Wednesday, December 28, 2016

"10 everyday things on the web the EU Commission wants to make illegal" #02

OK, let me first say that I hope Julia Reda does not consider herself a publisher. If you did not get the above joke, then continue reading.

This post is an attempt to translate the proposed copyright laws to, well, research. The choice of words is critical here. I deliberately did not say: academic, university, scholarly. I hope my hesitation will become more clear after reading this post too. I am not a lawyer (IANAL), but it is also important to realize that the exact meaning of law often only becomes clear when tried in court, where judges will create de facto examples of what really is allowed and not, following the intention of the law. I am a researcher and a teacher. I implement this by being a strong proponent of Open Science.

This post is about proposed clean up of the European copyright situation, or so it was meant to be. The practice shows differently, unfortunately. The problem is what I see happen around me (and wrote about it and speak about it). I see a huge gap with how the previous generation of scholars think about research dissemination and copyright, and how the modern society sees this. And having read more about it than I should as a scientist, I cannot undo seeing all the contradictions there are in there.

This post will, therefore, take the 10 example activities that will soon be illegal, if we vote badly in upcoming elections and don't follow Julia's knowledge, as a starting point to highlight some of the problems I expect that will happen, based on observations in doing research in the European Community.

Before I start off, one more disclaimer. The proposal is not hard to read, but like other legal works, uses a specific language. Words that have a common or scientific meaning may have a different meaning in law. So, when this post talks about a "hyperlink", I may get the legal meaning wrong. I strongly rely here on more legally knowledgeable people, like Julia. But as she also indicated in her #33C3 talk, legal definitions can be tweaked by newer laws. Two terms that are critical here which are not well-defined (IMHO), but central in the proposal are: commercial (see e.g. Breaking News: CC-NC only for personal use!) and publisher. But that's part of the problem with this proposal.

Finally, what is critical, we must not let ourselves be deluded: law only exists as a formal way to agree on things. Increasingly, very sadly, it is being used to force people into criminality.

02.a Tweeting a creative news headline

I will actually split this up into two examples, one which will be illegal, the other also, but depending on how far the term "publisher" extends. That is, are press outlets the only intended copyright holders here, or also scientific journal publishers.

This tweet reposts a news item from Nature News of about 18 years ago. This will be illegal for commercial websites. So, how does that affect me as scholar? If I do this on my personal behalf (my social accounts are not Maastricht University accounts), it probably still affects me. As Julia points out, first of all, Twitter is commercial, and they may or may not pay Springer+Nature for being allowed tweet this....

WTF? Ho, ho, ho... you're not saying that tweeting the title of an article is illegal???

Actually, yes, that's exactly what this proposal is saying. So, let me continue. If Twitter does not pay Springer+Nature for the right to tweet this, I may have to. May, because it depends on a court to formally decide if I am commercial or not, if I ever get challenged.

It's weird, isn't it? I'm making free advertisement here, and I may need to pay money to do have to right to advertise that.

However, and this is also critical, commercial entities need to apply. Some argue that some universities are commercial, what about SMEs? What about H2020 projects, where often a significant part of the project are SMEs? Are they commercial? Can a project like eNanoMapper still make such tweets, or would that be illegal? Who knows, but even if probably not, will they take the risk? Can they afford to? How much will it cost to make a decision? They will likely not bother and just not do it, inhibiting scholarly dissemination.

02.b Tweeting a creative news headline

Well, OK, I cannot copy/paste the title of the article and still do the advertisement. But I stress that this practice is very common among scholars; it's one of the foundations of #altmetrics.

Now, the above example used Nature News, but what about Nature itself? Or Cell by Elsevier? This is where my legal knowledge fails. At this moment I am not sure if scholarly journals are the rights owners in mind in this proposal, but I currently doubt that the owners and legal departments of the big scientific publishers will say so differently.

So, will the next tweet still be legal?

I honestly do not know, but my current guess is this will be illegal for commercial entities.

OK, to not make this post too long, I will save the next example for a next post. To be continued!

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