I have just discovered (through Klaus Graf and Peter Suber) the word that I need to describe what Wiley, eMolecules and Ingenta are doing:
Read the excellent paper
Falsely claiming copyright to a work in the public-domainJason Mazzone, Copyfraud, Brooklyn Law School, Legal Studies Paper No. 40, August 21, 2005. (Peter Suber: Thanks to Klaus Graf.)
Abstract: Copyright in a work now lasts for seventy years after the death of the author. Critics contend that this period is too prolonged, it stifles creativity, and it undermines the existence of a robust public domain. Whatever the merits of this critique of copyright law, it overlooks a more pervasive and serious problem: copyfraud. Copyfraud refers to falsely claiming a copyright to a public domain work. Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven piano scores, greeting card versions of Monet’s water lilies, and even the U.S. Constitution. Archives claim blanket copyright to everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use. Copyfraud also refers to interference with fair uses of copyrighted works. By leveraging the vague fair use standards contained in the Copyright Act and attendant case law, and by threatening litigation, publishers deter legitimate reproduction of copyrighted works, improperly insisting on licenses and payment of fees. Publishers wrongly contend that nobody may reproduce for any reason any portion of a copyrighted work, without the publisher’s prior approval. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech. Copyfraud also weakens legitimate intellectual property rights. Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims, and to specify as a statutory matter that copying less than five percent of a single copyrighted work is presumptively fair use. In addition, Congress should enhance more generally protection for the public domain, with the creation of a national registry listing public domain works, a symbol to designate those works, and a federal agency charged with securing and promoting the public domain. Failing a congressional response, there may also exist remedies under state law and through the efforts of private parties.
(Peter Suber (2005): At a conference last year, I proposed civil damages for infringing the public’s right to use the public domain, and I’m very glad to see a law professor take up the idea in all seriousness.)
Copyfraud is very simple to understand. You take a document in the public domain, and put your copyright on it. It’s a simple, virtually safe way of making money you aren’t entitled to. Mozzone describes how it is perpetrated on classic works of literature, art, music, film, etc. He doesn’t touch on scientific facts but I see no reason why this doesn’t fall into the same category.
[Technically the Ingenta action of adding their copyright to our abstract is different in that we are already the copyright holders. But I think Copyfraud describes it sufficiently.]
The problem, as he makes clear, is that the balance is asymmetric. Copyright holders have powerful lawyers and Wiley can pursue someone for reproducing a scientific graph with 10 data points. The public domain, however, has no such force. I would claim that a graph of scientific data is in the public domain, as are pictures of molecules, their spectra – certainly not the property of the publisher. Yet the public domain – as Mozzone notes – has no symbol corresponding to the © symbol, no legal protection.
Where authors understand the problem and want to protect the freedom of data they can use a licence – CC, or OKFN. But it shouldn’t be necessary. Data should be free.