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I have written several times over the last few weeks about how important it is to clarify and protect the re-use of scientific data in publications (Open Data) and have, on several occasions, argued that the primary means that we currently have is the label “Open Access”. “Open Access” is precisely defined in three declarations (BBB) (see Open Access in WP) and I have consistently argued that this should be the touchstone of whether something is Open Access and how it can be used.
But the term has been muddied by sloppy usage and in many cases means seems to mean only only “free to read”. As I have pointed out the lack of clarity is extremely serious for data-rich and data-driven sciences where little enough data is published anyway and where it is essential that we have the access to and the right to re-use data.
I do not wish to become some logic-chopper or fundamentalist who monotonously intones “BBB” while the rest of the world gets on and develops the new information model. The problem is that without this emphasis we are killing data-driven science. We are walking into a world where the role of publishers is to stop people reading things and certainly to stop them using scientific data – this is already happening.
Bill Hooker has summed this up:

OK, but I still don’t want to see “Open Access” become the new “Low Fat”.

BH: Peter Suber commented on the last entry to clarify his position on the varying uses of the term “Open Access”:

PS: For me, OA in the strict sense removes both price barriers and permission barriers; all the major public definitions say so; and I’m only too glad to repeat this whenever it comes up. However, as a matter of word usage, the term now covers more territory than this and I’ve stopped fighting that fact. That is, the term is often used for content that is merely free-to-read.

BH: Peter goes into more detail in a recent entry on his blog:

…many projects which remove price barriers alone, and not permission barriers, now call themselves OA. I often call them OA myself. This is only to say that the common use of the term has moved beyond than the strict definitions. But this is not always regrettable. For most users, removing price barriers alone solves the largest part of the problem with non-OA content, and projects that do so are significant successes worth celebrating. By going beyond [I would say “outside” — BH] the BBB definition, the common use of the term has marked out a spectrum of free online content, ranging from that which removes no permission barriers (beyond those already removed by fair use) to that which removes all the permission barriers that might interfere with scholarship. This is useful, for we often want to refer to that whole category, not just to the upper end. When the context requires precision we can, and should, distinguish OA content from content which is merely free of charge. But we don’t always need this extra precision.In other words: Yes, most of us are now using the term “OA” in at least two ways, one strict and one loose, and yes, this can be confusing. But first, this is the case with most technical terms (compare “evolution” and “momentum”). Second, when it’s confusing, there are ways to speak more precisely. Third, it would be at least as confusing to speak with this extra level of precision –distinguishing different ways of removing permission barriers from content that was already free of charge– in every context. […]

BH: and in the Sept 2004 edition of the SPARC OA Newsletter:

One danger is the dilution of our term. That’s why [this newsletter discusses] the BBB definition and its place in our history. But another danger is the false sharpening of our term. If we thought that the BBB definition settled matters that it doesn’t settle, then we could prematurely close avenues of useful exploration, needlessly shrink the big tent of OA, and divisively instigate quarreling about who is providing “true OA” and who isn’t.The BBB definition functions as a usefully firm definition of “open access” even if it leaves room for variation. We should agree that OA removes some permission barriers (e.g. on copying, redistribution, and printing) even if it leaves different OA providers free to adopt different policies on others (e.g. on derivative works and commercial re-use). My personal preference, for example, is to permit derivative works and commercial re-use. But (as I wrote in FOSN for 1/30/02) I want to make this preference genial, or compatible with the opposite preference, so that we can recruit and retain authors on both sides of this question.

BH: I’ve omitted a lot of good information to save space here; anyone interested in this issue should read all of the linked discussions. In particular, the SPARC newsletter goes into useful specifics about the OA-related activities of a number of publishers.BH: Peters Suber and Murray-Rust have both pointed out that one way to be specific about “levels” of openness is to be explicit about licensing — PMR:

If the community wishes to continue to use “open access” to describe documents which do not comply with BOAI then I suggest the use of suffixes/qualifiers to clarify. For example:

• “open access (CC-BY)” – explicitly carries CC-BY license
• “open access (BOAI)” – author/site wishes to assert BOAI-nature of document(s) without specific license
• “open access (FUZZY)” – fuzzy licence (or more commonly absence of licence) for document or site without any guarantee of anything other than human visibility at current time. Note that “Green” open access falls into this category. It might even be that we replace the word FUZZY by GREEN, though the first is more descriptive.

BH: I take Peter S to be saying that it’s inevitable that “Open Access” will come to mean, in general use, more things to more people than strict BOAI, and we will not achieve anything by making arseholes of ourselves over it. (Even if that’s not quite the way Peter S would put it, that’s the way I’ve come to look at the situation.) There’s no point in picking quarrels we don’t have to have. It’s enough to be more careful in our own usage, for which purposes suffixes a la Peter MR should prove very useful when we need extra precision. I don’t think we need invent terms (“fuzzy”) just yet — “OA (specific licence, with hyperlink if writing online)” and “OA (free to read)” should cover most cases.BH: If we can get to the point where the average consumer — basically, any researcher — responds to an OA claim or label by asking “which licence?”, we will have done an end-run around the problem of term dilution.

Well, I’m a pragmatist – I don’t really want to end up pursuing a Stallman-like insistence on a particular model. tempora mutanta (and I hope) nos mutamur in illis. But we are in grave danger of something worse.
I hesitate to spell out what will happen if we let the most greedy publishers (and we have to accept that a large motivation of the commercial publishers is simple greed) have their way. By pointing out a future which is to their benefit and detrimental to us we give a new potential business model to them. And the less public support we get for protecting data the more that the publishers will steal it.
So if we accept the sort of model that is being brokered by HHMI we get the following:

• journals are by default completely closed. Even if now they permit self-archiving, why should they continue? They get more money by closing the journal and then asking the author’s funder to pay for non-subscribers to read it. (Green access) So the HHMI deal may cause more journals to close.
• By default Gold Access allowed the authors to retain copyright and for the licence – if any – to permit any conceivable re-use. It’s now clear from what PeterS has said that “Open Access” covers everything from less-than-green to full CC-BY or PD. A publisher – such as MDPI/Molecules can claim that their papers are full Open Access even though they are copyright the publishers and forbid commercial re-use. Have I lost this one? Am I making myself stupid here? Should I rightly accept the criticism of a Nature editor that I am unacceptably rude in suggesting that “open access” cannot be redefined by publishers as they wish?
• It will lead to a model where publishers start charging additionally for the data. It’s pretty close to that already but I had thought that the Wellcome model of paying for complete Open Access also helped to clarify access to and re-use of data. If funders blur this by offering OA models which depend on the funder and where everyone has to spend hours reading the small print then we have lost.

So is there a positive way forward? (I am already feeling a traitor for having suggested that there may be a publishing model where publishers ransom our scientific data and sell it back to us. But I am afraid the publishers are no longer simplistic and they will have worked this out. Several (Elsevier, Wiley) have huge scientific databases which they will wish to populate with the primary data in publications.
Yes. It comes from those publishers which are proactive in promoting Open Access. I don’t know the situation outside chemistry and some bioscience but there are some hybrid publishers such as the Int. Union of Crystallography who seems to me to have the most active hybrid program in the chemistry arena. But I am not in favour of the fuzzy hybrids who do not allow re-use of data. I do not know where Nature stands – yes they have some interesting experiments and a single Open journal. And I don’t think they wish to own supplemental data. But they forbid full text-mining (else they wouldn’t have created the OTMI where all the text appears in jumbled form).
So it seems clear that we have to have licences. I shall take the following position:

• Any publisher or author who exposes a CC-BY or Open Knowledge Foundation licence  I shall call “OA-BY”. This permits full data re-use.
• Any publisher or author who exposes a CC-NC or CC-ND or similar I shall call OA-NC or OA-ND. This does not permit full data re-use but does permit some. We may have to kludge some of the worst “conditions” like “you may post this on your web site but not in your institutional repository”
• Any publisher or author who posts a paper that I can read I shall call OA-FREE.

I also issue a warning to the funders, librarians and provosts that unless they take re-use of data seriously and fight for it they – and we – will lose – and quite quickly.

In previous posts I have written on the value of robotic extraction of data in scientific articles. By default Elsevier do not allow robotic extraction:

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PMR: So I have written the following letter:

To: permissions@elsevier.com
Subject: Permission to extract crystallographic data robotically from Elsevier publications
Dear Clare Truter,
I and colleagues have built a repository of crystallographic information published in scientific journals. This data is factual, and not copyrighted by the original authors. Major publishers such as the International Union of Crystallography and the Royal Society of Chemistry encourage (and often demand) the publication of such data as part of the scientific record and mount it on their sites as “supporting information” or “supplemental data”. It is of extremely high quality and over the last 30 years the crystallographic and chemical community have shown that it is an essential resource for data-driven science – a concept with the NSF and JISC among other see as a large part of future science.
We have built robots which have analysed over 50, 000 papers on publishers’ sites and extracted the crystallography. Note that the major publishers I have referred to do NOT require a subscription to access this information. We have agreed protocols whereby our robots run at times and frequencies that do not cause denial of service (DOS) – i.e. we try to be responsible.
Elsevier journals do not expose this as public supplemental information but I believe it is available to toll-access subscribers.I would like permission to extract crystallographic data from any Elsevier journals using robotic techniques and to make the TRANSFORMED extracted data public under  a CC-BY licence (Creative Commons) or an OpenData license from the Open Knowledge Foundation . All data so extracted would be referenced through the DOI of the article thus allowing any user (human or robot) to give full citation and therefore credit to the authors and the journal.
To help the discussion we note that facts, per se, are not copyrightable and that the authors do not claim copyright. The data are almost always direct output from an instrument. We need not store the actual documents (normally retrieved as IUCr CIF files) as our derived work is a value-added document in XML-CML which retains none of the creative work of formatting and pagination in the original.
I am sure you will agree that this is a reasonable request and that Elsevier as a major scientific publisher would wish to do whatever it could to foster the birth of a new science.
I am guessing that Elsevier journals (e.g. Tetrahedron, Polyhedron, etc.) contain a total of ca 20,000 relevant papers – until we are able to examine them robotically I can’t be more precise. Obviously I cannot write for permission for each paper individually so I am asking for general permission to carry out  robotic extraction of crystallographic data from all Elsevier journals to which I have access through my institution. And I would obviously agree to devising a robotic protocol that was friendly to your web server.
If you and colleagues wish to be convinced of the value and quality of this cyberscience please have a look at http://wwmm.ch.cam.ac.uk/crystaleye where you can see the aggregated material from the other publishers. Although we haven’t published the results formally yet, two graduate students have carried out thousands of days’ work of theoretical calculations on the data which we believe have led to new insights into crystal and molecular structure.
I hope that Elsevier will be excited by the new vision and that we can move rapidly towards extracting this data. Note that the robots operate on a daily basis and provide news feeds to the community about new exciting derived data.
Note that this is a public request – I have explained the reasons on my blog (http://wwmm.ch.cam.ac.uk/blogs/murrayrust?/p=432) in which this letter is contained. Since this is a matter of considerable current public interest I request permission to post your replies – if there is material that you wish to remain confidential please send a separate mail to me indicating confidentiality which I will honour.
Peter Murray-Rust
Unilever Centre for Molecular Sciences Informatics
University of Cambridge,
Lensfield Road,  Cambridge CB2 1EW, UK
+44-1223-763069

I have recenly been invited to write an article on Open Access for an Elsevier journal, “Serials Review”. I would normally refuse as this is a closed access journal but it is an opportunity to get some of the arguments for Open Access and Open Data across. Before committing to write this article I explored all the conditions imposed by Elsevier – and also who might be able to read the article, for what period, whether they could keep a copy, re-use it, etc. I think we can all agree that whatever the rights and wrongs and differences of philosophy, practice, etc. it is complicated. So, in writing this article I am setting aside at least two day of my time for discourse with the publisher. Fortunately in this case the discourse will form part of the article (except, of course, for those parts which the publisher does not allow).
In the SR article I shall publish creative digital works, authored by me. I shall have to negotiate with the publisher as to who retains copyright and what re-use is possible. (I have been distressed by Wiley’s policy that scientific data (as graphs) is the publishers’ property.) I need to find out if Elsevier take the same view.
I’m carrying out this discussion in public. This is because previous conventional correspondence with publishers is frequently unsatisfactory. For example letters are sometimes not acknowledged, discussions break off in midstream (Springer have never replied to my reasonable question as to why they don’t use CC-BY given that their informal discourse suggests this.). So I shall post a public copy of my questions, copy them to a named individual at the publisher and inform them that in the reply to my public questions I would like to publish their reply unless they indicate otherwise). So this is the first of these requests.
I will be the first to admit that I do not always reply to reasonable requests and am not blameless. We are all overwhelmed by information. But I sometimes get the impression that replies and non-replies from publishers are designed to wear the correspendent down rather than to help.
So I haven’t highlighted Elsevier on this blog because they don’t publish any Open Access chemistry that I could discover. (Maybe the HHMI will change this their agreement with Elsevier for double-payment free-to-read-but-not-to-do-anything-useful-with “open access”).
Cyberscience involves using HUGE amounts of data. CrystalEye has used a modest 100,000 crystal structures from about 50,000 publications over several years. The reason it isn’t higher is:

• Most chemistry departments throw this data away or let it decay (ca 80% revealed in our SPECTRa study)
• Most theses do not contain this info in machine-readable form.

in principle we can change this by changing the culture (and putting in some funding). But the most serious reason is:

• Several of the major publishers either do not require this data, or throw it away, or hide it behind toll-access firewalls or worst of all (like Wiley) copyright it.

So I have been trying to find out what Elsevier’s policy is. Be warned, it is complex. Let’s look at readers first (or users in the case of robots). Here is what I found on the masthead of Serials Review. (I have not asked permission to quote this material, but I have given attribution, and will defend this as fair use, in the public interest. I have tried to copy it exactly by cutting and pasting, but may have excised some of the non-printing characters that most publishers add in their creative works).

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PMR: This is clear. Elsevier owns everything in the article I submit to them. (I may have missed something, but I get the impression that if I query it they will thank me and claim ownership to it as well). By default Elsevier forbids me to carry out cyberscience on any of their material. Maybe this is an oversight and the responsible thing is to write for permission. Tedious, but here goes:

	PERMISSIONS
	JournalsBooks
	PERMISSIONS – JOURNALSElsevier is pleased to announce our partnership with Copyright Clearance Center to meet your licensing needs.With Copyright Clearance Center’s Rightslink® service it’s faster and easier than ever before to secure permission from Elsevier titles to be used in a book/textbook, journal/magazine, newspaper/newsletter, coursepack/classroom materials, TV programme/documentary, presentation/slide kit, thesis/dissertation, CD-ROM/DVD, promotional materials/pamphlet, conference proceedings, CME material, training materials, in a poster, use a journal cover image, or photocopy.Getting permission via Rightslink is easy, simply follow the steps below:1. Locate your desired content on ScienceDirect (guest users can view abstracts for free) 2. Click on the “Request Permissions” link to the right of the abstract 3. The following page will then be launched (turn off your pop-up blocker):
	Select the way you would like to reuse the contentCreate an account if you haven’t alreadyAccept the terms and conditions and you’re doneFor questions about using the Rightslink service, please contact Customer Support via phone 877/622-5543 (toll free) or 978/777-9929, or email customercare@copyright.com.
	PERMISSIONS – BOOKS / MATERIAL NOT ON SCIENCEDIRECTRequests to re-use material from any of our publications not on ScienceDirect can be submitted by completing the Permission Request Form below. For clarification, this covers the following imprints: Academic Press Balliere Tindall Butterworth-Heinemann (US) Cell Press Churchill Livingstone CMP Elsevier Elsevier Current Trends JAI Medicine Publishing Morgan Kaufmann Mosby North-Holland Pergamon Syngress Saunders Submitting your request via the Permissions Request Form enables us to respond more quickly and our aim is to process routine requests within 15 working days of receipt. However, every effort will be made to meet more immediate deadlines if indicated. It is also possible to contact our Permissions departments directly: Clare Truter Rights Manager Global Rights Department Elsevier Ltd PO Box 800 Oxford OX5 1DX UK Tel: (+44) 1865 843830 (UK) or (+1) 215 239 3804 (US) Fax: (+44) 1865 853333 E-mail: permissions@elsevier.com or healthpermissions@elsevier.com

The next post contains a copy of a letter to Elsevier requesting permission.

I am now starting a train of thought that will show how cyber-science (e-science in UK) might be practised. It’s real, and the work that Joe, Nick and I have done will lead to conventional publications in reputable journals. Yet the work depends completely on the access to data in and associated with primary publication. In a few cases the publishers have been helpful but in general the publishers are doing everything they can to stop me and my colleagues accessing this data in the appropriate form for cyber-science. In effect the publishers are actively preventing work being done. I’ll first outline some basics and then sson start showing the science we have done in e-crystallography. We may very well present some of the results before they are formally submitted to a journal so those publishers who forbid this can relax, you won’t have to deal with a paper from us.
I missed the article below when it first came out. It’s a well presented case of the damage that copyright is doing to academia in requiring librarians, other staff and students to spend a lot of time worrying about copyright issues that none of them want. The reason it has been so relevant is that I have just been invited to write two articles on Open Access, in each case for closed access publications. Normally I would simply refuse on tha basis that I cannot be true to my message if I publish in closed access outlets. (I have to fudge this for chemistry as there are no open access journals in my area – yes, I shall publish in Chemistry Central when possible…). But in this case there is a special case to get my message across to a wider community – I am not interested in the academic glory of publishing in these journals – I have no idea what the impact factor is – but it is a useful way of spreading the message.
When I publish in a closed access journal the first thing I worry about is what rights I have to transfer to the publisher. The first thing. Not “what am I going to say?”, “is this article friendly towards text-mining software?” “how shall I attach repository-friendly software”. But “will I or my readers get lawyers’ letters if we get it wrong?” Please accept that this is  an enormous drainon my creativity. I shall show in the next post that it is liekly to take at least a day of my time debating with the publisher what I am allowed to say in my article and what not. Nothing to do with the content of the article, simply whether the publisher wishes to possess my creative work. If I multiply this by the number of closed access publishers I publish with and the hassle that I or my co-author Henry Rzepa has with them we are talking several days a year just worrying about copyright. Wasted time. (Note of course that when Henry and I published with BioMed Cantral we did not have to worry about any of this – only the awful publishing technology we were encouraged to use.)
So, simply, copyright in academic publication – even if we were all in favour of it and thought it the most wonderful thing in the word – is a HUGE drain on academia. Enough of me – here’s Paul Staincliffe – abstract and some snippets…
[Note, ironically, that the article carries no copyright or licence and the eprints engine also gives no licence or copyright. So in principle I have to write to Paul and ask for permission to abstract or hope that my snippets will be interpreted as fair use. In contrast our own repository at Cambridge announces something really helpful like “all items are protected by copyright”. As Paul shows librarians are worrying too hard. Surely the intent of a repository is “we would like you to read and re-use and republish anything in here without our permission unless we say otherwise”. We could fix this tomorrow if we wanted. ePrints, DSpace, Fedora – take note – just add a “default licence = CC-BY unless otherwise”]. Enough of me…

The nonsense of copyright in libraries : digital information and the right to copy
Staincliffe, Paul (2006) The nonsense of copyright in libraries : digital information and the right to copy. In Proceedings LIANZA Conference 2006, Wellington (New Zealand).
Abstract
The notion of copyright is deeply entrenched in the psyche of librarians, who remain one of the few groups who consistently support or uphold it. Given the growth of digital information and consequential change in the behaviour of information creators and users the paper posits that copyright administration in libraries has become a cumbersome burden whose “time has come”. Changes in information provision by libraries towards delivering more digital information have ironically highlighted the paradox libraries face between providing the best possible service and upholding copyright. The notion that there exists in the digital environment a “right to copy” is put forward. Copyright is legally complicated, controversial, subject to a number of misunderstandings and generally not fully understood even by the librarians whose daily tasks include administering it. To better understand the current status of copyright and its impact on libraries the notion of copyright is briefly outlined, along with what exactly copyright is, its historical roots and its suitability in the current environment. In examining the legislation the paper critiques its aims and how it fails in these; compares arguments in favour and against its retention, investigates how it serves to restrict creativity rather than encourage it and in closing suggests why libraries should abandon the struggle to uphold copyright. Examples from New Zealand, Australia, the US and the UK are used to highlight inconsistencies that support the argument that copyright in the digital environment is a nonsense that no longer works.
… snippets …
The notion of copyright is deeply entrenched in the psyche of librarians, who remain one of the few groups who consistently support or uphold it.
Anybody who has ever watched student behaviour in an information commons or a customer at a photocopier will know that copyright is the last thing on their mind as they download or copy page after page after page of data. If you are a conscientious librarian you will also be faced with a dilemma; should I approach them, should I question or challenge them on their behaviour, should I be the ogre and remind them of the copyright regulations which we have gone to great trouble to display prominently, or should I just pretend I didn’t see them, or just let them get on with their work? After all it’s hard enough being a student without me policing their behaviour and they must need the data anyway….
Some brief facts regarding copyright:
1. It is complex and confusing. A whole legal industry has grown around the notion. Legal journals and texts are printed in large numbers and the discipline now encompasses intellectual property and trademark law. As with all legal disciplines, opinion on the same issue is often at either end of the spectrum.
2. The New Zealand Act itself is lengthy at almost 200 pages (New Zealand Government 1994).
3. For a uniform notion, different rights exist in different countries. There are many similarities but no one single agreement on rights exists universally (including the Berne Convention). For example, Crown works in New Zealand are copyright protected (s. 26). In the US, federal government works are not protected but state or local government works may be protected (Crews 2006).
4. It promotes a monopoly arrangement and trading position.
5. The work must be original. Copyright cannot exist on a copy that has been plagiarised.
6. A distinction must be made between the works themselves and the copyright to the work. The two are separate entities but are intertwined. It is important to understand the notion that it is the “expression” that is protected and not the “idea”.
7. Ownership of an item does not confer any rights of copyright over the item.
8. It encompasses a bundle of rights including the right to copy, make adaptations, perform or broadcast the work and have sole ownership (although true to the illogical nature of copyright, this is not as straightforward as it may appear).

PMR: anyone disagree? So we are saying we have a complex C20 byzantine juggernaut that we have to operate in the C21.
… PS: Who wants copyright?

Libraries and universities
Libraries and universities find themselves in an interesting position. Ironically they find it hard to accept the loss of copyright because they are founded on print culture. They are faced with having to open up to a challenge, having to change and having to accept the new. Our profession is not renowned for its willingness to grasp change and the new. Yet as far as the profession is concerned we really have nothing to gain from it. We do not receive royalties or a fee; we are not remunerated for administering the provisions of the legislation or the cost of notices, time, stress and worry about what we are asked to do by customers. A recent example from my own experience is of a music portfolio submitted in fulfilment of a degree which necessitated an inordinate amount of time and correspondence between the student, the faculty, departmental secretaries and library staff. Even though library staff are generally following their organisations’ regulations, they often suffer from the stress, and retain a sense of concern, that they are not held personally liable should someone decide to sue for breach of copyright.
Copyright places a huge financial burden on academic institutions in New Zealand. In 2004, total revenue for copyright licenses paid to Copyright Licensing was $4.8 million ($4 million domestic revenue), up 14% from 2003. 50% of the domestic licensing revenue was paid by universities, amounting to some $2 million. Even the Chief Executive Officer of Copyright Licensing was forced to admit that “licensing in the educational sector has almost reached saturation level” (Sheat 2005).
… and who doesn’t …
In addition to students and creators the following could be said to be in favour of abandoning copyright:
1. Those paying the vast amounts of licensing fees.
2. Universities and other academic institutions who must administer copyright.
3. Those unable to make use of a copyrighted work.
4. Those that blatantly or through ignorance ignore copyright (a conservative 99% of the population?).
5. Faculty members who happily turn their papers over to domains such as institutional repositories or pre-print archives would seem to have little concern for giving up their rights.
6. Those attempting to trace copyright holders to gain permission, or determine if copyright still applies to a work (known as orphan works).
7. Those that see copyright as unworkable in relation to digital data.

PMR: #6 and #7 are the points at issue for me. I’ll show in the next post how restrictive licences from publishers are destroying e-science and cyber-infrastructure.

PS: Conclusion
Copyright legislation is complicated and in many cases either contradictory, illogical and/or completely confusing. In the midst of a new era of information creation and distribution the legislation fails to keep pace with developments. The public and young people in particular, regard copyright as an illogical impediment to their social or work behaviour. The existence of punitive penalties and the lack of prosecutions of library customers contribute to the notion held by customers that copyright can be violated without fear of prosecution. Library staff are generally completely unaware of the breaching of legislation, or hesitate to challenge customers they suspect of breaching legislation.
The digital environment has created new formats of data and the ability to transmit that data instantaneously and with ease. The rational for copyright based on an analogue work and to ensure an economic reward for the creator’s labour to stimulate further works is no longer valid. In the digital environment, creating a work and placing it in the public domain where access and control over the work is practically unenforceable results in the failure of copyright and the right to copy.