Category Archives: Authors’ Rights

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

What is “value” in publishing?

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The Scholarly Kitchen, a blog sponsored by the Society for Scholarly Publishing, is a source of opinion and debate that I have wanted to point out for some time.  I have finally been prodded to do so, or one might better say provoked, by this post from Kent Anderson called “Are Publishers Anti-Publishing?”  citing a stream of news about how various publishers are abandoning their traditional business and challenging scholarly publishers to find ways to innovate their businesses.  In addition to the instances that Anderson mentions, one could note the report that the Christian Science Monitor has decided to give up its daily print publication and move predominately on-line.

It is interesting to compare Anderson’s post with the op-ed that appearred in the Sunday New York Times from author James Gleik on “Publishing Without Perishing.”  Both pieces challenge publishers to step up to the challenge posed by online availability.  Gleik points to a return to beautiful, durable books as the best hope of traditional publishing, while Anderson clearly envisions a very different response, although his advice is less clear than Gleik’s nostolgic vision.  Anderson suggests emulating Google, Facebook and Amazon, so he is clearly asking for a digital solution, not a return to producing print artifacts.

There are several points I agree with heartily in Anderson’s post, especially the call for traditional publishers to look for the value they can add to content, rather than trying to pare their offerings down to bare bones as so many newspapers have done.  Yet he does not seem consistent about that point when he cites Google as one of the successful models that publishing should emulate.  What value, we might ask, does Google add to content beyond easy of access?  Anderson refers to Google’s “appropriation” of the “STM impact factor model,” but surely Google’s relevance-ranking algorithm is a very different thing, employed for the very different purpose of facilitating access to the content that a searcher is most likely to want.  The impact factor model will not really have been “appropriated” until academic institutions start recognizing that downloads of an online work is itself a legitimate metric for evaluating the quality of the work and the career of the creator.

Which brings me to where Anderson really goes wrong — his comments about how open access and institutional repositories are “anti-publishing.”  To get to this claim one must define publishing very narrowly, based on a traditional, “the way we have done it in the past,” standard;  Anderson sounds a lot like Gleik at this point.  On-line, open access distribution IS publishing, of course, as the many peer-reviewed open access journals clearly prove.  What is most astonishing about Anderson’s discussion of these “anti-publishing” trends, however, is his claim that open access “devalues” scholarly content by “treating it as less than a commodity.”  How can one make such a claim about scholarly content when authors have been expected to give their writings away for free to publishers for many years?  Scholarly authors are used to thinking about the value of their work in terms other than economic, and those terms have been dictated, in part, by the business model of traditional scholarly publishing.

The value of scholarly work, for scholars, has never been based on the money it could earn, since they never saw a penny of that money and were, in fact, expected to pay for access to their own writings.  Often they were even expected to pay “page charges,” which makes the author-side fees now charged by many publishers for open access seem very familiar.  The point is that access and use, not economic gain, define the value of scholarly writing because they serve the scholarly authors’ need for recognition and impact; the cost of the wrapper in which the work was contained (the commodity) has never been a marker for value in the academic world, and it has lately become an impediment.

I fervently hope that scholarly publishers can find ways to add value to academic content, as Anderson challenges them to do.  But that task will be much more difficult if it is based on a narrow view of the value of academic work that begins and ends with the traditional way publishers have done business.  Tthe search for new models of scholarly publishing will have to take into account the things that actually matter to academic authors and scholarly institutions.

Authors' Rights, Copyright Information Notes, Digital Rights Management, Open Access and Institutional Repositories, Scholarly Publishing, Technologies

E-textbooks: the state of play

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As the new school year begins there has been lots of reporting about E-textbooks, and the welter of stories offers an opportunity to assess the overall state of play.

This story from Inside Higher Ed outlines some of the “next steps” for E-texts, as well as the “remaining obstacles,” which are substantial. The article focuses most of its attention on two initiatives – a highly speculative report that Amazon wants to introduce E-texts for its Kindle e-book reader, and a description of the progress being made by CourseSmart in partnering with higher education. It is worth looking at these two projects, along with some other business models for e-texts, in light of some recently articulated needs and concerns.

A recent study done by a coalition of student groups expresses some doubts about digital textbooks that are worth considering as we look at different possible business models. The report raises three potential problems with digital versions: their alleged failure to reduce costs, limitations on how much of an e-text a student is allowed to print, and the short duration of access provided by some licensing arrangements. These latter two concerns, obviously, support the contention that print textbooks are still serving student needs better than e-texts, especially if the digital versions are nor significantly less expensive. To these concerns we might add one more – students like to be able to highlight and annotate textbooks, and digital versions that do not support this activity will be disfavored.

So how do the different business models fare in addressing these concerns?

One model is simply the distribution of electronic versions of traditional textbooks by traditional publishers. This seems like the least promising of the models, since it likely solves none of the issues raised by the student groups. It is interesting that the representative of traditional publishers quoted in the Inside higher Ed story made no reference at all to cost concerns but stressed the potential for e-texts to shut down the market for used textbooks. Unsurprisingly, the focus here is on preventing competition and protecting income, not serving the needs of the student-consumers.

CourseSmart offers a business model that is very little different from that the traditional publishers might undertake themselves. There is some dispute about the issue of cost, however, with CourseSmart arguing not only that its digital versions of traditional textbooks are significantly cheaper, but that they remain so even when the income that students might usually expect by reselling their print texts is taken into account. It remains the case that that lower payment only purchases temporary access for the students and a restricted ability to print. Nevertheless, CourseSmart has been successful in arranging partnerships with San Diego State University and the state university system in Ohio, so it will be worth watching to see how those experiments develop, particularly in regard to student usage and satisfaction.

Amazon’s Kindle is yet another possibility for distributing e-texts. We know very little about how such texts would be priced or what features they would have, but we do know that the desire of students to be able to print would not be fulfilled. This is an important issue for students, apparently, since the student report on e-texts found that 60% of students surveyed would be willing to pay for a low-cost print copy of a textbook even if a free digital version was available to them.

This latter fact is precisely what Flat World Publishing is counting on with their plan to make free digital textbooks available and also sell print-on-demand copies to those who want a paper version. As I described this model a few weeks ago, Flat World is hoping to show that over the long-term, print on demand can prove a sustainable business model. Since this accords better with the expressed needs of student users than any of the above models, they might just be right.

The last model for distributing digital textbooks, one often overlooked in the debates (although endorsed by the student report mentioned above) but given some attention in this article from the LA Times, is open-access. Frustrated faculty members are increasingly considering creating digital textbooks that they will distribute for free. Supporting such work, with grants of up to $50,000, is another part of the initiative undertaken by the university system in Ohio. Ohio has long been a leader in supporting libraries in higher education, and this support for open access textbook offers a new avenue for leadership. The real “costs” we should be considering when we discuss e-texts ainclude reasonable support for the work of creating such resources, as well as credit for the scholarly product of that work when tenure reviews come around. So much of the expense of textbooks comes from the profit claimed by the “middlemen” who distribute them that real efforts to reduce the cost of education must focus on ways to encourage in-house creation of digital texts (which is little different from how textbooks have always been written) and to distribute them directly to students, as the Internet now makes possible.

Authors' Rights, Fair Use, Technologies

The other side of the balance.

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We are often told that copyright law is supposed to be a balance, offering, on the one hand, the financial incentive to creators that goes with monopoly rights and, on the other hand, sufficient exceptions to those monopoly rights to allow new creators to build on previous work. Without the latter half of this balance, creativity would effectively grind to a halt, and the incentive side would be useless. But most of the time, Congress and the courts seem to be serving the needs of those who want to profit from works already created at the expense of those who are trying to innovate and create new works. So it is especially pleasant to report on a couple of recent court decisions that can be seen as efforts to redress that imbalance and give some support to essential users’ rights.

First, there was the ruling in Jacobsen V. Katzer that essentially upheld the enforceability of an open source software license. Open source licenses are contracts (and that was part of the issue) that waive copyright, telling a downstream user that they are free to use the software in ways that would otherwise require permission, as long as they abide by certain conditions. In the Jacobsen case , such a license was challenged on several grounds — that it did not form an enforceable contract, that the terms of the license were not real conditions but merely “covenants” without legal teeth, and that the license was an attempt to enforce so-called “moral rights” which are largely not recognized in the US. The Federal Circuit Court of Appeals rejected these challenges and sent the case back to the District Court to be decided as a contract and copyright infringement case.

What this essentially means is that an open source license — and this likely includes the Creative Commons licenses often used in higher education as well as the more technical software license directly at issue — forms a contract between copyright holder and user that allows the user to use the work according to the terms of the license and lets the rights holder sue for infringement if those terms are breached. This is how these licenses are supposed to work, and it is nice to see a circuit court affirm their proper functionality. This ruling will make it easier for academics authors and other creators to share scholarly work without relinquishing total control.

One interesting part of this argument was the assertion about moral rights. It is quite true that the US protects moral rights, including the right of attribution, only for a small group of visual artists.  But that fact does not show why an attribution license is invalid, it shows why such a license better serves the needs of many creators, especially in academia, then copyright law alone does.  With an open access license an author can leverage their ownership of copyright to enforce the right of attribution when the law alone would not do so.  And attribution, of course, is usually the most important reward an academic author gets from her work. That is why this recent decision upholding these types of licenses is so important well beyond the sphere of software development.

The other important development was a DMCA case that decided that, before sending a “takedown notice” alleging that some particular web posting infringes copyright, the rights holder must consider whether fair use would authorize the particular posting.  This decision tracks the wording of the DMCA very closely, noting that the law permits takedown notices when the posting is not authorized by the rights holder or by law. Fair use, as the court correctly held, is a form of authorization by law (note my previous post here that noted that this has not been the case in previous DMCA practice). Therefore, a rights holder should not send a takedown notice in a case where a good faith consideration of fair use makes clear that the posting in question is not infringing.

The primary value of this second decision will be to limit the ability of rights holders to use the DMCA system to frighten people and to “chill” legitimate fair uses of commercial works.  The particular case involved one of those transformative uses that are so highly favored in the fair use analysis — a 29 second homemade video of a baby dancing to the sounds of a Prince song.  It should be obvious that such a video, even when available on YouTube, is not a commercial substitute for purchasing the song itself on CD or as an MP3.  So the takedown notice sent to YouTube over this parent-posted video seemed abusive, designed more to intimidate than to protect legitimate commercial interests.  Thus the court allowed the parents’ case against the rights-holder for misrepresentation under the DMCA to go forward, ruling that consideration of fair use is a prerequisite to the proper use of the DMCA takedown notice.  This, too, is a victory for user’s rights and, even more important, for free speech in the digital world.

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

A template for authors’ rights, and a modest proposal

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The Association of Research Libraries has just released an article written by Ben Grillot, a librarian and law student working as an intern for ARL, that is advertised as a summary of the policies of twelve publishers toward deposit of NIH-funded research articles into PubMed Central. In fact, Grillot’s article has a value well beyond the modest comparisions announced by its title.

I won’t attempt to summarize Grillot’s analysis or conclusions here; he writes so clearly and concisely that any summary would seem awkward and wordy in comparison. Suffice it to say that Grillot does a superb job of limning the ambiguities that need to be resolved as publishers come to terms with the new NIH public access mandate, as well as the competitive advantage that will be gained by those who resolve those unclear points quickly and fairly. The easier deposit in PubMed Central is made, the more a publisher will stand out from the crowd. But beyond its comparative analysis, Grillot’s article provides a kind of template that authors should consider whenever they are confronted with the choice of publisher for their research and with a publication agreement. His lucid explanation of the various provisions in the selected agreements, which themselves are usually far from lucid, offers a model for what questions a scholarly author should ask of the agreements she sees and how she should think about the way those questions are, or are not, answered.

Two quick points struck me as I read Grillot’s article beyond those conclusions that he reaches. First, I think many authors would be very surprised at just how limited their rights to make their own work available to others are when they sign publication agreements. We are often told that “most” publishers now support open access. But most also impose an embargo on such access, and during that embargo an author is often not able to place her own work on her personal website (about half the journals do not allow this, at least for the final author’s version), and is very unlikely to be able to post the work to a disciplinary website or institutional repository (7 or 8 of the 12 journals examined by Grillot do not allow this). The very limited set of open access rights retained by authors under these standard publication agreements argues forcefully for the approach taken recent by the Harvard Arts and Sciences faculty to grant Harvard a license for use in an institutional repository prior to any transfer of copyright to a publisher.

The second thing that caught my attention is the brief notation, in a footnote to table 2, that Oxford University Press charges authors more for participation in their “author pays” open access program if the author is affiliated with an institution that does not subscribe to Oxford’s journals. Authors’ rights are thus directly and explicitly tied to institution’s expenditure of monies with that publisher. No doubt this linkage between authors’ rights and institutional subscription makes business sense to Oxford, and far from criticizing it, I suggest that institutions emulate it. Whenever we negotiate a new contract for a journal database, whether a new acquisition or a renewal, we should insist that the rights that authors at our institutions who publish with that publisher retain are spelled out. For some of us it has seemed inopportune to tie the rights of individual scholarly authors to our enterprise-wide subscriptions, but it is starting to seem more and more logical. The decision by Oxford to link its grant of authors’ rights to the institutional purchase of its products convinces me that it is now time for our library acquisitions departments to start insisting that that linkage become a two-way street.

Authors' Rights, Copyright Issues and Legislation

And advice from up north

When I first heard that the Canadian Association of University Teachers had approved an intellectual property advisory for faculty authors encouraging them to retain copyright in their published academic articles (hat tip to Heather Morrison), I was delighted and planned to post an enthusiastic plug for the short document in this space. I still am excited by the decision of CAUT, but another recent event has provided a sense of context that I think helps show how urgent the advice given by this Canadian counterpart of the Association of American University Professors is.

William Patry is a well-known copyright practitioner and scholar; it is hard to imagine a more distinguished resume for someone wanting to comment on copyright law today. His copyright blog has been a valuable source for me, often cited here, of interesting information and thoughtful reflection. So I owe Bill a lot of gratitude for the work he has done over the past four years, and am deeply saddened by his decision to give up his blog.

Patry gives two reasons for the decision to stop sharing his learning and insight in this format. First, he is finding that it is increasingly difficult to get others to understand that his blog is an expression of personal opinions and not those of his current employer. Second, he says that the state of copyright law has simply made it to depressing to constantly be the bearer of bad news. As he eloquently expresses the current state of things,

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits.

This analysis seems discouragingly correct to me, but it also reminds me that, in the small corner of the copyright world that is scholarship, there is something we can do to alleviate this problem. And the Canadian Association of University Teachers have clearly told us what that something is — retain copyright.

In its intellectual property advisory CAUT expresses concisely both the problem:

Without copyright ownership, academic staff can lose control of their own work and
may no longer be entitled to email it to students and colleagues, post it on a personal or
course web page, place it in an institutional repository, publish it in an open access journal
or include it in a subsequent compilation.

and the solution:

Journals require only your permission to publish an article, not a wholesale transfer
of the full copyright interest. To promote scholarly communication, autonomy, integrity
and academic freedom, and education and research activities more generally, it is
important for academic staff to retain copyright in their journal articles.

CAUT offers us a way out of the increasingly suffocating dilemma regarding copyright in which academia finds itself. We must hope that US educational groups and institutions of higher education will follow suit, and that individual faculty will continue to assert their rights as the original copyright holders in their scholarly writings.

In the meanwhile, a heartfelt thank you to Bill Patry for sharing his wisdom with us.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Insights from across the pond

One aspect of the international treaties on copyright to which the US is a party has been getting quite a bit of attention recently. The “three-step test” is a provision in the Berne Convention and in the TRIPs (Trade Related aspects of Intellectual Property) Agreement that broadly defines the role of limitations and exceptions in copyright law. It is possible to read the three-step test as providing only a very small window for limitations on and exceptions to the exclusive rights granted by copyright, and “Big Content” has been very active in promoting that interpretation. Recently a legal opinion letter was submitted to the National Institute of Health trying to argue that the NIH Public Access Policy, for example, violated the three-step test.

Applying the three-step test to something like the NIH policy is absurd, but the argument is made for its value as a scare-tactic. Politicians and bureaucrats are very sensitive these days to international aspects of intellectual property, so the three-step test is a very handy club with which to pound into legislative heads one’s own economic interests. So it is very refreshing to read the new Declaration by a group of European IP scholars from the Max Plank Institute on Intellectual Property, Competition and Tax Law on “A Balanced Interpretation of the “Three-Step Test” in Copyright Law.” The authors of the declaration argue convincingly that the test should be understood as a comprehensive framework for interpreting limitations and exceptions, rather than as a set of three steep hurdles over which any proposed exception must leap. They emphasize that the interests of third parties, as well as domestic decisions about the best way to restrict IP monopolies, are not incompatible with the international three-step test.

Beyond its main point, however, I was struck by a simple distinction that is made within the declaration that, to me, has implications well beyond the debate over limitations and exceptions. The authors remind us that the implications of any proposed limitation or exception for both “original rightsholders” and “subsequent rightsholders” should be considered. This simple recognition that the interests of “authors,” who are the original holders of copyright, are often not identical to or necessarily compatible with the interests of those to whom those rights are traditional transferred is profoundly true in the area of scholarly publishing. As I have stressed many times, scholarly authors are usually rewarded almost exclusively by reputation and by reward structures internal to their institutions. Thus their interest is usually in the widest possible distribution of their work. The “subsequent rightsholders” of scholarly work, however, are interested in profits, and their interests may prevent the wide distribution that would best serve scholarship.

To my simple mind, this distinction carries enormous power. Throughout history, all the way back to the 18th century “battle of the booksellers,” publishers and other distributors have appealed to the image of the poor, starving writer to demand stronger copyright protection. But the interests of the two groups are seldom the same and often conflict. Another recent document on international copyright, the “Green Paper on Copyright in the Knowledge Economy,” issued by the European Commission a couple of weeks ago, reinforces this point. In considering the very strong protections contained in a recent EU Directive on the Harmonization of Copyright, the EC report notes that there have been persistent questions raised about whether these broad exclusive rights actually translate into an advantage for authors of the works, who are, of course, supposed to be the principle beneficiaries of copyright protection. Performers, composers, film directors and journalists all complain, according to the report, that they are not making any extra revenue (no increased incentive) because of those new, stronger protections; all of the benefit is directed to the big distribution conglomerates that take copyright from creators and exploit it for their own benefit. This is the dilemma of scholarly authors on a larger scale, and we should watch the debates taking place in Europe for insights into why it is such a bad idea for scholarly authors to transfer copyright to publishers who do not have the best interests of either scholars or scholarship at heart.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Making Elsevier look good

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For many years, Dutch publishing giant Elsevier has been a kind of bête noir for academic librarians, serving as principal whipping-post for the exorbitant price increases that have been strangling off the scholarly communications system for over 20 years. But the ground has shifted somewhat, and we have recently observed some academic press and scholarly societies – agencies whose mission is, putatively, to serve research and scholarship – adopt policies that make Elsevier look almost scholar-friendly.

We have recently witnessed the unseemly spectacle of two at least nominally university-related presses suing a university to try to narrow the scope of fair use for academics, calling out by name some of the very authors upon whom they depend for the content that fills the pages of their publications. Now another organization that is supposed to represent scholars, the American Psychological Association, has turned to bite the hand that feeds it.

First there were the threats to sue a major American university library for allegedly using too many examples from the “APA Manual of Style” in the teaching materials it creates to help students learn how to use that citation format. Since continued sales of the Manual depend on students being trained to use it and faculty assigning it, and since there are other nearly identical and completely substitutable style formats available, it is hard to see what these threats could hope to accomplish. Shutting down one’s principal market is a radical and unproductive way to protect one’s copyright.

Now comes the news that the APA is announcing that authors publishing articles in its journals that are based on NIH-funded research “should NOT” deposit their own works in PubMed Central as is now required by law. Rather, they will be required to pay APA $2500 so that the articles can be deposited by the publisher. Since there is virtually no cost associated with the mechanics of deposit itself, and the NIH policy allows an embargo on public availability of articles of up to one year in order to protect the traditional subscription market, it is hard to see what this policy is intended to accomplish other than to force an additional income stream out of the faculty authors who already provide the APA with free content. And there is heavy irony in the APA’s assertion that they can do this “as the copyright holder.”

APA is trying to put its own authors between the proverbial rock and a hard place, and it is behaving as if theirs is a non-competitive market. This is not, in fact, the case – only two of the top ten psychology journals in 2007, based on impact factor, were published by the APA, and one non-APA journal editor expressed pleased surprise at the new policy because it was sure to benefit those other journals. But for years our faculties have behaved as if they were, indeed, captive to specific journals. As scholarly societies are driven, apparently by fear and anger more than a realistic business strategy, to treat the authors on whom they depend with such contempt, one can only hope that this misperception will begin to change.

Two simple and specific messages need to be delivered over and over to our faculty authors if this dysfunctional and abusive system is to change.

First, they need to be reminded that they do have choices about where they publish their work; there is no logic in remaining loyal to a particular journal when the publisher of that title has clearly decide to place profit and self-interest above the well-being of the academy, the discipline, or its scholarly authors.

Second, regardless of where they publish their research, scholars should resist transferring copyright to journal publishers. APA can only tell scholarly authors what that can and cannot do with their work after they have received a transfer of copyright; up to that point they must negotiate, not dictate. Academic presses can only sue universities over e-reserves because they have been given the copyright in those scholarly works in the first place. To cut the Gordian knot that is plaguing our scholarly communications system, we need to make an exclusive right to publish for a limited time (with reservation of some negotiable authors’ rights within that period) the standard for scholarly publishing agreements. As the original owners of copyright, forcing that change is within the power of faculty authors.

NOTE — Half an hour after this post was published, the APA web page referenced above no longer carries the policy announcement and says simply that the page is under review. We shall have to wait and see what APA comes up with, but the two cardinal points mentioned herein remain valid and urgent.

Authors' Rights, Copyright Issues and Legislation, Fair Use

What can best practices do for us?

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As promised, I want to look at a different kind of “new tool” to help users of copyright-protected content figure out what they can and cannot do as they work on new creations.

Best practices are a relatively new phenomenon in the copyright environment. The Center for Social Media at American University, a joint project of School of Communications and the Washington College of Law, has really lead the way in creating statements of best practices around fair use in video production. The first one, produced in cooperation with several documentary film groups, is a Documentary Filmmakers’ Statement on Best Practices in Fair Use. That statement has proved very successful in gaining recognition both amongst filmmakers and from the ancillary organizations like the insurance companies that support and underwrite documentary film projects.

Next there was a report on user-generated video called Recut, Reframe, Recycle that spelled out six creative practices that, the report’s authors felt, were potentially legal but were in danger of being curtailed by the draconian measures being sought by many in the content industry to combat online sharing of video and music files. Even though creative remixing is a very different activity, both legally and in its value to society as a whole, much of the “anti-piracy” rhetoric seems unable to make even the grossest distinctions. Thus the stakeholders in that conversation felt the need to articulate another set of best practices, released last week.

The Code of Best Practices in Fair Use for Online Video is intend to provide support for the activities of filmmakers who create works like “Dramatic Chipmunk,” which is used to illustrate the report’s cover. Such works are new creations built from the building blocks of other people’s work. This, of course, was the original purpose for the “copyright bargain” Congress was empowered to make by the Constitution (although the Framers probably did not foresee some of the results of that bargain!). This new code of best practices describes itself this way: “This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.”

For me, an immediate question is how these statements of best practices differ from the various attempts to articulate guidelines to define fair use, attempts that have caused great anxiety and a notable “chilling effect” on fair use despite the best intentions of those who promulgated them. The quickest answer is that best practices are usually generated from within an industry or an industry segment, whereas guidelines have traditionally been negotiated between users and rights-holders. “Best practices” are not an attempt to define a “safe-harbor” that will necessarily protect one from lawsuit, especially since many such attempts have proved illusory in the past. Rather, their aim is to accurately describe a consensus with a particular user group about what is and is not acceptable. Such a consensus can serve a couple of purposes.

First, it can help prevent the kind of “self-censorship,” or chilling effect, that is all too familiar among users; the decision by a filmmaker to forgo the best shoot or abandon good footage because a copyrighted work was accidentally captured in some of the frames, for example. Best practices can provide reassurance to that filmmaker that what she hopes to do is well within the standard practice through her industry.

Second, best practices could provide courts with exactly the kind of “industry standard” that is useful in determining when to find infringement or to protect a particular use as fair use. These documents can provide courts with a synoptic view of what kinds of practices are necessary for professional filmmakers and amateur videographers alike to create new works. By spelling out what kinds of practice are needed, as far as fair use is concerned, for creativity to flourish, statements of best practice can show courts that the particular industry is acting in good faith and can provide a broader perspective on the specific issue that has come before that court.

Best practices will not solve all the problems in the highly contested world of copyright and user rights, but they can serve a useful purpose. It is important to distinguish that purpose from the more grandiose and unrealistic claims made for copyright guidelines. Best practices may not stave off lawsuits, but they can help courts judge those lawsuits fairly and they can help users avoid letting the fear of a lawsuit overwhelm their urge to create.

Note — after completing the above post I discovered this contribution to a debate about best practices, which I now call to the attention of interested readers.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Temperence is a virtue

I am not much of a drinker, but I guess I can be intemperate in other ways. The Chronicle of Higher Education called my last blog post, about the lawsuit filed against Georgia State University, “fighting words.” I think that is journalistic hyperbole, but I do want to take the opportunity to make a couple of clarifying points and direct readers to some of the healthy debate that is going on.

First, about the free-rider problem. Sandy Thatcher, who is Director of the Penn State University Press, explains the issue as publishers see it in this reply to the quote from my post in the Chronicle. I want to be clear that I am not necessarily defending the practices at Georgia State; I cannot do so because I only know one side of the argument. One of the advantages a plaintiff gets in a lawsuit is a fairly long period to make their case publicly while the defendant is constrained from replying. But even if “free-riding” applies to the practices at GSU, it is important to note that our law tolerates and even encourages some degree of free-riding on intellectual property as a necessary condition to further creativity. That is the logic behind a long list of exceptions and restraints on the exclusive rights conferred by both copyright and patents, including fair use. My point about free-riding, however, is that it occurs at several places in the system of academic publishing. If GSU free-rides on the publishers, the publishers have likewise taken a unpaid ride on the labor of the University and its faculty when it acquired content from them without payment. Because this free-riding occurs at the very base-point of scholarly publishing, it really cuts off any argument against whatever is happening at GSU based on the incentive system copyright is supposed to create. The incentive for creation that copyright is supposed to offer simply does not exist because publishers absorb all the profits without passing them on to authors.

An exchange in the comments on my own post discusses this point in some depth. Monica McCormick argues that there is still an incentive system for authors, based on two points. One is the small amount of money that is usually paid to academic authors who publish monographs, and the other is the “stability” of the publishing system which advantages authors through promotion and tenure. Regarding the first point, there are some interesting replies from Prof. Kathleen Wallace, whose article “Marketing Ideas” addresses the issues of the scholarly communication system from the perspective of neither librarian nor publisher, but faculty author — the very person about whom we are arguing. So I leave that part of the incentive argument to Prof. Wallace and hope her article will generate some helpful discussion. As for the “stability” of the publishing system, I would note first that this advantage, insofar as it exists, does not seem to be a necessary creation of the copyright system as it is currently put into practice. It is certainly possible to image an equally serviceable system that does not rely on the uncompensated relinquishment of rights. Also, what stability there is in the system — based on effective evaluation and strong reputations — is partially itself the result of uncompensated labor done by faculty members working as reviewers and editors.

Finally, stability in scholarly publishing is currently very much in doubt, largely because of the astronomical prices changed by commercial publishers for academic journals. As more and more of a university’s budget goes for journal content, which often must be purchased repeatedly in different formats, less money is available to serve as incentive in other parts of the system. It is harder and harder to publish a scholarly monograph because sales have dropped so low; a decline that is directly attributable to funds being drawn away from monograph acquisitions by journal prices. McCormick’s point that we should distinguish between large commercial publishers and smaller academic ones, as well as between monograph and journals publishers, is exactly right. The problem is that the actions of the large commercial publishers — and we have to include Oxford and Cambridge Press, who are plaintiffs in the GSU suit, in this category even though the maintain a nominal affiliation with universities — are destabilizing the remainder of the system. It is simply not the case that all would be well of academics would just stop “pirating” their own works from victimized publishers.

Lastly, I want to comment on how all this should play out in the GSU lawsuit. If that case every reaches the stage of arguing the fair use defense, I hope the court will look very hard at the second fair use factor — the nature of the copyrighted work. Previously, the action on this factor has been minimal and has largely focused on published versus unpublished works and how much originality is necessary for “thick” or “thin” protection. But the economics of a particular segment of publishing, especially one as dysfunctional as scholarly publishing, ought to be considered when analyzing fair use, and factor two is a good place to do that. If the system is structured in a way that undermines the whole incentive purpose of copyright, as I have argued the scholarly publishing is, factor two, which really focuses on the expectations of creators of different types of works, should strongly favor an expansive application of fair use. After all, it is, uniquely, the creators themselves who are being sued here and who are asking for a space to make fair use of their own works. The court must determine what that space will look like, but it should be reminded that scholarly publishing simply does not function the way other systems of intellectual property creation do.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

A model for academic publishing

Last week BioOne unveiled its new “Model Publication Agreement,” with an announcement that ought to generate more attention than it has. BioOne is “ a collaboration between scientific societies, libraries, academe and the private sector [that] brings to the Web a uniquely valuable aggregation of the full-texts of high-impact bioscience research journals.” The decision to create a model publication agreement grew out of the perceived need to help some of its publishers, especially the scholarly societies, deal with the legal complexities of publishing in the digital age. The model agreement was drafted for BioOne by an attorney for an intellectual property firm in San Francisco, and it represents a superb and realistic balancing of the needs of author’s and academic publishers.

The core of the model agreement is a double license; the author grants to the publisher both a time-limited exclusive right of first publication and a perpetual, non-exclusive license to publish, distribute and sublicense. Subject to these two licenses, copyright is retained by the author. The model agreement contains a number of options or “fill-in-the-blank” points where publishers can customize the license to fit specific conditions. As an attempt to lower the transaction costs associated with publishing, and as an equitable balancing of needs that do not have to be in permanent competition, this is an excellent model to be followed in academic publishing.

It is unfortunate but predictable that one of the most immediate responses from the publishing community was a very revealing demur to the BioOne model agreement project. A university press director posted his objections within two days of the announcement; his position that the agreement is inappropriate even for academic publishers exposes the growing gap between academic publishing and the values of the academy that supports it.

One complaint is that, without an exclusive right in the published works, the publisher will have no standing to sue putative pirates who want to steal academic work. First, we should note that there will still be a rights holder under the model agreement who can enforce the copyright – the author. The problem is that the author’s interests not only do not coincide with the publisher in some cases, they sometimes conflict. The objecting press director notes that the author may actually benefit from wider distribution by a “pirate,” so one wonders why authors should continue to sign away copyrights to organizations who want to wield them as litigation weapons contrary to the authors’ interests. Copyright is supposed to be an author’s right; its genesis as a publisher’s right (associated with their role in censoring unpopular content) is centuries out of date.

And this brings us to the second revealing question about this objection – who are the pirates we are supposed to fear enough to give up copyright entirely to publishers? In fact, the only “pirates” against whom publishers tend to threaten litigation are the authors themselves and their institutions. The “theft” these publishers want to control is faculty authors passing out copies of their work to their own students or to others on campus, to their colleagues at other institutions, and via their websites. No one seriously expects large-scale republication of scholarly content for profit; all that is being defended by these grabs for exclusive copyright transfer is the traditional, and increasingly expensive, subscription model of access. If there is real danger that subscriptions will be canceled because authors retain their own copyrights, and this has never been shown to be the case, all it would illustrate is that this traditional business model has runs its course and no longer serves the interests of those it was created by and for.

The Ithaka report on university publishing asked presses and their parent institutions to reexamine how well publishing is integrated with the interests and values of the academy and the specific university. The BioOne Model Publication Agreement can help advance that integration, and objections to it are a profound illustration of the problem we need to address.