Why Nature is not threatened by the Internet*
John Maddox
Former Editor of Nature

The scientific community is understandably excited by the prospect that the internet will return the scientific literature to the hands responsible for creating it: those of working scientists. The argument is quite simple. Almost all scientific publishers now use electronic publishing for producing printed texts (thereby persuading the research community to shoulder part of the previous cost of setting type). Many of them also make their journals available on the internet, with or without charge. So is it not merely a matter of time before the scientific literature is generally accessible, quickly and at less ruinous cost than at present? People can look forward to a state of affairs in which they publish electronically what they have in their heads almost as soon as they sense the need to do so, there will be no trouble with referees and no quibbles about the English language; both authors and readers will be rewarded.

Sadly, the dream will not become reality tomorrow or even the day after. The difficulties that will impede free access to all the literature will be fully discussed at this symposium. The chief difficulties are economic: publishers have not yet worked out a way of recovering their costs in a manner that accords with scientists’ belief that what they have written belongs to the whole community without let or hindrance – especially the hindrance of paying for it. (Schemes devised by the imaginative among publishers to reflect the negligible cost of distribution by the internet by charging research libraries pro rata with their complement of active users are probably unstable. Nevertheless, they effectively exclude independent individual would-be users, which makes a mockery of the traditional concept of publication and also raises the not self-evidently beneficent prospect that grant-making agencies will be compelled to subsidise publishers of whom they approve.) But there are also practical and legal difficulties yet to be ironed out, not to mention the problem of knowing what is an authentic text and that of ensuring that the long-term archive will be preserved for the rest of time. Nor should we forget that a researcher’s publications are the only lasting record of an individual’s contributions to the scientific enterprise. (Appointments and promotion committees know that all too well.)

How will the coming upheaval affect the traditional scientific journals? These take a great variety of forms, as we all know. Some are highly selective; others do not have the luxury. Some worry whether what they publish is intelligible, others seem not to care. Some cast their net as widely as they can; others occupy tiny and niche sub-specialisms. Some are owned by commercial publishers (or licensed to them by, say, learned societies); others are published by scientific societies who take full responsibility for all stages of the publication process. All are now at the beginning of what I believe will be a long process of finding out how they can best be represented on the web.

What I have to say is mostly about the problems that will be encountered by the only journal whose workings I know well: .Nature I must emphasise that I have had no working relationship with the journal since I retired as editor nearly six years ago. What I have to say is not about Nature on the web in 2001, but derives instead from the endless discussions of the topic we had in the 1980s and early 1990s. In other words, I am not talking about Nature’s website now or in the future, but about the kinds of things we had in mind six years ago.

For what it’s worth, for much of my time at Nature, I took the view that the time when electronic access would come into its own was not yet. But in 1993 I heard myself telling the STM group at the Frankfurt book fair that the time for a change of practice had arrived. As what you may think an appropriate penance, I was forced (by the need to get the work done) to spend two months in the summer of 1995, my last year at Nature, putting together a primitive web site every week. Now the journal has a really professional website, one that readers say is an invaluable supplement to the printed version of the journal.

The first substantial use we made of our website was as a means of distributing information supplementary to articles published in the printed journal. We had begun this practice several years earlier than 1995 as a means of making available to readers large amounts of data or experimental protocols relevant to published articles but not essential to readers’ appreciation of them. (To be fair, the idea was by no means original; the Journal of the American Chemical Society, for one, had done just this for several years.) But, what with hyperlinks and the like, it was obvious that such a service would be more naturally suited to the web. Indeed, it promised to be a small step towards the ideal in which all the data relevant to the argument and conclusions of a published paper would be made simultaneously accessible. I should confess that it was not far from my mind that a growth of the demand for supplementary information would also enable Nature to publish more original science — to "increase its market share" in the language of the marketing people.

Supplementary information is but one example, and a somewhat humdrum one at that, of how journals "add value" to what they publish. As we shall hear at this symposium, the doctrine of "added value" has become the principal defence of commercial publishers against free distribution via the web. I shall list several components of this added value, all of which are relatively uncontroversial.

Thus all journals are more or less selective. The fraction of submitted papers eventually published may range from a few per cent to close on 100 per cent, but the selection criteria yield a degree of homogeneity with which readers (and authors) become familiar, and which adds to the ease with which their contents can be appreciated. In what may be a vain attempt to "keep up", I regularly read more than a dozen journals (weekly, fortnightly or monthly) and discover it to be a great intellectual convenience to know what kinds of things I shall find in them.

"Peer-review" is another component of value added. I have put the two words in inverted commas because the term is not single-valued: journals such as Nature (and a growing number of others) do not send all submitted manuscripts to referees, but first screen what they are sent by their criteria of what they wish to publish. Ideally, referees should not be asked to judge the "quality" of a research report, but should instead be asked to judge its plausibility: is the stated problem an important problem? Are the techniques used to solve it appropriate? Are the data correctly interpreted? For journals such as Nature, it is also necessary that an article should have an element of surprise (and not be purely confirmatory), that it should be important not merely in its own field but more generally, that it should be intelligible and that, ideally, it should describe work that is in some way elegant or "neat". In practice, referees do more than merely vouch for the soundness and interest of a piece of work. Commonly, they also provide constructive criticism of a would-be publication. (It is strange how often authors neglect to thank them for this service).

Third in my list of values added is the editorial work to which manuscripts accepted for publication are subjected. It is amazing how often detailed editing of a text will reveal ambiguities, redundancies and inconsistencies. Simply to repeat the old saw that "scientists cannot write" is not an explanation; rather it is that many who are not professional writers (or lawyers) do not appreciate that a written text must stand on its own, without the benefit of helpful clarification from its author(s).

Journals such as Nature have other elements of added value, ranging from general news (ethical questions and the activities of funding agencies, for example) to formal review articles and critical appraisals of articles appearing elsewhere in the same issue or perhaps in an entirely different journal. These components of Nature, Science and many other journals may originally have been devised as means of introducing specialists to science outside their own fields or, in more commercial terms, of broadening the readership, but they have become an important vehicle for communicating news of discovery to a much wider audience, even to that of the general public as a whole.

A further feature of the scientific literature as it is now has a bearing on the prospects for converting it to an exclusively electronic form: the use of individuals’ publications records as a means of supporting claims for appointments, promotions and research funds. It has become commonplace that researchers will include in their applications for such favours the number of times their published papers have been cited in other publications (their own included), while the relevant committees purport to give extra weight to material published in "peer-reviewed" journals. Moreover, the Research Assessment Exercises periodically carried out in Britain by the Higher Education Funding Councils use the somewhat spurious "impact factors" of individual journals as weighting factors to derive what is supposed to be a more accurate estimate of a research group’s "research output" than would be a simple count of published papers. (The phrase "somewhat spurious" is justified by the observation that techniques and review papers enjoy the highest citation rates and that citation frequencies depend on the speed and extent of a journal’s circulation.)

What this implies is that both members of the research community and those who administer their affairs and fortunes have acquired a powerful vested interest in the status quo. For many scientists, a worthy record of publications may be the only tangible monument to a lifetime of productive research. The widespread practice of circulating reprints of published papers is only one sign of the legitimate pride that scientists take in their work. I do not believe that the research community will lightly relinquish these intangible features of the research literature as it stands.

The prophets of the electronic revolution insist, of course, that nothing of the kind will be required. Under the scheme in which all journals would make their contents freely available on the web after 90 days, for example, it would still be possible to order reprints, to calculate "impact factors" and for the literature as a whole to enjoy the benefits of the value added by existing editorial processes. That calculation takes no account of the degree to which both commercial journals and those published by academic societies will be forced by economic considerations to reduce what they spend on the editorial process, peer-reviewing included. In my opinion, journals published by societies will be the first and the most seriously affected.

So what will happen as the web revolution gathers pace? In my opinion, the pace of change will be slower than it might be on strictly technical grounds. What will matter is the speed with which individuals’ willingness to follow new procedures accumulates to such a degree as to amount to near-consensus. Whatever the response to the petitions now circulating and the success of the electronic archives that exist already, it will take five years or so for there to be a noticeable change in the present pattern of publication.

Nevertheless, it seems to me that the demand for free access on the web is in the long-run irresistible: the questions to be settled are those to do with the delay after print-publication and the provision of secure long-term archives (especially for articles that, in the future, never find their way into a printed form). It is puzzling that the research community is less aware of the second need than it should be.

How might journals such as Nature respond? I emphasise again that I know nothing at all about the endless discussions on this point that there will have been among my successors. All I can tell you is what I would myself have argued if I were still editor of the journal. I start from the position that Nature is two journals in one: a vehicle for the publication of original research in all fields of science, and that it is also a vehicle for the discussion of matters affecting the research profession as a whole and for helping to keep professionals abreast of discovery in general. The second role is that of a professional New Scientist.

There is no reason why the publication of original research should be constrained in the electronic future. But further improvement of the service the publication process provides to authors is an obvious stratagem, meaning the still more rapid handling of manuscripts, more sensitive editing and wider publicity for especially interesting published papers. The competition among leading journals for outstanding papers is already intense, often based on preliminary accounts of research given at conferences: it is easy to see how the search for interesting forthcoming research could be conducted at an earlier stage of the production line, perhaps even at the point at which research grants are awarded by grant-making agencies. Especially if the electronic upheaval leads to a reduction in the number of printed journals, the cachet of having a paper printed in journals such as Nature can only be enhanced.

I should say a word about copyright. At present, most journals require that they be assigned the copyright in what they publish, but that is not essential for their proper functioning. (Significantly, authors working for the US Government and its agencies, NASA for example, are forbidden from transferring copyright in this way on the grounds that it is by definition in the public domain; the question whether constructive editorial work on a manuscript is similarly protected has not, to my knowledge, been tested in the courts.) What publishers need to protect their investment in their publications is an exclusive licence for some specified period of time. It would be a smart move by an editor of Nature or some similar journal to announce that, in future, the journal would ask merely for an exclusive licence to publish for, say, one year, and a non-exclusive licence thereafter. No journal makes significant earnings from reprint fees, while the access to archival papers on a journal’s website could still be charged for. It goes without saying that texts commissioned by journals would remain their copyright and would be protected as at present.

The second role of journals like Nature in dealing with professional matters and awareness of discovery can only be enhanced by whatever happens on the web. After all, the web can only increase to a very large degree the need for intelligent guidance to what can be found there. Even now, a systematic and critical account of what appears in the Los Alamos preprint archive would be of great interest, for example. There are already many other servers dealing with specialist matters that offer grist for the same mill of enhancing professional awareness. In short, the electronic upheaval, whatever form it takes, must multiply enormously the sources of information that sustain the enterprising journals. That is the ultimate guarantor of their survival.  

*note: This is the text of the paper prepared by the author for the conference but not presented orally in Paris.

New legislation on copyright and databases and its impact on society
Thomas Dreier,
Professor of Intellectual Property, Karlsruhe Technical University, Germany

Introduction

What new legislation is there? Since the first ICSU/UNESCO Expert Conference on Electronic Publishing in Science, held in Paris in early 1996, legal protection for coyprightable subject matter has developed. First, at the international level, exclusive protection has been strengthened mainly by way of the two WIPO treaties of December 1996, and second, at least in Europe, protection has been extended to non-original databases as new subject matter.

What might be the impact of this legislative development on society? Some see this development as the necessary reaction to the perceived loss of control which is caused by digital and networking technology. Others, however, see it as an undue hindrance to scientific research and discussion and as a threat to the development of the information society.

The following remarks undertake:

• First, to describe the main features of the new legislation, i.e. the legislation in the field of copyright since 1996,
• Second, to present some thoughts on the impact of this new legislation on society in general, and
• Tthird, to add some comments on the effects of new legal protection on electronic publishing in science.

New Legislation on Copyright For some participants, the following description of the new legislation on copyright since 1996 may be nothing new. But others may be not so familiar with it, so I should briefly recall those new legal instruments and describe their main legislative features.

General rules for the digital and networked environment

To begin with, on the international level, it seems rather amazing that already at the end of 1996 the international community agreed upon two international treaties in reaction to the changes brought about by digital and networking technology. As regards electronic publishing, the most relevant of these treaties is the WIPO Copyright Treaty (WCT), which is complemented by the WIPO Performances and Phonograms Treaty (WPPT). Although these treaties are not yet in force, note1 they have already largely influenced upon national legislation such as the U.S. Digital Millennium Copyright Act note 2 and the draft EU-Directive on the harmonisation of copyright in the information society. note 3 It should be noted that a similar treaty on audiovisual performances has failed in December 2000; that a treaty on broadcasters’ rights is on the agenda, as well as a treaty regarding the legal protection of non-original databases. Such a treaty was already proposed for adoption in 1996 as well, but failed to reach consensus at that time.

What are the main features of the WCT? Three features seem to be of interest here. First, the WCT clarifies that the act of making protected subject matter available online is subject to the exclusive right of the author and/or rightsholder. Second, Member States are under a duty to enact legal protection against the illegal circumvention of digital protection devices, and third, a similar duty exists henceforth regarding the removal or alteration of so-called rights management information, i.e. information which is necessary for the management of rights in an electronic environment (such as information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information). No agreement could be reached on the exact scope of the reproduction right in a digital and networked context. However, an "agreed statement" states that the reproduction right "fully applies" in the digital environment, and that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention. Furthermore, it was agreed amongst the participants of the 1996 conference that the mere provision of physical facilities for enabling or making a communication does not in itself amount to a copyright-relevant communication within the meaning of the WCT or the Berne Convention. Moreover, it should be noted that the WCT extends the so-called three-step-test already contained in the TRIPS-Agreement note 4 to the digital and networked environment. According to this test, States are permitted to enact limitations of and exceptions to the exclusive rights granted only (1) in certain special cases, which do (2) not conflict with a normal exploitation of the work and (3) not unreasonably prejudice the legitimate interests of the author.

Of course, these treaties are the result of a world-wide harmonisation effort. Consequently, they form a legal framework rather than providing for a detailed regulation. Those details will still have to be worked out by national legislation. We might expect a fair deal of competition“ in this respect. Let me just highlight three focal points of the current debate in this regard:

• it is not in dispute that offering material in digital form online to the public is an act covered by copyright, and hence requires the rightsholder’s authorisation. However, it is much debated to what extent and under what conditions intermediaries should be liable for copyright infringe-ment, because they provide the facilities and services which enable users to infringe someone else's’ copyright. Here, the U.S. has adopted a rather balanced notice and take-down procedure. note 5 In contrast, the EU in its electronic commerce directive has opted for a far-reaching exemption of service providers from legal liability; note 6

• another "hot" topic is the scope of the legal protection against circumventing devices. Two issues prove to be particularly tricky. First, the question is whether it should be made illegal to commit circumventing acts, or to manufacture and deal in circumventing devices. On the one hand, it seems logical to incriminate acts, but then acts mostly done in private are difficult to police, and nobody really wants to control acts of users undertaken in their private home. On the other hand, to forbid digital circumvention devices brings with it the danger of over broad protection, since a circumventing device may at times also be used for legal purposes. The second issue is to what extent digital protection devices should be protected by law against being circumvented? The WCT wisely states that such legal protection against the circum-vention of technical protection devices should only apply with regard to the restriction of "acts ... which are not authorized by the authors concerned or permitted by law". In other words, technical protection devices which fence in public domain material do not have to be protected, nor does the circumvention for uses which are permitted by law (such as fair use or private use) mandate a legal remedy against such circumvention.

  Two problems arise: first, one and the same technical device may prevent acts with regard to both protected and unprotected material. Hence, any circumventing device may be used for both legal and illegal activities. Whereas the U.S. the Digital Millennium Copyright Act is unambiguous about the fact that only the circumvention of technological measures that effectively control access to protected works is illegal, the draft EU-directive more vaguely prohibits the circumvention of technology which "in the normal course of its operation" is designed to prevent use acts with regard to works protected by copyright. Second, at the time of creating access to, and taking of, protected material,  it is not yet clear whether the subsequent use made of such material is covered by an exception to copyright or not. Again, the EU-directive seems to be rather vague in proposing that Member States should "in the absence of voluntary measures taken by rightsholders, including agreements between rightsholders and other parties concerned, ... take appropriate measures" to ensure that rightsholders make available to the beneficiary of an exception the means of benefitting from that exception. note7 Moreover, this duty does not extend to all exceptions which Member States may adopt under the upcoming directive. In the U.S., the DCMA prescribes that the Register of Copyrights shall examine whether users "are, or are likely to be, ... adversely affected by the prohibition ... in their ability to make non-infringing uses ... of a particular class of copyrighted works". note 8 The problem with this second issue is that technology which might differentiate in this respect is not yet available, and one may have doubts whether it ever will. Yet, the way in which this issue will be decided has far-reaching consequences regarding the organisation of the information society, as the DeCSS-case has demonstrated. Here, circumvention of a technical device has been held illegal, which has as its effect that DVD-films can only be played on licensed DVD-players, but not on Linux-machines.

• and, last but not least, there is the issue what exceptions to copyright seem appropriate in the digital networked environment? Here, one question is whether exceptions should be formulated in a general way such as the U.S. "fair use" exception, or whether they should be limited to certain well-defined situations, such as the almost 20 exceptions provided for under the current draft of the EU-directive on copyright in the information society. Another question is how to further define the rather vague criteria of the three-step-test. When does an activity undertaken by a third party with regard to a new digital market conflict with the "normal exploitation" of a work? A WTO panel had its first try (albeit regarding analog exploitation of copyrighted music in restaurants) which shed some light on the subject. note9 However, the issue still remains rather obscure.  

Legal protection for databases

Let us now have a look at the legal protection of databases. The once prophetical proverb - was it by Marshal McLuhan, or by someone else? - according to which in the information society, everybody will turn into a database, is today a commonly accepted phenomenon. We all retrieve information from databases and we all build up databases of an ever increasing size. Hence the crucial importance of the legal protection regime of databases.

To emphasise one point: there is no disagreement regarding the fact that compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are, and should as such be protected by copyright. Also, the principle is accepted that this protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation. note10

What is, however, much in dispute, especially in the U.S., but also in developing countries, is whether there is a need for additional protection regarding non-original databases or non-original parts of original databases against extensive or at least substantial taking without authorisation and payment. Here, Europe has taken the lead by adopting in 1996 its directive on the legal protection of databases. note11 Why does this protection raise so many concerns? In order to understand the ongoing debate, a brief overview of the protection scheme seems to be called for.

The idea is to protect the investment made for the "obtaining, verification or presentation" of the contents of a database against the "extraction and/or re-utilization" of the contents of a database. Of course, not all databases enjoy such protection, but only those which require "qualitatively and/or quantitatively a substantial investment". Likewise, not any unauthorised act of extracting and or re-utilization is prohibited, but only those acts which amount to the taking of the "whole or of a substantial part" of the database, again measured "qualitatively and/or quantitatively". note12 Furthermore, even when only insubstantial parts of the contents of the database are taken, "the repeated and systematic extraction and/or re-utilization" is not allowed, if it conflicts "with a  normal exploitation" of the database in question, or which "unreasonably prejudices the legitimate interests of the maker of the database". note13 The exclusive right lasts for 15 years, and a new 15 year term starts running whenever a substantial qualitative or quantitative change is made to the contents of a database. This expressly includes "any substantial change resulting from the  accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment“. In practice, a protected non-original database will thus remain protected as long as it is kept up-to-date with some non-minimal investment.

National court cases have given this protection a rather broad meaning, in covering, e.g. in Germany, phone directories, concert program listings, newspaper-like online advertising, and in one case also a collection of some 250 links.

Impact of New Copyright Legislation on Society: What will be the impact of this new legislation on society?

Predictions like this are rather risky. This is so, because we always tend to overestimate short-term effects, and to under-estimate fundamental long-term changes. Moreover, the system is so complex, and the possible impact may be so diverse that, today, three remarks will have to suffice.

Effects of broad exclusive rights

My first remark concerns the extension of the exclusive right.

It is true that a literal reading of the existing legislative text subjects those electronic repro-duction acts to copyright which occur in the course of using the protected work in question in the digital format. Hence the impression arises that certain uses of protected material - such as reading a book - which used to be free in the analog world are no longer free in the digital context. This is all the more true in the light of  the prevailing economic property rights theory which focuses on protecting the investment made for the production of the material against unauthorized misappropriation. Some see this as upsetting the fundamental balance struck by the legislature between conflicting proprietary and access interests. In particular, it has been argued that if browsing protected material is subject to copyright, then the user could not verify the contents of the material and decide whether or not he or she needs it, before making the decision to purchase the book.

However, the same is true when printed books are ordered via the internet from an online seller such as amazon.com, or when books are sealed in plastic. Also, any restriction regarding access seems to be the result of technical mechanisms rather than of legal rights. As such, in my view extensive copyright protection does not seem to be troublesome, as long as maximum distri-bution of the content is what is aimed at. Especially, extended copyright protection does not prevent authors from posting their material for free on the net, as it does not hinder any open source strategy.

But we undoubtedly have a problem in situations where rightsholders make use of their exclusive rights in order to block markets for strategic reasons, which they themselves do not - or maybe not yet - serve. In addition, together with extended legal protection, the technical access control mechanisms just mentioned subject sources to payment which so far could be consulted for free. Well, "for free" at least as far as the individual user is concerned; but then, of course, someone - usually a publicly funded library - has paid for the acquisition of the books. Furthermore, self-publishing may enter into conflict with the publishers exclusive marketing strategy of the contents delivered by the authors.

This highlights another point which may at first sight seem somewhat surprising: there is a clear link between the scope of copyright protection and the issues of financing and contracting. I will get back to this in a moment.

Importance of copyright exceptions and limitations

But before this, with my second remark, let me draw your attention to the fact that instead of focussing on the exclusive right, it is in my opinion far more important to focus on the exact scope of the limitations and exceptions to the exclusive prerogatives, which copyright grants to rightsholders. The reason for this is that limitations provide for the fine-tuning of the delicate balance between proprietary and non-proprietary interests. This includes interests of competitors, of second sources, of those who offer value-added services on the basis of pre-existing protected material, and, last but not least, of users.

As has already been mentioned, the framework is set by the so-called "three-step-test" as prescribed to national legislatures by the international conventions (TRIPS, WCT). Exceptions and limitations must be confined to special cases, they may not interfere with the normal exploitation of the protected work, and they may not otherwise prejudice the legitimate interests of the rightsholders. However, the problem is, how shall these purposely vague notions be interpreted? In particular, what has to be regarded as "normal" exploitation in an electronic environment? To simply say that any exploitation possible with regard to protected material in print and electronic form constitutes the "normal" exploitation would mean that by definition no digital exploitation could be privileged. That cannot be the answer. note14  Rather, what this criterion means is that the exclusive rights granted by national law need not contain a legal guarantee to totally control the exploitation of a given work. So far so good, but the problem remains how to treat mere exploitation expectancies, especially those which are just about to open up because of the advent of new technology. In my opinion, one should distinguish between those exploitation activities already undertaken by the rightsholders or which the rightsholder is likely to undertake in the near future, and those which are only theoretically within his reach due to the extended possibilities of exercising the exclusive rights. note15

In practice, however, there is a certain tendency to interpret copyright limitations rather narrowly. This is particularly true for countries with a droit d’auteur background. This tends to severely limit the possibilities of re-using published material, and of providing value-added services in the digital and networked environment. Just take the example of Germany: according to the courts, to send analog copies of individual articles upon a request made by the user is covered by the so-called private use exception. note16 However, coupling this service with a research and information retrieval service, is not. note17 This is all the more true, if the user obtains a digital data set. Hence, a service which consists in digitizing someone else’s analog archive of copyright protected material was held to be in violation of copyright (note18) as were electronic press-clipping services. note19 In other words: under existing German copyright law, all these activities are reserved to the original rightsholders, irrespective of whether those rightsholders are willing or able to offer such a service. I have my doubts whether this can be the ultimate solution. Of course, it is possible to read some of these decisions as inviting the legislator to change the law in an appropriate way.

Similarly, with its fixed catalogue of possible exceptions, the draft EU-directive on copyright in the information society may lack the flexibility necessary for the future development of the information society. Therefore, it will be of prime importance to carefully monitor and influence the process of implementing copyright exceptions into the national laws of the EU Member States.

Databases

Remark number three concerns the sui-generis protection of databases. Especially in the U.S., a large part of the scientific community has spoken up against it, fearing that it would severely affect the production, dissemination and use of scientific information. Mainly because of this, so far, attempts to enact similar protection both in the U.S. and by way of an international Treaty under the auspices of WIPO have failed.

In essence, the new right is one against misappropriation. In practice, however, the difference to an exclusive right is not too great. The main problem with the sui-generis right then is that by protecting investment made in order to make a database, the law likewise tends to open up the possibility of monopolizing the information contained in it. Of course, this openly contradicts the premises of the very rationale for protection. note20 In addition, the exception contained in the EU-directive (note 21) for teaching or scientific research is likely to be too narrow, since it only concerns the extraction for "purposes of illustration", but not for other research activities as well.

However, it is my view that an appropriate interpretation of the flexible notions of "substantial" investment and "substantial" taking - the two decisive factors for the exact scope of the sui-generis right - can indeed prevent the sui-generis-protection to be overbroad. Of course, in order to achieve this, we will have to have a much better understanding of the economics of the information market. In this respect, economic theory and empirical information will certainly be of great help. 

Legal Protection and Electronic Publishing in Science

One quick word regarding the effects which the new copyright legislation has on electronic publishing in science in particular.

Again, two points retain our attention: first, the author-publisher relationship (the author as provider of scientific content), and second, the publisher-library-user relationship (the author as user of scientific content).

As far as the author-publisher-relationsship is concerned, the main issue seems to be whether or not a publisher will agree to pre-print and/or at least simultaneous posting of an article on the author’s website. However, it seems that this is a problem only in fields where scientific publications follow the economic model not of scholarly, but of trade publications. In some countries, including my own, this is the case, e.g., in the field of law. But it seems that publishers who have fully embraced their new role in the digital and networked environment, do not see pre-print publication or posting on institutional or private websites as a threat to the exploitation of their own markets, and hence would not object.

As far as the publisher-library-user relationship is concerned, authors often voice their concern that new legislation might tend to block access to otherwise free material, or to make access more costly than it used to be in the analog environment. In my opinion, these concerns are certainly justified. However, it should be kept in mind that a digital product is a product which in many respects is of a better quality than the analog book in printed form. Moreover, it has in the last years become widely accepted that providing access to, and using material in digital format touches upon the exclusive rights of publishers, and therefore requires licensing. The  question at issue is then what principles of licensing can the parties involved agree upon as fair and reasonable. Without going into detail, it should be emphasised that in the last five years quite a number of licensing consortia agreements between publishers and libraries have been concluded, and "good" practices of licensing have developed. This includes the modalities of limiting access to closed user groups as well as new business models of financing. Of course, not all issues may already be solved satisfactorily, but the issues which remain open are under constant scrutiny such as the one undertaken by the EU-funded TECUP-project. note 22 The latest Memorandum of Understanding of the TECUP-Strategy advisory group lists as outstanding issues electronic interlibrary document supply, cross searching and cross linking, rights management systems, permanent access to digital material, and, finally, long-term archiving. note 23

Concluding Remarks

Any conclusions?

We have certainly witnessed a remarkable legislative activity within the last four, five years. And we will continue to witness - and hopefully influence - legislative activities in this field in the years to come.

We will have to ensure that the exclusive right is broad enough in order to protect authors and rightsholders against misappropriation of their protected material. However, we will also have to prevent abuses of these broad exclusive rights, abuses which might consist in blocking access to markets or market segments which the rightsholder does not serve himself.

Moreover, we will have to carefully discuss limitations and exceptions to the broad exclusive rights, in order to create enough leeway for value-added services by third parties.

Finally, the effort by all parties concerned to develop good licensing practices will have to be continued.

All this requires a better understanding of the markets in the field of electronic publishing of scientific material, by way of refining or economic models and adapting financing structures in the field of electronic publishing in science.

Prof. Dr. Thomas Dreier
Institute for Information Law, University of Karlsruhe, Germany
e-mail: dreier@z-a-r.de Footnotes

1. As of February 1, 2001, 22 States have ratified the WCT, and 20 the WPPT. Both treaties require 30 instruments of ratification or accession.
2. Pub.L.No.105-304.
3. Common Position, OJ EC No. C 344 of 1 December 2000, p. 1. - See also the European Parliament legislative resolution on the Council common position for adopting a European Parliament and Council directive on the harmonisation of certain aspects of copyright and related rights in the Information Society (9512/1/2000 - C5-0520/2000 - 1997/0359(COD)) of 14 February 2001.
4. Art. 13, Agreement on Trade-Related Intellectual Property Rights, which is an Annex to the WTO-Treaty.
5. Sec. 202 of the Digital Millennium Copyright Act.
6. Arts. 12 et seq. of the Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), OJ EC No. L 178 of 17. July 2000, p. 1.
7. Art. 6 of the Common Position of the EU-Directive on Copyright in the information society, op. cit.
8. § 1201 (C) of the U.S. Copyright Act, Title 17 U.S.C.
9. Doc. WT/DS160/R of 15 June 2000.
10. See Art. 4 WCT.
11. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal pro-tection of databases, OJ EU No. L 77, of 27 March 1996, p.20.
12. Art. 7 (1) of the EU database directive, op.cit.
13. Art. 7 (5) of the EU database directive, op.cit.
14. The Report of the WTO Dispute Panel, Doc. WT/DS160/R of 15 June 2000 arrives at the same conclusion: “If "normal" exploitation were equated with full use of all exclusive rights conferred by copyrights, the exception clause of Article 13 would be left devoid of meaning. Therefore, "normal" ex-ploitation clearly means something less than full use of an exclusive right.”
15. See also the finding of the Panel Report WT/DS160/R: ”... in our view, not every use of a work, which in principle is covered by the scope of exclusive rights and involves commercial gain, necessarily conflicts with a normal exploitation of that work. ...  We believe that an exception or limitation to an exclusive right in domestic legislation rises to the level of a conflict with a normal exploitation of the work (i.e., the copyright or rather the whole bundle of exclusive rights conferred by the ownership of the copyright), if uses, that in principle are covered by that right but exempted under the exception or limitation, enter into economic competition with the ways that right holders normally extract economic value from that right to the work (i.e., the copyright) and thereby deprive them of significant or tangible commercial gains.” (emphasis added).
16. Federal Supreme Court, judgement of 25 February 1999 (I ZR 118/96) - CR 1999, 614 - Kopienversand auf Bestellung.
17. Federal Supreme Court, Judgement of 16 January 1997 - I ZR 9/95, GRUR 1997, 459 - CB-Infobank I, and of 16 January 1997 (I ZR 38/96), GRUR 1997, 464 - CB-Infobank II.- In the opinion of the Court, copying which went beyond the commissioned making of single copies of particular articles goes beyond the limits of the copyright exception, because it allows for a use intensity which is far greater than the one which gave rise to the limitation of the author‘s exclusive right. - The electronic storage of abstracts, however, was not at issue in this case.
18. Federal Supreme Court, judgement of 10 December 1998 (I ZR 100/96), CR 1999, 213 - Elektronische Pressearchive. - The Court saw the danger that the exploitation reserved to authors of their works might be significantly impaired if such services fell within the archiving exception.
19. Court of appeals of Cologne, judgement of 30 December 1999 (6 U 151/99), CR 2000, 352 - Elektronischer Pressespiegel, and Court of appeals of Hamburg, judgement of 6 April 2000 (3 U 211/99), CR 2000, 658  - Elektronische Pressespiegel und Urheberrecht.
20. See recital 46 of the EU-directive on databases, op. cit: „Whereas the existence of a right to prevent the un--authorized extraction and/or re-utilization of the whole or a substantial part of works, data or  mate-rials from a database should not give rise to the creation of a new right in the works, data or materials themselves“.
21. Op. cit, Art. 9 (b).
22. Testbed Implementation for the Electronic User Platform; for further detail see the TECUP website at http://www.sub.uni-goettingen.de/gdz/tecup/.
23. For a draft version of this Memorandum see http://www.sub.uni-goettingen.de/gdz/tecup/TDreport.pdf, p. 50 et seq.  

Electronic publishing: ethical issues, including privacy
Richard Smith
Editor, British Medical Journal, UK

ABSTRACT

The internet is a "disruptive" technology: it will change fundamentally how we do things, often in ways that we cannot now envisage. In addition, the internet can magnify the effects of existing trends. Medicine, for example, is likely to change fundamentally not only because the internet means that doctors and patients can instantly access the same information but also because it can hasten the changing relationship between doctor and patient, from that of master and pupil to that of equals.

The internet will opens up new ethical issues within electronic publishing, particularly in relation to privacy. There was not, for example, the same necessity to be anxious about guarding patient confidentiality when a paper journal went to 500 subscribers. Now the whole world can potentially see the information, making it impossible to guarantee anonymity. This "technical" development combines with public anxiety about the failures of doctors and researchers to get fully informed consent. The answer is that patients must give consent for the publication of any material about them and that consent must be fully informed. But must they consent for any data - perhaps their blood pressure - being taken from their records and presented in epidemiological studies along with data from 5000 others? Increasingly patients and politicians are anxious about this, and the internet increases the anxiety because of its enormous capacity for searching and linking. And if hackers can get into the Pentagon and Microsoft it should be easy to access my NHS records, once they are computerised. A "privacy backlash" could damage science and publishing.

We must not just cross our fingers and hope the day never arrives. Rather we need to recognise the expectation, stimulated by the internet, for transparency. Closed processes create suspicions of bias, incompetence, or corruption. Science has too many closed processes. Peer review, for example, can be transformed by the Internet from an arbitrary, usually closed scientific judgment into an scientific discourse that takes place in public.

Finally, the internet may make research misconduct both easier to do and to detect. It can be the work of moments to copy material from distant sites and call it your own, but the same technology may also make it easier for reviewers to detect the plagiarism. Computers allow vast data sets to be "tortured until they confess," but the internet also allows the possibility of all raw data being posted as reports of scientific studies along with the software used to manipulate the data. Again, the internet is enhancing the rise in public, political, and professional anxiety about research misconduct. Scientists and editors need to respond before possibly blunt legislation restricts science and scientific publishing in ways that will help nobody.