The Smokescreen of Copyright

The New England Journal of Medicine's support for Elias Zerhouni's proposal, Enhanced Public Access to NIH Research Information, is commendable, as is the journal's long-standing policy of making its articles freely available six months after publication.

However, the recent editorial on this topic by Jeffrey Drazen and Gregory Curfman (NEJM, September 23, 2004) makes unfounded statements relating to copyright that deserve correction.

They suggest that the NIH proposal's silence on copyright is "potentially dangerous" on the basis of a two-fold argument. Firstly, they assert that journals need to hold copyright on the articles they publish in order to prevent commercial entities from redistributing the work (in whole or in part) without permission. Secondly, they claim that journals must hold copyright in order to seek redress in the courts on behalf of authors, in the event of the misuse or misrepresentation of scientific data presented in the journal (e.g. highlighting the benefits but disregarding the disadvantages of a given drug or treatment). Neither point in this argument stands up to scrutiny.

With respect to commercial reuse, Drazen and Curfman say "[The NEJM] will continue to seek redress if others use what we publish for commercial purposes." Unfortunately, the beneficiary of this restrictiveness is neither the scientific community, nor the author, but solely the publisher. Traditional publishers use their control of copyright to extract payment from any commercial company wishing to re-distribute or re-use research articles - even if the company is distributing to academics or is producing course-packs for students. The income derived from this commercial licensing is typically retained by the publisher, and does not directly benefit the author of the article concerned in any way. On the contrary, the author and the author's institution would benefit most from the widest possible distribution for their article, be it by commercial or non-commercial means.

Moving on to the next point - distortion, misrepresentation and misuse of published research is certainly an issue that needs to be addressed, but copyright law is not an appropriate or adequate tool to achieve this. It is quite possible for an article to be misquoted, misrepresented or misattributed without infringing copyright - fortunately the legal system in many jurisdictions provides a system of redress for such misuse that is completely distinct from copyright law.

For example, the authors of fully Open Access articles^*, while licensing re-use (whether commercial or non-commercial), still retain copyright and also the "moral rights" associated with the article. Moral rights include the right of integrity - distortion or mutilation that would prejudice the author's reputation is not permitted - and the right of attribution - the author has the right to be identified as such, and non-authors do not have the right to claim authorship.

Not owning copyright would in no way prevent a publisher such as the NEJM from taking legal action in response to misuse or misrepresentation of an article that it published. Since both the publisher's and the author's reputations are at stake, publishers certainly have a role and an interest in defending scientific integrity - but this role does not depend on their ownership of copyright.

In practice, copyright law is used by scientific publishers overwhelmingly for one purpose, and one purpose only - to protect their own rights to benefit from the commercial use of the articles that they publish. This is one possible business model (although we believe that Open Access business models are a better fit for the needs of the scientific community). However, "scientific integrity" should not be used as a smokescreen by publishers to conceal their own self-interest in this regard.

Jan Velterop and Matthew Cockerill, BioMed Central

* From the Budapest Open Access Initiative: By "open access" to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.