lundi, 23 octobre 2017

(English) The sharing of knowledge is being criminalised

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Last month, the 29-year-old Colombian biologist Diego Gómez (shown above) was cleared of charges of violating copyright. Nothing remarkable in that, you might think. But the « crime » that Gómez was accused of was that in 2011 he uploaded another scientist’s 2006 thesis on amphibian taxonomy to the document-sharing network Scribd so that others could read it, since it was hard to find, and Gómez thought it deserved wider appreciation.

However, the author of the thesis did not appreciate the gesture, and sued for damages. The court case began in 2014. At stake was not just fines of up to $327,000, but a prison sentence of between four and eight years. Although the court has just acquitted Gómez, his troubles are not yet over, since the prosecutor has appealed against the judge’s decision. As a result, Gómez must still live with the threat of many years of prison and a ruinous fine hanging over him – all because he wanted to share knowledge with his fellow researchers, and with no attempt to derive any financial benefit from doing so.

Gómez is a victim of a new law that Colombia passed in 2012, which requires criminal sanctions when infringement takes place on a « commercial scale », where that term is framed so loosely that it includes non-commercial infringement like sharing a thesis. The law was brought in as part of Colombia’s compliance with the US-Colombia Free Trade Agreement. International trade deals have become a standard way for the US copyright industry to force other countries to extend copyright and introduce harsh punishments against infringement, as Gómez discovered.

Colombia is not the only country where sharing has been criminalised. Unauthorised downloading of copyright material has been a criminal offence in Japan since 2012. At the end of April this year, the UK passed the Digital Economy Act. It is a ragbag of unrelated measures, but a key one is found in Section 32, which introduces a new maximum prison sentence for online copyright infringement: ten years. The UK government refused to specify a minimum level of infraction for the law to apply, despite calls for this necessary safeguard. That means even people who share a single file online for no commercial gain – like Gómez – would still risk a ten-year prison sentence.

The UK government insists this will never happen. But that being so, there is no justification for not making it explicit in the wording: laws must mean what they say, and say what they mean. Copyright trolls will love the ability to make more frightening threats, while the copyright industry will doubtless call for prison sentences to be handed down even when no money is involved, in order to « discourage » such altruistic sharing.

That’s particularly pertinent in the world of academic publishing, where researchers share papers as naturally as they share ideas. Under the new British law, they now risk a long prison sentence for doing so. The authorities may claim this will « never » be imposed, but even if that is the case, its mere existence is likely to have a chilling effect on the sharing of knowledge among researchers in the UK. Absent language that excludes the non-commercial sharing of knowledge, academics will naturally wish to err on the side of caution.

Attacks on the sharing of knowledge continue to appear. Recently, a proposed amendment to the EU copyright directive currently under discussion would have seen the « snippet tax » widened to include academic publications. It would have made quoting from fellow researchers illegal without a licence – an impossible burden on the academic world. The amendment has just been rejected by the IMCO committee that considered it, but there’s nothing to prevent it re-appearing later in the legislative process. The fact that it was presented at all is an indication of the kind of policy that copyright maximalists would like to pursue as part of the EU directive revision.

Fortunately, there is a solution to this problem of the copyright industry seeking to make the sharing of knowledge punishable with prison sentences. Instead of trying to undo the legislative layers designed to stop people sharing articles, what is known as the « open access » movement seeks to re-invent academic publishing by providing an alternative approach that encourages people to make copies and share them.

Open access takes as one of its starting points the fact that the vast majority of research around the world is funded by taxpayers. And yet if those same people want to read the fruits of the work they have paid for, they must pay again, often at exorbitant rates – 30 euros for access to a single article is not uncommon. Open access is based on the idea that the people who pay for research – the general public – have a right to read it free of charge. In practical terms, that means that academic work is published under liberal Creative Commons licences that typically allow copies to be made freely, and derivatives such as translations to be produced without needing to ask permission.

Funding comes from academic institutions, which pay for their researchers to publish in open access journals, so that articles can be made freely available online for anyone to read and download. These costs are partly recouped from the savings obtained from cancelling subscriptions to traditional journals.

Open access is not just the right thing for academics to do as part of the quid pro quo of taxpayer funding, it is also the smart thing to do. The « open access advantage » is obvious: if research is freely available, it is more likely to be read, and by more people, and more likely to be influential, and thus good for the author’s career. Locking up results behind costly paywalls – and prosecuting people who share knowledge freely – is simply not in the interests of academics.

Open access is not a new idea – its roots go back to the early 1990s. But its adoption has been slow, held back by fierce resistance from dog-in-the-manger academic publishers. That comes as no surprise: publishers in this field typically enjoy profit margins of 30% to 40% – unheard of in most industries, and clear evidence of price gouging. Nonetheless, open access is the future for knowledge dissemination, with more and more governments – including the EU – making it a condition of receiving their funding. Major initiatives to convert subscription journals to open access are now underway.

Against that background, the attempts to criminalise the sharing of knowledge in some countries by making copyright even stronger, and penalties for infringement even harsher, is a seriously retrogressive step. They show that the copyright industry still thinks its monopoly right trumps all others, including the right to « seek, receive and impart information and ideas », as laid down in Article 19 of the Universal Declaration of Human Rights.

Writer (Rebel Code), journalist, blogger. on openness, the commons, copyright, patents and digital rights.