Copyright

Stalling scientific progress with chilly copyright censure


[Apologies in advance for the long post. Though its been over a month since this development, I’ve seen it discussed very little anywhere else and thought it better to include as much as I could on it. If you too find this development troubling, please do share it on with your networks to help spread word of it] 

Fact scenario: 

diego_gomezjpg

Photo from here

Diego A. Gómez Hoyos is a 26 year old student, currently in Costa Rica studying for a master’s degree in conservation and wildlife management. He is from Colombia, the second most biodiverse country in the world, where he completed his bachelors degree from a small city called Armenia, in the Quindío department in Colombia. Given the expensive and difficult to find scientific material, and the (consequent?) shortage of qualified faculty, study was not easy. It led to Diego saving as much as he could to make trips to the capital city of Bogota where he could access museums and larger collections of biology related material. Given their often prohibitive-pricing, he also acquired books through gifts from family and friends, and also often approached professors and famous researchers for copies of material, so he could study more. His passion also led him to forming a study group along with some professors and other students with the hope of it eventually becoming a research group. As he points out, “we realized that beyond the lack of specialized professors, museums and even funding of projects, one of the biggest obstacles we had was getting access to basic research information conducted in Colombia: for preserving, we have to know what to preserve and this is identified on previous research.” 

The internet proved to be an incredible platform in this addressing this barrier, allowing them to communicate with researchers from larger centers, to request for their research, to share findings, etc. Realizing that interest in the area as well as progress would be exponentially advanced by strengthening these scientific networks, Diego shared relevant documents and information with his circle online, “as an act of good faith, in gratitude for all the support [he] had received from other researchers in Colombia and other countries, and voluntarily for academic purposes and non-profit”.

Amongst other documents, there was one particular 2006 thesis he found on a Facebook group – a taxonomy document, that could be used by conservationists like him to identify animals and study ways of preserving them and their ecosystems. He shared it on Scribd.com so that his circle, especially his Armenia university study group, could also access it. After all, conservationists need to know what and how to preserve, in order to do so.

Two years later, he received a legal notice that simply stated he was under criminal investigation, without stating why or what the criminal offense was. Later, on speaking to the police investigator, he discovered it was related to the online sharing of this document. That same day, Diego withdrew the document from Scribd. Diego now faces up to 8 years in jail and a monetary fine – for making available a document that helps conservationists in the second most biodiverse country, who otherwise do not have access to such scientific documents, receive knowledge which could help them do their job. 

What’s going on here?

Interestingly enough, it is not an institution or publisher that is pursuing these criminal charges, but the author of the document. This seems extremely bizarre and unfortunate to me – that an academic would press criminal charges against another academic for spreading their work. Diego has also clarified that he gave full credit to the original author, and he did not try making any money off of it. He also did not receive any intimation prior to this legal notice, asking him to take down the document. In an email to me, Diego has also clarified that the document is the masters thesis of a student of a public university, who defended it in 2006. While, at that time the university in question, the National University of Colombia, did not have a policy of digitizing approved theses (meaning it was only available in the physical library), they did start an institutional digital repository for post graduate publications from 2011 onwards.

Issues

Diego, in what I think is a very noble gesture, does not want to reveal the complainant’s name as he wants attention to remain on the larger ‘access to knowledge’ barrier issue that is present here, rather than making it about whether the complainant is a ‘bad’ person or not.

And indeed – is there any justice in laws which criminalize this type of sharing? I would go as far as to say that when it is difficult or prohibitively expensive to acquire scientific material, especially in developing countries, sharing of academic work shouldn’t be an offence at all so long as the original author retains moral rights over it. — But I’ll also accept that that’s an unrealistic hope.

However, certainly it’s not too much to hope for a law that doesn’t make sharing of academic work done without any commercial motive a criminal offence, especially when that work is actually being used for the development and application of scientific progress – the supposed purpose of aforesaid copyright regime.

As EFF points out, the law that expanded criminal sanctions for copyright infringement (increased jail time and increased monetary fines) is a product of a Free Trade Agreement between USA and Colombia. It’s not the first time that a developing country has been pressured into importing maximalist copyright provisions which seem to actually harm more than help the populace of economically weaker country/countries involved in such bilateral/multilateral agreements. As described here, in their haste to approve their FTA compliant copyright reforms before Obama’s visit in 2012, Colombia pushed the bill through their legislative processes without proper oversight or public discussionThe very first danger listed in this 2012 article was the introduction of criminal punishment for non-commercial infringement. Seems to be the clear result of US pressuring an economically weaker country to implement excessive IP norms through commercial trade obligations.

Unfortunately, Colombia’s Fair-use exceptions are rather limited and are from a pre-digital era – with EFF opining (all reference links mentioned below) that none of them will directly apply to his case even if it was shown to be done for educational purposes. However, as per EFF again, Colombian law seems to indicate that two factors will be looked at while considering the criminality of his actions – mens rea, or whether there was malicious intent, and whether the author suffered any actual economic harm – both of which seem like they’ll go in Diego’s favour. Further, in 2008, the Supreme Court of Colombia ruled that infringing activity can be ruled as criminal only if their was an intent to profit off of the infringement.

It is interesting to note that Scribd.com has what seems to be a fairly simple yet robust takedown procedure – with the complaint mechanism being made easily available for copyright holders. It’s very curious then, why didn’t the author simply get it taken down through this takedown procedure? It’s also very curious to note that Deigo’s lawyers have apparently been unable to reach any kind of settlement despite trying for months. I really can’t understand why an academic would want another academic to go to jail for possibly up to 8 years, for widening the audience who reads his academic work, especially when there is no economic loss, nor questions of plagiarism here. Given all the above circumstances, it almost seems to me like there is some kind of personal score that the complainant is out to settle here. Be that as it may, it’s simply inane that there also exists a law which would allow such a complainant to follow up so aggressively with such disproportionate legal threat. The similarities in disproportionate action are eerily similar to the now well known Aaron Swartz case.

Speaking of Aaron Swartz, let’s not forget the two-pronged open-access issue here:
Firstly, as pointed out above, the document which has caused this hullabaloo, was the masters thesis of a student in a public university. While my initial thoughts were that surely there should be some kind of accessibility to the public for research that’s subsidized by public money, Diego has pointed out that this is not as clear cut an answer – for there is a lot of discussion in Colombia over teachers passing off students’ work as their own, and thus the solution so far has been to grant students complete authorship and leave it to them to decide. (This is not necessarily at odds with an open-access solution as well though).
Secondly, let’s not forget that it is the monopolistically priced journals and scientific materials which have primarily contributed to the ‘access to knowledge’ barrier created here. Are students from smaller universities, or most students from any universities in developing countries for that matter, supposed to simply suck it up and be okay with not being able to access quality research that already exists out there? Especially for knowledge that pertains specifically to them, such as in this case? There is clearly a large void here that needs filling – and copyright law must address this gap, not enlarge it.

(There is also another twist, in that, some time ago, Scribd.com started charging users $5 to access works that had been uploaded for free by other users. However, even if Scribd.com introduced this for Diego’s uploads, this money would’ve stayed with Scribd.com and wouldn’t have gone to Diego in any case, so this shouldn’t affect his case here.)

What now?

Karisma Foundation, a human rights organization in Bogota, Colombia has taken up his case pro-bono. His next hearing is on September 2nd. They’ve given him a platform via their blog with which he’s been able to communicate his story to a larger audience. (See here). The best case scenario here, is of course him getting off while also bringing attention to harms made possible by excessively harsh IP norms. I wish him all the best.

I’ll end with some of Diego Gomez’s own thoughts on the matter:

“We are not criminals for sharing knowledge, for researching, for contributing with our efforts for the conservation of our biodiversity and the growth of science in Colombia.” … “I thought people did biology for passion, not for making money,” he says. “Now other scientists are much more circumspect [about sharing publications].”

Sources / Further reading: Diego Gomez’s post in Karisma, Maira Sutton’s post in EFF, Michele Catanzaro in Nature & Erik Stokstad in Science.

Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

6 comments.

  1. Vatsala Sahay

    This is really crazy. On a tangential note, I just don’t see why academic work should not be open-access. Fully agree with your characterisation of journals as monopolistically priced. At least I think US Law Reviews, most of them have all their volumes freely available.

    Reply
  2. Swaraj Paul BarooahSwaraj Paul Barooah Post author

    Reproducing @umlaahn’s comments from twitter:

    “If you’ve watched the @internetsownboy, the latest @SpicyIP post should make your blood boil. @internetsownboy ends with a story of a 14 year old kid who helped devise an anti-cancer drug using open access journals. But let’s lock down scholarship and throw these kids in jail! “

    Reply
  3. Gautam

    Vatsala – most American law reviews are not freely available online. A select few are, and a lot of universities have their own “Digicommons”, but that apart, law reviews are paywalled behind HeinOnline, Lexis etc.

    Reply
  4. Sujay

    Oh come on! Going by what you say here, anything and everything someone says should be open and free of rights if it is meant for the “benefit” of some larger entity. I find it hard to accept such an argument. For one, who gets to decide what is “beneficial” ? It is a completely arbitrary and hegemonistic term! One man’s benefit is ALWAYS someone else’s harm.

    In this case, it is perfectly legitimate to allow the original publisher to not want his or her work to be used for anything. What is so hard to accept about that?

    Reply

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