Gustavo Dudamel is one of the most celebrated conductors of his generation. As Music Director of both the Los Angeles Philharmonic and the Simon Bolivar Orchestra of Venezuela, he has built a solid and enthusiastic following amongst lovers of symphonic music. He is also, according to his website bio, deeply committed to “access to music for all.” So it is particularly poignant that a recording by Dudamel should serve as the prime example of a new access problem for music.
When Dudamel and the Los Angeles Philharmonic release a new recording of a live performance of Hector Berlioz’s Symphonie Fantastique, it should be a significant event, another milestone in the interpretation of that great work. But in this particular case we are entitled to wonder if the recording will really have any impact, or if it will drop into obscurity, almost unnoticed.
Why would such a question arise? Because the Dudamel/LA Philharmonic recording was released only as a digital file and under licensing terms that make it impossible for libraries to purchase, preserve and make the work available. When one goes to the LA Philharmonic site about this recording of Symphonie Fantastique and tries to purchase it, one is directed to the iTunes site, and the licensing terms that accompany the “purchase” — it is really just a license — restrict the user to personal uses. Most librarians believe that this rules out traditional library functions, including lending for personal listening and use in a classroom. Presumably, it would also prevent a library from reformatting the work for preservation purposes in order to help the recording outlive the inevitable obsolescence of the MP3 or MP4 format. Remember that the section 108 authorization for preservation copying by libraries has restrictions on digital preservation and also explicitly allows contractual provisions to override that part of the law.
At a recent consultation to discuss this problem, it was interesting to note that several of the lawyers in the room encouraged the librarians to just download the music anyway and ignore the licensing terms, simply treating this piece of music like any other library acquisition. Their argument was that iTunes and the LA Philharmonic really do not mean to prevent library acquisitions; they are just using a boilerplate license without full awareness of the impact of its terms. But the librarians were unwilling. Librarians as a group are very law-abiding and respectful of the rights of others. And as a practical matter, libraries cannot build a collection by ignoring licensing terms; it would be even more confusing and uncertain than it is to try to comply with the myriad licensing terms we encounter every day!
In the particular case of the Dudamel recording of Berlioz, we know rather more about the situation than is normal, because a couple of intrepid librarians tried valiantly to pursue the issue. Judy Tsou and John Vallier of the University of Washington tracked the rights back from the LA Philharmonic, through Deustche Grammophon to Universal Music Group, and engaged UMG in a negotiation for library-friendly licensing. The response was, as librarians have come to expect, both inconsistent and discouraging. First, Tsou and Vallier were told that an educational license for the download was impossible, but that UMG could license a CD. Later, they dropped the idea of allowing the library to burn a CD from the MP3 and said an educational license for download was possible, but only for up to 25% of the “album.” For this 25% there would be a $250 processing fee as well as an unspecified additional charge that would make the total cost “a lot more” than the $250. Even worse, the license would be limited to 2 years, making preservation impossible. The e-mail exchange asserts that UMG is “not able” to license more than 25% of the album for educational use, which suggests that part of the problem is that the rights ownership and licensing through to UMG is tangled. But in any case, this is an impossible proposal. The cost is absurd for one quarter of an album, and what sense does it make for a library to acquire only part of a performance like this for such a limited time? Such a proposal fundamentally misunderstands what libraries do and how important they are to our cultural memory.
Reading over the documents and messages in this exchange, it is not at all clear what role Maestro Dudamel and the LA Philharmonic have in this mess. It is possible that they simply do not know how the recording is being licensed or that it is unavailable for libraries to acquire and preserve. Or they may think that by releasing the recording in digital format only they are being up-to-date and actually encouraging access to music for everyone. In either case, they have a responsibility to know more about the situation, because the state of affairs they have allowed impedes access, in direct contradiction to Maestro Dudamel’s express commitment, and it ensures that this recording will not be part of the ongoing canon of interpretation of Berlioz.
As far as access is concerned, the form of its release means that people who cannot afford an MP3 player will not be able to hear this recording. Many of those people depend on libraries, and that option will be closed to them because libraries cannot acquire the album. Also, access will become impossible at that inevitable point in time when this format for digital music becomes obsolete. Maybe UMG and the Philharmonic will pay attention and release the recording on a different format before that happens, but maybe they won’t. The most reliable source of preservation is libraries, and they will not be there to help with this one. So access for listeners 20 or 30 years from now is very much in question.
This question of the future should have great consequence for Maestro Dudamel and the orchestra. Without libraries that can collect their recording, how will it be used in classrooms in order to teach future generations of musicians? Those who study Berlioz and examine the performance history of the Symphonie Fantastique simply may not know about this performance by Dudamel and the LA Philharmonic. That performance, regardless of how brilliant it is, may get, at best, a footnote in the history of Berlioz — “In 2013 the Symphonie Fantastique was recorded by the LA Philharmonic under the baton of Gustavo Dudamel; unfortunately, that recording is now lost.” These licensing terms matter, and without due attention to the consequences that seemingly harmless boilerplate like “personal use only” can produce, a great work of art may be doomed to obscurity.
How should we understand the value of academic publications? That was the question addressed at the ALA Annual Conference last month during the SPARC/ACRL Forum. The forum is the highlight of each ALA conference for me because it always features a timely topic and really smart speakers; this year was no exception.
One useful part of this conversation was a distinction drawn between different types of value that can be assigned to academic publications. There is, for example, the value of risk capital, where a publication is valued because someone has been willing to invest a significant amount of money, or time, in its production. Seeing the value of academic publications in this light really depends on clinging to the scarcity model that was a technological necessity during the age of print, but which is increasingly irrelevant. Nevertheless, some of the irrational opposition we see these days towards open access publications seems to be based on a myopic approach that can only recognize this risk value; because online publication can be done more inexpensively, at both production and consumption, and therefore does not involve the risk of a large capital investment, it cannot be as good. Because the economic barrier to entry has been lowered, there is a kind of “they’ll let anyone in here” elitism in this reaction.
Another kind of value that was discussed is the cultural value that is supposedly infused into publications by peer-review. In essence, peer-review is used as a way to create a different, artificial type of scarcity — amongst all the material available in the digital age, peer-review separates and distinguishes some as having a higher cultural value.
Of course, there is another way to approach this kind of winnowing valuable material from the booming, buzzing confusion; one could look at how specific scholarship has been received by readers. That is, one could look at the value created by attention. We are especially familiar with attention value in the age of digital consumerism because we pay attention to Amazon sales figures, we seek recommendations through “purchased together” notes, and we look at consumer reviews before booking a hotel, or a cruise, or a restaurant. Some will argue that these parallels show that we cannot trust attention value; it is only good for inconsequential decisions, the argument goes. But figuring out how to use attention as a means to make sound evaluations of scholarship — better evaluations than we are currently relying on — is the focus of the movement we call “alt-metrics.”
Before we discuss attention value in more detail, however, we need to acknowledge another unfortunate reminder that the cultural value created by peer-review may be even more suspect and unreliable. Last week we saw a troubling incident that provokes fundamental doubts about peer-review and how we value scholarly publications when Sage Publishing announced the retraction of sixty articles due to a “peer-review ring.” Apparently a named author used fake e-mail identities, and maybe some cronies, in order to review his own articles and to cite them, thus creating an artificial and false sense of the value of these articles. Sage has not made public the details, so it is hard to know exactly what happened, but as this article points out, the academic world needs to know — deserves to know — how this happened. The fundamental problem that this incident raises is the suggestion that an author was able to select his own peer-reviewers and to direct the peer-review requests to e-mails he himself had created, so that the reviewers were all straw men. Although all the articles were from one journal, the real problem here is that the system for peer-review apparently simply is not what we have been told it is, and does not, in fact, justify the value we are encouraged to place on it.
Sage journals are not inexpensive. In fact, the recent study of “big deal” journal pricing by Theodore Bergstrom and colleagues (subscription required), notes that Sage journal prices, when calculated per citation (an effort to get at value instead of just looking at price), are ten times higher than those for journals produced by non-profits, and substantially higher even than Elsevier prices. A colleague recently referred to Sage journals in my hearing as “insanely expensive.” So it is a legitimate question to ask if we are getting value for all that money. One way high journal prices are often justified, now that printing and shipping costs are mostly off the table, is based on the expertise required at publishing houses to manage the peer-review system. But this scandal at the Journal of Vibration and Control raises the real possibility that Sage actually uses a kind of DIY system for peer-review that is easily gamed and involves little intervention from the publisher. How else could this have happened? So we are clearly justified is thinking that the value peer-review creates for consumers and readers is suspect, and that attention value is quite likely to be a better measure.
Attention can be measured in many ways. The traditional impact factor is one attempt to analyze attention, although it only looks at the journal level, measures only a very narrow type of attention, and tells us nothing about specific articles. Other kinds of metrics, those we call “alt-metrics” but ought to simply call metrics, are able to give us a more granular, and hence more accurate, way to evaluate the value of academic articles. Of course, the traditional publication system inhibits the use of these metrics, keeping many statistics proprietary and preventing cross-platform measurements. Given the Sage scandal, it is easy to see why such publishers might be afraid of article-level measures of attention. The simple fact is that the ability to evaluate the quality of academic publications in a trustworthy and meaningful way depends on open access, and it relies on various forms of metrics — views, downloads, citations, etc. — that assess attention.
But the most important message, in my opinion, that came out of the SPARC/ACRL forum is that in an open access environment we can do better than just measuring attention. Attention measures are far better than what we have had in the past and what we are still offered by toll publishers. But in an open environment we can strive to measure intention as well as attention. That is, we can look at why an article is getting attention and how it is being used. We can potentially distinguish productive uses and substantive evaluations from negative or empty comments. The goal, in an open access environment, is open and continuous review that comes from both colleagues and peers. This was an exciting prospect when it was raised by Kristen Ratan of PLoS during the forum, where she suggested that we should develop metrics similar to the author-to-author comments possible on PubMed Commons that can map how users think about the scholarly works they encounter. But, after the Sage Publishing debacle last week, it is easier to see that efforts to move towards an environment where such open and continuous review is possible are not just desirable, they are vital and very urgent.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
Search the Scholarly Communications Blog
- Authors' Rights
- Copyright in the Classroom
- Copyright Information Notes
- Copyright Issues and Legislation
- Digital Rights Management
- Fair Use
- international IP
- Open Access and Institutional Repositories
- Open Access topics
- Orphan works
- Public Domain
- Scholarly Publishing
- Traditional Knowledge
- User Generated Content