Frankfurt Book Fair discussions on EU Digital Single Market copyright directive 2019

by Mark Seeley | Oct 29, 2019

Frankfurt Book Fair discussions on EU Digital Single Market copyright directive 2019

In addition to discussions on OA and Transformative Agreements, I was happy to join a CCC panel to discuss the next steps in the European digital copyright agenda, the DSM, which attracted controversy and communication cascades last winter and spring before final passage in the European Parliament in May 2019. Much of that controversy was around the question of greater technology platform responsibility for content and copyright compliance—which was often equated in that debate with censorship. The DSM sound up being about far more than Articles 11 and 13 (which wound up being Articles 15 and 17), the news publishers right and platform compliance, as one would expect of a significant review and rewrite of digital copyright rules that have in Europe been largely unchanged since the Information Society directive of 2001. The infographic below notes a whole host of issues, from copyright exceptions to contract law and collective licensing.

The CCC panel at the Book Fair included Elizabeth Crossick, a former colleague of mine from RELX Government Affairs, and Carlo Scollo Lavizzari, counsel at the Len Caemmerer firm and of counsel to the STM Association, and it was a pleasure to be working with Elizabeth and Carlo with Chris Kenneally of the CCC as moderator.

Elizabeth outlined the background to the DSM proposals, noting that developing a single market means having clearer exceptions and rights across the EU, something that the prior directive did not deal with adequately. Carlo noted that some DSM elements were included to address issues that had odd case law developments in recent years (such as collective licensing remuneration for both publishers and authors), then addressed the implementation process across the EU, given that the directive must be implemented into local national law across the EU. France has begun the implementation on the news publishers right already, and considerable discussion already in Germany. Publishers Weekly covered the panel in a report that can be found here https://www.publishersweekly.com/pw/by-topic/international/Frankfurt-Book-Fair/article/81481-frankfurt-book-fair-2019-stage-two-for-europe-s-copyright-update.html.

My role in the panel was to talk about the US approach on technology platforms “safe harbor” under both the Communications Decency Act (section 230) and the DMCA (section 512), and concerns on the part of the international rightsholder community about how these safe harbors have encouraged the technology companies to resist working with rightsholders to identify non-compliant copyright postings. These US principles were put into place in the 1990’s, and come out of the notion that telecommunications companies are mere “pipelines” and conduits.

What is clear now in the world of almost 2020 is that tech platforms build whole businesses around content, and yet the “safe harbor” concepts continue to be pushed by the platforms, even more recently around “fake news” and political manipulation of social media. The platforms internationalize this approach through their online terms and conditions. The provisions of Article 17 (and Article 15) will be a test to see whether government, rightsholders and technology platforms can agree on common-sense rules around licensing of content and copyright compliance.

The panel concluded with a discussion around continuing uncertainties—how differing national implementations of the DSM directive will need to be monitored—what the impact of Brexit will be—and the degree of willingness to compromise and negotiate. I wanted to also recognize the BeyondTheBook podcast done by Roy Kaufman, MD of business development and government relations at CCC https://beyondthebookcast.com/frankfurt-preview-the-directive-on-copyright/ which summarized much of the background and identified many of those upcoming questions.

Mark Seeley

OA and Transformative Agreements at the Frankfurt Book Fair

by Mark Seeley | Oct 25, 2019

OA and Transformative Agreements at the Frankfurt Book Fair

October 2019

Science Europe’s cOAlition S has over the past year made significant strides in its “Plan S” project, which is about accelerating the move from subscription-based science publishing towards Open Access publishing, including the Gold OA business model (where authors, their institutions or their funding agencies pay for article publishing charges or APCs so that the public can read the articles without a charge). Plan S has an ambitious goal of realizing a fully open publication process for public or private funded research papers by 2021, and includes an impressive number of funding agencies, including Science Europe itself (representing EU agencies), a number of national funders from the UK, the Netherlands, Sweden and the like, and private funders such as the Gates Foundation and Wellcome Trust.

There are a number of ways that authors and publishers can meet Plan S targets, including by deposit in certain repositories (with no embargo periods), or publication in a “fully OA” journal (excluding “hybrid” journals). These approaches are clear cut and will no doubt work for many authors and journals.

Plan S also supports institutions and publishers entering into “Transformative Agreements” which involve a transition from a mostly subscription-based model to a full OA model (by 2024), and it has been the work and negotiations around such agreements that have captured the attention of university libraries and scholarly journal publishers. This began with the January 2019 announcement by Wiley and Projekt Deal (led by Max Planck) for the German Projekt Deal consortium arrangement, although it is true that there have been national consortium arrangements dealing with transitions to OA before Plan S such as the VSNU for the Netherlands and Bibsam for Sweden. The Wiley-Deal negotiation was featured in a CCC-sponsored panel at the Book Fair this year with Wiley senior counsel Deirdre Silver and Max Planck negotiator Dr. Ralf Schimmer (see https://twitter.com/wileyinresearch/status/1184334432557326337?s=20 and https://twitter.com/copyrightclear/status/1184471735946612737?s=20), where both speakers emphasized the need for thoughtful negotiation and understanding of the key drivers and concerns of both parties.

That afternoon discussion followed a Society for Scholarly Publishing (SSP) morning breakfast panel discussion (with the Scholarly Kitchen chefs) on “hot topics” which devoted probably 80% of its time on Transformative Agreements and the question of flexibility—given the huge variations among scholarly societies in terms of discipline and funding. https://www.sspnet.org/community/news/frankfurt-micro-conference-preview-ssp-and-tsk-return-to-frankfurt/

I was delighted to participate in a later CCC panel that also included Susie Winter (Springer Nature), Jim Milne (American Chemical Society) and Sybille Geisenheyner (Royal Society of Chemistry), which gave us a half-hour to talk about specific negotiations and for me to speak for a few minutes about the overall legal landscape (transcript and tape of the panel can be found at the CCC BeyondTheBook site https://beyondthebookcast.com/the-future-of-transformative-agreements/). In the picture below I can be found on the right thumbing through my one page of notes.

What I tried to focus on in my part of the panel was the fundamental elements that make up a Plan S-style Transformative Agreement (which now includes the University of California- Cambridge University Press deal), and to note some difficulties on the legal side. As I see it the key elements for Transformative Agreements include:

A clear commitment to transition
A phased approach in value assignment from mostly subscription-based to OA and generally a reduction in costs
In OA publishing, the retention of copyright by the authors and a requirement to use a CC license (preference for CC BY, the most flexible license from a usage perspective)
Transparency & reporting on costs, pricing models & progress towards goals
Emphasis on standards such as ORCID, text standards & protocols
Workflow requirements (re APC processing).

A great deal of work has been done by Science Europe to identify these elements and to support negotiation in Transformative Agreements, and a registry has been set up to index such agreements (see https://esac-initiative.org/about/transformative-agreements/). However it must be said that there are many variations even among those agreements listed, and much of the detail around transparency, costs and workflows are not yet readily evident. It is perhaps for that reason that ALPSP and Wellcome Trust recently announced their collaboration on model agreements, which is very welcome (see https://www.alpsp.org/News/20190912-spa-ops-report-and-toolkit).

There are sizeable problems remaining concerning Transformative Agreements, including the extent to which publishers wish to be transparent towards their competitors about pricing issues (or even the extent to which they are permitted to be, from an antitrust and competition law perspective), the degree of funding across disciplines, the variability of research outputs and research intensiveness across institutions (which suggests that some institutions will bear a larger share of publishing costs than they do now, as noted in the August 2019 Inside Higher Education article about the Wiley-DEAL contract https://www.insidehighered.com/news/2019/08/29/germany-strikes-deal-springer-nature). Another fundamental problem, noted in the SSP breakfast discussion, is the simple fact that negotiations take time and that institutions may well need to prioritize their negotiation resources, leaving smaller publishers in a bottleneck scenario.

Even with these complexities and concerns, however, there is no question that the transition in business models for scholarly publishing towards OA has been accelerating faster over this past year than in the prior five years, and if stakeholders such as cOAlition S remain engaged on implementation this will have considerably more impact on the scholarly communication infrastructure than debates on policies and principles.

Mark Seeley
October 2019