By
Ifeanyi Chukwunonso OGBODO Esq.
LL.B (Hons), B.L
Tel: +2348064592005
Email: iogbodo@gmail.com
Introduction
Copyright pertains to the exclusive right to publish and distribute a work. The open access environment has created a very novel copyright model which stands in contrast to the traditional model of heavy protection of copyrighted materials. In calling for research papers to be made freely available open access being a publication practice which differs in the way traditional methods of publishing papers to the public get submitted, reviewed, authenticated and finally published; proposes a new business model for academic publishing that enables immediate, worldwide, barrier-free, open access to the full text of research works for the best interest of society. Open access advocates promise that the embrace of their ideology would lead to a simpler, less costly, more democratic, and more effective scholarly communication system. To achieve their objectives they propose two different ways of providing open access of scholarly work: self-archiving and open access publishing. However, while the open access movement has succeeded in persuading research institutions and funders of the merits of open access, it has failed to win the hearts and minds of most researchers in Africa. More importantly, research has shown that open access does not prevent or limit the sale of scholarly materials and yet it is not achieving its objectives. There are various reasons for this, but above all it is because open access advocates underestimated the extent to which copyright would subvert their cause.
Copyright Protection Under Nigerian Law
Copyright plays a vital role in the world of publishing. It provides authors with a set of rights to enable them utilize their work and to be recognized as the creator of the work. Publishers are empowered to act on behalf of the author through a copyright transfer or exclusive license to copy, publish, and adapt works, whilst protecting their integrity. Through this, publishers are empowered to do various things on behalf of the author, for example to ensure that the work is widely disseminated, that all requests for the rights to re-use content and provision of permissions are answered efficiently, and to ensure that the original is correctly attributed.
Sections 2, 3 and 4 of the Act are pivotal to the conferment of copyright. A careful reading of the sections will show that copyright in Nigeria would not subsist in a work unless such a work or its author is linked with Nigeria. The mere fact that there is an international obligation to which Nigeria is bound does not entitle a work to protection under the Nigerian Copyright Act. The stipulated qualifications for the enjoyment of copyright under the Act translate to four possible linkages: (i) the status of the author; (ii) the fact of first publication or making of the work; (iii) the fact of being a government or quasi-government work; and (iv)existing international obligations.
Movement For Open Acess Scholarship
The movement for open access scholarship arose as a result of two converging factors: an ongoing “serials crisis” in academic publishing, which has witnessed an unsustainably steep rise in scholarly periodical prices coupled with increasingly strained university library budgets and the rise of the Internet, which enables instantaneous, inexpensive global information dissemination.
Two different methods were proposed for making research freely available on the Web. The first was to persuade researchers to deposit copies of the papers they publish in subscription journals in open repositories (also known as self archiving) or the second was to persuade scholarly publishers to adopt new business practices that would allow them to dismantle their subscription pay walls. Open access advocates take the view that open access is a no brainer in the age of the internet, particularly self archiving open access which, they argued, could see universal open access become a reality practically overnight. Since they said self archiving is entirely in the hands of the research community, not publishers it was therefore expected that that the world will see a rapid transition to open access. In practice both varieties have proved very difficult and complex.
Relationship Between Copyright, Scholarship and Open Access
Copyright helps to prevent elements such as plagiarism, multiple submission and fraud in journal articles, and whilst it does not actually detect these elements, it acts as a protective measure to uphold the quality of journals.
Within open access publishing there seems to be a dilemma over copyright and the three choices facing an author: retain copyright, share it or transfer it. Nonetheless, the relationship between the two with regards to scholarship will be examined hereunder.
Utilitarian Theory, Nonmarket Information Production, and Uniformity Costs
As literary works, scholarly articles are protected by copyright law and are designed to remedy an appropriability problem inherent in information products. The problem stems from the fact that information in whatever form (text in a book or article, a song, a film, or some other medium of expression) is “non rivalrous” in economic terms. That is, the same information can exist in infinite minds or copies simultaneously, and one person’s possession and enjoyment of it does not reduce its availability to everyone else.
Indeed, millions of others can copy that same work (as is often the case with popular works on the Internet), and all can simultaneously possess and enjoy copies of it.
Considering that information is nonrivalrous, economic theory presumes that information goods are subject to a “public goods” problem. That is, if authors are unable to cost effectively exclude competitors and nonpaying consumers from copying and consuming their information goods (such as books, movies, and so on), authors will be unable to recover their costs of producing information goods. Authors will then cease to invest their time and efforts in creating them, resulting in underproduction of valuable information goods to society’s detriment. Copyright’s exclusive rights allow authors to capture the economic value of their information goods by erecting around the work legal barriers to access. Thus, the utilitarian rationale for copyright is that social welfare is maximized when the greatest number of new works of knowledge and information are created, and that economic incentives enabled by exclusive rights are necessary to stimulate maximum production of creative works. To achieve the optimal outcome, the exclusive rights should be limited so as not to extend any further than is necessary to produce the optimal level of creative output.
From a utilitarian perspective, intellectual property laws always impose “uniformity costs” as they grant entitlements that are sometimes stronger than necessary to motivate investment in innovation. The law does not discriminate based on author motivation or industry context, it grants the same entitlements and the same rules apply regardless of the circumstances of a work’s creation. Nevertheless, society’s access to both is limited uniformly. Applying copyright law to scholarly articles clearly results in over-inclusion and overprotection: scholarly articles face neither an appropriability problem (academic authors are compensated through salaries and do not sell their articles) nor an underproduction problem (production of scholarly articles does not rely on economic incentives or the market). Thus, the restricted access to scholarship is a higher price than society needs to pay to ensure its product.
Peer Review requirement
Publications through mediums strongly protected by copyright and those of open access model are characterized by scholarly works which have gone through a peer review process. Open access proponents acknowledge the importance of the article peer review process currently superintended by journals, and that there are substantial costs to publishing scholarship. The goal of open access, they argue, is not to supplant peer review or seek a cost free publication model; rather, it is to ensure that all peer reviewed scholarship is publicly accessible at no cost to the use
ISBN and ISSN; Open access identification numbers.
As part of efforts to ensure compliance with international standards in the book industry, the National Library encourages every publication emanating from Nigeria to have a code number identifying that particular publication. The numbers are represented as a ten-digit string of numbers allocated to each edition of a work and divided into four parts: the first identifying the country or group of countries (976 is for Nigeria); the second identifies the publisher; the third identifies the title while the fourth serves as a control digit used to validate the remainder of the code. These are strings of ten digit unique identifiers used internationally at the different stages in the book supply chain. These numbers and the copyright notice are often misconstrued as ―copyright numbers or evidence of some formal grant or registration. They are not.
Organisation and Repository Identification number ORCID, Open Researcher and Contribution ID, National Bibliographic Number NBN et cetra are non-proprietary alphanumeric code used to uniquely identify digital documents. They were founded with the intent to advance scientific knowledge by building on colleagues’ results, avoidance of result duplication, and establishment of both the principles of scientific priority and peer review. This structured form, combined with a regular and wide dissemination, enable systematic recording and archiving of knowledge.
Priority of Nonexclusive Licenses over Conflicting Transfers of Copyright Ownership and the rules of first ownership of copyright
The exception to the first ownership rule of copyright applies to exempt works made in periodicals. Copyright attaches immediately and automatically at the moment of a work’s creation so long as the work is sufficiently original and fixed in a tangible medium of expression for longer than a transitory duration, any attempt to make the work freely accessible to the public has copyright implications. Even when an author intends to release a work to the public free of cost, he often retains certain interests in the work. The terms of the license, as determined by the author, might grant the public a nonexclusive license to make noncommercial uses of the work or require that any uses of the work attribute ownership to the author. If the author wished to enforce these restrictions, he would have to rely on rights in the work that are senior to those of the subsequent user, and those rights would originate in copyright.
Notable Flaws in the open access movement.
(a) Digital publishing oligopoly: Open access also entails a zero or limited intervention of government or its agencies in the administration of copyright and because the research community in the United States have outsourced its publishing activities, many profit companies in the absence of government intervention have stepped forward with uncontrollable digital publishing oligopoly for specific areas of knowledge. Access is largely unrestrained to researchers but highly stringent for scholars intending to publish their works on these publishing sites.
(b) Excessively obscene profits by legacy publishers: Many fancied the thought of open access as the only avenue for scholarly competitiveness at a financial desirable rate. Consequently, traditional publishers embraced legacy publishing and were able to continue making excessively obscene profits out of the public purse even in an open access environment. They named their own price for their services without restrictions so rather than experience a fall in their profits as traditional publisher prior to the advent of open access they have been able to ring fence them and even to increase them.
(c)Hybrid open access: Taking self archiving for instance, publishers have set their prices not at levels that reflect their costs but at levels designed to maintain their existing revenues regardless of costs and in introducing hybrid open access they have set their prices even higher notwithstanding that hybrid open access allows them to earn subscription revenues from the same journal.
(d)Failure of Institutional repositories: Many Universities in the United States introduced Institutional Repository archives for collecting, preserving, and disseminating digital copies of the intellectual output of the respective institution on the premise that faculties will self archive their papers in it but researchers have been largely unwilling to do so. In response, Universities and funders have introduced plethora of oppressive conflicting open access policies to try and force them to do so. Even then researchers have continued to drag their feet and ignore the open access policies leaving intermediaries (invariably librarians) with the difficult task of trying to track down and deposit copies of faculty papers, a time-Consuming error prone and expensive process
Overview of Open Access in Nigeria
The level of open access initiative in Nigeria can be said to be at conception and Nigerian scholarly publications suffer low visibility. There is insignificant use of open access and few academics who adopted open access are more from the science faculty than from the humanities. Their paper reveals academics' perception, publishing culture, and unawareness, as factors hindering the adoption of open access initiatives in Nigeria. The open access success lies on digital archives and repositories.
Presently only three Nigerian Universities are enlisted on the world’s repository list. These universities are: Covenant University, University of Jos and University of Nigeria Nsukka
Universities in Nigeria rather than be producers of the technology required for open access are consumers and do not provide infrastructure to support the technology that they consume. The unwillingness of government to fund higher education, including caring for the transformation of libraries to digital will continue to hinder the possibility of open access to knowledge and subsequently to development in Nigeria, since the former is a catalyst for the later. Nigeria spends a paltry 0.1% on research and development. Federal universities spend only 1.3% of their budgets on research, this contributes to the fact that no Nigerian university is on the list of the top 1,000 schools around the world in terms of publication of research output, therefore the panacea is for institutions to begin to develop websites and migrate their research reports online for the world to see.. This is to say that if academic publications in Nigeria were not to count for their promotion, waiting on government fund to carry out research, towards increasing the knowledge base of the nation would be difficult.
Conclusion
The link between open access and copyright is basically on intellectual works majority of which are contained in scholarly journals and some supervised academic researches like theses and dissertations which are ingredients needed for all kinds of development. The library, as the engine house of information dissemination, is playing a vital role in India to ensure that peer reviewed research findings are accessible and visible. Nigeria ought to join this great movement.
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Openculture.com
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