Category Archives: Authors’ Rights

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.

Wormwood gets a job

In his classic book The Screwtape Letters, C.S. Lewis imagined the correspondence between Wormwood, a young apprentice demon, and his uncle, an older and more experienced tempter named Screwtape.  Uncle Screwtape advises Wormwood on how best to corrupt human kind, and the book has become beloved as a kind of reverse moral theology.  One can learn a lot about human foibles and weaknesses by reading how Screwtape and Wormwood conspire to exploit those weaknesses and lead humans ever deeper into corruption.

But what if Wormwood took a job?  As an academic publisher?  What would Screwtape advise him to do?  How best could he sow fear, uncertainty and doubt?  How best to exploit the weaknesses and vanities of academic authors and the hand-wringing timidity of librarians?  In this vision of the correspondence between Uncle Screwtape and the newly-employed Wormwood, Amherst College Librarian Bryn Geffert imagines that they would hit upon pretty much exactly the practices we actually see today.  His reworking of The Screwtape Letters was published as an essay in Inside Higher Education, and I link to it here because it really is too good to miss — deadly accurate and very funny.

Interesting, I think, to compare the correspondence between Wormwood and Screwtape with this actual dialogue about academic publishing going on The Economist website about whether and to what degree academic publishers add value to the work they sell.  I wonder if we will see similar arguments on both sites, the fictional parady and the serious debate.

Thanks to my friend Gary Draught for pointing out Geffert’s essay on his blog about Open Access called Alpha Omega.

Saying the right things, then doing them

It is a sign of how behind I am in my reading that over lunch last week I finally got around to reading the speech/blog post by Kathleen Fitzpatrick about “Giving it Away: Sharing and the Future of Scholarly Communications.”  It is an  eloquent statement about how open access and the sharing of scholarship is really simply an extension of the core values of academia.  In the process of making that point, however, Fitzpatrick, who is Director of Scholarly Communications for the Modern Language Association, covers a lot of very practical ground, and the speech brims with passages that elegantly express what many of us wish we had said.

There are three points I want to pull out from Fitzpatrick’s talk, because they are relevant to what else I want to talk about:

First, she very neatly expresses the key point about dissemination of scholarship in a digital age when she writes that “Open access … is the cornerstone of the scholarly project: scholarship is written to be read and to influence more new writing.”  She goes on to quote the Budapest Open Access Initiative to the effect that the very old tradition of scholars sharing the fruits of their research without payment has now converged with a new technology, the Internet, to permit much greater impact at lower cost.  Access barriers that were necessary in the age of printed works simply are not needed any longer, and it is now more possible than ever to “share the learning of the rich with the poor and the poor with the rich.”

Second, Fitzpatrick makes a powerful argument that open access is not a threat to the humanities, but may be their best hope.  She directly addresses the fear of a public who are often scornful of much of humanistic scholarship, which sometimes leads scholars to think about their audience as only a select group of fellow specialists.  To this reaction she replies,

 Closing our work away from non-scholarly readers, and keeping our conversations private, might protect us from public criticism, but it can’t protect us from public apathy, a condition that is, in the current economy, far more dangerous.

Improved access and impact, in short, are  good things for both individual scholars and, ultimately, their disciplines.

Finally, Fitzpatrick also addresses the complaint that open access business models are not sustainable.  She returns, by way of a response, to the argument Larry Lessig made some time ago that in the digital age it is not content that will be marketable as such, but services created around content that will be freely available.  Since Lessig outlined this “freemium” model, its success has been underscored many times, by companies like Red Hat, Dropbox and WordPress.

This last point in particular was in my mind when I heard, shortly after reading the speech, that the MLA was planning to change its publication agreement with authors in order to allow them to retain their copyright and to self-archive their final manuscripts in open access repositories.  It is great to see the largest of scholarly societies not only say the right things, but to put the values they espouse, which are, as Fitzpatrick reminds us, the basic values of the scholarly endeavor, into practice.  According to this article about the announcement in Inside Higher Ed, the immediate response to this change from literary scholars has been very positive.  And my favorite quote from that article reinforces Fitzpatrick’s discussion of providing services rather than trying to monopolize content.  In response to fears that self-archiving would undermine journal subscriptions, the MLA’s Executive Director said this:

We believe the value of PMLA is not just the individual article, but the curation of the issue. PMLA regularly includes thematic issues or issues where articles relate to one another. While there will be value in reading individual articles, that does not replace the journal. Further, the individual articles posted elsewhere could attract interest to the journal.

The MLA’s announcement, I think, poses important propositions that the scholarly world should consider.  Time will tell how the move plays out, and, as a lawyer, I would like to see the text of the new agreement.  But at least we can consider these three positive statements, rather than their negative counterparts that we so often hear, as the foundation of conversation going forward:

  1. Open access is not only possible, but is even vitally important, in the humanities.
  2. Open access, especially in its “green” form of author self-archiving, is not a threat to scholarly societies.
  3. The value of organized publishing efforts is in the services they provide around the content, not in the content itself (which, of course, the publishers do not create).

In regard to the scholarly content created by academics, Fitzpatrick’s speech is a reminder that closed-access publishing actually diminishes the value of such works, because that value depends on more readers and greater impact.  Scholarship no one can read has no value at all, obviously.  With their new publication agreement, the MLA is launching an experiment in increasing the value of literary scholarship by returning control over it to the authors.  They, after all, are in the best position to make decisions about what forms of dissemination best serve their own interests and those of humanistic studies in general.

Lobby the White House!

Admit it.  You seldom get a chance to lobby the White House, do you?  Even if you write lots of letters on topics of public interest, most of them go to newspapers or to your local representatives.  How often do you really get to bend Barak’s ear?  Here is your chance.

The White House has a petition program.  Anyone can begin a petition, and it becomes visible and searchable on the WH site if 150 people sign it.  If 25,000 people sign a petition in 30 days, the White House pledges that that petition will be circulated to appropriate officials (no, I cannot really guarantee that the President will read it) and an official response made public.  Although 25,000 signatures does not sound too hard, most petitions do not come close.

On May 21 a petition went public that asks the White House to act to make the articles that arise from Federally-funded research — that is research you and I pay for — publicly accessible.   Here is the text of the petition:

We believe in the power of the Internet to foster innovation, research, and education. Requiring the published results of taxpayer-funded research to be posted on the Internet in human and machine readable form would provide access to patients and caregivers, students and their teachers, researchers, entrepreneurs, and other taxpayers who paid for the research. Expanding access would speed the research process and increase the return on our investment in scientific research.

The highly successful Public Access Policy of the National Institutes of Health proves that this can be done without disrupting the research process, and we urge President Obama to act now to implement open access policies for all federal agencies that fund scientific research.

As many will recall, the White House Office of Science and Technology Policy did a public request for information on this topic, its second and more detailed such request, at the end of 2011.  A report based on the responses to the RFI has been prepared and is circulating within the White House.  This petition is designed to ask the White house to act on that report, which we believe is favorable to the idea of public access.  In only two and a half days the petition has collected half of the necessary signatures, but it is important to keep the momentum going; it will be the 24,999th signature that will be hardest to get.

The technology blog Slashdot has this to say in support of the petition:

“You paid for it, you should be able to read the results of publicly funded research. The National Institutes of Health have had a very successful open access mandate requiring that the results of federally funded biomedical research be published in open access journals. Now there is a White House petition to broaden this mandate. This is a jobs issue. Startups and midsize business need access to federally funded technology research. It is a health care issue, patients and community health providers need access, not a few scientists in well funded research institutes, and even wealthy institutions like Harvard are finding the prices of proprietary journals unsustainable.”

Note that this quotation links to the Harvard Library Faculty Advisory Council’s memo to the faculty about journal pricing and suggests that the petition is one way to address the unsustainability of the current journal system.  I cannot help noting, however, that the Harvard group did not say, in that memo, that Harvard could not afford the journals; they said something more fundamental.  They said they were not getting sufficient value for the money they were spending under the current system and that their (substantial) resources could be better spent elsewhere.  This petition, like the Harvard statement, is about increasing the value, the return on investment, that the public gets from its support of scientific research.

For an entertaining argument in favor of public access, here is a fun video from Access2Research.

If you are a librarian and believe that the current system of disseminating research and scholarship is unsustainable, I hope you will read this blog post from the ACRL and consider signing this petition.

If you are a researcher and want faster, better scientific information and collaboration, I hope you will consider signing this petition.

If you signed the “Cost of Knowledge” Elsevier boycott, I hope you will consider signing this petition.

If you are a student and want to keep the costs of your education from rising even faster, I hope you will consider signing this petition.

If you are a businessman or entrepreneur and want to encourage innovation and job growth, I hope you will consider signing this petition.

If you are a taxpayer and believe you should get what you paid for, I hope you will consider signing this petition.

An extraordinary week

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

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

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

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

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

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

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

What were they thinking?

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

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

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

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

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

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

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

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

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

Grasping at straws

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

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

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

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

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

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

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

Why boycott Elsevier?

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

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

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

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

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

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

Who do you work for, faculty author?

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

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

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

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

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

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

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

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

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

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

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

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