All posts by Kevin Smith, J.D.

Open Access and Institutional Repositories, Scholarly Publishing

Yale says no to an OA flavor

The announcement this week that Yale University will no longer maintain its membership in BioMed Central is another example of the growing pains involved as scholar publishing adapts itself to new business models and forms of distribution.

BioMed Central is an open access publisher that relies on author fees and institutional memberships to pay the cost of online publishing. The resulting 180 peer-reviewed electronic journals are freely available to all users. But open access is not free, and Yale decided to withdraw its institutional membership, which covered the fees for all articles published in BioMed Central journals by Yale authors, because the price was getting too high. In one sense, this is good news for open access publishing; it means that lots of authors from this prestigious university are publishing in BioMed Central journals. Clearly quality, peer-reviewed scholarship is compatible with open access. In its response to the news from Yale, BioMed Central points out that costs have risen because the journals have grown and asserts that, on a cost-per-article basis, its journals still represent good value.

Open access based on author fees is an important aspect of the movement toward new models of scholarly publishing, but it is just one model of how OA can be accomplished. The Yale decision offers a good chance to comment on the variety of publishing models with which authors and publishers are experimenting by pointing out this article on “The Nine Flavours of Open Access Scholarship” by John Willinsky, which is itself published in an open access journal. Willinsky categorizes the various flavors (his spelling is different because he is a Canadian), including the “author fees” model and the “dual mode” model practiced by the Journal of Post Graduate Medicine, which published his article. This brief article is also a good introduction to Willinsky’s superb monograph on “The Access Principle,” where he develops the economic, social and scholarly arguments for open access and also expands his list to include ten “flavours.” Yale is not happy with the economics of one particular kind of OA (although it is keeping its membership in the Public Library of Science, another important OA publisher using author’s fees), but there are many more options to experiment with.

UPDATE — Presumably BioMed Central is feeling better these days, with the announcement (August 20) that the second largest funder of biomedical research in the US, the Howard Hughes Medical Institute, has joined BMC and will pay the costs for publishing all the research articles it funds in open access form.

Copyright Issues and Legislation, Fair Use

Taking a defense on the offensive

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Technically, copyright misuse is a defense that has been recognized in the federal courts but is not codified in our copyright law. In a misuse claim, if a copyright owner is found to be claiming more copyright protection than the law gives, that owner may be barred from enforcing any copyright protection until they stop making the exaggerated claim. Someone sued for infringement can raise the defense that the copyright owner has claimed too much and a court may find that even genuine infringement should be excused on that basis.

In a recent complaint to the Federal Trade Commission, however, a computer industry group took the copyright misuse defense and went on the offensive. The Computer & Communications Industry Association has filed a complaint with the FTC alleging that the National Football League, Major League Baseball, NBC/Universal and several other large content producers are engaging in unfair and deceptive trade practices by claiming copyright protection they are not entitled to. One example, discussed earlier on this site, is the copyright warning read on sports broadcasts that claims to prohibit “accounts and descriptions of this game” without written permission from the sports organizations. In spite of this dire warning, the NFL cannot prevent a water-cooler discussion of last night’s game; accounts and descriptions of the facts of the event are fine unless they are “substantially similar” to copyrighted expression, and even repeating the words of a broadcast description may be fair use, which, by definition, is permitted without authorization.

What the CCIA essentially is complaining about is copyright misuse – exaggerated claims designed to intimidate consumers and prevent them from doing things they are perfectly free to do under the law. On offense it is called an unfair trade practice; on defense it would be copyright misuse. But whichever side of the ball we are on, the idea that copyright claims can be overstated is important; consumers and users should understand the genuine contours of copyright protection and take full advantage of the educational and creative uses that the law does permit.

Read an Electronic Freedom Foundation blog post on the filing here.

For those who are interested, you can find the complete complain here.

Copyright in the Classroom, Open Access and Institutional Repositories

CCLearn

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The Creative Commons, the organization behind the increasingly-ubiquitous Creative Commons licenses, has recently announced the formation of a new division, CCLearn. The stated goal of CCLearn is to minimize the legal, technical and social barriers that impede the sharing and reuse of educational materials.

Towards this end, one of the activities of CCLearn will be to encourage those who create educational resources to make them available free of legal and technical barriers that discourage adaptation and creative reuse. The Creative Commons license, by which creators can waive their copyright claims as long as their works are used for non-profit educational purposes, is a major tool toward creating such “open educational resources.” So a major initiative of CCLearn will be to encourage those who create education resource to employ CC license or some similar mechanism to communicate their desire to share those resources with the educational community.

Equally important, of course, is the ability to find resources that are made openly available for educational purposes. An important aspect of CCLearn will be its Open Education Search, a tool that “aims to direct search engine traffic to the incredible diversity of OER repositories and communities.” This tool should make it much easier for faculty members to find resources they can use in their classes without having to worry about copyright concern. It is a frequent and bitter observation that our system of copyright law does not accommodate the needs of education very well, even as it relies on institutions of higher education for much of the material that populates that system. Careful attention as CCLearn develops its open education search tool is called for; it promises a system that could offer both a potential solution to some of these copyright problems and an immense resource for creative approaches to teaching.

Open Access and Institutional Repositories, Scholarly Publishing

Hybrid journals and the transition to OA

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When colleges and universities first started talking about scholarly communications over a decade ago, the context for those conversations was often the so-called “serials pricing crisis.”  Our notions about the system of scholarly communications is now considerably broader and more inclusive now, but the problem of spiraling costs for traditional material is still with us.  One of the knottiest questions is whether, and how, open access to scholarly publications might address that problem of high costs.

As many publishers develop hybrid models of journal publishing – where much of the journal content, print or digital, is still available only upon subscription but some proportion of that content is freely available online because the authors have paid a special “supply-side” fee to make their work open access – many librarians question how such supply side income will impact traditional subscription rates.  The issue of how we can transition library budgets away from a focus on subscriptions toward a dual focus, where author side fees might be underwritten by the institutions, is a trick and difficult one.  Subvention of such author fees is really a more efficient use of the money we spent to support scholarly communications, providing much greater access than institutional subscriptions can, but it is hard to see how we can move that very limit supply of dollars toward such subventions as long as subscription rates continue to climb.

The recent announcement from Oxford Press that they are adjusting the online-only subscription rates to their Oxford Open journals suggests a step forward toward making this difficult transition.  Oxford is discounting some subscriptions to reflect the income received from its “open choice” option that lets authors pay for open access.  As Heather Morrison notes in her “Imaginary Journal of Poetic Economics” blog posting, this announcement illustrates one step in the “potential positive spiral in the transition to open access.”  

Open Access and Institutional Repositories, Scholarly Publishing

Advertisements, elitism and open access

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One of the joys of blogging is the opportunity to relate issues and news items that do not seem to have an obvious connection. Here the only connection is that both involve SSRN — the Social Science Research Network, an open access depository for articles in the social sciences that is a wonderful resource on policy and legal issues.

First I came across this complaint, on a law professor’s blog, about the presence of Google advertisements in SSRN and the odd juxtapositions those ads sometimes create with the content of the paper. Specifically, Professor Leiter reports on a paper dealing sympathetically with a recent labor dispute at a university that was framed with ads for organizations that purported to help keep campuses union-free. The author was, not surprisingly, upset that his article would become the unintended vehicle for a point of view he does not support. Prof. Leiter also mention the uncomfortable relationship some ads seem to have with his own article on religion and law.

One of the realities of open access, of course, is that someone has to pay for the server space, upkeep, and the like. SSRN has a complex funding model that includes deposit fees, institutional subscriptions and — here is the rub — advertisements. Do the advantages of open access outweigh the discomfort that advertisements accompanying scholarly work can cause? I think they do, but read on.

Another recent article in SSRN broadens the question raised by these advertisements to an issue of gatekeeping and elitism. In “Evaluate me! Conflicted thoughts on gatekeeping and legal scholarships new age,” Paul Horowitz explicitly raises the question of how much open access to scholarship disrupts the traditional function of publication to certify and validate scholars and scholarship. Much open access material, of course, has already been peer-reviewed and accepted through the traditional channels of scholarship. But there is a whole new form of scholarly communications out there — informal discussion on blogs and listservs that are often the midwife of formal scholarship. Some may see this as a threat to traditional forms of evaluation and quality control; advertisements seem like a tangible reminder of that threat. But others will see informal and open web communications as a renewal of creativity and an opportunity to democratize the process of scholarship as well as its results. What do you think?

Copyright Issues and Legislation, Technologies

Friday’s bad news

UPDATE — What a difference a weekend makes! According to the Chronicle of Higher Education today (Wednesday), Senator Reid has withdrawn the proposed amendment after intense lobbying from the high ed. community. The issue, of course, has not gone away, and lawmakers seem determined to continue to pressure universities as if they were the primary source of this problem, which they are not. But at least this very bad idea has been abandoned for now.

The down side of the news on Friday was an announcement, and an urgent appeal for action, from EDUCAUSE, about the intention of Senator Harry Reid to offer an amendment to the Higher Education Reauthorization Act that would put a grossly unfair burden on a few universities to address illegal file sharing; a burden no other online service provider would share.

Senator Reid’s amendment (there is a report on it here from the Chronicle of Higher Education) would require that 25 institutions identified each year by the music industry to the Secretary of Education, based on the number of copyright infringement notices sent to those schools, adopt a “technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.” Now, everyone agrees that sharing copyright protected music and video over P2P networks is illegal and ought to be discouraged, but this amendment is clearly the wrong way to approach the problem.

First, colleges and universities are only a small part of the file-sharing problem. Even the content industries admit that nearly 3/4 of all file sharing takes place over commercial networks not affiliated with higher education. In fact, the higher education community is the only major group of online service providers that is now actively taking steps to reduce file-sharing on its networks. Why punish only those who are trying to prevent the activity and ignore the commercial providers? Why do the content industries continue to target higher ed and ignore AOL and Viacom, where the problem is much greater?

Second, the Secretary of Education is supposed to identify the 25 schools from information provided by the content industries. Thus a major financial burden could be created for institutions that have little way to anticipate being targeted or defend themselves from random selection. These notices are often inaccurate, and just counting them up and picking out the top recipients is and unfair, and unfunded, mandate that will do little to actually address the problem.

Finally, this proposal continues the trend in Congress of attempting to apply technological solutions to infringement problems. Unfortunately, every technological barrier quickly becomes a challenge that some programming whiz wants to defeat. The barriers fall as quickly as they are erected. So schools would be required to spend lots of money to implement solutions that can not realistically be expected to work for very long. These problems must be addressed with long-term market solutions, not with technological band-aids.

You can read a letter from EDUCAUSE about the proposed amendment here, and an article from Inside Higher Ed here. As the article notes, this amendment has not been offered yet, and the situation is “fluid.” So perhaps good sense will prevail on this issue, and troubling news can become an opportunity to educate our Congressman on the real facts about file sharing.

Copyright Issues and Legislation, Open Access and Institutional Repositories

Friday’s good news

Last Friday was a day of both good news and bad news for higher education on the copyright front.

On the plus side, on Friday we learned that the House of Representatives passed, late Thursday night, a Labor, Health and Human Services and Education appropriations bill that included language to make the public access policy for the National Institute of Health mandatory. What this means is that the published results of research funded by NIH grant monies would have to be made available to the public, whose tax dollars paid for the research, within one year of publication. The NIH offers the PubMed Central database for this purpose, and a small amount of research (compared to the total amount funded) has been made available under a voluntary program for the past three years. A mandatory policy will vastly increase public access to vital health information; the 12 month delay would ensure that subscriptions to the journals that publish these original articles would not be endangered.

This was only a small provision in a huge appropriations bill, but it is the first time a full branch of Congress has endorsed the principle of public access. Publishers lobbied hard against the change, for reasons that are hard to fathom (note — here is an article in which several representatives of the content industry express the reasons for their opposition), but Congress specifically passed over the opportunity to amend this provision. A similar bill, with the open access proviso, will soon be considered in the Senate. President Bush has threatened to veto the Appropriations bill because of disagreement over the amount of spending — not because of the public access rule — so it may be sometime before this mandate goes into effect. Nevertheless, a very significant first hurdle has been successfully cleared.

See a news release from the Alliance for Taxpayer Access here.

Our next post will discuss Friday’s bad news.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories

Copyright term, open access and the NIH

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As reported in the Chronicle of Higher Education last week, an Oxford graduate student in economics is soon to publish a paper arguing that the “optimal” term of copyright protection is just 14 years. This is vastly shorter than the current term of protection in the US, where the term is life of the author plus 70 years, or in nearly any other nation of the world. Although his conclusion may be too radical to be practical, Rufus Pollok’s calculations add some weight, if any was needed, to the argument that copyright protection has moved very far from its original goal of providing an incentive to authors to create and now nearly exclusively serves the economic interests of large commercial distributors.

Pollock bases some of his calculations on the argument that a shorter term becomes more desirable as technology makes reproduction and distribution easier. Nevertheless, it is interesting to note that the optimal term he arrives at – 14 years – was precisely the term provided by the first English copyright law, the 1709 Statute of Anne.

Even if the copyright term was vastly shorter than it now is, however, many of the arguments for open access to research and scholarship would remain just as strong. That there is great public benefit to wider access to cutting edge research, and great justice in providing taxpayers with no-toll access to the results of research for which they have already paid, are points that do not depend on the length of the copyright term. Even if the term were as short as Pollock proposes, more immediate public access would still be worthwhile pursuit; authors would still need to see that a right to open access deposit was included in their publication agreements and funders, especially government agencies, would still need to mandate such deposit whenever practical. But under our grossly over-extended term of protection, these needs are greatly amplified.

Congress is now considering an appropriations bill that includes funding for the National Institute of Health and, for the first time, would mandate that research funded by the NIH be deposited in the PubMed Central database within six months of publication. This language has clear the appropriations committee and will be considered on the House floor this week. Publishers have objected that this mandate might undermine copyrights, but this argument hardly seems convincing, since most publication agreements already allow authors to offer their own published work on the web. Authors must continue to read such agreements with great attention to be sure they retain this right, and Congress should not let this spurious argument prevent them from seeing the basic justice that demands passage of the NIH appropriations bill as it has come from committee.

Added note — The American Library Association has posted this Action Alert to assist those who would like to encourage Congress to support the NIH mandate.

Copyright Issues and Legislation, Fair Use

A very expensive blanket

Two weeks ago the Copyright Clearance Center announced that it would offer a “blanket” license to college and university campus for permission to copy and distribute copyright protected material to students. The license offers to replace the time-consuming struggle to get and pay for permissions with a single yearly bill. Unfortunately, the blanket licenses apparently will not cover all, or even most, of the material frequently used by college classes. Even more unfortunately, dependence on a blanket license will further discourage university faculty members from considering whether or not their use of specific material is fair use. Fair use, like many other rights granted by law, can atrophy if it is not exercised.

In his current column in the Financial Times’ “New Technology Policy Forum,” Duke Law Professor James Boyle makes this point succintly and eloquently. He explains much more clearly than I can why the price tag on such a license, regardless of its monetary cost, may be much too high. His column should be read by anyone who wonders if a blanket license might relieve the uncertainties and stresses of relying on fair use. The consequences of such a decision, Boyle suggests, might in the long run be far more harmful to higher education.

Copyright Issues and Legislation, Fair Use

New speak v. old speak

It seems to be a monthly occurrence; an editorial appears in a major news outlet advocating stricter copyright legislation and enforcement. This week it was the San Francisco Chronicle, which published on Monday an opinion piece from two attorneys who have just launched a class action lawsuit against Google over videos posted in YouTube. The acquisition of YouTube by deep-pocketed Google has clearly made it a tempting target, and class actions are notoriously lucrative, especially for the attorneys, if they can get past the formidable obstacle of class certification. Authors Louis Solomon and William Hart claim to represent the interests of “large and small copyright holders whose creative works have been posted and reposted [to YouTube] without authorization.”

Solomon and Hart make a number of conclusory statements in their editorial that deserve closer scrutiny. For one thing, they repeatedly assert that YouTube’s “very business model depend[s] on the unauthorized exploitation of copyrighted material.” They say there is “no legitimate constituency” for that business model and ask, rhetorically, what Google thought was the main source of value when they bought YouTube if not “the copyrighted works of others.” All of this ignores the large number of user-created works that are posted to YouTube with explicit permission granted by the creator/user who uploads the video. Of course YouTube depends on copyrighted works created by others, but many of those creators want to have their work available in this forum; these creators are not being exploited, they are being offered an outlet for their creativity that would not otherwise be available.

By ignoring the legitimate users of YouTube, Solomon and Hart reveal that the fundamental purpose of this lawsuit, like that filed earlier this year by Viacom against YouTube, is to undermine some settled legal principles. This kind of attack on new techonologies dates back into the 1970s, when some movies studios sued to prevent the distribution of consumer video recorders. The Supreme Court ruled that a technology could not be suppressed if it had a “substantial non-infringing use.” YouTube obviously has such uses, but the various plaintiffs are clearly hoping that our now more business-friendly federal courts will reverse or revise that standard to give content producers stricter control over technological innovation.

Another target of the lawsuit is the “safe-harbor” provision inserted into the Copyright Act in 2000 by the DMCA to protect online service providers from liability for the actions of their consumers. The content industry is hoping that the 2005 Supreme Court decision in MGM v. Grokster offers an opportunity to reverse in the courts what Congress did by legislation and force online hosts, who are easier and wealthier targets than individuals are, to assume the risks and costs for user behavior.

Finally, Solomon and Hart assert in response to an anticipated defense that “no one has a First Amendment right to infringe” copyright. This is true as far as it goes, but it overlooks the fact that some apparent infringements are immunized by law precisely because of the danger that copyright could be used to suppress legitimate and socially desirable speech. Sections 107-122 of the Copyright Act all enact “limitations on exclusive rights” designed to allow conduct that would otherwise be infringing but which Congress believed should be protected. The Supreme Court has said that “the Framers intended copyright itself to be the engine of free expression” (Harper and Row v. Nation Magazine, 471 U.S. 599 (1985), and YouTube can legitimately argue that the opportunity it offers for such expression gives it a social value that tips the copyright balance in its favor.