One common argument you’ll hear for open scholarship  is that by loosening copyright restrictions on scholarly works, we can in turn increase their impact. The argument here is pretty straightforward: if you make scholarly works more easily available, then people are more likely to use them in their own work. However, there hasn’t been much scholarship on the social and economic impact of making copyright regulations more open. So Sean Flynn and Michael Palmedo from American University set out to study this question. 

In their paper, The User Rights Database: Measuring the Impact of Copyright Balance, Flynn and Palmedo look at two common hypotheses you’ll hear in discussions about copyright and openness: 1. “more openness in copyright user rights may drive innovation and growth in the technology sector”; and 2. “user rights that are more open may create larger stockpiles of inputs for creators, leading to more local production of works of creativity.”  

Because of the lack of empirical studies about openness in world copyright laws and how a change toward more or less openness affects growth in the tech sector and productivity in the creative sectors, Flynn and Palmedo created a database of how different countries approach fair use/fair dealing, and how those approaches have changed over time. 

Ultimately they find three things: 1. That more open user rights correlate with higher revenues in tech companies; 2. That more open user rights do not harm publishing and entertainment industries; 3. Researchers in countries with more open user rights produce more and better work. Additionally they find that there is a trend toward more openness, but less developed counties are about 30 years behind more developed countries.

This is an interesting study, for sure, but I want to think more about it before I feel completely comfortable with its findings. Right now, two things give me pause. First, I wonder if the way in which they define “more openness” happens to be associated with countries that already have a greater amount of production from the tech and entertainment/publishing industries. They define open fair use/fair dealing laws by looking at three factors: 1. “Openness: the user right can be applied to an open, as opposed to a defined (aka closed), list of purposes, uses, works or users”; 2. “Flexibility: the user right is applied through a flexible proportionality test that balances the interests of the rights holder with those of the user and general public”; 3. “Generality: the exception promotes uniform application by applying a single flexible test to a group of multiple uses or purposes.” I think, considering these three factors, that the most open country is probably the United States. And of course, some of the world’s most profitable tech and entertainment companies are based in the United States. But is this because of our “open” fair use law, or is it despite our “open” fair use law? Which came first, the chicken or the egg? I’m not sure the paper adequately deals with this question.  

Second, the paper only looks at the laws themselves, not how courts apply them. In the United States, for instance, the law is written very broadly, but I’m not sure it’s treated as broadly as its written. For instance, we at UNT probably don’t use fair use as much as we could, because we don’t want to risk copyright problems, even if the likelihood of being legally safe is greater than 50%. Of course, the less clear the fair use question is, the more likely it is for us not to risk copyright infringement.

Or, what if the US were a fair dealing country? Unlike fair use, which balances a number of factors to determine whether some use violates copyright or not, fair dealing laws provide a list of specific situations that do not violate copyright. Perhaps if the US had this kind of law, our tech and entertainment companies would be even more profitable, because people would know what they could/could not do under the law. We don’t know the answer to this, and I’m not sure how one could study it, but I think the paper would be stronger if it looked at the application of the law, rather than the law as written. 

Either way, even with my concerns, this paper seems like great evidence in support of open scholarship. It’s only a draft, so I hope the researchers continue to work with and refine it. We’ll see where it goes. 

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