interesting thing about US government works,
and you'll often see this on
the copyright labeling, is foreign protection.
Even though these works are in the public domain,
in the United States,
the United States government is reserving
the right to assert copyright overseas.
This is seen when you look at
the legislative history from the US House report,
that there are no valid reasons for
denying such protection to the United States government.
It's interesting to think of this as
merely theoretical that the US government
would assert the copyright
of these works overseas or not.
But we had a great email conversation
with Peter Hirtle with
this question and he helped us in our thinking on it.
He noted as an exercise,
he looked at the copyright system in Canada,
in which he found that the US government has actually
registered a few copyrights for
CDC publications in Canada.
One of the best resources we found about
US government works and copyright are the CENDI FAQs.
CENDI is an interagency organization.
It's just a really nice overview.
It explains the various exceptions,
including specific agencies that are exempt from this,
as well as how this all fits in with contractors.
The one thing that was
the most reassuring to Philip and me,
we had lots of questions about co-authorship.
What happens if you're in
a co-authorship situation where
one author is from the US government and one
is from private industry or another university?
This remains confusing to us to
some degree as does I think co-authorship in general.
It was reassuring that
the CENDI site had notes that much of this is
unsettled in courts and
in such situations you should talk to a real lawyer.
The last thing I'll note on the CENDI FAQ that's
posted is their
actual copyright notice that they include,
which is similar to some of the notices we've
seen where they say this is a work of the US government.
It's not subject to copyright protection
in the United States,
foreign copyrights may apply.
It was interesting to us that even on this FAQ,
they asserted that possibility
for foreign copyright. Philip.
Thanks Jimmy.
I want to talk a little bit about our research prompts.
As a repository manager
on part of my job is to getting
content into the repository.
When I see articles that are
marked public domain in the United States,
I feel relatively comfortable that I can go
into the institutional repository,
and have the articles of
Virginia Tech authors in there and that's great.
Then I noticed that there's lots of other articles by
government authors that aren't
marked public domain in the United States.
Is it still okay to put them in the IR?
Or are we depending on
publishers to correctly mark these?
What's the risk of putting these articles
in the institutional repository?
Am I going to hear from publishers?
Am I going to get a takedown request?
In 2019 I posted to
the IR Managers Google group about this issue.
The general response was confusion.
I remember two of their responses.
One of them was from another manager who said,
"Yes, we are doing this and we've
been doing it for quite a while."
The other response was from a manager of
a repository at a government agency, he said, "Yes,
I'm very interested in knowing
the answer to this because I have
lots of authors writing
articles and I'd like to put them into my repository."
We decided to collect some data.
How are publishers currently labeling these articles?
When they label these articles
or if they label these articles,
is access provided when they're
public domain in the United States?
How do publishers differ on labeling,
is one publisher always
labeling and another publisher never labeling?
But what if all of the authors are government employees?
That would throw out the joint works confusion there.
There also, we wanted to look at trends
in a type of copyright assertion,
as well as disciplinary differences,
which we'll see in just a moment.
We're not the only ones who have looked at this.
Others have looked at the issue of
copyright marking practices before.
For example, Paul Royster, in commenting on NISO's
proposed open access metadata standards in 2014,
provided eight examples of
incorrect copyright assignment in scholarly journals,
all of which dealt with US government works.
April Hathcock in 2016,
noted conflicting copyright statements
on the same work as
part of her critique of
the ethical dimensions of copyright and reuse.
We collected two datasets,
one from the National Cancer Institute
and the other from the US Department of Agriculture.
Both datasets from the calendar year 2019.
We derive this from the Web of Science.
These articles do include coauthors.
This search retrieves any article that
has a government author on it from those two agencies.
You can see our search strategy at the bottom.
We use the affiliation data for the two agencies.
Then we filtered by
the article type and then
refined by the publication year 2019.
For the National Cancer Institute,
this resulted in 2,378 articles issued in
2019 and for USDA, over 6,000 articles.
These are large datasets and we wanted to do
a random sample to look at these manually.
To get a 95 percent confidence level
and five percent margin of error,
we got the resulting random samples of 318 articles for
the NCI dataset and 362 articles for
the USDA dataset and we each looked at these manually,
Jimmy taking the NCI dataset and I took the USDA dataset.
We decided to look for the copyright statement on the PDF
and so we were always looking at the PDF
for whatever copyright statement was there.
That's frequently referred to as the version of
record and of course it's portable and
gets passed around from person to person and so it's
important to have a good copyright statement
on that document.
Of course, we are both fortunate to be at
a major research institutions where we have
access to Web of Science as well as the PDFs.
One thing I should mention is
that we would have preferred to use
a non-proprietary source for
the bibliographic information such as Lens.
I did do this search for
USDA on the Lens site and only retrieved
about a third of the articles
and so we decided to go with Web of Science instead.
Both Jimmy and I always
found that each of the articles did
have a government author on there so we feel
like the accuracy was quite good.
When we manually looked at these articles,
we put them into one of five designations.
The first was copyright statement missing,
we could not find a copyright
statement anywhere on the PDF.
The second was a generic statement,
something along the lines of copyright,
Wiley 2019 something like that.
Then we collapsed all the Creative Commons
licenses into one Creative Commons category.
Then of course, we want to look at the ones that
did recognize Public Domain in the US on the article.
Finally, we had a category
for CC0, public domain dedication.
In a few cases there were
more than one copyright statement on the article.
For example, there were a few articles that said
public domain in the United States and CC-BY.
When that happened, we always put the article in
the public domain category. Jimmy.
This is what we found and looking across these samples,
roughly combined with the NCI and the USDA,
13 percent actually recognize
the US government authorship.
More interestingly, across both sets,
I don't know if it's more interesting,
but 28 percent use the Creative Commons.
Almost half of the articles in the sample
had a generic copyright statement and that would be
no recognition at all that there was
a US government author and very
few with a CC0 Public Domain dedication.
We're going to talk later
about the ones we found that had no copyright statement.
The other thing that I'll just mention
is that it was very
interesting to us that with disciplinary differences,
that these sets were pretty similar in terms of
copyright labeling practices for government
authored works and we found that somewhat surprising.
Some examples of copyright assertions
where there were clearly governmental authors.
Here's the first one where the lead author
was from the National Cancer Institute and
four of the six authors were from the NCI.
That simply says copyright,
American Society for Clinical
Oncology, all rights reserved.
Likewise, the second example,
only two co-authors from the NCI,
no recognition of government authorship and pretty
severe copyright statement that
the society reserves all rights.
The third one, an example where NCI was
the lead author and four of seven authors
were from NCI and Springer Nature simply says yes,
we got the copyright here.
Likewise, we saw the same type of thing for
USDA and not much disciplinary difference
whether it's all USDA co-authors or clearly
some significant contribution from the USDA and this was
across all of societies and publishers.
The examples of government authorship
were also really interesting.
There are some similarities here,
but bolded it's interesting what
the different publishers are considering is copyrighted.
Is it the work and its text?
Is it just the article?
There's also the copyright symbol on some of these.
It was an even variety
as you can see in the middle of
this chart, within Wiley.
A very interesting example from Taylor and Francis,
where they have the same boilerplate information at
the top of the copyright statement that the work was
offered as part of the contributors official duties, etc.
But then below, different open access addendums,
I would call them probably incorrectly.
But one that has
OA Creative Commons public domain mark
and the other that lists Creative Commons,
non-commercial no derivatives license.
This is interesting in a couple of
ways since the article is in the public domain in the US,
how that could conflict with
a non-commercial no derivatives licensed and
also since these Creative Commons licenses
are international licenses,
how that conflicts with
the US government reserving
the right to assert copyright.
Were the NCI authors in a position to even
agree to International Creative Commons license?
We also wanted to look at
the Elsevier articles which
was the largest by any publisher.
As you can see on the graph on the far left,
almost a quarter of the sample was published by Elsevier.
But there are a couple of other things
that caught our eye that
I've circled on this graph
and the first one is
that of the articles
that were missing a copyright statement,
a large number of them were from Elsevier,
in fact 75 percent.
We found it unusual that
the largest publisher of academic journals in the world
was simply not putting
any copyright statement at all on their articles.
The other thing was that almost none,
in fact just one of the Elsevier articles
and I'll just say that the articles in
the public domain in the United States.
Between these two things,
we thought it was quite egregious for
the world's largest publisher
to do such a poor job of labeling these articles.
Of these missing articles,
a large number had something
like published by Elsevier at the bottom,
but nothing in the way of the copyright statement.
And we realize that there's no legal requirement to do so,
but we are suggesting that it's a good practice in
scholarly communication to have
a copyright statement on the PDF.
This doesn't encourage scholarly sharing
or use in the least.
Thirteen of these articles
have sole affiliations from the USDA,
and so again, nothing
acknowledging the public domain whatsoever.
We also wanted to look at the open-access publishers.
One of the things that caught my eye in the USDA
set were the PLoS journals.
Almost all of them except for
one had a CC0 public domain dedication.
I emailed PLoS about this and one of
their editorial managers emailed me back and said,
''Yes indeed, when there's a US government author on one of our articles,
we assign the CC0 public domain dedication."
The numbers in parens here are the numbers in
the combined sample datasets.
We had 18 articles from PLoS between NCI and USDA.
I also noticed the CC0 from
PeerJ and emailed them as well,
and they said it was always author choice.
We only had two articles by them,
but one set of authors chose CC0 and the other one CC BY.
The other large open access publishers, MDPI, Frontiers,
and BioMed Central use their standard CC BY license.
But it's interesting that there's
no acknowledgment from any of
these publishers really that these
are works that are in the public
domain in the United States.
At least PLoS is recognizing it by assigning
an international license. Jimmy.
It's also interesting as we
think about disciplinary differences.
When we back up and look at the entire data set,
not just the sample,
the full 8,523 articles that were published in 2019,
where we found very little differences
of copyright labeling practices.
These articles did have
a very different open access portrait.
Whereas 21 percent of
the articles from the NCI were paywalled,
not open access. Twice as many,
43 percent from the USDA were paywalled.
We think this is largely due to
the NIH mandate for deposit and
our definition of being
paywalled versus open access
comes from the Web of Science,
Our Research classification that is there.
Combined in 2019 of these US offered works,
more than a third were not available on open access.
This gets even more interesting as we
look historically at what
a large chunk of literature is bottled
up behind paywalls that should be in the public domain.
We're talking about two pretty
big US government agencies,
but we're not talking about all of them.
Between the NCI and the USDA over 50 years,
almost 200,000 articles are behind paywalls.
Not surprisingly, we see
a larger percentage back in the '70s and '80s,
before a lot of open access advocacy.
We also wanted to look at the OA status
of the articles or the public domain statement on them.
From the USDA set,
there was 51 articles or 14 percent of the sample set,
and for NCI it was 35 of
the articles in that set or 11 percent.
We use the Unpaywall simple
query tool and we're very grateful to
Unpaywall where you can get
a set of DOIs and enter them into that web tool,
and they email the spreadsheet
of the OA status for those works.
You can see in the table below that over half,
now I'm on the far right,
the published version was open.
But a few had
the accepted version was the only one that was open.
Then for submitted version or pre-prints,
the only two came from the NCI dataset.
But the category that really interested me the
most as a repository manager is
the column that says
no OA version and so they couldn't find any OA version,
18 articles in the USDA sample set and
five in the NCI sample set.
From the perspective of a repository manager,
if you can provide the only OA copy,
then you're probably going to get a lot
of views and downloads.
We also wanted to look at cases
where all of the authors are US government employees.
We did this for the USDA's sample,
which again was 362 articles out of the larger dataset.
We found that 35 of them or 10 percent
were authored only by USDA authors.
10 of those were marked as the public domain in the US,
23 were paywalled, or
about two-thirds and that
included six that were marked public domain in the US.
We can see a divide here between
the licensing and the access,
where if you see a work that's in the public domain
in the United States, and you can't get
access to it, it's rather frustrating.
That's what we see on the screenshot.
This is from a Wiley journal.
Although we were looking at PDFs,
this one is clearly marked on the website as well.
This article has been contributed to by
US government employees and their work
is in the public domain in the USA.
If you go to click the little PDF icon,
then you get this. You don't have access.
You need to log in to an institution
or pay a fee to get access to that article.
One of the other interesting things that we
found in this research was that
the US Forest Service has
a repository where they are
actively taking these articles,
whether they have a statement on them or not,
whether they're open or not,
and putting them in their repository,
it's called Treesearch.
They say that they are taking
articles published by the agency,
as well as those published by others,
including papers appearing journals,
conference proceedings, or books.
And they take a much stronger stand than CENDI does
on the public domain status of these works.
"US copyright regulations require that
publications by the federal government or authored
by federal employees must remain in
the public domain." Jimmy.
An interesting piece on the NCI data set,
because of the disciplinary nature
of biomedical research,
is it really shows the co-author confusion.
A number of many of the articles in the data set had
many different co-authors and this is just one example,
but it was not the example with the most co-authors,
but here's one article that has 35 different co-authors,
two of which work at NCI.
In those 35 co-authors were
talking about nine different countries,
a mix of universities,
governmental or non-profit, employers.
The copyright statement on
this article is, copyright the authors,
under exclusive license to
Springer Nature America, Incorporated, 2019.
The attribution statement of
credit in terms of author contributions,
notes that, EV and RS,
that's highlighted on the slide,
those were the NCI authors.
Well, they contributed to writing the manuscript,
and the contribution statement also notes
that all authors discussed and approved the manuscript.
It's hard to know how much work they actually did and
whether two out of 35 should put
this in the public domain,
but it's also hard to note,
did Springer Nature actually get 35 signed
copyright clearance statements from
all the authors or not.
So some of our preliminary conclusions
based on this earlier research, is that,
there's a significant number of incorrect assertions of
copyright upwards to 46 percent,
and that this inconsistent labeling practices
for US works especially.
We found this to be consistent
across two very different disciplines and
agencies that had
very different open access profiles
for their publications.
Beyond the rational preliminary conclusions,
you'll give me a brief moment for a wider thinking.
It definitely raises the question whether copyright,
to me, is a good fit for scholarship.
I'll quote Kevin Smith,
where in the previous session, where he said,
copyright is a tool that gives
monopoly power that's leveraged
against the academy and to me,
I think we see this partially in this study.
I think about the Budapest Open Access Initiative goals,
that literature that should be freely accessible
online is that which scholars
give to the world without expectation of payment.
I also was really struck
by a recent book chapter by Charlotte Roh,
Harrison Inefuku and Emily Drabinsky in the MIT book
Reassembling Scholarly Communications that also
goes to the social justice aspect of this,
and we don't want to suggest at
all that open access is going to
cure everything, and they say,
while open access publishing advances
equitable access to reading scholarly work,
it does not automatically reverse
the biases and norms of scholarship
itself and that was really resonant with
us and if you haven't checked out this recent book,
I would also recommend that,
just a lot of great chapters. Philip.
Some of the implications for libraries include,
that the inconsistent labeling practices
contribute to confusion on reuse.
Particularly when statements are missing,
you have obviously a government author
on the article and there's no recognition of that.
We also realized that there is
a complicated risk analysis.
Neither of us are lawyers,
but as we saw earlier,
international law is complicated,
this is a jurisdictional public domain,
and so what about
the articles in the international arena, and of course,
if we take one of the articles and put
them in one of our repositories,
that's available worldwide, and as we saw
the joint work issue with co-authors is also a problem.
If you have 100 authors and
only one government author, what does that mean?
There's also the issue of texts versus the work.
For example,
some publishers might claim copyright in the formatting,
particularly in other countries internationally.
As Jimmy mentioned earlier,
license collisions for lack of a better word,
we saw a few with two statements,
public domain and CC,
or public domain and copyrighted, that sort of thing,
particularly looking at public domain
versus some of the more
limiting Creative Commons licenses,
like the NC and ND licenses, how does that work?
We have lots of questions.
The first and perhaps most important
coming out of this presentation is that,
if we are comfortable with public domain in
the US status of
these articles with any government author on them,
should there be a concerted effort to
put them in open repositories,
because as we've seen, many of them are not open?
Could this effort apply to states where
government authored work is in the public domain?
So both Jimmy and I are in Virginia,
which I believe is one of the states
where government works are in the public domain,
and so could an employee of
our Fish and Wildlife Service be put in
an open repository?
And as you saw in
Jimmy's slide about going back through the decades,
could public domain in the US be a source
of open access for older articles?
This has been one of the confounding things
about open access
as it advances every
year and there's more and more work that's open access.
We're still looking back at
a huge back catalog, so to
speak, of works that are behind paywalls.
And could there be a technological solution for
this divide between the licenses and access,
as we saw on the screenshot of the Wiley journal article
which says that the articles in
the public domain in the US,
but no, you don't have access to it.
Could publishers potentially recognize
IP addresses coming from the United States,
for example, and offer access to those IP addresses.
There are also other opportunities for libraries.
Perhaps some of these issues could be putting
license addendums to specify labeling best practice,
to have rights to republish public domain material,
and perhaps most importantly,
to remove paywalls for the public domain material.
What might a solution at scale look like?
As Jimmy pointed out on one of his slides,
we're maybe looking at
hundreds of thousands of articles here.
One thing we could potentially do is use Unpaywall to
identify the "no OA copy" articles
and prioritize those for IR upload.
Because there is no open access version,
and so that could be
the low-hanging fruit that we focus on first,
to get into IRs.
We may also be able to help
Unpaywall mark these as public domain US.
When we got our spreadsheets back,
we noticed that very few were marked PD,
and so we might be able to help improve the data set.
Also, Unpaywall has relationships with
Web of Science and Scopus, and so part
of that relationship might be
getting the affiliation data from
those two services and using
that to inform the license metadata.
We want to offer our thanks.
A couple of months ago we
attended the ASERL Copyright Office Hours,
the Association of Southeast Research Libraries
with a lot of these questions,
and we are grateful for feedback from Brandon Butler and
Laura Burtle at those office hours. As Jimmy mentioned,
Peter Hirtle was very gracious in
replying by email to some of our questions.
Our scholarly communications colleagues for
engaging the question on LISTSERV,
and of course, the Web of Science for
the affiliation data and Unpaywall,
Our Research for the open access data.
But we do want to make it clear that any errors and
misunderstandings are totally ours.
We have some selected references
to the documents that were referred to,
for example, the CENDI documents, the FAQs,
and several others with
links to those works that we'll be providing,
and so we want to thank you very much for listening,
and we're anxious to take your questions.