All posts by Kevin Smith, J.D.

ACTA and the embrace of big government

October 25, 2010 Kevin Smith, J.D. 1 Comment

On October 2 the U.S Trade Representative released what has been called the final, or “nearly-final,” text of the draft Anti-Counterfeiting Trade Agreement. ACTA, as it is known, has been the subject of a good deal of controversy for several reasons. First, because much of its negotiation has been in secret. Second, because it seems like an end run around both the WIPO / WTO negotiation process for harmonized IP rights protection and around Congress, since it is billed as an “executive agreement” rather than a treaty and therefore does not need Congressional approval. Finally, rumors have flown that ACTA would force substantive and draconian changes in US law (and the laws of other countries) that would greatly increase the scope of IP protection without legislative action on those topics.

It is clear that this last draft of ACTA is substantially weaker than previous versions that have been released, and a very great deal weaker than what rumor said was contained in the earlier undisclosed drafts. Nevertheless, I still come away from a reading of this text thinking that its primary purpose is to shift lots of the costs of enforcing IP rights from the private industries that hold those rights to government agencies, funded by taxpayers. It is odd (or maybe not odd at all) that large corporations, which generally complain about excessive regulation, seem to embrace “big government” when it serves their interests at lower cost (to them).

Because it is a trade agreement not subject to Congressional oversight, ACTA is not, technically, permitted to change US law. It is billed as an agreement about enforcement of existing laws, not an attempt to enlarge the legal scope of IP rights. That claim, however, is subject to lots of skepticism. Indeed, Senator Ron Wyden of Oregon has asked the Congressional Research Service to study the current iteration of the agreement to see if and where ACTA requires commitments incompatible with US law.

One change that ACTA was rumored to contain – a “three strikes” provision that would require ISPs to disconnect users who were accused (by the content industries) of copyright infringement – is not found in this text. According to this article from Bloomberg, pressure from Google is the reason we do not have to fight off that particular bad idea. Nevertheless, there are several places, notably in the border security provisions, where this version of ACTA would appear to allow enforcement of IP regulations without judicial involvement, something that seems like a significant change in the way IP law currently works. The whole issue of how the “remedies” sections of ACTA might alter the legal landscape for US citizens is detailed in this article on “Areas where the Oct. 2, 2010 ACTA text is inconsistent with U.S. law.”

Another place where this text is not as bad as it could be is on DRM. The US did not succeed in getting its negotiating partners to agree to DMCA like provisions; no doubt the abject failure of those provisions to prevent piracy, could with their unfortunate impact on legitimate activities like teaching, contributed to this failure. Nevertheless, legal protection for of some kind for DRM systems is encouraged in this text of ACTA and DRM systems, by definition, extend a content owners control beyond what is provided for in national copyright laws.

There are several definitional problems in this final draft of ACTA. This post from TechDirt discusses one of them, the definition of “commercial scale,” the breadth of which seems to make lots of essentially private activities into criminal acts. Also, the concept of piracy, which has usually referred to large-scale commercial infringement, is defined in this text as any copying that is not authorized by the rights holder and which would be infringing under the laws of the country involved. In both these cases we see the ratcheting up of both rhetoric and actual enforcement to a level where all infringement is potentially criminal. Thus more enforcement costs can be transferred from private industry to national governments.

It remains unclear how this “final” text of ACTA will be implemented. Although no additional negotiations are scheduled, there are still significant areas of disagreement that are noted in the text. One important such area is whether or not the provisions apply only to copyright protected goods or also to patented inventions. The countries that were party to the negotiations have up to two years to “sign on” to ACTA but, in its current state, it is unclear what such signers would be agreeing to and how they could implement ACTA in the national laws. Perhaps, after all, this long and expensive process of negotiation will result in nothing more than a bargaining chip for industries to use to move enforcement costs off of their books and on to taxpayers.

Authors' Rights, Scholarly Publishing

Getting picky about the new ACS agreement

October 21, 2010 Kevin Smith, J.D. 3 Comments

Yesterday I was part of a fascinating discussion between librarians and a faculty member who has just become head of the publications board of her scholarly scientific society. She was anxious to learn from librarians about how we approaching bundling deals, pricing policies and open access. Lots of this conversation was really interesting and important for both parties, but the biggest thing I took away from the discussion was the faculty editor’s desire to convince her large commercial publisher to make open access options more available and less costly for her authors. She understood that open access would benefit those authors and increase the journals’ impact, thus helping to ensure their long-term viability. She also saw through the publisher’s hype and grasped that they were really trying to inhibit open access with their policies, not facilitate it.

It was in the context of that discussion that I finally got around to reading the new Journal Publishing Agreement from the American Chemical Society. The hype from ACS is that their new contract “expands author rights and clarifies author responsibilities.” The reality is that ACS authors will continue to be behind the curve in scholarly communications under this agreement.

I have not compared the old and new agreement closely, so I am prepared to accept that this agreement is an improvement over the old one for authors. It does outline quite clearly, in some cases, what authors can do with their own work once they cede copyright, gratis, to the ACS.

In this post on the Book of Trogool blog, Beth Brown does a nice job of explaining some of the problems with the new ACS agreement. I will amplify some of her points here and also add one very picky and lawyerly note.

Most importantly, of course, the new agreement is a complete transfer of copyright to the publisher. Sometimes authors think they might still hold copyright in earlier versions of their articles, written prior to what they submit. This is probably incorrect as a legal matter, but the ACS is taking no chances. The new agreement specifies that ACS will hold the copyright in all versions of a submitted article. As Brown indicates in her post, and our conversation with our faculty editor also proved, this is moving against the trend in most other sciences and shows why chemists will continue to be disadvantaged by their scholarly society.

Of course, if authors retain sufficient rights to disseminate their work, this problem could be alleviated. But in all three important ares, this is not the case.

First, for authors using their own work with students, that new JPA encourages use of a link to their “articles on request” service. If authors use that, their students will have access to 50 free downloads of the article and, after that, will have to pay a per-use charge. After one year the article on request link will provide free access. So there is a pretty clear attempt to generate some new income by getting students to pay for articles outside of the publisher’s subscription income stream. In fairness, however, this is the first listed method of using work with students but not the only one; authors are allowed to post their articles in secure systems for student access.

Next, distribution to colleagues is also limited, this time entirely, to the “articles on request” service described above. Thus authors essentially get 50 free “offprints.” After that someone, either the author herself or the colleague with whom she wants to share her work, must pay. This pay wall is supposed to disappear after 12 months, but by then the window for productive sharing has probably closed.

Lastly, authors’ ability to put their work into an open access repository is severely limited. It looks at first glance like authors have pretty broad permission to post their submitted version of their article, but there is a condition. Authors must get written permission from the journal editor that posting of their submitted version does not violate the policies of the particular journal. So this attempt to be clearer about author rights really hides behind the obscurity of potentially various journal demands. When we get to posting the published version, this is allowed only if the author is subject to a mandate, either from a funder or the author’s institution. These mandates can be complied with after a 12 month delay. If the mandate requires quicker access, the author is told they must pay for open access through the ACS “Author’s Choice” program.

It is interesting that this new policy actually creates an incentive for open access mandates. I’m not sure its authors were really thinking that one through; they just saw OA as a threat and moved to postpone it for 12 months, to the ultimate detriment, we can be sure, of chemistry authors and researchers. Another place the JPA authors were not paying close attention — and this is the nitpicking I promised — was in the clause on “supporting information” that accompanies an article, for which, the agreement says, the copyright transfer is non-exclusive. This is simply poor drafting, since a non-exclusive transfer is essentially an oxymoron. The agreement goes on to clarify that both the ACS and the author have full rights to exercise copyright in such material, which is more or less a “joint authorship” situation. I puzzled over this odd clause with another lawyer yesterday, and our conclusion was that the actual effect of this language, if a court had to interpret it, would probably be a transfer of copyright to the ACS and a license back to the author. But whether that licenses is itself exclusive or non-exclusive and the exact scope of it is unclear.

This new ACS agreement clearly indicates a desire to stave off open access and to control it in a way that does not threaten the traditional thinking in scholarly publishing. But as our faculty editor indicated yesterday, this traditional thinking is no longer good enough. In her field, she told us, open access journals are arising that pose serious competition to the more traditional journals that she is responsible for. She is already afraid that these OA journals will grow in success and that her journals, with their very limited OA options, will suffer. The same fear ought to grip the ACS. Sooner or later chemists will find new ways to disseminate their research, just as other scientists have already done, and ACS journals will, without further change, begin to decline. OA is a proven benefit to scientific research, and this attempt by ACS to grasp and control it so tightly might just backfire.

Open Access topics

OA policies and future directions

October 18, 2010 Kevin Smith, J.D.

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.

More follies from the permissions market

October 13, 2010 Kevin Smith, J.D.

I have noticed before that a coincidence of events often drives me to focus on a particular topic in my postings. Last week it was two very different things I read that drew me back to once again consider the inefficiencies of the permissions market for electronic course content.

The first item was an email exchange between our e-reserves staff and Professor Jehanne Gheith, director of the Duke program in International Comparative Studies. Several readings that Dr. Gheith wanted available for her students exceeded our sense of the parameters of fair use, so we attempted to purchase permission for their use. After a long delay from the Copyright Clearance Center, permission was denied and library staff informed Dr. Gheith that the readings would have to be shortened, replaced or removed. Here is Dr. Gheith’s reply, which she gave me permission to quote:

I’m actually taking a lot of these down because of the ungenerous policies of the publishers. In the long run, I think that these policies will do the publishers damage: where students might have later bought the books, they are now angry that they are not allowed to use these selections (this seems particularly crazy to me in the case of the LeFanu book which is out of print and which very few people bought anyway!)

I want to make two points in regard to the Professor’s reaction. First, the problem may not be a lack of generosity on the part of the publishers, at least in this case. The books in question were full of artworks and illustrations, and it is possible that the publishers themselves do not hold sufficient rights to license reuse. But this fact itself is one of the major reasons that academic institutions need a wider berth for fair use if education is not to be hogtied. If the “thicket” of licenses and assignments results in students not having access to resources for their education, no one is winning. Certainly artists whose works cannot be taught in classrooms around the country are as much the losers as are students.

Second, of course, is the fact that Dr. Gheith confirms what many of us have feared regarding the pressure from publishers to limit or eliminate fair use for course content in favor of a “pay per use” system. That system will not work to get content to students or money to publishers. The permissions system is too inefficient and the prices too high for it to function in the current educational climate. Professors like Jehanne Gheith will opt to reduce the content available, not because they are willing to settle for less robust pedagogy (after all, she asked students to buy the LeFanu book when it was available), but simply because neither the money nor the time to navigate the serpentine permissions system is available.

If this were not enough to remind me of the sour taste left whenever I have to try to deal with the permissions market, worse news was waiting. In a footnote to her otherwise encouraging ruling on the summary judgment motions in the publishers’ lawsuit against e-reserves at Georgia State, the judge noted that 50% of the plaintiff’s costs for the litigation were being paid by the Copyright Clearance Center (see fn 2 on page 10 of the ruling). This means that hundreds of thousands of dollars that our institutions have paid for permission to use works (often written by our own faculty members) for teaching are being used against us to try to limit our pedagogical options or reach deeper into our already depleted budgets. In spite of its claim that “CCC serves the interests of those who supply content as well as those who use it,” this little footnote should remind us that collective rights societies do not serve the interests of higher education. The small amount of money that is sometimes returned to a few academic authors is never part of the incentive that motivates them to write. And the push to get ever more fees, for which it appears the CCC will go to court if necessary, will continue to force more professors to make difficult decisions just like that made by Dr. Gheith.

Open Access topics

The movement for free access to law

October 11, 2010 Kevin Smith, J.D.

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.

Open Access topics

Where to be during OA week in the Research Triangle

October 8, 2010 Kevin Smith, J.D. 1 Comment

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

Open Access topics

Why Open Access is important to Duke

October 5, 2010 Kevin Smith, J.D.

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.

Going forward with Georgia State lawsuit

October 1, 2010 Kevin Smith, J.D. 5 Comments

Judge Orinda Evans of the Federal District Court in Atlanta issued her ruling yesterday on the cross motions for summary judgment in the copyright infringement lawsuit brought by three publishers against Georgia State University over course readings provided to students through e-reserves and the campus course management system. The text of her decision is here.

When a party moves for summary judgment, the hope, of course, is to avoid trial altogether and win your case outright on the basis of the motions and evidence submitted. I had already said that I thought neither side would succeed at that level, and I was right. But I have to admit to being surprised at how favorable the ruling issued yesterday is to Georgia State; even though the Judge clearly expects to go to trial, there is a lot in her ruling to give hope and comfort to the academic community.

For those who are keeping score, the Judge has granted the defense motion for summary judgment on two of the three claims — direct and vicarious infringement — and denied it in regard to the third claim, which is contributory infringement. The plaintiff’s motion for summary judgment has been denied in its entirety. The net result is that the case will go forward on the single issue of contributory infringement.

There are lots of complicated legal issues at work in the judges order. Many have to do with the specific way in which this case is structured to deal with the issue of sovereign immunity and the particular things that have to be proved to avoid dismissal on those grounds. But putting all of that aside for a moment, there are three points that I think are very significant and indicate how the rest of the academic community should regard this case.

First, in her discussion of the type of “indirect” copyright infringement call vicarious infringement, Judge Evans includes a substantial discussion of the economics that underlie providing course materials to students. She acknowledges statements from several faculty depositions that they would not ask students to buy the books excerpted in e-reserves if that option were not available and also that they would not use many of the readings if a licensing fee were necessary. This testimony seems to confirm the fear that a ruling against fair use would dramatically limit the course materials available to students; the upshot seems to be that a ruling against fair use would have significant negative social consequences and little real benefit for the plaintiffs. The fact that Judge Evans is engaging the issue on this pragmatic level bodes well for a decision about fair use that genuinely address the social value of the particular activity and does not simply apply a mechanical analysis.

Second, the judge seems to indicate that the plaintiff publishers have a pretty narrow window for proving infringement. They may not argue either direct or vicarious infringement, but have to focus their claims on contributory infringement. They cannot argue that contributory infringement is shown by the mere provision of systems that may be used for infringing activities; here the Judge is following the Supreme Court precedent that says that a technology does not show “culpable intent” if it is “capable of significant non-infringing uses.” Since e-reserves and course management systems clearly are capable of such uses, the Judge declines to hold that merely making those systems available renders GSU liable for contributing to copyright infringement. So the plaintiffs will have to prove “ongoing and continuous misuse of the fair use” by producing evidence of “a sufficient number of instances of infringement.” The defendants — Georgia State — will then have the burden of proving fair use as to each alleged infringement. It is worth noting that this standard of “ongoing and continuous” infringement is a specific requirement of the exception to sovereign immunity on which the plaintiff’s rely.

Finally, and this is what really caught my attention, is the ruling that the Georgia State copyright policy, which was adopted in 2009, after the case began, “on its face does not demonstrate an intent by defendants to encourage copyright infringement; in fact, it appears to be a positive step to stop copyright infringement.” Since the policy looks quite a bit like those used on many other campuses, this is good news. The case regarding contributory infringement will go forward, the Judge says, on the issue of whether the policy is implemented in a way that encourages improper application of fair use. This emphasis on the local practices rather than the policy itself will certainly make it easier for other campuses to learn from an eventual ruling and, if necessary, adjust their own implementations to meet whatever standards arise, but it decreases the likelihood that large and dramatic changes will be needed.

It is possible, of course, that this ruling on the summary judgment motions will inspire the parties, especially on the publishers’ side, to seek a settlement. I have a hard time envisioning what the grounds for such a settlement would look like, but motivated parties can often find a way forward. If, however, a trial and verdict is in the future, this order increases my confidence that the focus will be on a realistic and pragmatic evaluation of activities that, in my opinion, ought to be considered fair use. Even if the court ultimately agrees with me, we will have a lot of work to do to make sure that we understand the reasoning behind such a verdict and are able to apply it to our own institutional situations. And, of course, an appeal would probably be inevitable. But at this early stage (and it is early, even after two and a half years) it is better to have events trending in your favor than otherwise.

Open Access topics

Open Access, NIH Style

October 1, 2010 Kevin Smith, J.D. 2 Comments

From Virginia Carden, Administrative Research Librarian, Duke Medical Center Library:

The NIH Public Access Policy was conceived as a way to ensure the public’s access to published research results and increase the research impact of NIH funding. With the increasing costs of journal subscriptions, many researchers, as well as patients and members of the general public were finding it more and more difficult to have access to articles on cutting edge research in medicine and science. The Public Access policy requires that NIH research-results, funded with tax payer dollars are available to clinicians, researchers, patients, and others across the United States and the globe.

Starting April 7, 2008 all NIH-funded investigators were required to have a copy of their accepted and peer-reviewed manuscript submitted to PubMed Central, the National Library of Medicine’s full-text database. In addition, the manuscript becomes available to the public as soon as possible but no later than 12 months after the journal article is published. Duke has a website that provides more details about the policy as well as resources to help Duke authors comply with the requirements. There are now thousands of freely accessible articles in the PubMed Central database as a result of this policy.

So what is the difference between open access and public access? Public access primarily focuses on information and publications funded with tax-payers’ dollars by local, state and national government agencies. In the case of the NIH policy, only those journal articles, whose research has been funded by the government, become publicly accessible, while the rest of the content may never be freely accessible.

What next?

Now Congressional leaders, as well as librarians, scientists, and consumers are considering whether other federal agencies should follow the NIH public access model. Several bills have been introduced over the past few years along with a roundtable and hearing to explore the issues. Here are other sites you can visit to learn more about public access activities at the national level:

For more information, see the Open Access at Duke web site.

Open Access topics

Funding and Author Support for Open Access

September 27, 2010 Kevin Smith, J.D. 2 Comments

By Adonna Thompson, Assistant Director of Duke Medical Center Library for Archival Collections and Services

In a previous post we discussed the different models for open access, which provided examples of the partnerships and relationships between authors and publishers. It also touched on funding models. In this post I hope to give the reader with a more in-depth understanding of funding issues by providing links to relevant articles, websites, and additional resources.

Funding is a major issue when it comes to publishing within, and sustaining an open access model. Open access journals don’t charge subscription or access fees to users, but publishing does cost money. So, who should pay? The Compact for Open-Access Publishing Equity or COPE provides insight and a possible solution to this issue:

Josh Hadro states the problem succinctly in his Library Journal article, “Five Universities Sign Open Access Funding Compact.”

“It’s hard to bootstrap a new industry model into existence, even in the best of times. And no matter how compelling its conceptual underpinnings may be, open access publishing is subject to the same economic realities as any other kind of publishing.“

So far, it appears that the most viable and sustainable model for funding open access publishing is through institutional support. The challenge has been, and will continue to be, getting buy-in from our institutions. Though, several major research institutions and organizations have signed the compact for open-access publishing equity and this is a large step in helping to create a sustainable business model for open access.

Articles and Resources:

ARL: Reshaping Scholarly Communication

Funding Scientific Open Access

PLoS Biology – Essay: Funding the Way to Open Access

Society for Scholarly Publishing – the scholarly kitchen blog:

Why the Open Access Financial Model Will Continue to Transmogrify

PLoS Biology – Perspective Article: Institutional Open Access Funds: Now Is the Time

BioMed Central’s major funders of biomedical research