Category Archives: Authors’ Rights

Breaking technology

In the past few weeks I have seen several news reports and other actions that seem to form a pattern, where the traditional publishing industry has set out to break digital technologies in order to preserve their traditional business models.

Of course, the most radical effort to break the Internet so that it does not threaten the legacy content industries is the Stop Online Piracy Act, about which much has been written.  I was disheartened by the plausible suggestion that the decision to suspend the House’s hearings on SOPA last year and renew a push for it in 2012 was not due to real objections but was merely a ploy to solicit more donations from the movie and recording industries. Unfortunately, this is often the way the legislative “sausage-making” process works.  But I want to look at some other attempts to hobble digital technologies that strike closer to the publishing that is the most common form of dissemination on our campuses.

On Christmas Day the New York Times ran this story about the “tug of war” between publishers and libraries over e-books.  The writer is very sympathetic to publishers’ efforts to maintain exactly the revenue streams they have been accustomed to in the pre-digital era, but what struck me most is the language used.  Repeatedly the article talks about “inconvenience” and “friction,” stressing that “borrowing an e-book… has been too easy.”  As the author says “to keep their overall revenue from taking a hit… publishers need to reintroduce more inconvenience for the borrower.”  This librarian commentator makes the key point: it isn’t that the technology does not work, but that publishers do not want it to work as well as it does.  They want to break the technology that is available, so that user experiences are less seamless.  They only see a role for themselves if they can offer assistance overcoming inconveniences that they have introduced in the first place!  And perhaps they are right about that.

Another example of this failure to do what digital technologies allows you to do can be found in this article from the Chronicle of Higher Education, which reports on a study about textbook choices that found that e-textbooks offered little savings.  The problem, the authors acknowledge, is not the technology but “publisher pricing decisions.”  It seems we cannot really take advantage of the benefits offered by these new technologies until we free ourselves of ties to publishers who cannot imagine any other way of doing business than the way, and at the price, that it always has been done.

Last week Bloomberg News reported on a lawsuit brought by HarperCollins to prevent the publication of an apparently unauthorized e-version of a popular children’s book.  The suit will turn on the language of the contract between the author and HarperCollins, about which I cannot comment.  But it is striking to me that the publisher is not complaining about competition with their own e-version of the book because they do not offer one.  They simply want to stop anyone else from creating an e-book unless and until they figure it out (presumably when they decide how to introduce sufficient inconvenience).  They may have the legal right to do that, but they are clearly not interested in responding to consumer demand.  Indeed, it seems that the author of the book is interested in providing a digital version, but the publisher has told her that they have that right and she does not.  The lesson is that authors who do not want their readers to be burdened with artificial inconvenience should negotiate more carefully with their publishers.  It may often be in the best interests of authors to withhold the right to offer an electronic version of the work in an initial publication agreement and consider seeking another platform or publisher, one perhaps less wedded to inconvenience, for the e-book version.

This, of course, is a process increasingly familiar to academic authors.  For years scholarly authors of journal articles have engaged in a tug-of-war with publishers over how best to exploit digital technology to serve the best interests of scholars and scholarship, rather than just the profit motives of publishers.  Once again the publishing community has resorted to legislative attempts to try to dictate what scholarly authors can and cannot do with their own copyrights.  Over the holidays the “Copyright in Research Works act,” a re-tread from the last legislative session, was introduced again.  The bill would reverse public access programs like that of the National Institute of Health and make other such programs illegal, essentially telling taxpayers that they have to pay twice to see the research they have funded.  The publishers are clearly asking Congress to break the Internet legislatively so that their toll-access sites are the only source for scholarly information.

What I find most astonishing is the immediate expression of support for the bill that came from the Association of American Publishers, and this sentence in particular:

The Research Works Act will prohibit federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding.

I am stunned by the audacity of the claim that research articles are “produced” by private sector publishers!  I think the producers of these works are sitting at desks and labs scattered around my campus, and thousands of other college and university campuses.  They are not paid by publishers either to do the research or to write their articles.  And I do not believe that the journals that publish those articles actually add any copyrightable expression to what has been written and revised by our faculty members.  If they do, the scholarly authors have a right to complain, since such additions without the author’s cooperation would compromise the integrity of the scholarly record.

We cannot say it often enough.  The intellectual work for scholarly publications is done by academics, not publishers.  They own the copyright in those works up until they are asked to transfer it to the publisher as a condition of publication. And if publishers persist in interfering with that copyright ownership and insisting that scholars cannot take advantage of the tremendous opportunities that digital technologies offer, the solution is to stop giving them those copyrights.

Really, what has Princeton done?

When it was announced that the faculty at Princeton University had unanimously adopted an open access policy for scholarly articles they authored, it was great news for the open access community, but it was also the cause of some overheated rhetoric.  Since the operative language of the Princeton policy differs very little from that that was adopted at Duke back in March, 2010, this is a good opportunity to reflect on what has, and has not, been done.

In all such policies the university is given a license in the works that is prior to any copyright transfer to a publisher.  Technically, therefore, the rights that are transferred are subject to that license; hence the language of “banning” the wholesale transfer of copyright, which has received a lot of attention.  I wanted to point out, however, that this rhetoric about a “ban” did not come from Princeton itself, but from a single blogger, to whose post all the stories that use that language point.  That blogger has now changed the post, including a quote from a Princeton official saying that the faculty is not being “banned” from anything.  Even the URL has changed; the corrected version of the post is here.

The differences amongst universities regarding these policies come in implementation.  Some universities may elect to act in a way that is contrary to the terms of the publication agreements the authors enter into (by posting articles or versions of articles where the publication agreement purports not to permit the specific posting).  Doing so would seem to be legally permissible under the claim of a prior license, but it could also put the faculty members in a difficult position unless they are very careful about what they sign (as they should be but seldom are).  An alternative is for the university to exercise the license in a more nuanced way, taking into account the various publisher policies as much as possible.  That, of course, makes open access repositories much more labor-intensive and difficult, especially as publishers change their policies to try a thwart these expressions of authorial rights.  How Princeton will actually implement its policy is still an open question, since they do not yet have a repository of their own.

Earlier today I received an inquiry about the Princeton policy from a colleague at another university.  To what degree, he asked, is this similar to the university simply claiming that scholarly articles are work made for hire?  My answer, of course, was that these policies are the very opposite of an institutional claim of work for hire.  If that were done, in fact, no such license would be necessary.  But these policies are founded on faculty ownership and express the desire of a faculty, as copyright owners, to manage their rights in a more socially and personally beneficial way.  It is important to note that the open access policies now in place at a couple of dozen U.S. institutions have all been adopted by the faculties themselves; they decided to grant a non-exclusive license to the university, which, again, they could not do except as copyright owners.

Probably the most important fact about these policies, indeed, is that they represent an assertion of authorial control.  We so often hear publishers and others in the content industry talk about protecting copyright, by which they usually mean the rights they hold by assignment from a creator, that it is salutary to remind academics that they own copyright in their scholarship from the moment their original expression is fixed in tangible form.  Transferring those rights to a publisher is one option they have, and it has become a tradition.  But it is only one option, and the tradition is beginning to be questioned, as this recent article from Times Higher Education and this one from Inside Higher Ed forcibly demonstrate.

Open access policies are not, at their root, either “land grabs” by institutions or acts of defiance aimed at publishers.  They are simply a recognition of the fact that authors are the initial owners of copyright, and they express a desire by those owners to manage their rights intentionally and in a way that most clearly benefits the goals of scholarship.


An open letter to J.R. Salamanca

Dear Mr. Salamanca,

Earlier this week, only days after it filed its ill-advised lawsuit against the HathiTrust and five of Hathi’s partner universities, the Authors Guild gleefully announced that they had been able to find, with relative ease, the author of one of the books on Hathi’s initial list of orphan works.  You, of course, were that author, and the work in question was your 1958 novel The Lost Country.

It is not a comfortable position to be a pawn in a game of “gotcha,” especially when it involves litigation.  What I want to say to you is the same thing I say to faculty authors at the institution where I work: “Consider carefully where your own best interests lie, and manage your copyright to serve those interests.”

In one sense, your situation is quite unusual.  Apparently you still hold the rights in The Lost Country, perhaps because you recovered them from your publisher based on a contractual arrangement.  This was unusual in the 1950’s, when federal copyright did not attach to a work until it had been published, and it is, unfortunately, still not the case for many authors, particularly those who write academic books.  For many of them, rights must be surrendered in order to have a work published in the first place.  So you are ahead of the game in that sense; you have a chance to really manage your copyright for your own benefit.  Congratulations.

It seems clear that your book was included on the list of potential orphans in error.  Of course, inclusion on that list was precisely intended to catch such situations, so the system worked as it should.  Your book has not been included in any distribution of orphan works.  Now you have a chance to decide, however, if you would like to allow a more open distribution.

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies.  We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity.  So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work. shows only two used copies available for sale.  In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage.  It has not left the facility once since then, and our system shows no circulations in the prior decade, either.   One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard.  They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition.  The Authors Guild simply does not have the ability to create a new market for your book.  Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust.  Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books.  Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

In your own case, let’s suppose a Duke student has recently seen the Elvis Presley movie made from The Lost Country.  Intrigued, she “Googles” the book and finds that there is a copy held by our library.  But to get it she has to send a request, wait 24 hours or so, then pick it up at one of the library service desks.  Years of experience with college students suggests to me that most just won’t bother; they will move on to something newer and easier to access.  On the other hand, if  that same record that she found with her Google search also contained a link to the book through Hathi, she might read a chapter or two.  She might get hooked.  You will have found a reader.

This is what libraries do; such serendipitous discovery is what we hope for everyday, and it is why we signed up with the HathiTrust.  What Hathi offers to you is the opportunity to continue to find readers for the book on which you worked so hard.

Your “case,” if I can call it that, illustrates two things.  First, that the process of identifying orphan works in the Hathi corpus needs to be tested and refined, which Hathi is committed to doing.  Second, in the rare instance like yours where the process actually turns up an author who does still own copyright, the rational course for that author is to embrace the mission of Hathi and of libraries everywhere of connecting books with readers, and to exercise their right to make their book(s) fully viewable.  Please believe me, that is a much better option than having a book live out its term of copyright on hard-to-access shelves in high-density storage.

Careless language and poor analogies

One of Will Rogers’ best known aphorism is “I only know what I read in the papers.”  In line with Rogers’ irony, if all one knows about the Aaron Swartz case is what one reads in the blogosphere, one knows very little indeed, and much of it wrong.

Swartz has been indicted on several federal charges after allegedly physically and technologically gaining unauthorized access to the MIT network and downloading a huge number of files from JSTOR.  On that everyone agrees.  After that the claims about and arguments based on this event diverge dramatically.

Predictably, many bloggers (an example is this one from the Copyright Alliance) call these actions by Swartz “theft” or “stealing.”  As always when talking about intellectual property, these words are misapplied.  The formal definition of theft from Black’s Law Dictionary is “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.”  It should be clear from this definition why we call authorized use of intellectual property “infringement” rather than theft.  What Swartz is alleged to have done did not remove the intellectual property and showed no intent to deprive the original owner of it; he merely made, allegedly, unauthorized copies, which does not have the effect of depriving anyone else of intangible property. JSTOR was never without these files and they have, in fact, recovered the unauthorized copies.

Whenever someone uses the language of theft in reference to intellectual property, they are trying to cover the weakness of their argument, in my opinion.  Let’s just say infringement and talk about both the legitimate reasons to protect IP and the public policy that permits some unauthorized copying.

By the way, Swartz has not been charged with copyright infringement either.  The charges of wire fraud, computer fraud and illegally obtaining information from a protected computer all relate to the hacking itself, not to the downloads.

Another place where serious misrepresentations abound is when we are told (as in this post on the Scholarly Kitchen) that Swartz has “done this before” because of a previous incident where he download large numbers of documents from PACER, a database used by the federal courts.  That incident, however, involved neither illegal access nor copyright infringement.  Although PACER usually charges a fee, Swartz used a computer at a university on which access was being provided for free as an experiment.  And the materials he downloaded – documents from the federal courts – are not protected by any copyright due to section 105 of the US copyright law.  To be sure, Swartz was protesting the fees charged for access to works created at taxpayer expense for the public good, but his actions in that case have no analogy to the behavior charge in this indictment.

One place where there is significant disagreement is about Swartz’s intentions.  Many bloggers simply assume that he intended to release all of the downloaded files to the public, although Swartz claims he intended to do text-mining research with the articles.  He has done such work before, so there is some plausibility to his claim, which may explain when infringement charges have not been brought.  So turning this into a debate about the open access movement is wholly inappropriate.  It is important to recognize that the victim of these alleged crimes was not JSTOR or any of the journals it aggregates.  The victim was MIT.

However fervently one shares Swartz’s goals for greater access to legal and scholarly information and publications, the actions for which he has been charged do not serve those goals.  Quite frankly, Swartz’s actions were not radical enough, in the sense that they did not get to the root of the problem. It is clear that the system of scholarly dissemination is badly broken, and simply hacking it does not change that fact.  The real change, the real solution Swartz (apparently) seeks, will be found only when the academic authors, the original holders of copyright, stop transferring those copyrights to publishers without careful reflection and safeguards on their right to disseminate their own work widely.

What a mess!

Recently my intern Dave Hansen (another lawyer) and I have been looking at the new author self-archiving policies promulgated by the American Chemical Society and Elsevier.  It would be more accurate to say that these policies are anti-archiving; in spite of persistent rhetoric about how committed these publishers are to access to scholarship, the clear intent is to restrict and interfere with decisions faculty authors might make about how best to serve their own interests as scholars.

A comical element was introduced into our consideration early on, when we realized that the two different policies imposed directly opposite requirements for self-archiving.  The ACS only allows an author to self-archive their final manuscript if doing so is mandated by her institution, while Elsevier only allows it if it is not.  So on each campus the policies must be evaluated and one publisher or the other declared off limits.

In general these publishers’ statements about author rights are confusing and self-contradictory.  It seems clear that the intent of these statements, policies and contracts is not to clarify the authors’ obligations so much as it is to confuse and intimidate them.  At one point we asked ourselves why we were spending so much time poring over these badly drafted documents, and we realized that we were doing it because we are concerned not to let our faculty authors put themselves into difficult positions.  What is clear is that these publishers have no such concern; they are trying to make authors pawns in their effort to dictate campus policies.

We have to start our evaluation of the position that Duke authors would be in, vis-à-vis these publishers, by asking ourselves what exactly the Duke Open Access policy is.  From its inception we have maintained that it is not a mandate.  Although the policy grants Duke a license to archive the works written by its faculty, there is no requirement or assertion that it will be universally exercised.  The license is fully waivable and it was adopted with the commitment that its implementation would not involve Duke authors in conflicting obligations.  What the policy most clearly represents is a strong statement that Duke authors want to make their own works as accessible as possible to the largest number of people.

So if this is what we think our policy is, how does it interact with the crazy quilt of rules imposed by these two publishers?  Regarding the American Chemical Society, our conclusion was that Duke’s policy is simply incompatible with publication in an ACS journal.  ACS only allows an author to self-archive if there is an institutional or funder mandate that they do so, and Duke does not mandate such behavior.  ACS authors are treated here with little consideration; their right to make individual decision about their own best interests is simply not respected.  So we will communicate to our authors who write for ACS journals that they may not exercise the policy decision that they made 18 months ago because their scholarly society has told them not to.  We will ask them to make their unhappiness with this interference with their freedom to determine academic policy known to the ACS.

Elsevier presents a more difficult case.  There are multiple policy statements out there, and they are not particularly consistent.  It is also not clear which statements will actually end up incorporated in author contracts.  What is clear is that Elsevier wants to dictate what policies our faculty can and cannot adopt for itself, which certainly raises the issue of how willing authors will be to surrender the idea of academic freedom.

But our bottom line is that these statements are ineffective in changing our approach at Duke.  In a statement sent to the lib-license email list, Alicia Wise of Elsevier tried to explain the new policy by emphasizing that authors would still be able to voluntarily post their final author manuscripts. Only a “mandate” triggers the restriction on author self-posting, according to Ms. Wise.  Although there is language in some of the Elsevier documents that suggests otherwise, we are inclined to take Ms. Wise at her word.  Our policy is not a mandate, and author participation is entirely voluntary, especially since a final author’s manuscripts can only be obtain from authors on an individual “opt-in” basis.  So we do not see a conflict here with the policy our faculty has put in place.

If Elsevier disagrees with our interpretation and thinks that Duke’s policy triggers their denial of authors’ rights to our faculty, they ask us to discuss the matter with them.  This we would be happy to do, but we will do it as part of our negotiations to subscribe to their journal packages.  In her email message Ms. Wise states, somewhat out of the blue, that “author rights agreements and subscription agreements should be kept separate.”  On the contrary, we believe that subscription negotiations are the perfect time for a campus or consortium to take steps to protect its faculty and defend their right to make policy decisions for themselves.  If Elsevier wants to interfere with that right, we will address that desire at the point when we are considering investing some of the Universities’ money with them, if only to get their attention.

Open access, copyright wars and the Trojan horse

On our recent trip to Turkey, I happened to be wearing a SPARC open access t-shirt on the day we visited the site of ancient Troy, and my wife took a picture of me holding a model of the Trojan horse with the t-shirt.  How one views the Trojan horse, of course, is a matter of perspective.  To the Trojans it was a nasty trick, but to the Greeks it was a new way to gain access that had previously been denied.

I bring this up because of the coincidence with the forum on the Georgia State copyright case that was published in the Chronicle of Higher Education, also while we were in Turkey.  A number of the participants, myself included, suggest that the open access movement is the way to respond to aggressive copyright enforcement in the scholarly publishing industry.  It is worth considering the various ways in which open access is a Trojan horse solution for scholarly communications — the movement that launched a thousand journals and burnt the topless towers of Elsevier, so to speak.

Last week the Duke University Libraries announced the launch of its first library-sponsored open access journals on the Open Journal System platform.  Both of these small journals — one a long-standing publication and the other a new, international collaboration — are edited by Duke faculty members and are fully peer-reviewed.  The OJS system automates many of the administrative tasks of the journals, adding greater efficiency to the volunteer editorial labor that has always been the core of scholarly journal production.  For authors who publish in these journals, the two great difficulties in scholarly communication — copyright management and access to the greatest number of readers — are solved; authors retain their copyrights and are free to do with their articles whatever they believe serves their needs and interests best, while potential readers have unfettered access.  The Libraries bear the small cost of administering the technology as a service to Duke and to the wider community of scholars.

These journals add to a series of efforts toward open access made by the Duke Libraries and the Duke faculty.  In 2010 the faculty adopted an Open Access policy to facilitate greater “reach for their research” and to provide access to those who cannot, for various reasons, rely on the traditional model of restricted, subscription-based access.  The Libraries have been developing the DukeSpace repository in order to make the vision expressed by the faculty in that policy into a reality.  Last fall, Duke also implemented a COPE Fund (Compact for Open access Publishing Equity) designed to help authors pay article processing fees if they decide that publishing in an “author-pays” open access journal is the best choice for them.  The COPE fund is a joint project underwritten by the Libraries and the Provost’s Office; it has seen steady, but not overwhelming, requests for assistance from faculty authors.

We are proud of these initiatives at Duke, but we recognize that none of them are unique.  Many institutions are adopting some or all of the same strategies.  The point is that these efforts really do remove the conflicts about which so much has been written in the past few days (much of it by me).  Insofar as I have have suggested nightmare scenarios, open access avoids them all.  If scholarly authors insist on retaining their copyrights, even when they publish in traditional journals, the problem of having that copyright enforced against the scholars’ own interests simply does not arise.  If they retain rights to post in an open access repository, the access problems, whether they involve electronic reserves, faculty posting in a course management system, or inter-library loan, simply do not arise.  And if more scholarly articles are just published directly as open access works, either in free open access journals like the ones the Duke Libraries have just launched, or in an author-pays journal with the support of a COPE fund, these problems once again simply do not arise.

Is open access a Trojan horse?  Not really.  The Trojan horse was meant to deceive, while the open access movement has always been honest and up-front about its goals.  But it is still true that traditional publishers have proved, through a series of actions designed to increase their own revenues at the expense of higher education, to be poor stewards of the copyrights and the scholarship that we have long entrusted to them.  The metaphor of a war has, unfortunately, begun to surface in the debate.  But there are also articles like this one, in which a researcher points in a more irenic direction, suggesting that open access is the future of scholarly publishing. The variety of open access mechanisms that are being initiated now, and the yet-unknown ones that will be tried in the future, offer an opportunity to cut short the war and put the management of scholarship into the hands that can best serve the overall interests of research and teaching, those of the scholarly authors themselves.

Double talk

For almost two years now a small group of lawyers and repository managers in the U.S. have been discussing and drafting model language that libraries can use to insert in vendor contracts with publishers that will ensure the self-archiving rights of faculty at the specific institution who publish in the journals that are part of the licensed collection.  The model language, and a considerable amount of background information can be found on this blog.  A similar effort has been underway at JISC, the Joint Information Services Committee in the U.K., for which information can be found here.

Obviously these efforts have struck a nerve, because yesterday the International Association of Scientific, Technical and Medical Publishers issued a statement opposing these efforts.  The statement is a model of misdirection — affirming, in the best tradition of political double speak, exactly the values they think their opponents hold while trying to claim that it is merely the means, not the goal, that they oppose.  It is worth taking a close look at this statement.

The STM statement makes four basic points, as follows:

  1. “Conflating” authors rights with institutional content licenses would add complexity and uncertainty to the process.
  2. Publishers are already doing well in terms of responsiveness to authors and in disseminating the results of research.
  3. Scholars “value fora that provide comprehensive coverage of a discipline,” while institutions are pushing repositories in order to enhance their own reputations.
  4. The impact of institutional repositories should be the subject of objective research and assessment.

The first of these arguments is really interesting, since it is publishers own policies that have driven institutions to adopt this strategy.  Publishers often tell individual authors that they cannot accept authors’ rights addenda to individual publishing contracts because they need consistent agreements.  Yet they have never been concerned that libraries must negotiate different agreements with each publisher when they are in their vendor roles.  Now suddenly they want to avoid complexity, but only if it will serve to shut the other avenue toward authors’ rights.  Can we expect a new willingness to accommodate individual authors who seek to self-archive?  I don’t think so, especially after working with an author this week whose request to shorten the 18 month embargo imposed on self-archiving by his publisher was turned down flat.

This experience, and countless ones like it, convince me that the second point is simply not true.  Responsiveness to author needs tend to stop at precisely the point where the author wants to take advantage of the new opportunities offer by the digital environment to increase his or her impact on her field.  Impact on the field is a collective goal for publishers, but it comes right behind maximizing profit, and it does not including helping individual authors in any way that is perceived to threaten those profits.

The third point is a rather disingenuous attempt to drive a wedge between authors and the repositories on their campus, by characterizing the motives of each side so that they seem divergent.  The use of the term “institution-centric repositories,” which seemed to have been coined specially for this statement, is indicative of the desire to put authors and their institutions at odds.  In fact, authors really do want maximum impact for their work, and institutions are not just seeking a “showcase” with their repositories.  When my institution adopted an open access policy, in fact, the most compelling argument for both the faculty council and the administration turned out to be “knowledge in the service of society,” which is one of Duke’s overarching strategic emphases.  Both groups recognized that traditional toll-access publication was not serving this shared goal very well.

Finally, the impact of open access repositories has been subject to a great deal of research already.  Most of it has supported the values that are behind the effort, and these publishers don’t like such conclusions.  Thus the implication that they are the only ones capable of carrying out “objective” research and the reference to a project which is being lead by the STM Association itself.

All in all, this statement provides a model of partisan double speak, but it does little to forward the conversation.  Licensing negotiations are one of the few places where institutions wield real power, the power of the purse, in their relationship with publishers.  It is, therefore, a very appropriate venue to pursue the goals that are shared between faculty authors and their institutions.  Such negotiations may be complex, but they always have been.  What is new is that institutions are beginning to stand up for their own shared values.

There’s more to life than copyright

It is a hard lesson for me to learn, but there are other issues related to scholarly communications besides copyright.  Today’s news has focused attention on free speech issues for academics.  Now we have talked about free speech as it is impacted by copyright, and some interesting examples of how copyright can be welded to censor disfavored speech can be found here and here.  But for a moment I want to focus on another aspect of free speech and scholarly communications on campuses.

Recently there has been a lot of interest in the scope of free speech rights for professors at public universities.  In 2006 the Supreme Court handed down a decision called Garcetti v. Cabellos which held that a public employee (a District Attorney) was not entitled to First Amendment protection for his speech related to his position.  In short, he could be fired because of things he said publicly that were related to his job.  This caused a great deal of anxiety for academics at public university, since it seemed to provide a loophole to avoid the academic freedom that is so cherished, but fuzzily defined, on our campuses.

Garcetti was followed by a number of decisions that did apply its ruling to employees of public universities, which increased the concern and brought the American Association of University Professors into the discussion.  One oddity of those decisions is that the opinion in Garcetti is itself skeptical about whether the ruling should be applied to academics.

Today comes news of a decision in the Fourth Circuit Court of Appeals, reported here and here, that reverses this trend and asserts that Garcetti should not be applied to professors.  In a dispute where a tenured associate professor claims to have been denied promotion over blog posts and newspaper columns he wrote expressing conservative, Christian-oriented viewpoints, the 4th Circuit held that such speech was protected by the First Amendment and that Garcetti did not mean that an academic could be punished for unpopular speech.

It is important to realize that this case was not decided by the ruling this week; it was remanded to District Court.  The Appeals Court held that it was improper to dismiss the case because of Garcetti and the presumption that a public university professor’s speech was not protected, but the university may still be able to prove that promotion was denied for a different, acceptable reason.  Only if the professor shows that he was actually denied promotion because of what he wrote will there be a First Amendment problem.  But I want to consider a couple of interesting (I hope) questions raised by the Appeals Court’s decision.

First, if a public university professor’s speech is protected, as we always thought before Garcetti, how about his or her right NOT to speak?  The flap going on in Wisconsin over a public records request to see the e-mails of a professor who has apparently taken a political stance unpopular with the current state government raises the issue of how far free speech should go to protect the decision to not speak, or not have one’s speech disseminate beyond those for whom it was intended.

There is a fairly long history of the Supreme Court recognizing and upholding the right not to speak based on the First Amendment.  Some of these are “ventriloquism” cases, where courts have held that the state cannot put words in someone’s mouth by requiring them to say specific words, like the Pledge of Allegiance or a motto on a license plate.  But there is also jurisprudence upholding a right to decide how to distribute one’s own speech.  In fact, in Harper & Row v. Nation Enterprises the Supreme Court argued that copyright was congruent with free speech partly because it supports the right to not speak publicly until one decided to do so.  Given the strong First Amendment rights for state-employed academics affirmed by the Fourth Circuit, finding a more complete negative right to determine if, when, and where protected personal communications are published is entirely plausible.  We shall see if that reasoning has an impact in Wisconsin.

Another point that is raised by this decision on academic free speech is who it applies to.  Does it apply only to faculty, including, presumably, librarians with faculty status?  Or could it apply to librarians and other staff as well?  One of the effects of the technological revolutions we have seen lately is that many more of us – include yours truly – are able to communicate widely and advocate for policies and legal interpretations that may be controversial.  It is interesting that the professor’s scholarship that was at issue in the 4th Circuit was in non-traditional forms like blogs and newspaper columns.  The shift in scholarly communications, and libraries’ more deep involvement in scholarly communications issues, raises the question of academic freedom protections for non-faculty and the scope of free speech rights in this newly developing dialog.

Patent reform, publication and repositories

Patent reform has been percolating in Congress for quite a few years now, and I have to admit to being caught off-guard when I saw the announcement that a comprehensive reform package had passed in the U.S. Senate by an overwhelming majority.  This story about the bill (which has not been passed in the House) set off an animated discussion between David Hansen, the intern in Duke’s Scholarly Communications office this year, and me regarding the issue the article raises about creating a rush to publication and whether there was a potential impact, if the law changes in this way, on disciplinary and institutional repositories.

This post is necessarily tentative, since neither David nor I are patent experts by any means.  Any reader who can correct or clarify our tentative conclusions is welcome to do so.  But based on our initial discussions, I think we are in fact likely to see more pressure to publish quickly and that that pressure could give some repositories a more prominent role in communicating scientific research.

Two facts about the patent system and the bill in Congress are relevant here.

First, under both the current system and the proposed new one, an invention must be “novel” to receive a patent.  To show that an invention is novel, patent applicants provide a list of “prior art” that shows what their invention is based on and establishes that it represents some new idea or “creative spark.”  If the prior art anticipates the new invention too completely, such that the new twist seems obvious, that will defeat the application for a patent.  An inventor herself, however, is allowed to publish a report of her new discovery, usually in a journal article, and for a period of 1 year that publication will not count as prior art such as to render the invention non-novel. Essentially, the inventor has a one year window to file a patent application after publication of the information about her own discovery.

Second, the new system embodied in the Senate bill would change the priority for who gets the patent in a particular invention when there are rival claimants.  The current system in the U.S. awards the patent to the first person to invent the object of the application, regardless of who filed the first application.  This seems fair, of course, but it results in significant problems of proof and makes the patent application system lengthy and expensive.  The new bill would adopt the system used in most of the rest of the world, where the patent goes to the first person to file an application.

When we understand these two facts, it is easy to see why this proposed change could lead researchers to want to publish their results even more quickly.  In the past, delay did not matter as much because if I was the first to invent, I would get the patent in preference to someone who filed before me.  Under the new system, an earlier filer could defeat my patent.  If I published my results in an article, however, that article can serve as prior art that would defeat the other claimant’s application.  It would not be prior art for the purpose of my application, however, as long as I filed within one year.  Thus there could be pressure to publish articles “defensively,” to undermine any applications that beat my own to the Patent Office mailbox.

Also, because of the way academic rewards are structured, academic inventors often want to publish articles about their research even before the invention is finalized in a way that justifies a patent application.  That one year window for inventor-authors has served this perceived need to get a peer-reviewed, tenure-supporting article into print even before the application was filed.  Under a “first to file” system, however, the whole process may get telescoped.  Since the filing date would matter, researchers might want to publish more quickly and file more quickly in order, again, to defend against another claimant who might also be planning to file.

Assuming there is this added pressure to publish quickly when a patent application is in the offing, disciplinary and institutional repositories may have an important role to play.  Researchers already complain that the process of publishing in a journal takes too long, so that publications are really just a formal record of research that is often 6 months to a year out-of-date.  The added pressure of defending against a rival patent application would seem to make this delay even less acceptable.  Pre-print repositories may be the solution, where a record of research can be “published” such as to serve as prior art to defeat anyone else’s patent application while waiting for the formal process of journal publication to proceed.  Since even reports in a single printed dissertation have been held to be prior art for this purpose, I have no doubt that a pre-print in ArXive or some other disciplinary repository would also serve the purpose, as would institutionally-managed repositories.

If the patent law changes and researchers really do start to feel this added pressure, librarians may serve an important role in directing them to appropriate institutional or disciplinary repositories where their pre-prints can “hit the streets” as quickly as possible.  And repository managers will need to be sure that they can turn these deposits around in a way that helps our researchers protect their rights.

What’s Arnold Schwarzenegger got to do with copyright?

I can’t ignore termination any longer!  This is a copyright subject that has significant implications for academic authors, so it needs to be discussed in this space.  But until this week I have not been sure what to say or how to say it.  Fortunately I can now point readers to some entertaining explanations of the “termination right” (which sounds like something out of a sci fi film noir).

Basically, the termination right is a mechanism built into to copyright that gives an original copyright owner a chance to reclaim their rights after something less than half the duration of copyright.  It is intended to reward creators who trade the rights away relatively cheaply and later discover that they are more valuable than anyone expected.

The termination right is found in section 203 of the Copyright Act and applies to all copyrights except those in works made for hire.  It allows an author who transfers her rights or grants an exclusive license to reclaim those rights after 35 years.  For the vast majority of copyrights this will not be very important, since few works retain any value at all after that length of time (which is why the life plus 70 term of copyright is so foolish).  But there may be academic works written by faculty at our institutions that are still valuable, if not profitable; academic works retain research and historical value long past their period of economic profitability.  The termination right is a chance for academic authors to reclaim their rights and consider new ways of making their scholarship available to a broader audience, especially in a time when so many institutions offer an open access repository.

Now is the time to think about termination because works granted copyright under the 1976 act are just now starting to be eligible for termination.  Do you have a senior faculty member whose classic work of scholarship has been out-of-print for a while but would be a jewel in your repository?  This is the moment to discuss termination (of the copyright!) with that author.

The window for termination is defined in a rather complex fashion, but it is nicely (and humorously) explained in this column by copyright and higher education attorney Zick Rubin, “Ill Be Back (in 35 years)”: The Author as (Copyright) Terminator.  Rubin focuses on still-viable textbooks, but termination may be a bonus for authors of out-of-print but still in-copyright monographs as well.

For other formats, termination can be just as important.  Consider this column from Variety about the termination of transfer of music copyright, which is one place where the purpose of termination – to give back to the original creator the chance to capture profits – seems especially likely to succeed.

Readers of both documents will note the theme of 1970’s nostalgia running throughout.  So just to vary the cultural references, I will also point to this news report of a court case over Betty Boop, the 1930’s cartoon icon.  The effort by the family of Betty Boop’s creator Max Fleischer to recover the ongoing value of Betty was not brought under the termination provisions, of course, and it was not successful.  But it still illustrates the problem termination is intended to solve, and it makes reference to other cartoon figures – Spiderman, the Fantastic Four and others – where termination is precisely the tool for copyright reclamation  under discussion.

If  creators of disco music and cartoon characters can reap a benefit from the termination clause in copyright, there is no reason at all that we should not help our academic authors do the same.