Governments are funny things. No matter where we fall on the “more government, less government” political spectrum. it is inevitably the case that sometimes we applauded government actions, and sometime we prefer government inaction. Last week, however, the scholarly communications community got the opportunity to admire BOTH positive action taken by the Administration and a positive decision in favor of inaction.
Let’s start with the inaction. On Friday, attorneys for the Department of Justice sent a letter to the 11th Circuit Court of Appeals, where the Georgia State copyright decision is being appealed, informing the Court that the DoJ would not be filing an amicus brief in that appeal. Recall please that the appeal is brought by the three publishers who lost pretty comprehensively in the trial court, and the DoJ had asked the 11th Circuit for an extension of time to file a “friend of the court” brief that would either support the publishers or support neither party. That generated a lot of consternation in the higher education community, and many calls for the DoJ to rethink its position. Apparently the outcry had an effect, and the Justice Department decided that it should not take sides in this dispute. It is even possible that the plaintiff publishers themselves realized that a brief supporting them from the DoJ would open up cans of worms best left closed and mobilize even greater opposition to their efforts to squeeze more money from college and university budgets. They may have asked the DoJ to stay on the sidelines. But that is pure speculation.
What is clear is that the folks at Justice decided that their original idea to get involved was a bad one. Because of the way a litigation schedule works, however, it is not too late for the DoJ to file a brief on the other side — supporting the careful analysis that the trial court judge did on the issue of fair use. But that is unlikely, I fear. Now, however, is the time for the higher education community to mobilize its own passion for its mission, and its own lawyers, to file on behalf of the defendant/appellee — Georgia State.
Then there is the action that was announced on Friday, and it could hardly have been better. The White House, after a long delay, issued a directive that instructs all federal agencies that have large research and development budgets to develop plans to make the articles that arise from such research funding publicly available within 12 months of publication. In short, the White House has recognized the success of the NIH public access mandate and has committed to providing the same benefit to taxpayers for the other research efforts that they fund. Additionally, the new directive also instructs agencies to examine data access and sharing, so it genuinely is seeking to improve the overall environment for research, and to give taxpayers a greater return on their investments.
Many readers of this blog responded to our appeal for signatures on the We the People petition that was begun last year on the White House web site. Those signers will all have received a letter from the Office of Science and Technology Policy,which explicitly portrays the new directive as a response to the opinions put forward in that petition. So congratulate yourselves, maybe even buy yourselves a drink, in celebration of the good work you did on behalf of making scientific research faster, more nimble and more widely usable.
There is lots of press coverage on this directive from the White House. Check out these stories from Science, the Wall Street Journal, and the Washington Post for more details. But here is a detail that you won’t find in any news coverage, because it is not yet decided. What repositories will be used for public access to non-NIH funded research? Unlike the NIH, most agencies do not already have repositories that can become the mandated site for deposit. And it would be a travesty, as well as a sure way to undermine compliance, if open access were left for authors to arrange with their publishers, who will want to add new fees, which would inevitably be borne, eventually, by those same taxpayers. The sensible alternative is to tell authors that they can use open access repositories at their home institutions or at other educational institutions. Agencies might also specify some standards for reliability and access that could apply to acceptable institutional repositories. This will facilitate access at a lower cost. But it will also increase the urgency for institutions to develop or improve their repositories, since those IRs will very quickly become a vital service to assist faculty authors in complying with the broader mandates that are now so clearly on the way.
The White House directive might lead some people to assume that the FASTR Act, which was introduced in both houses of Congress a couple of weeks ago, is no longer necessary. That would be a mistake. FASTR, which stands for Fair Access to Science and Technology Research and is the latest version of the bill formerly known as FRPAA, will do some things that the directive will not, or, at least, may not. FASTR, for example, directs each agency to investigate issues of reuse; although it does not mandate open licensing, it certainly sets genuine open access — including not just the right to read but also to reuse — as the ideal. Also, an act of Congress is more difficult to reverse, whereas an executive order can be countermanded by a subsequent president. So there is good reason to continue to urge our representatives in Congress to support the FASTR act. We can celebrate a very good week last week while still recognizing that we have more work, both in turning away the attack on fair use in academia and in supporting open access, ahead of us.
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.
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- Dave Fernig on Going all in on GSU
- Gretchen McCord on Going all in on GSU
- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses