Category Archives: Authors’ Rights

Publishing ironies

Would Karl Marx have waived his copyright on principle?  I don’t know for sure, but I rather doubt it.  Marx was not entirely in sympathy with Proudhon’s famous assertion that “property is theft,” and in any case probably expected to make at least part of his living off from his intellectual property.  Nevertheless, there is something rather odd about a left-wing press asserting its own copyright to prevent the digital distribution of the Collected Works of Marx and Engels.  Marx’s interests are not being protected, of course; his works have been in the public domain for many years.  But Lawrence & Wishart Publishing wants to protect its own income from this property by asserting a copyright in new material that is contained in the volumes, including notes, introductions and original translations, and it has demanded that the Marxists Internet Archive remove digital copies of the works.

It is interesting to consider who is being hurt by the distribution and by the take down demand.  The distribution, as I say, does no harm to Marx or his descendants, since the copyright has already expired.  The party harmed, of course, is the publisher, which can continue to collect revenue from public domain works, and is entitled to enforce exclusivity if, as in this case, there is new material that is currently protected by copyright.

So we have the irony of Marxist literature being protected by that most capitalist of business structures, a monopoly, and a left-wing press asserting that monopoly to limit dissemination of Marxist ideas.

Does the take down demand harm anyone?  Much of this literature is available in other forms on the Internet, owing to its public domain status.  Potential readers will presumably be harmed, to a degree, because English versions of some more obscure works by Marx and Engels will become unavailable if the translations in the Collected Works were the first of their kind.  But I can’t help thinking that the folks who are really harmed by this decision are the contemporary scholars who contributed to the volumes published by Lawrence and Wishart.  Perhaps they thought that by contributing to a collected works project they had the opportunity to offer a definitive interpretation of some particular essay or letter.  Perhaps they hoped to make an impact on their chosen field of study.  But those opportunities are greatly reduced now.  Potential readers will find the works they are looking for in other editions that remain available in the Archive, or they will not find them at all.  They will look to other scholars to help them understand those works, scholars whose writings are more accessible.

While I cannot dispute the right of Lawrence and Wishart to demand exclusivity, it is a clear reminder about how poorly the traditional system of publishing, based on state-enforced exclusivity, serves scholars in an age when there are so many opportunities in the digital environment to reach a much larger audience.  I suspect that the price of the Collected Works set is high, and the publisher is quite obscure (a colleague here just shrugged when I mentioned the name), so its distribution will be quite limited.  It is a sad illustration of how traditional publishing that relies on subscriptions for digital material is inextricably mired in the print model, trying desperately to reproduce the scarcity of print resources in defiance of the abundance possible in the digital environment.  The losers in that effort are the scholars whose ability to impact their field is deliberately reduced by this effort — beyond their control — to preserve exclusivity and scarcity.

“Beyond their control” leads directly to the other irony from the publishing industry that I want to share in this post.  A colleague recently sent me a PDF of the preliminary program for the conference being held in Boston next month of the Society for Scholarly Publishing.  It was the description of the very first seminar that caught both her eye and mine:

Seminar 1: Open Access Mandates and Open Access “Mandates:” How Much Control Should Scholars Have over Their Work?Many universities now mandate that faculty authors deposit their work in Open Access university repositories.  Others are developing this expectation, but not yet mandating participation.  This seminar will review various mandatory and non-mandatory OA deposit policies, the implementation of different policies, and the responses of faculty members to them.  Panelists will discuss the degree to which academic institutions ought to determine the disposition of publications originating on their campus.

It is hard to believe that the SSP could print this session description with a straight face.  Surely they know that the law deliberately gives scholars a great deal of control over their work, in the form of copyright.  Scholars exercise that control in a variety of ways, including when they vote to adopt an open access policy, as many have done.  So where is the threat to scholar’s control over their own works?  Perhaps at the point where they are required to relinquish their copyright as a condition of publication.  If the SSP were really concerned about scholars having control over their own writings, the panel for this session would be discussing how to modify copyright transfer policies so that scholarly publishers would stop demanding that faculty authors give up all of their rights.

The SSP has carefully written the session description to make it sound like open access policies are imposed on faculty against their will.  But every policy I am aware of was adopted by the faculty themselves, usually after extensive discussions.  And the majority of policies have liberal waiver provisions, so that faculty who do not wish to grant a license for open access do not have to do so.  On the other hand, publishers almost never provide a similar way for authors to opt out of mandatory copyright transfer, other than paying a significant fee for an author-pays OA option, which offers authors a chance to buy what they already own.  Perhaps this concern about authorial control could be channeled into a discussion about the new models of scholarly publishing that are developing that do not require copyright transfer and that seek alternate ways to finance the improved access so many university faculties are indicating they want.

There is a lot to talk about here, especially in terms of authorial control.  Consulting the authors whose material is published in the Collected Works of Marx and Engels might have engendered discussion of a solution to the issue about the Marxists Archive other than simply demanding removal.  Maybe those authors should have resisted the demand to transfer copyright wholesale to Lawrence and Wishart in the first place. But publishers continue to think in terms of total control over the works they publish; that is the real threat to authors and that is the problem that the SSP ought to be addressing.

Attacking academic values

A new thing started happening here at Duke this week; we began getting inquiries from some faculty authors about how to obtain a formal waiver of our faculty open access policy.  We have had that policy in place for over three years, but for the first time a single publisher — the Nature Publishing Group — is telling all authors at Duke that they must obtain a waiver of the policy before their accepted articles can be published.  It is not clear why NPG suddenly requires these waivers after publishing many articles in the past three years by Duke authors, while the policy was in force and without waivers.

Indeed, the waivers are essentially meaningless because of the way Duke has implemented its open access policy.  When the policy was adopted unanimously by our Academic Council in March 2010, the statement in favor of openness was pretty clear, but so was the instruction that implementing the policy not become a burden to our faculty authors.  So throughout the ensuing years we have tried to ensure that all archiving of published work in our repository be done in compliance with any publisher policies to which our authors have agreed.  NPG allows authors to archive final submitted manuscripts after a six month delay, so that is what we would do, whether or not the author sought a policy waiver.  But suddenly that is not good enough; Nature wants a formal waiver even though it will have no practical effect.  The demand seems to be an effort to punish authors at institutions that adopt open access policies.

There are some comical aspects to this sudden requirement for waivers.  As I said, it seems to have taken NPG three years to figure out that Duke has an open access policy, even though we have made no secret of the fact.  Even more oddly, the e-mail that our faculty authors are getting from NPG lists nine schools from whose faculty such waivers are being required; apparently it was only four schools until recently.  But there are over thirty institutions with faculty-adopted OA policies in the U.S. alone.  Some of the largest schools and the oldest policies have not yet showed up on Nature’s radar; one wonders how they can be so unaware of the scholarly landscape on which their business depends.  NPG looks silly and poorly-informed, frankly, in the eyes of the academic authors I have spoken to.

In addition to making NPG look foolish, this belated demand for waivers has had positive effects for open access on our campus.  For one thing, it simply reminds our authors about the policy and gives us a chance to talk to them about it.  We explain why Nature’s demand is irrelevant and grant the waivers as a matter of course, while reminding each author that they can still voluntarily archive their work in compliance with the rights they have retained (which is the same situation as without the waiver).  I suspect that this move by NPG will actually increase the self-archiving of Nature articles in our repository.

Another effect of these new demands is that open access and the unreasonable demands of some commercial publishers has gotten back on the radar of our senior administrators.  Our policy allows the Provost to designate someone to grant waivers, and, in figuring our who that would be, we had a robust conversation that focused on how this demand is an attack on the right of our faculty to determine academic policy.

This last point is why I have moved, in the past few days, from laughing at the bumbling way NPG seems to be fighting its battle against OA policies to a sense of real outrage.  This effort to punish faculty who have voted for an internal and perfectly legal open access policy is nothing less than an attack on one of the core principles of academic freedom, faculty governance.  NPG thinks it has the right to tell faculties what policies are good for them and which are not, and to punish those who disagree.

As my sense of outrage grew, I began to explore the NPG website.  Initially I was looking to see if authors were told about the waiver requirement upfront.  As far as I can tell, they are not, in spite of rhetoric about transparency in the “information for authors” page.  The need for a waiver is not even mentioned on the  checklist that is supposed to guide authors through the publication process.  It seems that this requirement is communicated to authors only after their papers have been accepted.  I suspect that NPG is ashamed of their stratagem, and in my opinion they should be.  But as I looked at NPG policies, and especially its License to Publish, my concern for our authors grew much deeper.

Two concerns make me think that authors need to be carefully warned before they publish in an NPG journal.

First, because this contract is a license and tells authors that they retain copyright, it may give authors a false sense that they are keeping something valuable.  But a careful reading shows that the retention of copyright under this license is essentially a sham.  The license is exclusive and irrevocable, and it encompasses all of the rights granted under copyright.  It lasts for as long as copyright itself last.  In short, authors are left with nothing at all, except the limited set of rights that are granted back to authors by the agreement.  This is not much different than publishing with other journals that admit up front that they require a transfer of copyright; my concern is that this one is dressed up as a license, so authors may not realize that they are being just as completely shorn of their rights as they are by other publishers.

My bigger concern, however, is found in clause 7 of the NPG “license,” which reads in its entirety:

The Author(s) hereby waive or agree not to assert (where such waiver is not
possible at law) any and all moral rights they may now or in the future hold
in connection with the Contribution and the Supplementary Information.
I don’t think most publishers require authors to waive moral rights (I have actually added them in to a publication contract), and insisting on doing so is a serious threat to core academic values.  Moral rights are recognized by most countries of the world (including the UK, where NPG has its corporate offices) and usually include two basic rights — the right of attribution and the right to preserve the integrity of one’s work.  The United States is something of an outlier in that we do not have a formal recognition of moral rights in our copyright law, although we always assert that these values are protected by other laws.  But my point here is to wonder why NPG requires all of its authors to waive their right of attribution.  This is not an incidental matter; the clause is carefully structured to attempt to get authors even from the countries that do not allow the waiver of moral rights — they are considered that important —  still to promise not to assert those rights (whether or not that would be enforceable in those countries).  Nature actively does not want its authors to be able to insist that their names always be associated with their work.  Why?  Does NPG imagine reusing articles it is given to publish in other ways, without providing proper attribution?  If this seems like a remote possibility, it remains the only conceivable reason that NPG would insert this bizarre clause.
So this week I discovered two ways in which Nature Publishing Group is actively attacking core academic values.  First, by trying to interfere in academic policy decisions made through independent faculty governance processes.  Second, by trying to exempt themselves from the core principle of scholarship that scholars should get credit for the work they do.  Authors publish with Nature because they believe that the brand enhances their reputation.  But by giving NPG the ability to disassociate their work from their name, that value of the Nature brand is lost.  Why would any author agree to that?
Starting with those silly demands for a waiver of the open access policy, I discovered a much deeper threat being posed to our faculty authors.  With each waiver request I now have to have a conversation with all authors who publish with NPG.  I will use those conversations as an opportunity to encourage self-archiving.  But I now know that I also must warn authors that by signing the NPG license they are giving up the most precious thing they have — the right to get credit for their work.  I hope many of our authors will reconsider signing that license unaltered.  Since NPG has singled us out, I will now be singling out NPG for its especially egregious attack on fundamental academic values.

 

So what about self-archiving?

There is a persistent problem with polemics.  When writing to address someone else’s position with which one disagrees, it is easy to lose sight of the proverbial forest for the trees.

In my previous two posts, I was addressing a misunderstand that I am afraid might lead authors to be less attentive and assertive about their publication contracts than they should be.  The specific issue was whether or not it is feasible to maintain that a copyright is transferred only in a final version of a scholarly article, leaving copyright in earlier versions in the hands of the author.  I argued that this was not the case, that the distinction between versions is a construct used by publishers that has little legal meaning, and that author rights that do persist in earlier versions, as they often do, are created by the specific terms of a copyright transfer agreement (i.e., they are creatures of a license).  These points, which I believe are correct, prompted a number of people to get in touch with me, concerned about how these specific “trees” might impact the overall forest of self-archiving policies and practices.

So now I want to make several points that all address one conclusion; this argument about the nature of a copyright transfer does not necessarily have any significant impact on what we do to enhance and encourage self-archiving on our campuses.  Most of the practices I am aware of already take account of the argument I have been making, even if they are not explicit about it.

On the LibLicense list today, Professor Steven Harnad, who is a pioneer in the movement to self-archive scholarly papers, posted a 10-point strategy for accomplishing Green open access.  Essentially, he points out that a significant number of publishers (his number is 60%) allow authors to self-archive their final submitted versions of their articles, and that those who have retained this right should exercise it.  Elsevier is one such publisher, about which more later.  Harnad argues that there are other strategies available for authors whose copyright transfer agreements do not allow self-archiving of even the final manuscript.  One option is to deposit the manuscript in a repository but embargo access to it.  At least that accomplishes preservation and access to the article metadata, and it facilitates fulfillment of individual requests for a copy.  Another option is to deposit a pre-print (the version of the article before peer-review) in a pre-print repository, which is a solution that has long worked well in specific disciplines like physics and computer science.

All of these strategies are completely consistent with the point I have been making about copyright transfer agreements.  Harnad’s model recognizes that copyright is transferred (perhaps improvidently) to publishers, and is based on authors taking full advantage of the rights that are licensed back to them in that transaction.  This makes perfect sense to me and nothing I have written in my previous two posts diminishes from this strategy.

One of the questions I have received a couple of times involves campus open access policies and how they affect, or are affected by, copyright transfers.  These policies often assert a license in scholarly articles, so the question is essentially whether that license survives a transfer of copyright.

It is a basic principle of law, and common sense, that one cannot sell, or give away, more than one owns.  So if an author has granted a license to her institution before she transfers her rights to a publisher, it seems clear that the license should survive, or, to put it another way, that the rights that are transferred to the publisher are still subject to this prior license.  There was an excellent article written in 2012 by law professor Eric Priest about this situation, and his conclusion is “that permission mandates can create legally enforceable, durable nonexclusive licenses.”  The article provides an extensive analysis of the legal effect of this “Harvard-style” license, and is well worth being read in its entirety by all who are interested in the legal status of Green open access.

An additional wrinkle to the status of a prior license is provided by section 205(e) of the copyright law, which actually addresses the issue of “priority between conflicting transfer of ownership and nonexclusive license.”  This provision basically affirms what I have said above, that a license granted prior to a transfer of copyright survives the transfer and prevails over the rights now held by the transferee, IF it is evidenced by a written instrument.  Because of this provision, some schools that have a license that is created by an open access policy also get a document from the author at the time of OA deposit that affirms the existence of that license.  Such documentation helps ensure the survival of a policy-based license even after the copyright is later trnsferred to a publisher.

Even when we decide that a license for Green open access exists and has survived a copyright transfer, however, we still have a policy decision to make about how aggressively to assert that license.  Many institutional practices look to the terms of the copyright transfer and try to abide by the provisions found therein, usually relating to the version that can be used and when it can be made openly accessible.  They do this, I think, to avoid creating an uncomfortable situation for the authors.  Even if legally that license they granted would survive the transfer of rights, if a conflict with the publisher developed, the authors (whom we are, after all, trying to serve) would be in a difficult place.  So my personal preference is to conform our practice to reasonable publisher policies about self-archiving and to work with authors to get unreasonable policies changed, rather than to provoke a dispute.  But this is a policy matter for specific institutions.

Finally, I want to say a couple of things specifically about Elsevier, since it was Elsevier’s take down notices directed against author self-archiving that began this series of discussions.

Elsevier’s policies permit authors to self-archive the final manuscript version of an article but not the published version, and, as far as I know, all of its take down notices were directed against final published versions on institutional or commercial websites.  So it is true that in my opinion, based on the analysis I have presented over the past week, that Elsevier is legally justified in this take down campaign.  It may well be a stupid and self-defeating strategy — I think it is — but they have the legal right to pursue it.  Authors, however, also have the legal right, based on Elsevier’s policies that are incorporated into their copyright transfer agreements, to post an earlier version of the articles — the final author’s manuscript(s) — in place of these final published versions.  So I hope that every time a take down notice from Elsevier that is directed against the author of the work in question is received, the article that is taken down is replaced by a  final manuscript version of the same content.

As many know, Elsevier also has an foolish and offensive provision in its current copyright transfer agreement that says that authors are allowed to self-archive a final manuscript version of their article UNLESS there is an institutional mandate to do so.  As I have said before, this “you may if you don’t have to but not if you must” approach is an unjustifiable interference with academic freedom, since it is an attempt to tie faculty rights to specific policies that the faculty themselves adopt to further their own institutional and academic missions.  Elsevier should be ashamed to take this stance, and our institutions that value academic freedom should protest.  But based on what has been said above, we can also see how futile this approach really is.  If the institution has a policy-created license, that license probably survives the copyright transfer, as Eric Priest argues.  In that case, the denial of a self-archiving right only in cases where a license exists is meaningless precisely because that license does exist; authors could self-archive based on the license and do not need the grant of rights that Elsevier is petulantly withholding.  I said above that institutions should consider whether or not they want to provoke disputes by relying on the prior existence of a license to self-archive.  Elsevier, however, seems to have decided to provoke exactly that dispute with this provision, and they are even more unwise to do so since it is likely to be a losing proposition for them.

 

Setting the record straight about Elsevier

There has been a lot of attention given to the moves by publishing giant Elsevier to enforce its policy regarding authors’ rights to post his or her article on a personal website or in an institutional repository.  Since Elsevier began sending take down notices last fall, first to Academia.edu and then to individual universities, it has become well-known that authors are allowed, under their contracts with Elsevier, to post their “final submitted version,” which refers to the last version of the article, after peer-review, that is sent to the journal, but not the final published version with whatever copy-editing and formatting that the publisher has added.

This is a difficult distinction for faculty authors to understand.  My colleagues and I talk about it all the time with our faculty authors, but they persistently do not see much difference between the two versions, so they sometimes believe that there is little reason to observe the distinction.  Publishers think (or at least say publicly) that they add a lot of value to submitted manuscripts, but a great many authors do not see it that way.

Unfortunately, some of the attention that this new strategy from Elsevier has garnered has made the difficulty of explaining what is going on to faculty authors a little more difficult.  This article from The Economist Called “No Peeking…” is a case in point.  The article correctly suggests that this is going to prove a self-defeating tactic for Elsevier, whose desperation to stem the movement toward open access often leads it into foolish decisions.  The Economist, however,  misstates the copyright law in its article in a way that will unfortunately reenforce a common misconception on campuses.

Here are three sentences from The Economist article that embody the misconception I am concerned about:

Like journalists writing for a newspaper, academics submitting an article to a journal usually sign contracts which transfer copyright to the publisher…. As the University of California, Irvine, which was on the receiving end of some of the takedown notices, points out in advice to its staff, it is usually only the final version of an article, as it appears in a journal, that is covered by publisher’s copyright. There is nothing to stop scientists making earlier versions available.

The problem with the first sentence is that academic authors are really not like journalists.  Many journalists are full-time employees of their newspapers, so that their articles are owned by the newspaper from the start, as works made for hire.  On the other hand, academic authors are not employees of publishers and their writings are not work for hire.  Their rights (as well as those of some free-lance journalist) are entirely governed by the contracts they sign.  The important implication of this is that academic authors have much more control over the rights they surrender and retain than do journalists; faculty members can simply refuse to transfer copyright (because they own it unless and until it is transferred in writing) or they can negotiate the exact terms of publication, transferring or licensing some rights and holding on to others.

The bigger issue in this article, however, is in the second and third sentences quoted above, about how the copyright that is transferred to publishers only “covers” the final version of the article.  This is a common misconception that is both wrong and dangerous.  It is the same misconception that leads some people to believe that if they re-draw an illustration, chart or table from a copyrighted publication, they do not implicate copyright.  But the truth is that a copyright includes any work that is derived from the copyrighted work and is “substantially similar.”  When someone wants to use a figure from a published work, they may well be able to do so under fair use, but redrawing the figure, unless it is redrawn into something quite different (which would undermine the purpose), does not alter the copyright situation.

When we turn to the issue of article versions, the situation is the same.  Each version is a revision of the original, and the copyright is the same for all these derivatives.  When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer.  Authors are not allowed to use their post-prints because the rights in that version are not covered in the transfer; they are allowed to use post-prints only because the right to do so, in specified situations, is licensed back to them as part of the publication agreement.

Once a copyright transfer has been signed, all of the rights that the author may still have are because of specific contractual terms, which are usually contained in the transfer document itself.  In short, these agreements usually give all of the rights under copyright to the publisher and then license back very small, carefully defined slivers of those rights back to the author.  One of those slivers is often, but not always, the right to use a submitted version, or post-print, in carefully limited ways.  For example, many publishers allow posting of the submitted version only on defined websites, usually a personal site or institutional repository.  Often the contracts also allow posting of the submitted version only after some lapse of time.  These restrictions would not make sense or be enforceable IF the author retained some kind of copyright in earlier versions, as The Economist implies.  But they do not; they have only, and exactly, what the contract gives back to them.

One important lesson to be gained from this correction of the language of The Economist article is that publication contracts are extremely important.  They entirely determine what an author can do with his or her own work in the future.  For many academics, signing such agreements is a very bad idea; they should be negotiated, either to make them licenses to publish, which allows the author to retain her copyright, or to be certain that the rights that are licensed back are broad enough and flexible enough to permit the future uses the author wants.  Before the transfer, the author has a good deal of leverage to negotiate these agreements, but afterward she has very little.  So it is vital to pay attention to the agreement itself and not rely on a false sense of security based on a misconception of how copyright works.

Another point to learn from this situation is that the whole idea of article “versions” is artificial.  It has been developed primarily by publishers in order to make a claim that they add substantial value to the final published version, which may or may not be true, depending on the article and the publisher.  Another marketing advantage that publishers get from this fabricated distinction is the ability to claim that they support author rights and reuse of articles to promote better access, while still retaining the ability to slap down authors who use their own articles in ways the publishers have not pre-approved.  As my colleague Will Cross has put it, “This versioning is a creation of publishers to reenforce the sense that they are following the academic “gentleman’s agreement” that Elsevier has been breaking here.”

[Hat tip to Will Cross and to Lisa Macklin of Emory, who discussed the implications of this particular mistake with me by e-mail and provided some ideas incorporated herein. Will qualified his statement quoted above by acknowledging that pre-prints, especially, have a longer history, but the use of these distinctions as contractual dividing lines is related to recent pressures on publishing.]

Copyright roundup

I had thought that my two most recent posts reflecting on the future of research libraries would end the year for this blog.  But I find two issues have arisen that I want to comment on.  Since they both involve copyright — one is merely my observations and the other involves reporting on a recent court decision — I consider this post a year-end copyright roundup.  Yee Haw!

I have commented before about the campaign that Elsevier has undertaken to send take down notices regarding PDFs of articles they have published that are posted on Academia.edu.  At that time, I expressed the hope that the American Association of University Professors would get involved.  The AAUP has been very diligent in defending the copyright interests of faculty, correctly perceiving that rights ownership can be an issue of academic freedom.  Unfortunately, up till now, at least, this concern of the AAUP has had a huge blind spot — the threat to academic freedom that is posed when copyright is transferred to large commercial interests like Elsevier, usually gratis and on terms dictated by the assignee rather than the author, which do not share the values regarding scholarship that are held by most faculty authors and by the AAUP itself.

Now we have begun to see that this take down campaign from Elsevier has expanded, as we hear that notices to remove posted PDFs are also being sent in large numbers to universities, presumably directed at copies of articles that are posted on the individual profile or research sites of the faculty authors.  These authors clearly believe that they have the right to post these articles — probably because they correctly consider the distinction between their final submitted manuscript and the published PDF to be meaningless — and Elsevier and Elsevier’s insistence that those articles be removed is a direct attack on research sharing, the advance of scholarship and, therefore, academic freedom.  Why does the AAUP remain silent?  In the past they have implied that they did not want to interfere with authors’ decisions about where to publish.  But now we have clear evidence that many authors do not understand the rights situation and their ability to continue their research projects when they assign copyright to Elsevier.  On individual campuses we work to educate them, but we desperately need the voice, and the gravitas, of the AAUP to step in and help faculty authors understand the consequences of these publication decisions.  Thoughtless assignment of copyright is a grave threat to academic freedom, as Elseivier is working hard to demonstrate, and it is an issue that the AAUP cannot ignore without seeming to condone.

As for campus responses to these take down notices, I want to make one point.  These are not ordinary DMCA take down notices; the DMCA, and section 512 of the copyright act that it amended, pretty clearly imagine that take down notices will be sent from the rights holder to remove material posted by some third-party user of an Internet service.  They do not contemplate a situation where the actual ownership of the rights might be disputable.  But that is the case here, where the “user” who posts the PDF is the original rights holder, the author.  Elsevier is sending these notices as a putative assignee.  But we know from long experience that publishers are not good at actually completing copyright transfers, faced with publication deadlines and author disregard of the final paperwork.  So in this unique situation, we cannot be sure that Elsevier actually does hold the rights on the basis of which they are demanding takedown, and that the authors who posted the work are therefore not entitled to do so.  In this situation, simple compliance with the law demands that universities, through their DMCA agents, insist on receiving evidence of a completed copyright assignment — the law requires a written and signed instrument — before they comply with Elsevier’s take down notices.

The case I want to comment on also involves the relationship between universities and authors who hold copyright, in this case the authors of dissertations. In Andrew Diversey v. The University of New Mexico, which was before the Tenth Circuit Court of Appeals and decided on December 23, we had a direct conflict between a dissertation author and his university.  Briefly, Diversey alleged that he had a terrible time with his dissertation committee, finally sent a draft of his thesis to the Dissertation Coordinator for proofreading, and had it “confiscated” by the Graduate Studies Dean.  Subsequently, Diversey discovered that copies of his draft had been sent to ProQuest and to two UNM libraries.  The story strikes me as bizarre, especially since there is no indication that Diversey received a degree or that his dissertation won formal approval.  So it is odd that it was apparently treated as a finished product; there may be more to the story that we do not know.  But ultimately, Diversey sued the University of New Mexico for copyright infringement for copying and distributing his dissertation without authorization.  His claim was dismissed by the trial court because that court said it was filed after the statute of limitations had run out. But the Court of Appeals reinstated part of the claim, for unauthorized distribution, and sent the case back to the District Court.

The crux of the case is whether the University infringed Diversey’s by making copies and putting them in their libraries.  The Court of Appeals finds that it is at least plausible that it did.  The Court recognizes Diversey’s copyright in his dissertation, of course, and suggests that any copying or distribution without his permission, even by the University at which he was a student, is infringing.  Copies were made, according to the Court, but Diversey had notice of those copies far enough in the past that the statute of limitations had run out on his claim for unauthorized reproduction by the time it was filed.  But the Court found that Diversey only became aware of the distribution, by which it means placing copies of the dissertation in the libraries and listing them in a catalog, within the three-year limitations period, so his claim on that alleged infringement should go forward.  The Court also found that a fair use defense would not protect UNM in this set of circumstances.

To me this case is a warning to universities and schools that want to retrospectively digitize Doctoral or Masters’ theses and dissertations, and decide to skip the step of seeking permission from the authors.  It is perfectly true that libraries can distribute “lawfully made” copies under the doctrine of first sale.  But if the copies themselves were unauthorized, so too is the distribution of those copies.  In other words, if the only copy that UNM placed in its library was the one Diversey originally submitted, they could have a first-sale defense. But the University clearly made more copies, since they sent one to ProQuest and had at least two copies in their libraries.  It is the distribution of these unauthorized copies that the Court of Appeals thinks is possibly infringing.  And that situation is very similar, it seems to me, to the making of digital copies of older dissertations and placing them in an institutional repository without permission from the author.  I understand that some institutions decide that it is easier to ask forgiveness in this instance instead of permission.  But to me that attitude is disrespectful of the authors of these works.  And now we have a case that reminds us that that approach can also be expensive.

If an author discovers her dissertation in an institutional repository and is very unhappy about it, she will have three years from the time she either knew or should have known about the unauthorized copy to bring suit.  The fact that the institution might remove the copy from distribution once it learns of the objection will not protect them from such a lawsuit if the author is determined.  The expense of defending that lawsuit would be very high regardless of the outcome, and even higher if the institution loses or has to settle (which is now very likely for UNM in this case).  For these reasons, this case reinforces my long-held belief that systematic digitization of older dissertations or theses is a situation where permission is the better course, since forgiveness might be doubtful and, without it, the cost could be much too high.

Connecting the Dots

The American Association of University Professors is an important organization, and its emphasis on protection the intellectual property rights of academics is admirable.  It is precisely because their work is so important, and because they often seem to be right on the verge of connecting all of the dots related to copyright, publishing and academic freedom, that their statements sometimes frustrate me.

In November the AAUP issued a report on “Academic Freedom and Electronic Communications” that has been widely and justly praised for addressing the revolution in scholarly communications in the digital age in a comprehensive way and keeping the issue of academic freedom firmly at the center of the discussion.  As this article in Inside Higher Ed puts it, the AAUP is updating long-standing commitments in light of a “whole new world.”  For example, the AAUP has recently reaffirmed its position that the copyright in online courseware should remain in the hands of the faculty creators of those courses, a position that was also endorsed by the Duke Academic Council last week.

It is because the AAUP sees that copyright ownership is an integral part of academic freedom that I find its new report just one dot short of a complete picture.  The juxtaposition of two quotes in the Inside Higher Ed article underscores just how close the AAUP gets to seeing the core of the problem:

“While the expanding digital world has promised to make information freely accessible to a global community, commercial forces have locked up most research behind paywalls and ever-more-restrictive licensing agreements,” the report reads. “Any consideration of open access” must conform with the organization’s 1999 “Statement on Copyright,” which concluded that “”it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes.”

The AAUP wants faculty members to own their own copyrights, with which I agree.  And they recognize that commercial interests are locking up research, which is undeniable.  But two facts go unacknowledged in the report — the fact that commercial interests can lock up research only because faculty do not retain their copyrights but give them up for free to those interests and the fact that this surrender of copyright to commercial publishers is a huge threat to academic freedom.
If we needed additional evidence for this second assertion, we got it last week as the news came out (see stories here and here) that publisher Elsevier was sending “take down notices” to the Academia.edu website demanding the removal of article PDFs that the authors have posted to that site in an effort to share their research and facilitate scholarly conversation.  The move is sure to generate bad publicity for Elsevier; one commentator called it an “unforced error.”  The publishing giant just seems unable to comprehend that they depend on academic authors to give them for free the content that they then sell at a huge profit.  But don’t get me wrong; Elsevier is within its rights to do this; as the copyright owner in these articles it can allow or forbid whatever covered uses it wants, and its general copyright transfer agreement with authors does not allow those authors to post the final PDF of articles they have written.
This is precisely my point, of course — because authors have given their rights away to Elsevier, it is Elsevier and not the faculty authors who can determine the scope and depth of any subsequent scholarly discussion about the article.  Faculty options for pursuing their own work are limited by the ownership of copyright by Elsevier and other publishers.  Academic freedom suffers from this common practice of copyright transfer.
The AAUP focuses, in my opinion, on only a part of the problem, and the lesser part of it at that.  They are concerned to protect authors from claims over their work by the universities that employ them, which is a real but infrequent threat.  In the process, however, they ignore the much greater threat posed to academic freedom by the commercial interests that routinely are the recipients of uncompensated copyright transfers.  If the AAUP is really serious about a discussion of copyright ownership and its relationship to academic freedom, they need to be willing to discuss this “third rail” of that conversation, this practice of giving copyright away.  In short, open access, or, more accurately, leaving the decision about access in the hands of faculty authors, is not an optional part of the discussion.
So let’s have a discussion of open access that conforms to the AAUP’s 1999 Statement on Copyright.  But let’s be honest about “prevailing academic practice,” which has been to treat faculty members as the owners of copyright for only a very short time, after which control of the dissemination and use of scholarship has routinely been surrendered to organizations with little or no accountability to faculty members or their representatives.  Perhaps in the print age that surrender did not matter and did not impede academic freedom.  But in a digital age, when faculty have so many more opportunities to share their work and advance their own scholarship, ceding control over copyright is a big problem, with big implications for academic freedom, as the Elsevier attack on Academia.edu proves.  This is the elephant in the AAUP’s living room, and they need to address it by encouraging faculty members to retain their rights beyond initial publication.
For a moment, let’s try a thought experiment.  Suppose a new university is being founded, Innovative University.  At IU the “start from scratch” copyright policy does exactly what the AAUP fears and asserts that all faculty scholarship is work made for hire.  If, at that point, faculty authors had to go to IU to ask permission for ever use they wanted to make of their own works, that would be essentially the same situation that is in place now, once the authors have transferred copyright to the publishers.  If the university did not want a paper to be posted to Academia.edu, they could demand that the article be removed, exactly as Elsevier has been doing.  Both these scenarios are, it seems to me, equal impositions on academic freedom and both, I believe, should be the focus of attention from the AAUP.
But we can carry our thought experiment a bit further and imagine that IU would not want the burden of granting permission for every publication or re-posting.  To avoid that, they give a license to all faculty authors which allows them to post and publish their works wherever they wish and to retain the profits from those publications, if any.  The only restriction on this license is that no copyright transfer or perpetual exclusive license may be granted by the faculty member to a third party without permission.  In that imaginary situation, it seems to me that faculty authors would actually be better off than there are in the current reality, in which copyright is transferred as a whole to commercial interests.  They would have greater certainty and greater flexibility regarding use their own works than they do under the current system, and a much easier channel through which to seek any permission that would be necessary in extraordinary situations.  The University and the public would certainly be better off.  The copyright would not be held by the author, as it is not currently in nearly all cases, but it would be in the hands of an institution whose goals and values are much more aligned with scholars and scholarship than is currently the case.  In short, one can easily image a situation where the worst fears of the AAUP are realized, yet the threat to academic freedom is still less than it is when, as now, commercial interests hold copyright in academic works.
In spite of my thought experiment, I agree with the AAUP that the best alternative is for faculty to retain their copyrights in most cases, as long as they really retain them, so that they, the authors, maintain control over the future of scholarship.  That, after all, is what we mean by academic freedom, isn’t it? Instead of focusing on only one aspect of the copyright issue, a discussion led by the AAUP about IP rights and academic freedom should focus on the potential to more fully exploit copyright ownership to the benefit of its faculty owners.  That means talking about authors’ rights, publication negotiations, promotion and tenure evaluations, and even open access.

Copyright policy here and abroad

Earlier this month, Jonathon Band, who, among his other accomplishments, is the principle attorney for the U.S. Library Copyright Alliance, posted a report of a talk he gave in Seoul, South Korea at a conference on “The Creative Economy and Intellectual Property.”  In response to an invitation to talk about how U.S. copyright policy helped to foster a creative economy, Band made an interesting distinction, one that caught my attention and made me nod my head in surprised agreement.

Band’s basic distinction is this: U.S. domestic policy does help to foster a creative economy because it seeks to balance copyright protections, which do support creative pursuits, with exceptions that limit the scope of claims to copyright infringement.  These exceptions are every bit as to encourage innovation as the protections themselves are, but U.S. policy about copyright in other countries does not similarly support a creative economy.

We can identify two reasons why the U.S approach to copyright in other countries does not support creativity and innovation, based on a distinction Band makes between process and substance.

In terms of process, the U.S. foreign policy about copyright is entirely in the hands of the Executive branch of government, which is very susceptible to lobbying from the traditional content industries.  The important role that the entertainment industries play in any Presidential election is just one reason for this understandable, if unfortunate, influence on the Executive branch.  And because that branch is solely responsible for our foreign relations, we are often in the position, as Band illustrates nicely, of advocating for much stricter copyright provisions abroad than we have, or are allowed to have, at home.

Part of the reason our domestic law is more balanced is because of the role of the courts, who are much less easily influenced by lobbying and who have a great role in maintaining the copyright balance, as we have seen in the important string of fair use decisions that have been coming out of courts all over the country in recent years. But U.S. courts have no role in shaping the kinds of policies we advocate for in other nations.

On the side of substance, our copyright policy toward other countries is determined and expressed by trade representatives, whose goal, naturally, is to improve the market for U.S. products around the world.  Thus their copyright focus is on (primarily) entertainment products that already exist, and which, they believe, must be strictly protected from all kinds of unauthorized use, even if those uses would be allowed in the U.S.  So at the same time that U.S. courts are developing a broad view of fair use that supports digital innovation and new industries, our trade reps are vigorously campaigning to prevent any other nation from getting the (correct) idea that fair use is a good idea if you want to support a creative economy.

To continue this distinction a little farther, I want to look at two other items that came to my attention this week.

On the domestic front, there is this info-graphic about fair use from the Association of Research Libraries, which is a great resource for starting a conversation with academic librarians and faculty members about the space that our domestic courts are opening for innovation, scholarship and creativity with their expanding approach to fair use.  Conveying to our communities that fair use is good news from the copyright front, and that considered, responsible decisions about how to use materials in teaching and scholarship are also quite likely to be good decisions about fair use, is an important role on campus.

On the international side, consider this press release from the European Commission suggesting that open access has reached a “tipping point” in Europe.  The European Community, of course, has been a leader in promoting open access to research and scholarship.  And it is helpful to see open access as a way to simply move past the pressure that the EC and other nations receive from the U.S. to strengthen copyright protections and weaken user rights.  Open access is a way for copyright holders — remember that in spite of the rhetoric, it is authors on our campuses who are the original copyright holders in virtually all works of scholarship — to exercise their rights in ways that are most beneficial to them and to avoid many of the restrictions imposed by secondary copyright holders on access and reuse.  It allows scholars to simply ignore the attempts by industry and the U.S trade reps to ratchet copyright protections ever higher and to use their own copyrights in a way that is true to copyright’s core purposes of supporting creativity and innovation.  Indeed, by making our works of scholarship openly accessible, we provide much needed access to scholars and others, especially in the developing world, access that will be denied if those users have to rely on national policies that are shaped by pressure from the U.S.

In different ways, both the growing consensus around fair use and the open access movement are responses to the issues that Jon Band raised in his talk.  Both are supports for a creative economy.  But it is open access, where authors hold on to their copyrights in order to use their works for the best interests of themselves, their discipline and scholarship in general, that has the most potential to foster growth and innovation both here and abroad.

What I learned getting published by Taylor & Francis.

It was a rather embarrassing moment.  I was in a meeting with other copyright specialists from academic libraries when I received the email telling me that my article with Taylor & Francis had been published.  Before I could stop myself, I expressed my surprise out loud, then had to explain to my colleagues that I had just had an article published in a library science journal published by Taylor & Francis, and that I was not expecting it.  Two sources of embarrassment here.  First, especially following the resignation of the entire editorial board of a different library-related T&F journal due to their archaic authors’ rights policies, this is not a publisher with whom I would have chosen to do business or encouraged authors who consulted me to use.  Second, the fact that I was surprised by this news showed that I had been much more lax in my own decisions about publishing than I advise other academic authors to be.  It is always awkward to be caught in a “do as I say and not as I do” situation, and especially so when you have to explain it to a respected set of colleagues.

So let me explain how this happened and what lessons can be gleaned from my experience.

The story began when I gave a talk at the 2012 conference of NASIG, the North American Serials Interest Group.  Let me say at the start that no one at or representing NASIG did anything wrong in this encounter and that whatever misunderstanding or lack of information existed was entirely my fault.  NASIG provided me with an interesting and engaged audience of librarians, which was all I could ask.  In any case, I signed an agreement, as a “Vision” speaker (kind of ironic), allowing my talk to be mechanically recorded and also agreeing that a human “recorder” would write up what I said for an article for The Serials Librarian.  In due time, that reporter sent me a copy of the article and I agreed that it was a good representation of the talk I had given, ready to be published.  Not until the article was published did I realize that The Serials Librarian was a Taylor & Francis journal, and to the best of my recollection I never signed a copyright transfer agreement with T & F.  At least, I can find in my saved e-mail the agreement to publish in The Serials Librarian but not a CTA.

Again, neither NASIG nor the article author did anything wrong; they sought and obtained all the necessary authorizations from me.  It may well also be the case that the recorder who wrote up the article signed a CTA with Taylor & Francis, which she would have been entirely entitled to do.  But as I say, to the best of my knowledge I did not, and the lessons I take from this incident are premised on that recollection.

So the first lesson is obvious — be careful what you sign.  More careful than I was.  I should have determined who the publisher was and made an intentional decision before I signed that agreement about what would be done with the article that resulted from my talk.  It is quite likely that I would have agreed even after that small bit of research, since the article was actually written by someone else (as, I suppose, a derivative work from my original talk), and I had no further plans to use it in any way.  What I often tell authors is to consider the agreement they are presented with in light of their own plans and hopes for their work, and transfer or license rights in a way consistent with those plans.  If the agreements allow one to meet those goals, well and good; if they do not, negotiation is called for.  The decision should rest with the author.  In the experience I had, I did not make that decision in an informed way, and that, rather than the ultimate result, was the problem.

The second lesson from this experience is that authors choose journals, not publishers.  When I read over the agreement with NASIG, The Serials Librarian seemed like a proper venue for the article resulting from my talk, and I failed to inquire further.  Although I should have done, I did not look into the publisher’s identity because for me at that moment, as for many academic authors, it simply didn’t matter.  The first step in getting academic authors to pay attention to the rights they transfer or retain is helping them realize that not all publishers are alike in this matter, and that they do need some awareness of who is who.

Next, my little story provides an opportunity to remind readers about the issue of joint authorship.  Joint authors are very common, of course, in academia.  Once mostly found in the STM fields, digital humanities projects are now making joint authors out of folks from many different departments.  Joint authorship arises, of course, whenever two or more people each contribute original expression with the intent of creating a unified work.  In the case of my talk, my original expression was fixed in the PowerPoint slides and notes that I had made.  Recorder Susan Davis then created a derivative work from that original, adding a great deal of her own original expression.  Once I had indicated my assent to that process, she and I became joint authors.  Like all joint authors, we each hold an equal and undivided share in the copyright, and are each entitled to exercise the exclusive rights granted by copyright, subject only to a duty to account to each other for any profits (which I don’t expect, in this case).  Because of this situation, if Susan signed a copyright transfer agreement for publication of the article, she was perfectly entitled to do so.  And because of the potential that fact has to create misunderstandings and surprises for other joint authors, it illustrates how important it is in general that joint authors agree in advance, whenever possible, about how their shared work will be used, licensed and made public.

Finally there is this point — if I am correct that I never signed a copyright transfer, and assuming, for the sake of illustration, that Susan did, then Taylor and Francis and I are now joint holders of the copyright in this article.  One thing that means is that I can continue to exercise all the rights as a copyright owner — I could post the article to the web if I wanted to, for example — without consent from T & F.  So when publishers tell us that they need to be the exclusive holder of copyright in every item that they publish, it is important to realize that that may be an aspiration, but it is not a necessity.  In fact, my experience is only one of a large number of scenarios under which publishers routinely publish articles for which they are not the exclusive rights holders.  As we seek to reform the scholarly publishing system, partly by encouraging academic authors to pay better attention than I did in regard to this article, this fact is an important piece of information to remember.

 

A vexing question

I think it is time we talked about a difficult and sensitive issue.  I have been asked the question over and over again during the past few years, and I recently saw it discussed on an electronic list.  Should libraries stop buying materials from the publishers who are suing Georgia State University over electronic reserves?  Numerous librarians have asked me since the case began if they could protect the environment for research and teaching by refusing to buy materials sold by Oxford University Press, Cambridge University Press and Sage Publishing.  Another version of this question that I have also heard is whether or not libraries should try to avoid doing business with the Copyright Clearance Center, which is helping to finance the lawsuit, either by restricting e-reserves to portions within the trial court’s definition of fair use or by insisting on dealing directly with the publisher of the work, not the CCC.

I say this is a difficult and sensitive issue because any attempt to organize a movement along these lines raises worries about violations of anti-trust laws.  I have to say immediately that I am NOT an expert on anti-trust, and I frankly do not know where the boundaries lie.  I do know that organized boycotts that attempt to force prices down are problematic; anti-trust law is very concerned to protect the role of the competitive market in pricing, so organized movements to reduce prices are quite likely, I believe, to be considered “combinations in restraint of trade.”  It is less clear to me what consumers can do when they object to a business practice of a company, rather than price.  There have been apparently legal boycotts against retailers based on their labor relations practices; this article, for instance, refers to a call for such a boycott by a former Clinton administration cabinet secretary, who apparently did not get into trouble.  Where the line is between price boycotts, which I think are likely to be illegal, and permissible boycotts over business practices, I do not know.

But there is another, more fundamental reason why I do not think libraries can or should organize over this issue.  Library buying decisions are mission-driven and must be made locally.  For some schools, it may be possible to decide not to buy Oxford, Cambridge and Sage titles because of the lawsuit without compromising their mission to serve teaching and research on their campuses.  Other schools would find that to be an intolerable burden on their ability to facilitate education.  It depends on the needs of a campus and is probably a conversation that each library should have with its own community.

I want to emphasis this again.  The reason we are so disturbed by this unprecedented attack on higher education from academic publishers is precisely because it threatens to undermine our core mission.  It would be a mistake to undermine that mission ourselves just because we are so angry at those publishers.  So this is what I tell librarians who ask me this question:  If you believe you can refuse to buy from these publishers without harming your fundamental mission, or if you have the support of your faculty, then I think you have made a courageous decision that I admire.  But if you are considering a unilateral decision without consultation with the teachers, students and researchers in you own community, then I think you have more work to do.

The conversations I am advocating here could have a different effect as well.  After all, this deplorable lawsuit is not a “library problem,” it is an academic problem; an issue that needs to be addressed by the higher education community.  There were, remember, more faculty members called to testify at the trial in 2011 than there were librarians.  And it is our faculty members who supply, for free, the content that these publishers publish and the reviewing work that assures its quality. To my knowledge there is nothing in the law that prevents faculty authors from deciding to publish in and review for different publishers instead of those who are attacking basic scholarly practices.  A large group of mathematicians and others made such a pledge some time ago to withhold their scholarship and their labor from publishing giant Elsevier, a move that garnered a great deal of publicity to their complaints and made a real difference on the public policy front.  I would be delighted to see librarians and faculty authors on campuses across the US have a similar conversation about how decisions about where to publish or review get made, and whether some decisions are better for the overall scholarly environment than others.

Up the revolution?

Since I posted my thought experiment about how to create a revolution in two not-so-easy steps, several colleagues have sent me responses and additional material, and it is clear that further discussion is called for.  That is good news, as far as I am concerned.  Talking about a revolution, in the scholarly communications space, is a lot more profitable than merely complaining about the status quo.

Several commentators have suggested that the first revolutionary step I proposed, asserting institutional ownership over faculty scholarship under the work for hire doctrine and then granting back to the authors broad reuse rights, would create an outcry and be impossible to implement due to “political” opposition.  The latter point may well be true — that is why this is a thought experiment — but I am not sure that in reality the proposal would create a situation that is very different from the current state of affairs for scholarship.  Most academic authors actually hold their copyrights for a very short time — they transfer them to publishers nearly as soon as a work is complete and often retain next to nothing in terms of rights to reuse.  In practice, the situation I proposed would be more advantageous for authors, not less; authors would hold broader rights than they do now, and the copyright would be in the hands of an entity with a vested interest in seeing the reputation of the author — that specific author rather than merely a journal title — grow.

One colleague sent me a link to an article about academic ownership of copyright that is found on the AAUP website.  The article strongly asserts the need for individual ownership of academic work and asserts a “parade of horribles” that would result if institutions asserted ownership over ANY faculty work (the specific work that it mostly focuses on is syllabi).  My colleague suggested that it showed how strong opposition to such an assertion of institutional ownership would be.  But as I read the article, I found that it made such a strange argument that I doubted its ability to represent mainstream opinion amongst academic authors.

Consider two of the horrible examples offered as to what might result if universities forced faculty members to make just their syllabuses openly accessible (something many institutions already do, with an eye toward assisting students in selecting classes to take).  The authors of the AAUP article illustrated the alleged danger of having syllabi available to the public by citing a claim made by right-wing political activist Phyllis Schafly in 2007 that allegedly blamed the mass shootings that took place on the Virginia Tech campus on a “feminist professor” from the killer’s major department whose syllabus, Schafly said, illustrated how the “mixed-up kid” might have become further “confused.”  Surely this is poor argumentation — we can hardly allow nutty assertions about what takes place in college classrooms to force us into “bunker” mode,  where we hide from publicity lest someone, somewhere, calls us kookie eggheads or worse.  In fact, being more public about the scholarship that is pursued on our campuses ought to have the effect of countering the frequent claims made by pundits and the media alleging academic bias, indoctrination or just plain wackiness.

Another attempt to tar open access and institutional ownership with the brush of controversy comes much later in the essay, when the authors express doubts that the University of Colorado would have wanted copyright ownership in Ward Churchill’s controversial “little Eichmanns” essay.  The implication is that copyright ownership somehow would make Colorado even more responsible for Churchill’s views than they would already be considered, simply as his employer.  But this is not true, of course.  Many different industries, employing all kinds of authors, own copyright without being responsible for the content of the writings they own.  And a University is always going to be blamed or praised for the work of its faculty members, regardless of where the copyright in that work is held.

The real issue raised by this essay is academic freedom.  If the University of Colorado was the copyright owner in Churchill’s essay, could they have declined to allow it to be published, or even forced alterations?  Would work for hire mean that universities would have control over the content of faculty scholarship, as well as its distribution?

The first answer to this very legitimate question is that it would depend on how the work for hire assertion was managed.  The contractual relationship between a university and its faculty, for example, could not only grant broad reuse rights to the authors, it could also guarantee publication of faculty-authored publications in whatever venue the faculty member stipulated, as long as the venue met tenure or promotion requirements.  Articles that were not to be considered in the promotion and tenure process would not qualify as work for hire because they would be outside the scope of the employment.  A provision such as this would separate scholarship, in which the institution has a significant interest and for which it provides the principle incentive, from other kinds of writing.

The second answer to the worry over academic freedom is that the current system also poses threats to faculty independence and self-governance.  For over a year now, the publication contracts that faculty authors sign with journals owned by Elsevier contain provisions that condition the rights that those authors retain over their work on the nature of the policies that the faculty on a particular campus have adopted.  If your faculty policies meet with Elsevier’s approval, you are granted a moderately generous reuse right.  But if your campus policies are such that Elsevier disapproves of them, those rights are not granted.  This intentional intrusion on the right of faculty to set policies for themselves that they believe are in their own best interest and the best interests of the academy has been met with surprisingly little outcry, perhaps because it is buried in the fine print of contracts most authors never read.  But it is stark evidence that commercial interests can also pose a threat to academic freedom, especially in the digital age.

In any case, all of this concern over who owns scholarship may be unnecessary.  Another commentator on my original post about two steps to revolution made the excellent point that the first step might not be necessary.  If the goal is to cut out the commercial publishing interests that are making a mess of scholarly communications, that can be done simply by deciding that only articles (and books?) that are openly available and subject to article-level assessment techniques will be considered in the promotion and tenure process.  No change in ownership is actually needed, and this one-step solution gets us around the (manageable, nevertheless) worry over academic freedom.

Is this one-step revolution possible?  As I mentioned in the previous post, at least one university, in Liege, Belgium, has put this policy into practice.  As this translation of a memo from Rector Bernard Rentier says, at Liege,

starting October 1st, 2009 only those references introduced in ORBi [the institutional repository at Liege] will be taken into consideration as the official list of publications accompanying any curriculum vitæ in all evaluation procedures ‘in house’ (designations, promotions, grant applications, etc.)

So it seems pretty clear that such a policy is possible and practical.  But to be honest, it probably is very difficult to implement in a context where most open access opportunities exist only in the STEM disciplines.  Faculty in the humanities, especially, are likely to feel disadvantaged by any such policy.  One possible solution, of course, which is what Liege has adopted, is to make the institution’s open access repository the focus of the policy, so that articles published anywhere can be considered for promotion reviews as long as they are also in the repository.  But open access, and its role in P&T, will be easier for many to accept when the options available for OA publication in the humanities begin to catch up with those in the STEM fields.

That is why the announcement made by Amherst College earlier this week of a digital, open access press being founded in the College library to focus on peer-reviewed monographs in the humanities is so exciting (there is also a story about the project from Inside Higher Ed here).  Experiments that facilitate open access in the humanities are important as much psychologically as they are practically; they will help make more scholars more comfortable as they wean themselves from dependence on commercial publishers and “reader must pay” models.  And they will demonstrate, I hope, that open access monographs are as viable as journals.

At the end of all this, I think I want to revise my two-step revolution.  While I still think that the issue of copyright ownership deserves in-depth discussion, the two-steps that seem most important to me now are, second, that promotion and tenure processes limit themselves to consideration of openly accessible works,  And, first and foremost, that colleges and universities follow the lead Amherst, “giving light to the world,” has provided by supporting new ways in which scholarship can be produced and disseminated.