International Report (February 2003)

Durham , U.K.

As the scholarly communications crisis intensifies, interest in alternative publishing models is growing in Europe . The creation of a European chapter of the Scholarly Publishing and Academic Resources Coalition (SPARC) and last year’s founding of the International Scholarly Communications Alliance (ISCA) have both increased awareness. SPARC and ISCA are currently organizing 1-day events at U.K. universities, with the aim of alerting academics to the issues and encouraging them to engage in self-archiving.

One such event was held Dec. 10, 2002 , at the University of Durham . Paul Ayris, ISCA’s coordinator and director of library services at University College London, informed the audience that while the retail price index (and thus library budgets) has increased by around 70 percent since 1986, the cost of journal subscriptions has grown by nearly 300 percent (see Figure 1). Using statistics from the U.S. Association of Research Libraries, he predicted that this number will rise to a dramatic 1,774 percent by 2020 (see Figure 2). Unless action is taken, Ayris warned, libraries would have little choice but to engage in wide-ranging serial-cancellation programs and raid other areas of their budgets as well.

Since commercial publishers are beneficiaries of the crisis, Ayris added, there’s little incentive for them to address the problem. Consequently, librarians and researchers will have to find solutions themselves. One answer is to create institutional e-print repositories. The logic is that if researchers self-archived all their papers and articles on institutional Web servers, they could ensure that they remained outside the current tollgates maintained by commercial publishers through the ever-rising subscription costs. Moreover, if all research institutes followed suit and used interoperable programs such as the E-Prints Archive Software, then all the world’s research would become freely available to everyone via “harvesters” such as OAIster (http://oaister.umdl.umich.edu/o/oaister).

Stephen Pinfield, assistant director of information services at Nottingham University , explained that pilot repositories are already being tested at a number of U.K. universities, including Nottingham , Edinburgh , Glasgow , Oxford , York , Leeds , and Sheffield .

While clearly unhappy with the current situation, a few members of the audience were understandably concerned about abandoning the tried-and-tested quality-control system that publishers provide through peer review. In response, Pinfield pointed out that self-archiving was not an “either/or” situation. As long as researchers did not sign away copyright, they could both self-archive their papers and continue to publish them in commercial journals.

So what precisely should researchers be doing? Pinfield suggested that they should “support and contribute to e-print repositories, retain copyright (or at least e-distribution rights) in their papers, and take part in the debate.”

These same issues are currently being discussed across Europe . What remains unclear is how many researchers and their institutions will heed the call and what the implications of the “free the refereed literature” movement will be for commercial publishers.

Sydney , Australia

A ruling by Australia ’s highest court has reignited controversy about the extent of national courts’ jurisdiction over the borderless Internet. Specifically, in December 2002, the Australian High Court ruled that Australian mining magnate Joseph Gutnick can sue Dow Jones for libel in his home state of Victoria for an article published in the U.S.

The decision was made on the basis that the article, which ran in Dow Jones’ Barron’s, was also placed on the Web. Effectively, the ruling implies that in the Internet age, libel can occur in any jurisdiction where an article is read, not just where the publisher’s server is located.

In a statement on its Web site, Dow Jones complained, “The result means that Dow Jones will defend those proceedings in a jurisdiction which is far removed from the country in which the article was prepared and where the vast bulk of Barron’s readership resides.”

Critics have been quick to point out that if the court’s ruling becomes accepted practice, publishers will be vulnerable to libel prosecution in any country that has Internet access. Moreover, since libel laws in some countries are far stricter, anyone seeking to censor criticism will likely sue in such places by preference.

David Schulz, a lawyer for a group of publishers and Internet companies, told The New York Times: “If [this] becomes the law of the Internet, the problem isn’t that individuals will be suing all over the world—though that is a problem. The problem is that rogue governments like Zimbabwe will pass laws that will effectively shut down the Internet.”

While there have been a number of similar cases in recent years, courts have generally been reluctant to assert jurisdiction regarding Internet matters beyond their national or regional boundaries. Days after the Australian decision, for instance, a U.S. federal appeals court threw out a case in which a Virginia prison warden had in his home state sued two Connecticut newspapers for defamation. The articles described his alleged mistreatment of Connecticut prisoners while they served sentences in Virginia .

As the newspapers were also available over the Web, the warden claimed that he had been defamed in Virginia , since that was where his reputation was damaged. Nevertheless, the court concluded that because the articles were not aimed at a Virginia audience, there were insufficient grounds for filing a lawsuit in that state.

Beijing

According to a report from the Chinese government’s official Xinhua News Agency, a safety crackdown has led to the closure of more than 3,000 of China ’s estimated 45,000 Internet cafes and the temporary closure of around 12,000. The move comes after the deaths of 25 people in a Beijing cybercafe fire last June. Two teenage boys were subsequently jailed for life for the fire, which they were said to have started when refused admission.

While the closures are part of the government’s wider campaign to reduce the frequent number of deaths from building fires, critics have pointed out that they have also given the communist government an opportunity to better control how Chinese citizens utilize the Internet. According to New Scientist, there are now 56.6 million Internet users in that country.

Under new rules introduced on Nov. 15, 2002 , Internet-cafe managers are required to keep records of customers’ identities and to close by midnight . Minors have also been banned from using the cafes.

As the price of home computers continues to fall, however, more individuals can now afford their own. Cybercafes are increasingly being used for playing computer games rather than for going online. Nevertheless, the authorities are making more use of special filters to block surfers from viewing foreign-based sites run by Chinese dissidents, human rights groups, and news organizations.

A recent study by Harvard Law School ’s Berkman Center for Internet and Society found that China regularly denies local users access to 19,000 Web sites. This is the most extensive Internet censorship in the world. The most frequently blocked sites include those on democracy, Tibet , and Taiwan .

Jonathan Zittrain, a professor at Harvard Law School and a co-author of the study, told The New York Times, “If the purpose of such filtering is to influence what the average Chinese Internet user sees, success could be within grasp.”

Arnsberg , Germany

Attempts to control what can be seen on the Web are not confined to China . In December 2002, the administrative court in Arnsberg , Germany , ordered an ISP to comply with a ban introduced by the German state government of North Rhine-Westphalia (NRW) last February and block access to two U.S.-based neo-Nazi sites. The ruling comes as part of ongoing attempts by the German authorities to force ISPs to prevent access to such sites. The ISP, whose name was withheld, had filed a lawsuit against the ban.

While disseminating Nazi ideology to the public is a crime in Germany , it has proven difficult to control foreign Web-based content. A ruling by Germany ’s highest civil court in late 2000, however, concluded that the country’s laws banning certain material can also be enforced against foreign-hosted sites.

To date, NRW is the only German state to have issued a ban, but others will clearly be monitoring developments. The IDG News Service reports that in February 2002, NRW ordered 76 ISPs in the region to immediately block access to objectionable sites. Of these, 17 rejected the ban, and 11 went to court to fight it.

Ultimately, the decision on whether the neo-Nazi Web sites can indeed be legally blocked is expected to be made by a higher court. NRW official Jurgen Schutte told the IDG News Service, “The higher courts have the ultimate say, and that means lawsuits involving the Web site ban could go all the way to the federal constitutional court.”

This latest dispute comes in the wake of a controversial 2001 ruling by a French court that ordered Yahoo! to prevent users in France from accessing U.S. sites where banned Nazi items are sold. Yahoo! was threatened with a fine of around $13,000 for each day it failed to comply.

A month before the French court’s deadline, Yahoo! announced that it would prohibit Nazi memorabilia from being sold on its commerce sites, along with Ku Klux Klan memorabilia and other items “associated with groups which promote or glorify hatred and violence.” Yahoo! nevertheless denied that the decision was a result of the French court’s ruling.

Tokyo

Japan ’s Agency of Cultural Affairs announced in December 2002 that it plans to extend copyright on movies from 50 years after their release to 70 years. The aim is to harmonize copyright protection for movies with the protection that’s afforded to other materials. Animation films and video-game software will also be affected, since they are currently treated the same as movies. The change has been recommended by a Japanese Diet committee.

This action comes after more than a decade of lobbying from the movie industry. Most recently, last October, Keiji Fukuda, a member of the Motion Picture Producers Association of Japan, and Bertrand Moullier, the director general of the International Federation of Film Producers Associations, met with Japanese copyright officials.

Fukuda told The Japan Times: “Japanese movies produced in the past are cultural assets. I believe (the extension) is appropriate and fair when compared with the European Union, which provides a protection period of 70 years.”

A draft bill is expected to be introduced before the Upper and Lower Houses in the coming months, with formal implementation taking place toward the end of the year.

The Japan Times pointed out that under existing law, copyright on a number of movies released in 1953, including the much regarded Tokyo Story, is due to expire at the end of December 2003.

Critics of the U.S. copyright system will find an interesting parallel with the Sonny Bono Copyright Term Extension Act. In 1998, this legislation extended copyright protection from 50 years after the author’s death to 70 years for most works. It’s widely believed that the change came as a result of intense lobbying by the Walt Disney Co., which was faced with the impending expiration of its copyright on Mickey Mouse. The act had subsequently been challenged by cyberlaw campaigner Lawrence Lessig, whose unconstitutionality claim was recently denied by the U.S. Supreme Court.

London

According to a Reuters report in December 2002, a key deadline for adopting the new European Union law on copyright has passed with just two member countries having signed up.

The Copyright Directive, Europe ’s equivalent to the U.S. Digital Millennium Copyright Act (DMCA), is intended to update the laws to ensure that digitized content—including film, music, and software—can be safely distributed over the Internet and onto digital devices.

The delay in Europe owes much to the intense controversy created by the DMCA. In addition, there’s worldwide concern that new intellectual property laws are eroding traditional fair-use rights and give too much power to digital rights management technologies to “lock up” content.

According to the Reuters report: “The industry lobbyists have not convinced [European] politicians that technological stop-gaps such as rights management tools, which would ensure a copyright holder is compensated each time his song is downloaded onto a mobile phone or a computer hard drive, would work or are necessary.”

So far, the only two European Union countries to have adopted the directive into local law are Greece and Denmark . Explaining the delay in Britain , the U.K. Patent Office’s Web site refers to the “sheer volume of replies” received by its consultation document. The office adds that the “detailed arguments and suggestions for alternative drafting” made it impossible to meet the deadline. As a result, it now expects to implement the directive by March 31, 2003 .

This article has been reprinted in its entirety from the Februrary, 2003 issue of Information Today with the permission of Information Today, Inc., 143 Old Marlton Pike, Medford , NJ 08055 . 609/654-6266, http://www.infotoday.com.