Category Archives: Open Access topics

Are fair use and open access incompatible?

There has been a spirited discussion on a list to which I subscribe about the plight of this graduate student who is trying to publish an article that critiques a previously published work.  I’ll go into details below, but I want to start by noting that during that discussion, my colleague Laura Quilter from the University of Massachusetts, Amherst captured the nub of the problem with this phrase: “the incompatibility of fair use with the policies of open content publishers.”  Laura’s phrase is carefully worded; the problem we need to unpack here is about the policies of open content publishers, and the solution is to help them understand that fair use and open licensing are NOT incompatible.

Briefly, the situation is this.  An author has written a paper that critiques previous work, specifically about the existence, or not, of “striped nanoparticles.”  In order to assess and refute evidence cited in some earlier papers, the author wants to reproduce some figures from those earlier publications and compare them to imagery from his own research.  He has encountered two obstacles that we should consider.  First, his article was rejected by some traditional publications because it was not groundbreaking; it merely reinterpreted and critiqued previously published evidence.  Then, when it was accepted by PLoS One, he encountered a copyright difficulty.  PLoS requires permission for all material not created by the author(s) of papers they publish.  One of the publishers of those previous papers — Wiley — was willing to give permission for reuse but not for publication under the Creative Commons Attribution (CC BY) license that PLoS One uses.  Wiley apparently told the author that “We are happy to grant permission to reproduce our content in your article, but are unable to change its copyright status.”

It is easy to see the problem that PLoS faces here.  Once the article is published under a CC license, it seems that there is little control over downstream uses.  Even if the initial use of the Wiley content is fair use — and of course it probably is — how can we ensure that all the downstream uses are fair use, especially since the license permits more types of reuse than fair use does?  Isn’t this why fair use and open licensing are incompatible?

But this may be an overly simplistic view of the situation.  Indeed, I think this researcher is caught up in a net of simplified views of copyright and scholarly publication that creates an untenable and unnecessary dilemma.  If we start by looking at where each player in this controversy has gone wrong, we may get to a potential solution.

Let’s start with Wiley.  Are they in the wrong here in any way?  I think they are.  It is nice that they are willing to grant permission in a general way, but they are probably wrong, or disingenuous, to say that they are “unable” to change the copyright status of the material.  Under normal agreements, Wiley now owns the copyright in the previously published figures, so they are perfectly able to permit their incorporation into a CC licensed article.  They can “change the copyright status” (if that is really what is involved) if they want to; they simply do not want to.  The author believes this is a deliberate move to stifle his criticism, although it is equally possible that it is just normal publishing myopia about copyright.

There is also some blame here for the system of scholarly publishing.  The roadblock encountered with traditional publishers — that they do not want articles that are “derivative” from prior work — is common; most scientists have encountered it.  In order to generate high impact factors, journals want new, exciting and sexy discoveries, not ongoing discussions that pick apart and evaluate previously announced discoveries.  We have found striped nanoparticles!  Don’t dispute the discovery, just move on to the next big announcement.

This attitude, of course, is antithetical to how science works.  All knowledge, in fact, is incremental, building on what has gone before and subject to correction, addition and even rejection by later research.  The standard of review applied by the big and famous scientific journals, which is based on commercial rather than scholarly needs, actually cuts against the progress of science.  On the other hand, the review standard applied by PLoS One — which is focused on scientific validity rather than making a big splash, and under which the article in question was apparently accepted — better serves the scientific enterprise.

But this does not let PLoS off the hook in this particular situation.  It is their policies, which draw a too-sharp line between copyright protection and open content, that have created a problem that need not exist.

First, we should recognize that the use the author wants to make of previously published figures is almost certainly fair use.  He is drawing small excerpts from several published articles in order to compare and critique as part of his own scholarly argument.  This is what fair use exists to allow.  It is nice that Wiley and others will grant permission for the use, but their OK is not needed here.

Second, the claim that you cannot include material used as fair use in a CC-licensed article is bogus.  In fact, it happens all the time.  I simply do not believe that no one who publishes in PLoS journals ever quotes from the text of a prior publication; the ubiquitous academic quotation, of course, is the most common form of fair use, and I am sure PLoS publishes CC-licensed articles that rely on that form of fair use every day.  The irony of this situation is that it points out that PLoS is applying a standard to imagery that it clearly does not apply to text.  But that differential treatment is not called for by the law or by CC licenses; fair use is equally possible for figures, illustrations and text from prior work, and the CC licenses do not exclude reliance on such fair uses.

Next, we can look at the CC licenses themselves to see how downstream uses can be handled.  If we read the text of the Creative Commons license “deed” carefully, we find these lines:

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.

Obviously, the CC licenses themselves expect that not everything that is part of a licensed work will be equally subject to the license; they realize that authors will — indeed must — rely on fair use as one of those exceptions and limitations to copyright.  How should licensors mark such material?  The most usual way is a footnote, of course.  But a caption to the figure that indicates the source of the different pieces and even says that copyrights may be held by the respective publishers would work as well.

Finally, let’s acknowledge that there is nothing new or unusual in the procedure recommended above. Traditional publishers have done things this way for years.  When Wiley publishes an article or a textbook that asserts that they, Wiley, own the copyright, they are not asserting that they own copyright over the text of every quotation or the images used by permission as illustrations.  Such incorporated material remains in the hands of the original rights holder, even after it is included in the new work under fair use or a grant of permission.  The copyright in the new work applies to what is new, and downstream users are expected to understand this.  Likewise, the partial waiver of copyright accomplished by a CC license applies to what is new in the licensed work, not to material that is legally drawn from earlier works.

So I think there is a way forward here, which is for PLoS to agree to publish the article with all of the borrowings under fair use or by permission clearly marked, just as they would do if those borrowings were all in the form of textual quotations.  And I think we can learn two lessons from this situation:

  1. The standard of review applied by open content publishers is more supportive of the true values of science than that used by traditional publishers.  Over reliance on impact factor hurts scholarship in many ways, but one of them is by pushing publishers to focus on the next big thing instead of the ongoing scientific conversation that is the core of scholarship.  The movement toward open access has given us a chance to reverse that unfortunate emphasis.
  2. Open content licenses should not be seen as all-or-nothing affairs, which must either apply to every word and image in a work or not be used at all.  To take this stance is to introduce rigidity that has never been a part of our copyright system or of traditional publishing.  It would be a shame if excessive enthusiasm for openness were allowed to actually undermine the value of research by making the scientific conversation, with all its reliance on what has gone before, more difficult.

The big picture about peer-review

In many mystery novels, there is a moment when someone makes an attempt to frighten or even kill the detective.  Invariably, the detective reacts by deciding that the threat is actually a good thing, because it means that he or she is getting close to the truth and making someone nervous.  In a sense, the article in Science by John Bohannon reporting on a “sting” operation carried out against a small subset of open access journals may be such a moment for the OA movement.  Clearly the publishers of Science are getting nervous, when they present such an obviously flawed report that was clearly designed to find what it did and to exclude the possibility of any other result.  But beyond that, we need to recognize that this failed attempt on the life of open access does point us toward a larger truth.

A good place to start is with the title of Bohannon’s article.  It is not, after all, “why open access is bad,” but rather “Who’s afraid of peer-review?”  Putting aside the irony that Bohannon’s own article was, apparently, never subjected to peer-review (because it is presented as “news” rather than research), this is a real question that we need to consider.  What does it mean for a journal to be peer-reviewed and how much confidence should it give us in articles we find in any specific title?

In the opening paragraphs of his article, Bohannon focuses on the Journal of Natural Pharmaceuticals as his “bad boy” example that accepted the bogus paper he concocted.  He quotes a mea culpa from the managing editor that includes a promise to shut down the journal by the end of the year.  But I want to think about the Journal of Natural Pharmaceuticals and about Science itself for a little bit.

I was a bit surprised, perhaps naively, to discover that the Journal of Natural Pharmaceuticals is indexed in two major discovery databases used by many libraries around the world, Academic OneFile from Gale/Cengage and Academic Search Complete from EBSCO.  These vendors, of course, have a strong economic incentive to include as much as possible, regardless of quality, because they market their products based on the number of titles indexed and percentage of full-text available.  Open access journals are great for these vendors because they can get lots of added full-text at no cost.  But they do help us sort the wheat from the chaff by letting us limit our searches to the “good stuff,” don’t they?  Maybe we should not be too sanguine about that.

I picked an article published last year in the Journal of Natural Pharmaceuticals and searched on one of its key terms, after limiting my search in both databases to only scholarly (peer reviewed) publications.  The article I selected from this apparently “predatory” journal was returned in both searches, since the journal identifies itself as peer-reviewed.  This should not surprise us, because the indexing relies on how the journal represents itself, not on any independent evaluation of specific articles.  Indeed, I am quite confident that once this latest issue of Science is indexed in these databases, a search on “peer review” limited to scholarly articles will return Bohannon’s paper, even though it was listed as “news,” not subject to peer-review, and reports on a study that employed highly questionable methods.

Librarians teach students to use that ability to limit searches to scholarly results in order to help them select the best stuff for their own research.  But in reality it probably doesn’t do that.  All it tells us is whether or not the journal itself claims that it employs a peer-review process; it cannot tell us which articles actually were subjected to that process or how rigorous it really is.  From the perspective of a student searching Academic OneFile, articles from Science and articles from the Journal of Natural Pharmaceuticals stand on equal footing.

Of course, it is perfectly possible that there are good, solid research articles in the Journal of Natural Pharmaceuticals.  These indexes list dozens of articles published over the last four years, written by academic researchers from universities in Africa, India, Australia and Japan.  Presumably these are real people, reporting real research, who decided that this journal was an appropriate place to publish their work.  And we simply do not know what level of peer-review these articles received.  So the question remains — should we tell our students that they can rely on these articles?  If not, how do we distinguish good peer-review from that which is sloppy or non-existent when the indexes we subscribe to do not?

The problem here is not with our indexes, nor is it with open access journals.  The problem is what we think peer-review can accomplish.  In a sense, saying a journal is peer-reviewed is rather like citing an impact factor.  At best, neither one actually tells us anything much about the quality of any specific articles, and at worst, both are more about marketing than scholarship.

The peer-review process is important, especially to our faculty authors.  It can be very helpful, when it is done well, because its goal is to assist them in producing an improved article or book.  But its value is greatly diminished from the other side — the consumption rather than the production side of publishing — when the label “peer-reviewed” is used by readers or by promotion and tenure committees as a surrogate for actually evaluating the quality of a specific article. Essentially, peer review is a black box, from the perspective of the reader/user.  I don’t know if the flaws in the “bogus” article that Bohannon submitted were as obvious as he contends, but had he allowed its acceptance by the Journal of Natural Pharmaceuticals to stand, that article would look just as peer-reviewed to users as anything published in Science.  The process, even within a single journal, is simply too diverse and too subject to derogation on any given day because a particular editor or reviewer is not “on their game” that day to be used in making generalized evaluations.

So what are we to do once we recognize the limits of the label “peer-reviewed?”  In general, we need to be much more attentive to the conditions under which scholarship is produced, evaluated and disseminated.  We cannot rely on some of those surrogates that we used for quality in the past, including impact factor and the mere label that a journal is peer-reviewed.  Those come from a time when they were the best we could do, the best that the available technology could give us.  Perhaps it is ironic, but it is open access itself that offers a better alternative.  Open peer-review, where an article is published along with the comments that were made about it during the evaluation process, could improve the current situation.  The evaluations on which a publisher relies, or does not rely, are important data that can help users and evaluators consider the quality of individual works.  Indeed, open peer review, where the reviewers are known and their assessments available, could streamline the promotion and tenure process by reducing the need to send out as many portfolios to external reviewers, since the evaluations that led to publication in the first place would be accessible.

There are many obstacles to achieving this state of affairs.  But we have Bohannon’s article to thank for helping us consider the full range of limitations that peer-reviewed journals are subject to, and for pointing us toward open access, not as the cause of the problem, but potentially as it solution.

Almost there

As I write this, the White House’s “We the People” petition on requiring online public access to scientific journal articles that arise from tax-payer funded research is nearing 21,000 signatures after only 10 days.  This is great news; since the threshold to bring this to the formal attention of White House policy makers and require a official response is 25,000 signatures in 30 days, we are really getting close. But we still need slightly more than 4,000 people to sign for this to happen; I encourage you to consider signing the petition, if you haven’t yet, and to bring it to the attention to acquaintances who might be interested.  For those who care about scientific progress, innovation, teaching and simply getting a reasonable return for the tax monies that are spent to support research, signing this petition should be an obvious step.

Public access to the results of federally-funded research is an especially appropriate issue for the White House to address in an election year, and we hope that this petition will lead to a robust discussion and concrete action.  Offering a greater return on their investment in science to taxpayers ought to play well, of course.  But so should the benefits of broadening and accelerating the audience for science, since those benefits include more innovation and jobs.

There is a nice short article about the reasons they support the petition on Wikimedia’s “News and Notes.”

To sign the petition you must create an account, which ensures fair play.  All you need is your name and an e-mail address.  Only you first name and last initial display on the petition, so there is no threat to privacy here.  This is your chance to put a very worthwhile cause over the top.

Stop the Internet, we want to get off!

It seems I spoke too soon.  Only hours after I posted on this site a comment about why the HathiTrust orphan works project should not be controversial came news that the US Authors Guild, joined by similar associations in two other countries and eight individual authors, has filed suit to enjoin Hathi from proceeding with the project and seeking to impound all seven million digital volumes held by Hathi that may still be protected by copyright.  Professor James Grimmelmann of New York Law School declares that “the Orphan Wars are upon us.”

Let’s start by being very clear about what these plaintiffs are asking.  In their complaint they list 62 works to which named plaintiffs hold copyright and also assert “associational standing” based on their representation of other unnamed copyright holders in unnamed works.  To protect those few works from distribution by Hathi, which as I far as I can tell is not actually imminent, the plaintiffs ask to impound and remove from Hathi 7 million files.  AG President Scott Turow calls Hathi “an intolerable digital risk.”  To me the real risk is that the foolish actions of Turow and his handful of followers (all but one of the plaintiffs are officers of one of the associations) will threaten the tremendous cultural potential of Hathi and similar projects simply because they are frightened of the Internet and have not yet figured out how to make money off of it.

Professor Grimmelmann has an excellent analysis of the complaint at the link above, and Kenny Crews of Columbia offers his comments here.

My own reading of the initial complaint — I doubt it is the final version — suggests a notable absence of logical argument.  The press release the plaintiffs issued yesterday was full of protests and anguish, but did little to state a real case against Hathi.  As it turns out, the complaint itself is not much clearer.

As Grimmelmann points out, one issue for the association will be standing to sue.  Assuming that plaintiffs hold valid copyrights in some works that were digitized by Google and are held in the HathiTrust, they claim to have standing to object to the digitization of their works — but Google is not named as a defendant — and to the distribution of digital files back to the universities and into the HathiTrust.  By itself, this would not, in my opinion, support an injunction; there is no sense of imminent harm.  So then the complaint makes a dramatic turn and addresses the orphan works project, claiming that it is an illegal distribution.  But they provide no evidence that any of the plaintiffs actually hold any rights in those works identified as orphans or that they represent anyone who does.  So if the whole argument is needed to justify the injunction being sought, there may be a question of whether any of these plaintiffs have standing to seek it.  They need to show an immediate prospect of particularized harm, and I don’t think they can do it.

Another place where logic fails in the complaint is when the plaintiffs try to explain why the digitization and preservation is illegal.  Early on in the document they note that “The Universities have publicly defended their unauthorized digitization activities by claiming their conduct benefits society and is permissible under the fair use doctrine set forth in section 107 of the United States Copyright Act.”   They then declare that “[t]his position is without legal support” and immediately turn to a discussion of section 108 of the copyright act.  They never again mention fair use or address it as a potential defense, although they dedicate three pages later on to an elaborate, and irrelevant, discussion of section 108, which is the section that lays out specific exceptions for library preservation and for interlibrary loan.

The argument here seems to be that section 108 fully defines what libraries can do with copyrighted work and, if it is not permitted under 108 or authorized by the rights holder it is therefore infringing.  But this is wrong; the argument is defeated by a single short phrase found in section 108 itself, at subsection (f)(4), where the law states that “Nothing in this section… in any way affects the right of fair use as provided by section 107.”  Libraries still can rely on fair use, and it is interesting that the text of the law itself calls fair use a “right,” not merely a defense.  Like it or not, the plaintiffs’ claim will have to withstand an assertion of fair use, and if they cannot address that fair use claim they are doomed, one hopes, to failure.

The fact is that the Authors Guild has not been doing very well on the litigation front recently.  Their attempt to sue Google and then settle with it in a way that would allow the monetization of orphan works has failed, and the case is currently in limbo.  It is interesting to speculate on whether or not this filing is intended in any way to influence the outcome of that case; perhaps they hope to persuade Judge Chin in that case that Google and its partners are not reliable actors to deal with the orphan works problem.  The Authors Guild was also recently dealt a setback in its long-standing Tasini litigation when another judge refused to certify a class for class action status.  Instead of becoming litigation-shy, it appears that the Authors Guild wants to raise the stakes.  At least they have not tried to bring this case as a class action as well.

The reference to how we might solve the orphan works problem in this country and elsewhere gives us a clue, I think, to what is behind this lawsuit and why it takes such an odd and twisted form.  I think what is really going on here is an attempt to forestall ANY exploitation of orphan works until and unless the industry lobbyists can convince Congress to pass legislation that allows them to make money from those works. The plaintiffs never address the defendants’ claim, to which they refer, that Hathi provides a social benefit, and I think that the point of the lawsuit is to make sure that they get paid before anyone is able to take advantage of that benefit.  I will have more to say about this possibility in my next post.

What does scholarly communications mean to you?

Recently I had a somewhat unusual question from a library student who is working in a library where part of her assignment is to look for grant funding opportunities related to developing a scholarly communications program.  After telling me that the whole concept of scholarly communications was somewhat bewildering, the student asked me what search terms I thought she should use when looking in databases of grants and funders.

The question was sufficiently off center, I think, that it forced me to reflect on the meaning of this “baggy monster” discipline from a different perspective and to formulate a fairly succinct but comprehensive reply.  Here is my answer:

“Let my answer this by suggesting four words that I would search on and, with a bit of explanation about each word, maybe give you some perspective on what scholarly communications means (in my opinion, anyway).

“Publishing” – the origin of most scholarly communications work is in trying to understand how the publishing process for scholarship is changing in the light of new technologies, and what the library role is in assisting or adapting to those changes.

“Copyright” – when some institutions talk about scholarly communications, their major need is advanced knowledge about copyright law.  This has become a problem on lots of campuses, again because of advances in technology, and it explains why so many people who are hired into scholarly communications positions (including me) are lawyers.

“Open Access” – this is the area where the seems to be the most push for change to traditional publishing models, and the place where libraries are developing lots of programs.  Libraries often administer institutional repositories, for example, which provide open access to faculty and student scholarship.  These efforts co-exist, usually, with traditional publication, and figuring out if and how scholarly publishing will transition to open access is the big issue for scholarly communications right now.  BTW, other open access projects in libraries include hosting open journal publishing platforms, administering funds to pay the article processing charges that some open access journals charge, and advocating for public access programs like the NIH’s PubMed Central requirement.

“Research process” – at its core I believe that libraries’ attention to scholarly communications means a deeper involvement with the whole research process as it occurs on our campuses, where in the past we have focused only on the output and input (published works) stages.  This means that libraries may be more involved in help to curate research data, manage versions of research output, and focus on access to the local resources of a particular campus, rather than on those published resources that are increasingly available to all without the intervention of libraries.

Looking back on what I have written, I guess I would add “technology” and “institutional repository” as search words.”

While I hope this reply was helpful to the student, I realize how incomplete and sketchy it is.  It seems like a perfect opportunity to ask others to comment. So please leave a comment and suggest other words that would be appropriate search terms and other ways to describe and discuss the ones I have mentioned.  Let’s see if this can be a useful thought experiment.

Brilliant!

Two wonderful resources for academics thinking about public access and open access came to my attention recently, and I want to share them as widely as possible.

The first is this video of a short speech given to the 40th LIBER Annual conference in Barcelona by Neelie Kroes , the European Commissioner for the Digital Agenda.  LIBER is the Association of European Research Libraries, and Ms. Kroes gave their keynote address at the end of last month.

In her four-minute speech Commissioner Kroes does two important things.  First, she succinctly states the case for public access to government-funded research, including the data that underlies research.  She provides a sterling example of a politician (she was in both the Dutch Parliament and its cabinet) who really understands the needs and difficulties of scholarly research, as well as the opportunities provided by the digital environment.  The second important part of Commissioner Kroes’ speech is her announcement that the European Commission will expand its public access mandate for funded research to include all research supported by the EC.  Time for the U.S. to follow suit, if we do not want to lose ground in innovation and economic development.

The second brilliant resource I want to point is this 12 point explanation of the relationship between Open Access and Copyright by Peter Suber.  It is an unfortunate reality of my job that I am frequently reminded about how many misconceptions regarding copyright persist amongst scholars.  Unfortunately, there are some who try to exploit the misunderstands to convince scholars that copyright is simply too complex for them to manage, and surrendering all their rights is the path of least resistance.  Professor Suber’s 12 points do a superb job of debunking some of the myths and clarifying that open access and copyright are not only perfectly compatible, but also that good copyright management can be a tremendous (and attainable) benefit to scholars.

OA policies and future directions

As we wrap up our series of blog posts on open access topics — you can see the whole category here — I want to remind readers of three points about open access at Duke and open access in general.

First, the OA policy approved by the Duke faculty last spring was primarily a unanimous vote in favor of open access in principle.  By giving the university a license to make works available in an institutional repository, the policy changes the default for scholarship at Duke to openness.  Still, it was clear from the start of the process that participation in the repository program would depend on how easy the process of getting works into DukeSpace is made.  Implementation, in this regard, is everything; adding extra work for busy faculty is a unpromising way to get buy-in to a new program.  Thus while we hope to unveil a self-deposit portal for faculty during Duke’s OA Week observances, we remain committed to using automated processes (automated, at least, from the faculty perspective) as the primary way to get content into DukeSpace.  We hope many interested parties, especially amongst the Duke faculty, will join us for a discussion of these plans on Tuesday, Oct. 19.

I love the system in place at Harvard, where much of the work of gathering and verifying citations, then clearing rights for deposit, is done by OAFs — Open Access Fellows, who are student employees.  I hope the academic world will soon see lots of OAFs (what a great acronym!) working on many campuses.

Second, the OA policy at Duke is part of a larger and multifaceted commitment to open access.  That commitment ranges from support of national legislation to work on the local repository.  It stretches back over a decade, thanks to the leadership of the Law School that Melanie Dunshee described in our previous posting.  One new development in that long-standing commitment is the announcement made last week of a COPE fund at Duke.  This is a fund designed to help authors pay article processing fees that are changed by some open access journals as a way to replace subscription income.  The COPE movement, with a brief acknowledgment of Duke’s participation, is described in this article from Inside Higher Ed.  That the movement has been slow may be true, but part of the reason for the pace is that the goals of COPE funds are really long-term.  The point is not to subsidize a particular journal or even a particular set of authors.  Rather, the goal is to create a new incentive structure to encourage journals to consider open access business models and to remove barriers that might exist for authors who want to publish in OA journals.

Finally, I want to encourage readers to look back at this site over the next few weeks for news from the Berlin 8 Open Access conference.  My colleague Paolo Mangiafico and I will be traveling to Beijing, the site of the B8 conference this year, with lots of questions about how we can cooperate internationally on open access to scholarship and how our values, goals and methods around OA are similar or different from those in other countries.  We will be reporting what we learn  in this space, with, I hope, pictures.

The movement for free access to law

By Melanie Dunshee, Assistant Dean for Library Services, Duke Law School

It is amazing to see how quickly the annual Open Access event has evolved from a one-day student event led by Students for Free Culture in 2007 to the global International Open Access Week organized by SPARC.   While the OA movement has its roots in the sciences, open access to legal materials is also a growing movement grounded on principles that open access to legal information promotes justice, transparency in government, and the rule of law.  Projects involving both primary legal materials and interpretative materials, particularly journals of legal scholarship, are growing all over the world.

Primary Legal Materials

Open access for legal materials often focuses on “primary” legal materials, such as legislation, regulations, court opinions, and treaties.  Governments have responded to advocates and interested groups to improve access to some of these materials in recent years, for example GPO’s Federal Digital System.  Open access advocates also argue for the right of non-governmental organizations, particularly non-profit groups, to have access to these materials so that they can develop systems to maximize discovery and distribution, and provide opportunities to use legal materials in new ways and across jurisdictional boundaries. Authentication and preservation of legal materials in electronic formats present critical and complex issues to solve in order that users of the information can rely on it.   Below are just a few examples of projects in this area.

- The World Legal Information Institute is an international leader in this area promoting free access to legal information and, more importantly, creating search and discovery systems to access materials made available by regional and national legal information institutes in a unified system.

- Law.Gov describes itself as “A Proposed Distributed Repository of All Primary Legal Materials of the United States” and has recently conducted workshops around the country to promote its ideas and examine the issues involved.

-Legal Information Institute (LII) housed at Cornell Law School has been providing access to legal information since the early 1990’s . “We are a not-for-profit organization that believes everyone should be able to read and understand the laws that govern them, without cost. We carry out this vision by:  Publishing law online, for free; Creating materials that help people understand law; Exploring new technologies that make it easier for people to find the law.”

-American Association of Law Libraries ELIACC This committee has been working on various projects particularly regarding state legal materials, and is currently drafting a uniform law that would serve as a model for adoption in all states, the Authentication and Preservation of State Electronic Legal Materials Act.

Legal Scholarship

Providing open access to interpretive materials about the law is in many ways similar to other disciplines, with scholarly articles as the predominant form of legal scholarship in the United States.  For instance, many law schools are using repositories to collect and provide open access to law school publications and faculty scholarship, including Duke Law Scholarship Repository launched in 2005.  However, the publication system for journals in law is quite different than other disciplines consisting primarily of student-edited journals published by law schools, making the incentives and barriers for OA somewhat different. You might think that law school published journals would be more likely to adopt OA models, but this has not yet generally been the case.

Duke Law School has been a leader in electronic publication of legal scholarship and active promotion of open access to legal information. In 1998, Duke Law made the full content of articles published in its student-edited journals freely available on the law school’s web site. The journal editorial boards were early adopters of the Open Access Law Journal Principles with a commitment to practices of free, neutral access, and requiring minimal licensing rights so that authors control further dissemination of their works.

The Durham Statement on Open Access to Legal Scholarship calls for US law schools to stop publishing their journals in print format and to rely instead on electronic publication with a commitment to keep the electronic versions available in stable, open, digital formats. A workshop at Duke Law School exploring issues and best practices for law journals to consider as they move into electronic publishing entitled Implementing the Durham Statement: Best Practices for Open Access Law Journals is scheduled during Open Access Week on October 22.

Where to be during OA week in the Research Triangle

From Rick Peterson, Deputy Directory of Duke’s Medical Center Library, comes this calendar of the events held at Duke and at UNC Chapel Hill for Open Access Week 2010:

Tuesday, 10/19 2-3:30pm Duke Breedlove Room, Perkins Library

Open Access at Duke:  Why here, why now?

Learn more about open access and how you can get more reach for your research.  Join colleagues for a short presentation and discussion about the new open access policy and support for it at Duke, and how it will impact you.

Speakers:  Paolo Mangiafico, Tim Pyatt, Kevin L. Smith, James Tuttle

Thursday, 10/21 9-11am Duke  Perkins Library, Room 217

Open Access Publishing

A panel will talk about their experiences with open access publishing and its impact on scholarly communications.

Speakers:  Melanie Dunshee, Duke Law Library; Mohamed Noor, Professor, Department of Biology; Mira Waller, Project Euclid; Bora Zivkovic, Scientific American; and Kim Steinle, Duke University Press.

Friday, 10/22 9:30 a.m. -5 p.m.  Duke Law School, Room 4047 [registration required]

Implementing the Durham Statement:  Best Practices for Open Access Law Journals

Sponsored by the Duke Law School J. Michael Goodson Law Library and the Harvard Law Library:  A Workshop aimed at student law review editors, designed to present and discuss best practices for law journals as increasing numbers move into electronic publishing.  The workshop is also open to law librarians, law review advisors, and all others interested in open access and legal publishing.  It will be webcast and promoted to all ABA-accredited law schools.  For more information and to register, please see the conference Web site: http://www.law.duke.edu/libtech/openaccess/conference2010 Registration is free, but required.

Monday, 10/18 10:30 – 12:00 a.m. in Wilson Library Pleasant’s Family Assembly Room UNC

“Visualizing Copyright: Debunking Open Access and Copyright Myths about Film and Visual Media.”

Monday, 10/18 1-2:30 p.m. in Wilson Library Pleasant’s Family Assembly Room UNC

UNC “Carolina Digital Repository: A collaborative and flexible model for the preservation of scholarly output”

Speakers: Erin O’Meara, Electronic Records Archivist, UNC and Michele Hayslett, Data Services Librarian, UNC

Tuesday 10/19 1-2:30 p.m. in 205 Undergraduate Library, UNC (for Library staff)

ISC webinar and discussion on “Broader Library Involvement in Building Programs—Librarian Training and Development” is part of a series on “Reshaping Scholarly Communications – Strengthening Programs through Collaboration” from the ARL/ACRL Institute for Scholarly Communications.  Join Library colleagues for webinar and discussion. For more information, please visit

http://www.arl.org/sc/institute/iscwebseries/index.shtml

Why Open Access is important to Duke

By Paolo Mangiafico

In the series of blog posts on open access over the past few weeks, leading up to international Open Access Week in late October, we’ve been writing about a number of different aspects of open access to scholarship, as a kind of introduction for those who may not be familiar with them. But why are we so interested in open access at Duke University? And what are we doing to promote open access here?

The key reason we’re interested in supporting more open access to scholarship is that it helps support the goals and values of universities, and Duke’s goals and values in particular. Duke’s strategic plan says that one of our key goals is to apply knowledge in the service of society. Currently, much of the knowledge produced by Duke faculty is published in venues with limited distribution and often very high subscription rates that preclude access by many who would benefit from reading it. Making the research freely available to anyone with Internet access helps to increase the potential number of readers, and opens up possibilities for more people to make use of and build on the research being done here.

We also expect to see benefits for the researchers themselves and the institution. Every author wants to be read, and hopes their work will be widely read and cited, and will be influential. Logically it makes sense, and there are a growing number of studies that indicate this, that research that is more broadly available is read more often and cited more often. So more openness helps increase the reach and impact of Duke scholarship, which not only helps contribute to the scholarly community and society overall, but also helps raise the profile of Duke scholars and Duke University.

We also recognize that the scholarly communications ecosystem is in transition, based partly on the wide availability of new technologies and partly on the changing methods and workflows of scholars, publishers, libraries, and the broader communities they serve. By supporting open access initiatives locally, we’re also contributing to more systemic changes in the scholarly communications ecosystem that may help it align better with the values of universities as noted above, and may also provide incentives for innovations that could enable new kinds of discoveries as well as help make the costs of supporting the ecosystem more sustainable. We recognize that these are things that Duke alone will not be able to change, but for broad change to happen many different actors will need to move in concert, take some risks, expend some resources, shift some incentives, realign some rewards.

We’re not just supporting open access at Duke, in other words – we’re also supporting the open access movement. At the same time we want to be cautious that any disruptions are not destructive to things that still have value, so the steps we’re taking are carefully considered, developed through discussions and collaborations with key stakeholders at Duke and our partners, and with an eye on the effects of our actions as they play out.

In an interview with opensource.com last spring (from which some of the above text is taken) I expanded on a number of these issues, and refer you to that for more discussion about why open access is important to Duke and to scholarship more broadly.

What are the things we’re doing now to help promote more open access at Duke?

A growing list with details is available at the Open Access at Duke web site but, in brief, here are the key initiatives:

- adoption of a policy that sets the default to open access for all peer-reviewed journal articles published by Duke faculty. Kevin Smith will be writing more about the policy in this space soon, and for now you can learn more from these articles from Duke Today around the time of the policy’s discussion and adoption in spring 2010.

- removing barriers to publication in open access journals by providing financial support to Duke authors through a fund aligned with the Compact for Open Access Publishing Equity (COPE). More details about Duke’s COPE program are available via this news story from earlier this week about the launch of the fund and from the Duke COPE web site.

- providing open access to legal scholarship via the Duke Law School’s Scholarship Repository, and open access journals, and advocating for new access models via the Durham Statement on Open Access to Legal Scholarship and the work of the Center for the Study of the Public Domain.  An event titled “Implementing the Durham Statement: Best Practices for Open Access Law Journals” is scheduled for Open Access Week.

- support for open access awareness and participation by the Medical School’s library guides to Open Access and  NIH Public Access policy, as well as through their organization of Open Access Week activities.

- making open access the default for theses and dissertations by Duke graduate students, via the Graduate School’s ETD program and the DukeSpace repository.

And in development are a program to support open access journals published by members of the Duke community (using the Open Journal System platform) and explorations of more open educational resources (see the discussions from the spring Center for Instructional Technology Showcase and “edupunk” Jim Groom’s blog post about Duke) as well as broader accessibility to datasets produced in Duke research.

If you’re at Duke, we hope you’ll join us at the Open Access Week events being held on campus (see the sidebar of the Open Access at Duke web site page for details) to learn more and show your support for open access, and if you’re not at Duke, look for OA week events near you, many of which are listed on the Open Access Week site.