Scholarly Communications @ Duke » Authors’ Rights

An extraordinary week

Kevin Smith, J.D. — Wed, 29 Feb 2012 13:40:59 +0000

It has been an extraordinary week for open access advocates, and it is only Wednesday! For those keeping score, here is a recap of events, along with some commentary.

On Monday, Elsevier issued a press release withdrawing its support for the Research Works Act. The RWA, of course, was a bill proposed in the US Congress that would have rolled backed the National Institutes of Health public access mandate and forbidden any other research funding agencies from adopting similar policies that would give taxpayers unfettered access to the research for which they have paid.

Within hours of Elsevier’s press release, the sponsors of the RWA in the House of Representatives announced that they would not pursue passage of the bill. It seems it was Elsevier’s legislation from the start, so the publishing giant got to call the shots for Congress. The announcement from Representatives Issa and Maloney contained the first extraordinary statement of the day, when they said that “The American people deserve to have access to the research for which they have paid.” This, of course, is what they had tried to prevent, and we must read the statement with a suspicious eye. But on its face, it seems to acknowledge the fundamental justice behind public access policies.
When the sponsors of the RWA folded their tents so promptly, I think we were left wondering if its introduction was simply a strategic move to stake out legislative ground, or a trial balloon by Elsevier to gauge support for open access. If strategy it was, it seems to have failed spectacularly.

Elsevier followed up its withdrawal of support for the RWA with an open letter to the mathematics community. These scholars, remember, are at the core of the boycott directed at Elsevier that has been gaining momentum for over a month and is still growing. That letter also contained some extraordinary statements; in it the publisher seems to promise to lower some of its prices (although they base this promise on an arbitrary pricing standard that they have created) and to acknowledge that the bundling of journals into high-priced and inflexible packages (which they call “large discounted agreements”) is a problem. I wonder if they mean this, or if it is simply more strategy?

The letter to the mathematicians contains an appeal for collaboration between Elsevier and the scholarly community. In that vein, I respectfully offer three paths that mathematicians might pursue regarding Elsevier in the coming months:

Talk with them, by all means, but don’t believe everything you hear. Two principles are important to keep in mind. First, their primary value is returning a profit to their shareholders, not the progress of your work or your discipline. Second, they have no product to sell if you do not give them your intellectual property for free, so you have a lot of power here. In a New York Times article published yesterday about the open access debate, scholars who support open access are called dishonest for continuing to submit their works to traditional journals; the boycott you have started reverses that alleged dishonesty and gives you considerable influence. Don’t waste it.
Keep exploring alternative publication models. Even if Elsevier lowers its prices and introduces more flexibility into their bundling, it is hard to see the toll-access model as the path to the future. For mathematics, where grants are smaller and many scholarly societies depend on subscription revenues, a “flipped” pricing model such as is being explored in physics with the SCOAP3 experiment, might make the most sense. But in any case, it is important to keep experimenting with new ways to disseminate scholarship, especially more openly.
Whenever you or a colleague/student does publish with Elsevier, look carefully at the publication agreement that is offered and cross out any language that ties your right to self-archive your work to the non-existence of an open access mandate from your institution of funder (you can find a sample agreement with this language here). This is an outrageous interference with academic freedom, and authors should not tolerate it. Simply pick up your pen and cross out any language that says you may only post a final manuscript of your work if you and your colleagues have not adopted a policy saying that you must do so. In this regard, it is worth noting this article by Kristine Fowler from the AMS website analyzing the relative success that mathematicians have had negotiating the terms of their publication agreements with the largest publishers in their discipline.

Meanwhile, all of us – mathematicians, linguists, librarians, anthropologists or whatever — should transfer the energy we put into opposing the Research Works Act toward support for the Federal Research Public Access Act, which was introduced in both House of Congress a couple of weeks ago. The case for FRPAA is made far better than I could put it in this essay on “Values and Scholarship” that was published by all 11 provosts of the universities that make up the CIC (Committee on Institutional Cooperation) in last Thursday’s edition of Inside Higher Education. Their extraordinary, unified vision for scholarship in the digital age should provide the touchstone by which this discussion moves forward.

What were they thinking?

Kevin Smith, J.D. — Fri, 17 Feb 2012 15:45:19 +0000

When the Chronicle of Higher Education ran this story about the relatively new intellectual property policy at the University of Louisiana, one of my colleagues reacted with the question in my title. It is a valid thing to ask — how did the University system think this was going to go when they drafted the new policy? The same forces that presumably led to revision of the policy in the first place — increasingly various and potentially profitable work created for the online environment — will also lead faculty authors and creators to pay more attention to IP policies.

It seems the university system has been surprised by the opposition the policy has generated, but such surprise speaks poorly of their awareness of the realities on their own campuses. I am reminded of the surprise that content industries have expressed at the opposition to the Stop Online Piracy Act or the European dissent over ACTA. What, exactly, did they expect? The days when no one pays attention to such policies are past, and that is a very good thing.

The works created by faculty raise a complicated situation in a couple of ways, and need to be treated differently than works created by employees in a corporate environment. For one thing, there is the issue of academic freedom. Although the copyright law could well support the claim that all faculty works, even traditional scholarship like journal articles and books, are work for hire, the case would be much more complicated than the university system seems to imagine. As I say, academic freedom would pose a unique obstacle, since courts have recognized a First Amendment interest in academic freedom. So there is a constitutional argument could be used to counter a work for hire claim at a public university. Also, there would be an argument over the traditional “teacher exception” that courts recognized for many years. Although there have been no decisions definitively invoking the teaching exception since the 1976 Copyright Act took effect, it would still provide a line of defense against work for hire claims that the universities would struggle to overcome (this article by one of the scholars quoted in the article explains this ambiguous situation).

Then, of course, there are the practical problems. Having a policy like this is sure to make it harder for the universities in the Louisiana system to recruit top faculty. Even if individual campuses modify the policy into something wholly different than the system-wide template, which they would be wise to do, the question will always hang over recruitment, and the balance of decision-making may be tilted in some cases involving highly productive and savvy professors. On the university side, the mountain of paperwork they will create for themselves if they really undertake to review every contract for publication seems not to have occurred to the drafters. But any small additional profit they could hope to make by claiming a portion of royalties is sure to be devoured by increased administrative costs.

As I read the article, I was struck by the sense that the university system was trying to create a single policy that would treated patented works and those subject to copyright in the same way. Any superficial sense that this might seems to make is easily dispelled, however; there a good reasons to deal differently with these two varieties of intellectual property. Copyright, for one thing, is easy and cheap to get. It is, in fact, automatic whenever original expression in fixed in tangible form. There is no need for the university employer to intervene to help the employee creator protect her rights. With patents, the situation is wholly different. Patents are difficult to get and it usually requires an investment of tens of thousands of dollars to successfully “prosecute” a patent. And patents, when they generate a profit (which few actually do), offer much larger gains. So creators need more help from the university to get a patent, and universities have a greater incentive to provide that assistance, than is the case with copyright.

Also, the “significant use of university resources” is really quite different with copyrighted materials than it is with patents. Often the resources employed to create something subject to copyright are resource the university would supply in any case — a library, computers in faculty offices, art supplies for artists who both create and teach, a video camera in a dance studio, etc. Resources used in equipping labs to pursue patentable inventions, on the other hand, are often extremely specialized and sometimes costs millions of dollars.

This does not mean that the copyrighted productions of a faculty are less important than those subject to patents; their very ubiquity testifies to how vital such works are to the tasks of teaching and research. But the conditions of creation are so different that policies that conflate the two are seriously misguided.

One point I try to make whenever I discuss copyright ownership policies on university campuses is that such policies should distinguish between ownership of the underlying rights and uses that other parts of a scholarly community can be licensed to make. For example, a university need not claim ownership over the design of an online course by a faculty member as long as it assures, by policy or by separate agreement, that it has a perpetual license to use that courseware. Thus the faculty member’s academic freedom and reasonable expectation to own her own work is upheld, but the university does not have to worry about having to redesign the course if the faculty member leaves or to pay her twice for it. The designer, of course, is also able to reuse her work at a new institution, so everyone’s needs can be met. A careful policy on copyright ownership should be a kind of matrix that identifies types of works and groups of users who might have an interest in those various kinds of works. Then the decision about ownership can be made at an appropriately granular level, and the use rights of those with recognized interests in each category can also be assured.

Copyright ownership policies are important, and becoming more so everyday. Campuses that do not have such policies need to remedy that situation sooner rather than later, and before conflicts develop that will leave the decision to courts applying the default rules of the copyright law. The policy proposed by the University of Louisiana System is a poor model and an apparently ill-considered stab at such a policy. But if the controversy it has generated causes faculty in Louisiana and elsewhere to think hard about these issues, perhaps some good will result.

Grasping at straws

Kevin Smith, J.D. — Tue, 14 Feb 2012 15:06:28 +0000

Last week, “Inside Higher Ed” ran an article about the release by the White House of all the comments submitted to the Office of Science and Technology Policy in response to their request for information about public access to federally-funded research. I was gratified to see that they chose to quote from the comments submitted by the Duke University Libraries. But I was also appalled when I read the quote from comments submitted by the publisher Wiley Blackwell in response to the question about appropriate embargo periods for public access. The Wiley official wrote that “Any embargo period is a dramatic shortening of the period of copyright protection afforded all publishers.”

This statement strikes me as deliberately misleading. Publishers are not afforded any period of copyright protection by the copyright law, anymore than plumbers or ophthalmologist are. This kind of misinformation is intended to create the illusion that publishers’ business models are somehow favored by federal law and thus inviolate, but that is not true. Only one group is afforded copyright protection and the term for which that protection lasts — authors (under section 201(a) of the copyright law, Title 17 of the U.S. code). If publishers hold any rights, they hold those rights only because they are transferred to them by the authors whose works they publish. And if those authors choose, they can transfer less than the full copyright, and for less than the full term of protection.

Increasingly the transfer of copyright to publishers in exchange for using their distribution networks seems like a very bad bargain indeed. As the ongoing boycott of Elsevier dramatically indicates, scholarly authors are becoming much more vocal and open as they demand a better solution for distributing their works. It has always been problematic to give away the rights under copyright for free to publishers who then sold the works at a high profit, in which authors did not share. Now there are many other options available to authors, many of which publishers are anxiously trying to undermine. It is very important to some publishers that authors do not come to understand the power they have based on the fact that they hold all of the rights under copyright and can leverage those rights to do what is best for them.

Statements like the one from Wiley Blackwell reflect, I think, an increasing sense of panic in the publishing community. Disinformation is seen as one way to fight the growing realization that they may become as irrelevant in the Internet age as blacksmith and buggy whip makers became in the age of the automobile.

We see this sense of panic manifest in several ways. When Oxford University Press tries to claim that essays written for edited volumes are “work made for hire,” they are grasping at a legal straw that cannot hold up for them. Likewise when publishers like Elsevier and the American Chemical Society write publication contracts that try to make authors’ retention of rights, or not, dependent on the kinds of internal policies that exist on the authors’ university campuses. Such contracts are more cries of anger and fear than legal agreements. In all of these cases, the publishers are looking for a legal lever they can push that will stave off irrelevance. But the law does not work that way in general, and copyright is written to benefit authors and give them control over their works, not to prop up a particular business model.

Companies that survive are those that adapt to technological change, not those that desperately try to use legal coercion to prevent the change. The movie industry learned this when their attempt to prevent home video recording failed; they were forced to adapt, and they found new ways to flourish.

Instead of resisting public access to taxpayer-funded research and writing byzantine contract language intend to punish authors who seek to exploit their legal rights, publishers need to look at how they can provide services to authors that will be necessary and desirable in the digital environment for scholarship. Last month I had lunch with an official of a major publisher who talked about this approach to his business and was full of creative ideas. Unfortunately, he is still a minority voice. But misrepresenting the state of the copyright law is not the future for the publishing industry; services for authors is the future. It is time for publishers to stop grasping at straws, for authors to stop giving away all of their rights under copyright, and for both groups to work together to figure out what the future of scholarship is going to look like.

Why boycott Elsevier?

Kevin Smith, J.D. — Tue, 31 Jan 2012 15:24:11 +0000

The snowballing petition on which scholars pledge to boycott Elsevier is gaining a good deal of attention. There is an article in today’s Chronicle of Higher Education, and this more general article about the future of Elsevier’s business model from Forbes. As of today the boycott pledge has over 2100 signatures.

As the Chronicle article points out, the petition lists three “charges” against Elsevier: their extremely high prices, the practice of “bundling” so that institutions have to buy journals they do not want in order to get the ones they do and hence have less money to buy other things, and corporate support for the Research Works Act and other legislation that would threaten the free flow of information.

While I agree that all of these things are significant problems in the current scholarly communications environment, I have to say that Elsevier is not the only “sinner” guilty of these infractions, or necessarily even the most culpable among commercial publishers. This does not mean I am particularly sympathetic to Elsevier, and I am glad to see the petition for a couple of reasons.

First, the boycott movement is coming from scholars themselves. It is not simply a matter of radical militant librarians (some of my favorite people, btw) who are upset about high prices. This petition represents a growing awareness amongst scholarly authors that traditional publication models not only are no longer the only option, but in fact may be bad choices for those concerned with the overall dissemination of knowledge. It is simply becoming clearer to many scholars that the values they hold are not the same as the ones that commercial publishers are pursuing.

Second, when framed as a divergence of values it is much easier to see that the core issue in this movement is who will control the the changing course of scholarly communications and the scholarly record. It seems less and less acceptable to trust commercial publishers with the responsibility for scholarship now that we no longer will be dependent on the printed artifacts they created. As scholarship becomes digital, we are quite rightly seeking new models of control that serve the needs of scholars first, regardless of the business models that may thereby be left behind.

One of the reasons I do not believe in the “abolish copyright” movement is because I think the control over how a work is disseminated and used by others will continue to remain important to scholarly authors. Copyright desperately needs reform (or else it needs more scholarly authors who use Creative Commons licenses to leverage their economic rights to protect things like attribution, which actually matter to academics) but it is not likely to become irrelevant in the digital environment. Instead, scholars will seek new ways to use the rights that vest in them (not their publishers) to control their works in ways that best serve their own needs and the interests of their particular discipline. Boycotting Elsevier may not bring about that revolution by itself, but it is a step toward demanding that the rights and concerns of scholarly authors themselves actually drive decisions about how scholarship is shared in the digital environment.

Who do you work for, faculty author?

Kevin Smith, J.D. — Wed, 25 Jan 2012 14:48:53 +0000

In two recent blog posts, one describing the original dilemma and one his decision about it, Professor Steven Shaviro discusses his experiences trying to publish an essay in a collection that was being prepared by Oxford University Press. He balked at the contract he was offered, and ultimately decided not to publish in the collection, over the contractual term that would have defined his essay as “a work made for hire.” This seems like a new development in the ongoing conflict between publishers seeking ever more control over the works they are given by academics and professors who want to get proper respect and impact from their works.

There is something particularly galling for a scholar about having her article described as “work for hire.” It implies a lack of academic freedom and even a “hired pen” approach to scholarship. Most universities, which actually might have a strong case if they claimed faculty works as “works made for hire,” long since decided that the obvious ill-will and hassle that would attend such claims made them unpalatable. OUP, on the other hand, does not seem to have learned the same lesson or, in fact, to even understand the law correctly.

I have to say first that I do not know how widespread this practice is, even within OUP. This is the first time I have heard of this situation. It may apply only to essays written for inclusion in collected, thematic volumes. Or it may just be a test foray into a really bad idea.

By way of introduction, it is important to note that there are two ways for a work to be a work for hire. First, it can be a work created by a regular employee within the scope of his or her employment. That definition could likely fit faculty writings, but it has almost never been used to contest faculty ownership. Alternatively, a work by an independent contractor — someone who is not a regular employee — can be a work for hire if two conditions are met. First, the work must fall into one of nine categories enumerated in the law. And second, there must be an express, written and signed agreement between the employer and the contractor “that the work shall be considered a work made for hire.”

OUP obviously hopes to take advantage of the second path to work for hire, since the first one would not apply. A “contribution to a collective work” is one of the permissible categories for independently contracted works made for hire. But I think OUP has a big problem meeting the second requirement.

It is important to note also that the effect of work for hire is the same in either situation – the employer is designated the “author” from the moment the work is created. The person who actual puts pen to paper, as it were, has no rights at all in the work. That fact probably explains some about why OUP would make this foolish move, and it is also part of the reason why their attempt to turn faculty writings into work for hire is likely to fail.

As to why OUP would do this, I think there are a couple of legal benefits for authors that OUP hopes to avoid having their contributors enjoy. One would be the termination right, which allows an author or other creator to terminate a transfer of copyright after thirty-five years, regardless of the terms of the original contract. This right, while it may seem obscure, has recently gotten attention as the legal window through which composers and performers of profitable music from the late 1970′s has just opened. The one way to prevent an author from terminating a transfer of rights is to own the work as a work for hire, so that no transfer was ever required. I suspect some legal beagle at OUP saw the controversies over music and thought this might be a good idea. It is not.

The other thing that having these contributions classified as work for hire would prevent would be prior licenses. As more faculties adopt open access policies, which usually take the form of a prior license to the institution for repository deposit, the possibility arises of an eventual contest between a prior license contained in such a policy and a later transfer of the copyright through a publication contract. OUP may be test-driving an idea for avoiding that situation — if the faculty author is classified as a non-author by the work for hire doctrine, they would be unable to grant any prior licenses, since they never held any rights.

So why do I think this move is stupid, and doomed to fail? Three reasons.

First, nothing is more surely designed to make faculty authors angry than to tell them they are not the authors of the scholarship they offer to publishers. As a group, faculty authors have been pretty docile toward publishers for a long time, but foolish and tone-deaf moves by publishers have begun to stir faculty anger toward presses they once considered friends and colleagues. If a claim like this, which denies the fundamental dignity of authorship to scholars, becomes widespread, that slow rebellion will speed up very quickly.

Second, in the work for hire battle, presses are likely to lose. As I said above, universities could, if they choose, assert a convincing case that faculty are regular employees whose writings are created within the scope of their employment. Were OUP really to assert its WFH claim to defeat a prior license, the institution could claim that, as the regular employer of the scholar, it was the author and so the agreement with OUP would be void as outside the ability of the faculty member to sign.

Finally, and most importantly, there are two cases in the U.S. courts that have held that, in an independent contractor situation, an agreement designating the work as a work made for hire must be signed, or at least formed (meaning that both parties understood), prior to the creation of the work. There is an excellent discussion of those cases on the website of copyright attorney Ivan Hoffman. By making the work for hire provision part of a submission agreement, OUP would be unable to show that such an agreement would even have been contemplated by the author, much less agreed to. So this is a move which can only have negative consequences for OUP. The cost in bad feeling is very high, and it cannot, I don’t think, succeed as a legal maneuver, even if OUP thinks it is worth that high cost.

Breaking technology

Kevin Smith, J.D. — Thu, 05 Jan 2012 17:02:17 +0000

In the past few weeks I have seen several news reports and other actions that seem to form a pattern, where the traditional publishing industry has set out to break digital technologies in order to preserve their traditional business models.

Of course, the most radical effort to break the Internet so that it does not threaten the legacy content industries is the Stop Online Piracy Act, about which much has been written. I was disheartened by the plausible suggestion that the decision to suspend the House’s hearings on SOPA last year and renew a push for it in 2012 was not due to real objections but was merely a ploy to solicit more donations from the movie and recording industries. Unfortunately, this is often the way the legislative “sausage-making” process works. But I want to look at some other attempts to hobble digital technologies that strike closer to the publishing that is the most common form of dissemination on our campuses.

On Christmas Day the New York Times ran this story about the “tug of war” between publishers and libraries over e-books. The writer is very sympathetic to publishers’ efforts to maintain exactly the revenue streams they have been accustomed to in the pre-digital era, but what struck me most is the language used. Repeatedly the article talks about “inconvenience” and “friction,” stressing that “borrowing an e-book… has been too easy.” As the author says “to keep their overall revenue from taking a hit… publishers need to reintroduce more inconvenience for the borrower.” This librarian commentator makes the key point: it isn’t that the technology does not work, but that publishers do not want it to work as well as it does. They want to break the technology that is available, so that user experiences are less seamless. They only see a role for themselves if they can offer assistance overcoming inconveniences that they have introduced in the first place! And perhaps they are right about that.

Another example of this failure to do what digital technologies allows you to do can be found in this article from the Chronicle of Higher Education, which reports on a study about textbook choices that found that e-textbooks offered little savings. The problem, the authors acknowledge, is not the technology but “publisher pricing decisions.” It seems we cannot really take advantage of the benefits offered by these new technologies until we free ourselves of ties to publishers who cannot imagine any other way of doing business than the way, and at the price, that it always has been done.

Last week Bloomberg News reported on a lawsuit brought by HarperCollins to prevent the publication of an apparently unauthorized e-version of a popular children’s book. The suit will turn on the language of the contract between the author and HarperCollins, about which I cannot comment. But it is striking to me that the publisher is not complaining about competition with their own e-version of the book because they do not offer one. They simply want to stop anyone else from creating an e-book unless and until they figure it out (presumably when they decide how to introduce sufficient inconvenience). They may have the legal right to do that, but they are clearly not interested in responding to consumer demand. Indeed, it seems that the author of the book is interested in providing a digital version, but the publisher has told her that they have that right and she does not. The lesson is that authors who do not want their readers to be burdened with artificial inconvenience should negotiate more carefully with their publishers. It may often be in the best interests of authors to withhold the right to offer an electronic version of the work in an initial publication agreement and consider seeking another platform or publisher, one perhaps less wedded to inconvenience, for the e-book version.

This, of course, is a process increasingly familiar to academic authors. For years scholarly authors of journal articles have engaged in a tug-of-war with publishers over how best to exploit digital technology to serve the best interests of scholars and scholarship, rather than just the profit motives of publishers. Once again the publishing community has resorted to legislative attempts to try to dictate what scholarly authors can and cannot do with their own copyrights. Over the holidays the “Copyright in Research Works act,” a re-tread from the last legislative session, was introduced again. The bill would reverse public access programs like that of the National Institute of Health and make other such programs illegal, essentially telling taxpayers that they have to pay twice to see the research they have funded. The publishers are clearly asking Congress to break the Internet legislatively so that their toll-access sites are the only source for scholarly information.

What I find most astonishing is the immediate expression of support for the bill that came from the Association of American Publishers, and this sentence in particular:

The Research Works Act will prohibit federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding.

I am stunned by the audacity of the claim that research articles are “produced” by private sector publishers! I think the producers of these works are sitting at desks and labs scattered around my campus, and thousands of other college and university campuses. They are not paid by publishers either to do the research or to write their articles. And I do not believe that the journals that publish those articles actually add any copyrightable expression to what has been written and revised by our faculty members. If they do, the scholarly authors have a right to complain, since such additions without the author’s cooperation would compromise the integrity of the scholarly record.

We cannot say it often enough. The intellectual work for scholarly publications is done by academics, not publishers. They own the copyright in those works up until they are asked to transfer it to the publisher as a condition of publication. And if publishers persist in interfering with that copyright ownership and insisting that scholars cannot take advantage of the tremendous opportunities that digital technologies offer, the solution is to stop giving them those copyrights.

Really, what has Princeton done?

Kevin Smith, J.D. — Fri, 30 Sep 2011 18:17:35 +0000

When it was announced that the faculty at Princeton University had unanimously adopted an open access policy for scholarly articles they authored, it was great news for the open access community, but it was also the cause of some overheated rhetoric. Since the operative language of the Princeton policy differs very little from that that was adopted at Duke back in March, 2010, this is a good opportunity to reflect on what has, and has not, been done.

In all such policies the university is given a license in the works that is prior to any copyright transfer to a publisher. Technically, therefore, the rights that are transferred are subject to that license; hence the language of “banning” the wholesale transfer of copyright, which has received a lot of attention. I wanted to point out, however, that this rhetoric about a “ban” did not come from Princeton itself, but from a single blogger, to whose post all the stories that use that language point. That blogger has now changed the post, including a quote from a Princeton official saying that the faculty is not being “banned” from anything. Even the URL has changed; the corrected version of the post is here.

The differences amongst universities regarding these policies come in implementation. Some universities may elect to act in a way that is contrary to the terms of the publication agreements the authors enter into (by posting articles or versions of articles where the publication agreement purports not to permit the specific posting). Doing so would seem to be legally permissible under the claim of a prior license, but it could also put the faculty members in a difficult position unless they are very careful about what they sign (as they should be but seldom are). An alternative is for the university to exercise the license in a more nuanced way, taking into account the various publisher policies as much as possible. That, of course, makes open access repositories much more labor-intensive and difficult, especially as publishers change their policies to try a thwart these expressions of authorial rights. How Princeton will actually implement its policy is still an open question, since they do not yet have a repository of their own.

Earlier today I received an inquiry about the Princeton policy from a colleague at another university. To what degree, he asked, is this similar to the university simply claiming that scholarly articles are work made for hire? My answer, of course, was that these policies are the very opposite of an institutional claim of work for hire. If that were done, in fact, no such license would be necessary. But these policies are founded on faculty ownership and express the desire of a faculty, as copyright owners, to manage their rights in a more socially and personally beneficial way. It is important to note that the open access policies now in place at a couple of dozen U.S. institutions have all been adopted by the faculties themselves; they decided to grant a non-exclusive license to the university, which, again, they could not do except as copyright owners.

Probably the most important fact about these policies, indeed, is that they represent an assertion of authorial control. We so often hear publishers and others in the content industry talk about protecting copyright, by which they usually mean the rights they hold by assignment from a creator, that it is salutary to remind academics that they own copyright in their scholarship from the moment their original expression is fixed in tangible form. Transferring those rights to a publisher is one option they have, and it has become a tradition. But it is only one option, and the tradition is beginning to be questioned, as this recent article from Times Higher Education and this one from Inside Higher Ed forcibly demonstrate.

Open access policies are not, at their root, either “land grabs” by institutions or acts of defiance aimed at publishers. They are simply a recognition of the fact that authors are the initial owners of copyright, and they express a desire by those owners to manage their rights intentionally and in a way that most clearly benefits the goals of scholarship.

An open letter to J.R. Salamanca

Kevin Smith, J.D. — Fri, 16 Sep 2011 19:12:56 +0000

Dear Mr. Salamanca,

Earlier this week, only days after it filed its ill-advised lawsuit against the HathiTrust and five of Hathi’s partner universities, the Authors Guild gleefully announced that they had been able to find, with relative ease, the author of one of the books on Hathi’s initial list of orphan works. You, of course, were that author, and the work in question was your 1958 novel The Lost Country.

It is not a comfortable position to be a pawn in a game of “gotcha,” especially when it involves litigation. What I want to say to you is the same thing I say to faculty authors at the institution where I work: “Consider carefully where your own best interests lie, and manage your copyright to serve those interests.”

In one sense, your situation is quite unusual. Apparently you still hold the rights in The Lost Country, perhaps because you recovered them from your publisher based on a contractual arrangement. This was unusual in the 1950′s, when federal copyright did not attach to a work until it had been published, and it is, unfortunately, still not the case for many authors, particularly those who write academic books. For many of them, rights must be surrendered in order to have a work published in the first place. So you are ahead of the game in that sense; you have a chance to really manage your copyright for your own benefit. Congratulations.

It seems clear that your book was included on the list of potential orphans in error. Of course, inclusion on that list was precisely intended to catch such situations, so the system worked as it should. Your book has not been included in any distribution of orphan works. Now you have a chance to decide, however, if you would like to allow a more open distribution.

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies. We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity. So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work. Amazon.com shows only two used copies available for sale. In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage. It has not left the facility once since then, and our system shows no circulations in the prior decade, either. One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard. They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition. The Authors Guild simply does not have the ability to create a new market for your book. Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust. Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books. Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

In your own case, let’s suppose a Duke student has recently seen the Elvis Presley movie made from The Lost Country. Intrigued, she “Googles” the book and finds that there is a copy held by our library. But to get it she has to send a request, wait 24 hours or so, then pick it up at one of the library service desks. Years of experience with college students suggests to me that most just won’t bother; they will move on to something newer and easier to access. On the other hand, if that same record that she found with her Google search also contained a link to the book through Hathi, she might read a chapter or two. She might get hooked. You will have found a reader.

This is what libraries do; such serendipitous discovery is what we hope for everyday, and it is why we signed up with the HathiTrust. What Hathi offers to you is the opportunity to continue to find readers for the book on which you worked so hard.

Your “case,” if I can call it that, illustrates two things. First, that the process of identifying orphan works in the Hathi corpus needs to be tested and refined, which Hathi is committed to doing. Second, in the rare instance like yours where the process actually turns up an author who does still own copyright, the rational course for that author is to embrace the mission of Hathi and of libraries everywhere of connecting books with readers, and to exercise their right to make their book(s) fully viewable. Please believe me, that is a much better option than having a book live out its term of copyright on hard-to-access shelves in high-density storage.

Careless language and poor analogies

Kevin Smith, J.D. — Thu, 21 Jul 2011 19:21:30 +0000

One of Will Rogers’ best known aphorism is “I only know what I read in the papers.” In line with Rogers’ irony, if all one knows about the Aaron Swartz case is what one reads in the blogosphere, one knows very little indeed, and much of it wrong.

Swartz has been indicted on several federal charges after allegedly physically and technologically gaining unauthorized access to the MIT network and downloading a huge number of files from JSTOR. On that everyone agrees. After that the claims about and arguments based on this event diverge dramatically.

Predictably, many bloggers (an example is this one from the Copyright Alliance) call these actions by Swartz “theft” or “stealing.” As always when talking about intellectual property, these words are misapplied. The formal definition of theft from Black’s Law Dictionary is “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.” It should be clear from this definition why we call authorized use of intellectual property “infringement” rather than theft. What Swartz is alleged to have done did not remove the intellectual property and showed no intent to deprive the original owner of it; he merely made, allegedly, unauthorized copies, which does not have the effect of depriving anyone else of intangible property. JSTOR was never without these files and they have, in fact, recovered the unauthorized copies.

Whenever someone uses the language of theft in reference to intellectual property, they are trying to cover the weakness of their argument, in my opinion. Let’s just say infringement and talk about both the legitimate reasons to protect IP and the public policy that permits some unauthorized copying.

By the way, Swartz has not been charged with copyright infringement either. The charges of wire fraud, computer fraud and illegally obtaining information from a protected computer all relate to the hacking itself, not to the downloads.

Another place where serious misrepresentations abound is when we are told (as in this post on the Scholarly Kitchen) that Swartz has “done this before” because of a previous incident where he download large numbers of documents from PACER, a database used by the federal courts. That incident, however, involved neither illegal access nor copyright infringement. Although PACER usually charges a fee, Swartz used a computer at a university on which access was being provided for free as an experiment. And the materials he downloaded – documents from the federal courts – are not protected by any copyright due to section 105 of the US copyright law. To be sure, Swartz was protesting the fees charged for access to works created at taxpayer expense for the public good, but his actions in that case have no analogy to the behavior charge in this indictment.

One place where there is significant disagreement is about Swartz’s intentions. Many bloggers simply assume that he intended to release all of the downloaded files to the public, although Swartz claims he intended to do text-mining research with the articles. He has done such work before, so there is some plausibility to his claim, which may explain when infringement charges have not been brought. So turning this into a debate about the open access movement is wholly inappropriate. It is important to recognize that the victim of these alleged crimes was not JSTOR or any of the journals it aggregates. The victim was MIT.

However fervently one shares Swartz’s goals for greater access to legal and scholarly information and publications, the actions for which he has been charged do not serve those goals. Quite frankly, Swartz’s actions were not radical enough, in the sense that they did not get to the root of the problem. It is clear that the system of scholarly dissemination is badly broken, and simply hacking it does not change that fact. The real change, the real solution Swartz (apparently) seeks, will be found only when the academic authors, the original holders of copyright, stop transferring those copyrights to publishers without careful reflection and safeguards on their right to disseminate their own work widely.

What a mess!

Kevin Smith, J.D. — Thu, 07 Jul 2011 16:10:23 +0000

Recently my intern Dave Hansen (another lawyer) and I have been looking at the new author self-archiving policies promulgated by the American Chemical Society and Elsevier. It would be more accurate to say that these policies are anti-archiving; in spite of persistent rhetoric about how committed these publishers are to access to scholarship, the clear intent is to restrict and interfere with decisions faculty authors might make about how best to serve their own interests as scholars.

A comical element was introduced into our consideration early on, when we realized that the two different policies imposed directly opposite requirements for self-archiving. The ACS only allows an author to self-archive their final manuscript if doing so is mandated by her institution, while Elsevier only allows it if it is not. So on each campus the policies must be evaluated and one publisher or the other declared off limits.

In general these publishers’ statements about author rights are confusing and self-contradictory. It seems clear that the intent of these statements, policies and contracts is not to clarify the authors’ obligations so much as it is to confuse and intimidate them. At one point we asked ourselves why we were spending so much time poring over these badly drafted documents, and we realized that we were doing it because we are concerned not to let our faculty authors put themselves into difficult positions. What is clear is that these publishers have no such concern; they are trying to make authors pawns in their effort to dictate campus policies.

We have to start our evaluation of the position that Duke authors would be in, vis-à-vis these publishers, by asking ourselves what exactly the Duke Open Access policy is. From its inception we have maintained that it is not a mandate. Although the policy grants Duke a license to archive the works written by its faculty, there is no requirement or assertion that it will be universally exercised. The license is fully waivable and it was adopted with the commitment that its implementation would not involve Duke authors in conflicting obligations. What the policy most clearly represents is a strong statement that Duke authors want to make their own works as accessible as possible to the largest number of people.

So if this is what we think our policy is, how does it interact with the crazy quilt of rules imposed by these two publishers? Regarding the American Chemical Society, our conclusion was that Duke’s policy is simply incompatible with publication in an ACS journal. ACS only allows an author to self-archive if there is an institutional or funder mandate that they do so, and Duke does not mandate such behavior. ACS authors are treated here with little consideration; their right to make individual decision about their own best interests is simply not respected. So we will communicate to our authors who write for ACS journals that they may not exercise the policy decision that they made 18 months ago because their scholarly society has told them not to. We will ask them to make their unhappiness with this interference with their freedom to determine academic policy known to the ACS.

Elsevier presents a more difficult case. There are multiple policy statements out there, and they are not particularly consistent. It is also not clear which statements will actually end up incorporated in author contracts. What is clear is that Elsevier wants to dictate what policies our faculty can and cannot adopt for itself, which certainly raises the issue of how willing authors will be to surrender the idea of academic freedom.

But our bottom line is that these statements are ineffective in changing our approach at Duke. In a statement sent to the lib-license email list, Alicia Wise of Elsevier tried to explain the new policy by emphasizing that authors would still be able to voluntarily post their final author manuscripts. Only a “mandate” triggers the restriction on author self-posting, according to Ms. Wise. Although there is language in some of the Elsevier documents that suggests otherwise, we are inclined to take Ms. Wise at her word. Our policy is not a mandate, and author participation is entirely voluntary, especially since a final author’s manuscripts can only be obtain from authors on an individual “opt-in” basis. So we do not see a conflict here with the policy our faculty has put in place.

If Elsevier disagrees with our interpretation and thinks that Duke’s policy triggers their denial of authors’ rights to our faculty, they ask us to discuss the matter with them. This we would be happy to do, but we will do it as part of our negotiations to subscribe to their journal packages. In her email message Ms. Wise states, somewhat out of the blue, that “author rights agreements and subscription agreements should be kept separate.” On the contrary, we believe that subscription negotiations are the perfect time for a campus or consortium to take steps to protect its faculty and defend their right to make policy decisions for themselves. If Elsevier wants to interfere with that right, we will address that desire at the point when we are considering investing some of the Universities’ money with them, if only to get their attention.