Category Archives: Authors’ Rights

Authors' Rights, Copyright Issues and Legislation, Technologies

Shakespeare and copyright

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On Monday author, attorney and Author’s Guild president Scott Turow published an op-ed piece in the New York Times arguing that copyright protection is vital for creative production and that the Web is a serious threat to authors.  Such pieces appear regularly in the Times; every three months or so a different author or artist trots out these arguments.  It seems a little bit unfair to critique these editorials because they are usually manifestly uninformed; several critiques of Turow have already appeared, and I don’t want to seem to be piling on.

Nevertheless, Turow offers a chance to drive home a very different point than the one he thought he was making, owing to his woefully unfortunate choice of an example for his piece.  The core of the argument is that Shakespeare and his contemporaries flourished because their work was rewarded financially, owing to the innovation of producing plays in an enclosed environment and sharing the income from theater admissions with the playwrights.  Turow then analogizes this physical barrier to theater admission with the “cultural paywall” of copyright in order to argue that the Internet threat to copyright must be addressed with stronger laws (his piece was timed to influence hearings held in the Senate on Wednesday).

Turow chooses Shakespeare simply to show that authors need to make money in order to produce creative work.  That point itself is quite doubtful and multiple counterexamples could be ranged against it.  But even more basically, the example of Shakespeare actually proves some very different points than the ones Turow thinks he is making.

First, Shakespeare lived before there were any copyright laws in England — the Statute of Anne was adopted almost 100 years after his death — so his productivity is evidence that there are ways to support authorship other than with copyright.  In truth, it was not so much his share of theater revenues that paid Shakespeare’s bills as it was patronage.  And patronage remains important to many artists even today, since revenues from copyright so seldom actually filter down to authors and artists.  The National Endowment for the Arts is one such patronage arrangement, as are academic appointments that allow playwrights and poets and musicians to continue to create while still putting food on the table.  These kinds of direct support are much more effective, in many cases, than relying on the monopoly income provided by copyright, since most of that money remains with intermediaries.  The example of  Shakespeare proves that copyright is not an absolute necessity for supporting the arts.

The second reason Turow’s choice of a hero for his piece is unfortunate is that Shakespeare was, himself, a pirate (in Turow’s sense), basing most of his best known plays on materials that he borrowed from others and reworked.  If Boccaccio, or Spenser, or Holinshed had held a copyright in the modern sense in their works, Shakespeare’s productions could have been stopped by the courts (as unauthorized derivative works).  This is not an unfamiliar point; most schoolchildren are taught that Shakespeare borrowed his stories.  It is rather astonishing that Turow would choose Shakespeare to make his argument, therefore, and no surprise at all that TechDirt has reformulated Turow’s question to read “Would Shakespeare have survived today’s copyright laws?”

As much as Turow may want to argue that copyright is necessary to support authors and artists, what he really succeeds in proving, unintentionally, is that great art often depends on the ability of artists to borrow from and reshape earlier work, and copyright, in so far as it impedes that process, is part of the problem and not its solution.

Authors' Rights, Scholarly Publishing

Getting picky about the new ACS agreement

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

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

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

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

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

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

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

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

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

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

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

Authors' Rights, Fair Use, Open Access and Institutional Repositories, Scholarly Publishing

What is an author to do?

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A fascinating little controversy came to my attention the other day; one of those disputes that seems well outside the arena of academic issues, yet raises lots of questions that scholarly authors need to consider.

The basic facts of the dispute, which are summarized here on the Techdirt blog, are that the author Raymond Carver published a group of short stories in the 1970s and early 1980s that were subject to very heavy revision by his editor at Knopf Publishing, a man named Gordon Lish.  It seems that it is Lish, more than Carver himself, who was responsible for the spare, laconic style for which Carver was famous.  In fact, Carver’s stories were much more sentimental and expansive before Lish finished with them.  Now Carver’s widow, Tess Gallagher, wants to publish the original, unedited versions of these stories and she is being threatened with a copyright infringement claim by Knopf if she does so.

Two things should be acknowledged up front about this disagreement.  First, Carver consented to the changes, although he grew increasingly dissatisfied with them, and legally transferred copyright to Knopf.  Second, it is at least arguable that the changes made by Lish really did improve the stories.  But each of these acknowledgments also must be qualified.  Carver gave his consent to the changes and to Knopf’s ownership of copyright, but he pleaded with Lish to stop falsifying his authorial voice, even threatening to stop writing altogether if the editing continued.  Unfortunately, Carver was trapped by the publishing system; there was no way he could express himself without the services of Knopf, and Knopf’s editor insisted (for a while) on making the changes.  And while the changes may have improved the stories, they have obfuscated scholarship about Carver over the years.

A law review article by Cardozo law student Matthew Weldon discusses this case in detail and describes what options are open to Tess Gallagher.  In the process, he offers some nice reflections on the role of an editor, although it is unfortunate that his categories of writing and the kinds of editing appropriate to them does not include academic works.  The upshot of his analysis is that US law does not give Ms. Gallagher many options.  He considers how the moral rights tradition would protect Carver from drastic changes to his work, but notes that the US has never protected attribution and integrity, in spite of commitments to do so in international treaties we have joined.  In the end, the best Weldon can suggest is that the moral rights that underlie this controversy would support a fair use defense if Gallagher decided to go ahead and publish in spite of the threats from Knopf.

It seems to me that this case raises several important questions for academic and scholarly authors to consider.

First, what should the role of an editor of scholarly works be?  In copyright controversies, publishers are pushing harder and harder on the idea that they make copyrightable contributions to journal articles.  Yet even in the extreme case of Gordon Lish, there is no realistic way to claim that his changes gave him a copyright interest in the stories apart from Carver’s transfer of his own rights (as Weldon shows in some detail).  And if publishers do make significant changes to scholarly works, we need to ask whether those changes improve the work or undermine it, and how such alterations should be noted in order to preserve the scholarly record.

Second, do scholarly authors need to take steps to protect the integrity of their ideas and their voices from editorial presumptions?  Just as with Raymond Carver, the European tradition of moral rights does not function well in the US, so there is little protection, in copyright, for attribution or to preserve the integrity of an author’s work.  If an author in the US wants a guarantee of attribution, for example, it must be negotiated into the publication contract.  So must any guarantees about preserving the integrity of the original work.  These “moral” issues are at the very heart of value of scholarly publishing for academics, and yet copyright law does not protect them; there is no legal reason why, after a copyright transfer, the work of an author could not be published in revised form and/or over the name of a different person.  Thus extra diligence when transferring copyright may be required for scholarly authors who are concerned about their reputations and about the integrity of the scholarly record.

Finally, the Carver stories, and the failure of copyright law to provide a good solution to that dilemma, causes us to wonder if copyright law as it currently exists really serves the needs of scholarship or if it more often hinders its progress.  Certainly studies of the work of Raymond Carver are seriously undermined when critics cannot tell whether they are reading the words of Carver or Lish, and cannot compare the two versions.  Carver, of course, was trapped by the publishing system, where dissemination of his work left him no alternative but to acquiesce to his editor’s suggestions.  But academic authors today are not so dependent, and neither are creative artists.  The Internet offers opportunities to distribute work without any role for intermediaries, if the author thinks that is her best course.  And a stable online presence, even after traditional publication has taken place, can help an author defend his reputation against misappropriation or corruption of his work.

Authors' Rights, Copyright Issues and Legislation

What everybody knows

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“Authors are only motivated to write if they know their rights will be protected.”

“No man but a blockhead ever wrote, except for money.”

The second of these quotes, from Boswell’s “Life of Samuel Johnson,” is very familiar, I think, and demonstrably false.  Indeed, even Boswell acknowledged its falsity as he recorded it, and attributed the comment to Johnson’s “indolent disposition.”  The first quote comes from this fascinating article in the online version of the German magazine “Der Spiegel” reporting research that suggests that German’s 19th century industrial expansion may have been at least partially driven by the absence of strong copyright protection.

That authors must have strong copyright protection in order to create is presented in this article as a conventional belief, the kind of thing that everybody knows and accepts as a matter of course.  Such bromides are almost always false, like Johnson’s remark, or at least incomplete.  Perhaps the greatest value of the Spiegel article, short as it is, is that it demonstrates that a complex situation, such as the cultural impact of printing, copyright and the distribution of books, cannot be reduced to truisms.  Complex analysis is required, and Eckhard Hoffner’s research is an example of such analysis.

Hoffner’s discussion suggests two major points to me, both of which contradict the received wisdom about why we need ever-stronger copyright protection.

First, he shows that copyright was never really a great benefit for the majority of authors.  The point that an obscure scientist in copyright-free Germany actually earned greater royalties for his book on leather tanning than Mary Shelley did for “Frankenstein” debunks the economic side of the claim that copyright is always a benefit to authors.  But it is even more important to recognize, as the article puts it, that “the prospect of a wide readership motivated scientists in particular to publish the results of their research.”  Impact and reputation, then as now, were a major motivation for publication, and the higher prices that were made possible by copyright protection often inhibited those sought-after benefits.

Second, it is important to recognize that the real beneficiaries of strong copyright protection have always been intermediaries, as well as a few best-selling authors.  Its history in England shows that authors’ well-being was used as a campaigning point by publishers seeking copyright protection, but that it was the publishers themselves who reaped the real rewards, as they always intended.  Copyright, Hoffner shows, depressed competition and allowed publishers to make a great deal of money while inhibiting the dissemination of books and knowledge.  The irony is that it is only in recent years, as the role of intermediaries has diminished due to digital dissemination, that we can seriously look to a future where copyright protection might be reined in for the overall benefit of  learning.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Clearing up some confusions

The press of daily business yesterday made it harder than I expected to watch and listen to the entirety of the House Committee on Oversight and Governmental Reform’s hearing on the Federal Research Public Access Act.  Documents from the witnesses can be found here, on the page for the Committee’s Minority members.  Perhaps unfortunately, most of what I heard was from the panel of folks opposed to the legislation.  From that group there were several pretty egregious comments about the state of scholarly research and publishing, and it seems like clearing up some of the misapprehensions might be worthwhile.  There is lots to choose from, but I will focus on three seriously misguided claims.

First, I was truly shocked to hear the official from the American Psychological Association let stand the assumption, made by a committee member, that part of the value added to a published article was the clearing of rights in any third-party owned material that is incorporated in that article.  When the Congresswoman asked if that was part of the service that publishers provided, and opined that it was a significant contribution that would be a burden for individual authors, Mr. Beckler agreed with her and went on in general terms about all the value publishers add.  Except, of course, publishers do not do this; authors do, and it is a burden.  Indeed, virtually all scholarly publishers require that authors warrant, in their publication agreements, that they have received permission from any owners for incorporated content.  This is as true of APA as it is of other publishers.  Here is the APA’s publication rights transfer document; in the paragraph above the signature, item (b) is the author’s affirmation “that written permission has been obtained for all previously published and/or copyrighted material contained in this manuscript.”  So the claim that this is value added by publishers is, like so many such claims, really just free-riding on the labor of scholarly authors.

A similar kind of claim was the one made by all of the panelists in this group that publishers add copyrightable content to the scholarly articles they publish.  This was again in response to a question about editing and peer-review and it led all three to affirm that publishers make a contribution that is entitled to copyright protection independent of the copyright which they get from the authors via forced transfer.  I have published several peer-reviewed and edited scholarly articles in my career, and every word of those articles was my own.  Editors sometimes suggested changes (more often peer-reviewers did), but I created the protectable expression that incorporated those changes.  Even copy editors usually obtain the author’s permission for changes beyond correcting a typo.  I continue to be amazed and confused by the claim that there is some protectable contribution made by publishers, and I suspect that if there really were such a contribution it would be to the detriment of the scholarly record, since no publisher is as expert on the topic at hand, whatever it is, as the authors are.

In this report from the Chronicle of Higher Education, this claim about protectable contributions is repeated in the form of AAP attorney Allen Adler’s assertion that published articles are “partly the product of publisher’s labor.”  There are two basic copyright principles that need to be asserted to understand why whatever work publishers put in on an article does not translate to copyright protection.  First, copyright protects expression, not ideas.  Whatever suggestions for revision come from publishers — and most of them come from independent, volunteer peer-reviewers — those suggestions do not translate into a copyright claim.  Only expression, which is, or should be, the work of the authors, is entitled to copyright.  Second, the Supreme Court has reminded us that no copyright can be earned simply for “sweat of the brow.”  No amount of labor on an article earns a copyright interest unless it results in original expression, which the labor of publishers almost never does.

Finally, there was the odd little speech given by one of the Committee members about how important it was that we do not allow foreign governments and companies to “steal our intellectual property.”  When I heard this I want to shout that the Member did not understand the bill they were considering.  FRPAA applies to published research which is already available for sale through various subscriptions and database.  Foreign companies can already get their hands our “our” IP if they are willing to pay the prices for subscriptions or individual article downloads.  Presumably Chinese companies, for example, that want to compete with the US are willing to pay the sky-high prices charged by STM publishers; it is the cost of doing business for them, and the publishers are happy to take their money.  What FRPAA would remedy is the lack of access for smaller US companies and less wealthy educational institutions, as well as individual patients and others who need or are interested in the latest scientific research.  Understood properly, FRPAA is not so much a threat to US competitiveness as it is a necessary step to maintain that competitiveness.  As Sir Richard Roberts said in his remarks, if high school students, community colleges students, students at small colleges and researchers at smaller labs and companies can all get access to cutting edge scholarship, US research and development will accelerate.  If they cannot, our economic future does not look good.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing, User Generated Content

Pirate Marketing?

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Let me start with a confession; I have never seen the TV show Glee.  But lately I have heard a lot about it, from the odd perspective of copyright law.  In this blog post by Christina Mulligan, the copyright consequences of practices that are taken for granted in Glee are tallied up.  Apparently the cover performances, music videos and remixes could result in millions of dollars of liability if done by real high school musicians.

As Mulligan points out, there is no attention to copyright issues as these teenage performers go about making their music.  They “see so little wrong with this behavior that the word ‘copyright’ is never even uttered.”  In this way, Glee is a telling illustration of where we are as a culture; what a small group of entertainment industry executives would insist is stealing is everyday practice for many real-life consumers and performers.  Copyright only really works to protect the big name writers and performers; for so many lesser-known musicians and for millions of consumers it is merely a hindrance or, perhaps even worse, a non-issue.

It should be noted that Mulligan does not consider the possibility that fair use might actually support her contention that “remixing isn’t stealing,” even if industry lawyers would disagree.  But the larger question is really whether copyright is doomed to irrelevance in the remix culture.  Is all lost for those who believe that copyright has some important function (however defined) in incentivizing new creation?  If so, is what we gain by the demise of copyright compliance greater than what we lose?

Perhaps there is a middle ground, as illustrated by this remarkable letter written by media consultant Brian O’Leary to incoming Author’s Guild president Scott Turow.  O’Leary cites the research done by his own organization, Magellan Media, which found “an apparent correlation between piracy and a subsequent growth in paid sales.”  O’Leary is not, I don’t think, suggesting that the content industry should encourage piracy, even if such a thing were possible.  But he does suggest that it is counterproductive to fight piracy too aggressively, since “discovery, even using a pirated file, may lead to more sales.”  In short, the natural tendency of the kids from Glee may not be a death knell for the content industries, but an opportunity to refine their business models and consider how to maximize discoverability while still offering added value that will lead to sales.  I was particularly struck by one specific warning that O’Leary offers, that publishers should not undermine discovery (and frustrate consumers) by delaying the release of e-book versions in order to prop up print sales; the e-books, even when distributed without authorization, may themselves support print.

In all this I think there are two lessons for those of us interested in copyright and, especially, in scholarly communications.

In regard to copyright, these two very different communications reinforce the point that the terms “piracy” and “theft” are much too blunt instruments for this discussion.  Piracy has a long history in intellectual property, but it should be reserved for large-scale commercial interference in the marketplace.  The attitude toward remixing and other non-commercial, personal uses of media needs a different term that takes account both of the ubiquity of such uses and their potential.  How about “opportunity?”

For academics, the important message is that there are lots of venues for distributing our work and the most important criteria should be discoverability.  As the original rights holders in scholarly works, faculty authors do not have the same concerns about so-called piracy that the movie and music industry has, for example.  We are free, as long as we retain our rights, to distribute our work in whatever ways lead to maximum access, and we can manage our copyrights for that purpose.  With improved discovery, as O’Leary’s research suggests, comes greater impact, and that should put a “gleeful” smile on the faces of scholarly authors.

Authors' Rights, Open Access and Institutional Repositories

Policy consequences

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We are trained these days to dread “unintended consequences” whenever we make decisions; it is a fear that sometimes leads to paralysis.  But not all unintended consequences are negative, and I want to take a moment to celebrate some unexpected things that have resulted from the adoption of an open access policy by the Duke University faculty back in March.

The two biggest consequences so far have been a flurry of activity in the Duke Libraries and some welcome attention from outside the University.

In the latter category, this interview with Paolo Mangiafico, which was posted recently on opensource.com, is a superb summary of the rationale behind the policy and the steps we are taking to implement it.  Paolo, in his rather unique position at Duke as Director of Digital Information Strategy, provided the leadership that was necessary to organize, draft and advocate for the open access policy.  Paolo himself is a unique combination of high-level IT skills with a deep understanding of policy options and consequences, and his description of our OA policy is as articulate as any I have seen.

In the interview, Paolo talks about the decisions that must now be made, both as a matter of technological infrastructure and in terms of re-imagining library services.  Thus his interview nicely encapsulates the reasons behind that flurry of activity I spoke of above.

Another particularly exciting consequence for me personally has been an invitation to speak at the the 8th Berlin Conference on Open Access on the legal issues involved in open access.  The invitation letter clearly indicates that Duke’s new policy is one of the reasons for this opportunity, and I am honored to be invited to this influential gathering, which drafted the Berlin Declaration on Open Access back in 2003.  In 2010, the Berlin Conference will be held in Beijing, China, which deepens my excitement, both because I have never been to China and because of the opportunities  the conference offers to learn about the progress of the open access movement in Asia (although the activities of SPARC Japan are already well-known).  I hope I shall see many friends from North America and Europe in Beijing, and I look forward to the opportunity to meet many new colleagues and friends.

Sometimes unintended consequences offer really delightful surprises.

Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing

OSTP comments and the issue of compensation

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I wanted to post this earlier, but intervening events got the better of me.  As most readers will know, the White House Office of Science and Technology Policy recently collected a wide range of very useful and specific comments in response to a request for information about public access policies for federally-funded research.  I wanted to point readers to two sets of comments, those that I wrote on behalf of the Duke University Office of Scholarly Communications, which are available here, and the superb comments from Harvard Provost Steven Hyman, which are linked from Harvard’s Office of Scholarly Communications blog, the Occasional Pamphlet.

One issue that arises in some of the OSTP comments is “compensation” for publishers when the final published version of articles based on federally-funded research is made publicly accessible.  I was recently part of a conversation on public access in which several academic publishers from scholarly societies raised this term.  I bit my tongue at the time to keep from yelling because I thought it was an idiosyncratic notion with no legs.  But when I looked at the full set of OSTP comments, I notice that compensation is brought up by numerous publishers.  See, for example, the comments from the Association of American Publishers, from Elsevier, and from STM: the Association of Scientific, Technical and Medical Publishers.   This last set of comments is very explicit in suggesting that publishers deserve financial compensation (not just “compensation” in the form of embargos) for the value they add to scholarly articles through managing peer-review and copy editing (see page 10).

I continue to be amazed that scholarly publishers are willing to make this demand in this language, but all I can say is that it is a conversation I am anxious to have.  I hope we can discuss the failures of compensation that occur throughout the scholarly publication system.  Publishers, of course, are usually the only ones who actually profit financially from scholarly journal articles.   Taxpayers often underwrite the work upon which those articles are based, and universities also supply resources and salaries to the authors.  Where is compensation for those entities, which rightfully should be paid out of subscription income?  Instead, of course, it is the universities that pay to get back the products of their own research, through their library budgets.  Peer-review is, of course, managed by publishers, but the actual intellectual work is again done by university faculty members, who donate their time and labor to improve scholarship.  If we are going to talk about compensation, let’s discuss how they should be compensated from the profits publishers make from their work.  And finally, how should scholars be compensated for transferring their copyrights to publishers?  There are, after all, substantial lost opportunity costs whenever an author surrenders control over their work.  These transfers have almost always been gratuitous in the past, but if we are going to talk about compensation, perhaps that can change.

In short, I hope we can have a conversation about compensation, because such a conversation can only reveal how exploitative and unsustainable the current model is.  If we discuss the full range of compensation issues, and not only narrow questions about copy editing, perhaps we can make progress towards a fair system of scholarly communications.

Authors' Rights, Copyright in the Classroom, Copyright Information Notes, Scholarly Publishing

“Renewing copyright” and a reflection on versions

In a post about two months ago I promised that I would offer a link to the article I wrote on reforming copyright law from the perspective of academic libraries.  That article was published this month in portal: Libraries and the Academy, and is now also available in DukeSpace, the open access repository at the Duke Libraries.

The full citation for the article is:  Kevin L. Smith, “Copyright Renewal for Libraries: Seven Steps Toward a User-friendly Law,” portal: Libraries and the Academy, Volume 10, Number 1, January 2010, pp. 5-27.

The published version is available on Project Muse at http://muse.jhu.edu/journals/portal_libraries_and_the_academy/summary/v010/10.1.smith.html

If you cannot access Project Muse, this is the link to the DukeSpace version, which is my final manuscript but lacks the formatting and copy editing done by the good folks who publish portal:

http://hdl.handle.net/10161/1702

As I said in the original post linked to above, I hope my suggestions will be read in combination with those made by Professor Jessica Litman in her wonderful article on “Real Copyright Reform.”

I had intended to end this post with the information above, but a recent discovery has caused me to change that plan.  Late last week I discovered that a small error, an extra clause made up of words from elsewhere in the sentence, was inserted into the HTML version of the article.  It does not appear in my manuscript, nor in the PDF of the published article, only in the HTML version.  I contacted the editorial folks at portal and expect that the error will be fixed shortly, perhaps even before I publish this post (Note on 2/2 — the error has been corrected).  But it does raise some questions about some of the assertions made on behalf of traditional publication.

First, we are often told that copy editing adds value to an article and that publishers deserve compensation for adding that value whenever the public is given access to the final published version of an article.  On the compensation issue I shall write more later.  But here I want to note that the editorial process can insert errors as well as eliminate them.  I found the editorial assistance from portal to be superb, but, in spite of their best efforts, the multiple stages of the publication process are not all within their control.  The result was that a error that I was not responsible for, albeit a minor one, found its way into my work.

Second, this small incident raises questions about the assertion that publishers provide the scholarly community with the “version of record” that assures consistent quality.  In fact, there are two different versions of my article available at this moment (on 2/1) on the Project Muse site for this journal — the HTML is different from the PDF in at least this one respect.  So which is the version of record?  To make that determination, I am the final arbitrator, and I hope that the error I caught in the HTML will be corrected based on my request.

This suggests that there is at least an argument that the “version of record” should be the one that is closest to the author’s hand.  Who else has a greater incentive to insure accuracy, after all?  A serious error may impact the publisher’s reputation to some degree, but it can be devastating to that of the author.  And I would certainly hope that a significant error, such as an incorrect calculation or formula, would never be “corrected” by a copy editor without first consulting the author; it is easy to imagine cases where what looks like an error — a deviation from the expected — is in fact the heart of the argument.  Thus significant corrections should always be made with input from the author, and the author would then be free to correct any versions she has made available to the public.  So I would like to see discussions of “version of record” include the likelihood that the version nearest to the author may, at least sometimes, be the most accurate version available.

Authors' Rights, Copyright in the Classroom, Open Access and Institutional Repositories

ScienceOnline and copyright anxiety

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I attended parts of the ScienceOnline 2010 conference, held here in the Research Triangle this weekend.  There was a fascinating array of topics discussed and an interesting crowd of 270+ that included many working scientists, librarians and even journalists.  It was a great opportunity to listen to scientists talk about how they want to communicate with one another and with the general public.

There are some excellent discussions of what went on at this year’s conference, especially here and here on Dorothea Salo’s blog.  Those with a real passion for more information can check out this growing list of blog posts about the conference.  I won’t try to compete with these comprehensive recaps, especially because my selection of events to attend was rather idiosyncratic, and perhaps even ill-advised.  But I do want to make three quick observations about what I personally learned from the conference.

First, I discovered one more argument for open science that had not occurred to me before, but has the potential to be very compelling for scientists on our faculties.  One reason academic research should be online is that “junk” science is already there.  If the general public — including the proportion thereof who vote or require health care — do not make good decisions in regard to matters involving scientific knowledge, we can only blame ourselves when the best research is not available to them, hidden behind pay walls.

Second, I was fascinated to discover that health science bloggers have developed a code of ethics to try and account for the many issues that arise when scientists put important and potentially life-altering information onto the open web.  The benefits of this openness are indisputable, but so are some of the risks.  This code of ethics represents an attempt to address some of those risks and minimize them (there is a somewhat different discussion of a similar issue from the conference here).  The criteria applied to evaluate health care blogs (see the text of the code itself) — clear representation of perspective, confidentiality, commercial disclosure, reliability of information and courtesy — encapsulate standards that all of us who try to share information and opinion online need to be aware of.

Third, I was amazed at how important, and problematic, copyright issues were to this group.  I attended seven sessions at the conference, and five of them dealt with copyright as a major (although often unannounced) topic of discussion.  Even recognizing my tendency to gravitate toward such sessions, this is a high percentage.  I asked a fellow attendee why so many sessions raised copyright and was told, albeit with tongue in cheek, that it is “ruining our lives.”  More seriously, one scientist described trying to put his classroom lecture slides online and being told by his university’s counsel that all material that he did not create had to be removed first.  Apparently there was no discussion of the applicability of fair use and how to decide what was and was not allowable; just a wholesale rule that would discourage most scientists interested in sharing.  This suggested to me that it really is very important to improve the quality of copyright education on campus — for faculty, librarians (who are often the ones asked for advice) and even legal counsel.  We cannot reasonably advocate more online open access unless we also give our scholars the resources to accomplish that goal.  In many ways the technological infrastructure is becoming trivial and it is the policy and legal questions that must be addressed directly if we really want encourage openness.