Copyright Clashes With COVID-19 Response

Network of Centers
Jun 19, 2020 · 5 min read

By Julia Reda

The coronavirus pandemic has put a spotlight on the need for global research collaboration and the efficient exchange of knowledge. In order to fight this unprecedented threat to global health, many things that seemed impossible before have suddenly become not just feasible, but imperative. This is the hour of open science.

Academics have realized that in order to stay relevant in the fast-paced research response to COVID-19, they have to publish their results on freely accessible preprint servers. Many publishers have committed to making their COVID-19 research freely available for the duration of the crisis. The World Health Organization is curating a constantly updated collection of COVID-19 research. Repair manuals for medical devices are assembled in comprehensive online databases.

Still, copyright is holding back the pandemic response. Some medical device manufacturers are sending takedown notices to have manuals removed from the web. Other relevant materials are never made freely accessible in the first place. For example, 80 percent of research papers about respirators by one of the major publishers that participates in the aforementioned pledge to make COVID-19 research available are still locked up behind a paywall.

The voluntary commitments by publishers, as well as the attitude change among many academics, only affect new research that is being published in direct response to the coronavirus. Yet, there is a lot of potentially valuable research out there that is not specific to COVID-19 and is not widely available for re-use. This includes, for example, epidemiological studies about other viruses, sociological research into the conditions under which populations follow medical advice, or psychological studies on the effects of prolonged social isolation.

Closed-access publishing does not just exclude interested non-academics from following and contributing to our scientific knowledge, it is also a significant financial barrier to universities who cannot afford the costly subscriptions to academic journals, especially in developing countries. Volunteers around the globe are now trying to come up with innovative ways to make as much of our pre-COVID-19 academic knowledge accessible to those who need it. Their efforts may not just help apply this knowledge to the current crisis, but also lead to a more long-lasting shift in our attitudes toward knowledge sharing.

One such project is openVirus, an effort to catalogue as many research results as possible and use data mining techniques to make this knowledge-base searchable to find answers to specific real-life questions: How do I improve workflows in a supermarket to minimize risk of infection? What methods can I use at home to disinfect my face mask? How do I help my child cope with confinement?

In order to answer these questions, openVirus is tapping into widely neglected knowledge sources, such as over 100,000 academic theses made available by the British Library. Inflexible copyright laws are making this work harder than it should be. Although all of the academic theses used for the project are freely available scattered over many different websites, they are published under different licenses, not all of which are open licenses that would allow the free re-use of the material. While openVirus is allowed to automatically mine the material in order to gain new insights, it faces legal uncertainty as to whether it can simply copy the theses and make them available on a dedicated website. The openVirus programmers have to work around these legal uncertainties and make design choices that limit the tool’s usability and power.

As a volunteer-run project, openVirus is dependent on software engineers, community organizers and social scientists dedicating their time to build the resource, identify the questions most relevant to the crisis response on the ground, and scan the available research articles for answers. It is a shame that on top of that, they have to rely on copyright law experts to ensure that they are not breaking the law while analyzing freely accessible, publicly funded research results for the common good.

Copyright is not just causing issues for the research response to COVID-19, it is also affecting an educational sector forced to move its services online virtually overnight. As educational institutions such as schools, libraries or museums have had to close their doors in order to contain the coronavirus pandemic, they face not only practical challenges such as lack of suitable equipment, training, or broadband access; copyright law also lacks the flexibility and technological neutrality to apply the same rules that have worked offline to the digital environment.

Countries with flexible fair use exceptions to copyright have a comparatively easier time to react to unexpected technological and societal developments. In the European Union, on the other hand, all copyright exceptions are enumerated and narrowly defined in the law. For example, libraries are allowed to offer storytime to children, where librarians regularly read to their young patrons from children’s books, making an important contribution to early childhood education. The copyright exception for libraries’ digital offers, however, does not allow for continuing story time via live stream. It requires that any video recording of a work, such as reading a book out loud, must only be accessible on a dedicated terminal on the physical premises of the library. Clearly, when this provision was adopted in 2001, the legislator did not anticipate the ubiquity of personal mobile devices such as smartphones and tablets, nor the possibility that a pandemic might force libraries to make their physical premises inaccessible.

While some authors and publishers have reacted pragmatically to the changed circumstances and have given blanket approval to their works being read online, the transaction costs of having to check the licensing status of every work contained in the collection of a library — for which the library has already paid — are putting an additional strain on the limited resources of cultural heritage institutions during the crisis. Civil society groups have been turning to regulators calling for pragmatic solutions on use of copyrighted works for educational purposes during the crisis. Others have been exploring the fundamental rights arguments for limiting exclusive rights during emergencies. Simply relying on the goodwill of rights holders in a question of fundamental rights is not a sustainable solution. My new project control © is employing strategic litigation to defend fundamental rights in court in cases involving copyright. The COVID-19 response is highlighting many areas where we are still far from a fair balance between exclusive rights and the public interest.

Julia Reda is a Shuttleworth Fellow and a fellow at the Berkman Klein Center for Internet & Society at Harvard University. She leads the strategic litigation project control © at German fundamental rights NGO Gesellschaft für Freiheitsrechte. Between 2014 and 2019, Julia was a Member of the European Parliament, where she focused her work on the EU copyright directive and the regulation of online platforms. She comments on European and international digital policy in her column “Edit Policy” at the leading German tech news portal heise online and as @Senficon on Twitter. Julia holds an M.A. in political science and communications science from Mainz University, Germany.

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