Category Archives: Copyright Issues and Legislation

Copyright Issues and Legislation, Scholarly Publishing

“It’s the links, dummy”

3 Comments

Events of the last week have delayed me from writing about a conference held at the Duke Law School on April 12, but I do not want to forget to share what was a very exciting and stimulating experience. Scholars from the US and the European Community gathered to discuss “Copyright Limitations and Exceptions: from access to research to transformative use.” If I had any criticism of the conference, it was that too little time was actually dedicated to discussing the legal details of limitations and exceptions to copyright law under the Berne Convention (especially article 9(2)) and the TRIPs agreement. But that flaut, which would bother only a small number of fellw copyright geeks, was more than made up for by the presentation about what exciting new possibilities copyright limitations and exceptions, if handled properly, could foster for scholarship.

The quote in my title came from Prof. James Boyle of the Duke Law School, explaining how the very links that create value on the Web are still illegal for much of scientific literature, even when the texts are available in digital form. To use an image suggested by another Duke Law professor, Jerome Reichman, the “web” of science today resembles the Rhine river in medieval times — it is so clogged with demands for toll that progress is impeded. Just as merchants had to stop over and over again to pay each castle owner in order to be allowed to continue sailing the river, today researchers must stop at innumerable “toll gates” to gather the research they need. This is why, as Boyle said, “a picture of an article” is not enough; what scientific research needs is a “semantic web” of linkages that allows research to be structured and shared. Boyle explains this concept, and the legal and economic obstacles to it, in this column from the Financial Times, “The irony of a web without science.”

This concept of a true “web of science” was developed more fully by John Wilbanks of the Science Commons. He demonstrated very compellingly the vastly wasteful research process that is determined by the siloing of research as it now exists on the web by show how one would approach the task of finding research about a particular protein in various databases, including Google and PubMed. Then he showed what a true semantic web approach could produce; a much more targeted and efficient search, even when conducted (as it currently must be) over a relatively small field of content. His conclusion was that keyword searching is less and less useful for research in the life sciences and that the use of “ancient tools” like Google for such research is largely dictated by the access restrictions created by an outmoded system of law (copyright) and an outmoded economic model for publishing. Finding ways to loosen the stranglehold of copyright law over the research web should be a primary goal of all discussions of copyright limitations and exceptions, while the search for new ways to disseminate scholarly research should occupy the attention of every scholar who hopes to take advantage of the tools offered by the 21st century.

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.

Copyright Issues and Legislation, Scholarly Publishing

Trying to sue State U

10 Comments

Two interesting lawsuits came to my attention recently, one decided in February by the federal district court in Los Angeles and the other just filed in the district court in Atlanta. The new case involves a challenge by three publishers to the electronic reserves practices at Georgia State University, so it has direct relevance for many of the readers of this blog. But taken together with the LA case, there is a fascinating question raised about whether it should be possible to sue state institutions for violations of federal law.

The case out of California, Marketing Information Masters v. the Board of Trustees of California State University reaches a rather predictable result in dismissing an allegation of copyright infringement on the grounds that states and state institutions are immune from lawsuits by private individuals and corporations. Congress has tried to change this doctrine in regard to copyright by adopting section 511 of the Copyright Act in 1994, but the courts keep brushing that provision aside. William Patry comments negatively on this trend here, while Georgia Harper partially defends it here. But what is really interesting is that the district court in Marketing Information Masters allowed the suit to go forward after dropping Cal State as a defendant by leaving intact the claim against the specific university employee named in his individual capacity. Pretty frightening stuff for state university faculty.

If we now flip forward to the suit filed yesterday against Georgia State University, we have to wonder if the same sovereign immunity problem will lead to dismissal. The four university officials are named only in their official capacity; no one claims they actually infringed copyright themselves. So how will this case avoid being dismissed? The answer seems to be in one of the few exceptions to sovereign immunity, the doctrine that one can sue state officials in their official capacity if one is seeking only injunctive relief — an order to stop the infringing activity — rather than money damages (the Ex parte Young doctrine). The complaint filed against GSU takes exactly this tack, seeking only an injunction to stop the activity going forward, not damages for alleged infringement in the past. On that basis, we might actually get a decision about the meat of the claim, that electronic reserves are almost always infringing if the universities do not pay for permission.

This claim, if successful, would increase student costs for educational materials dramatically as schools would have to pass on the costs for permissions in addition to the money already spent when they financed the original research, purchased the resultant articles and then, often, purchased them again in digital format. If publishers get their way a fourth payment would be required, and it would come straight out of students’ pockets.

The complaint against Georgia State acknowledges fair use, as it must, but it relegates it to a tiny fraction of situations, none of which can realistically be expected to occur on a modern college campus. In effect, this is an attempt to enforce judicially a “pay-per-use” model of content distribution. The real irony is that it is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.

A little bit of attention to the economics of scholarly publishing quickly undermines the claim in this complaint that, without permission fees for electronic reserves, the incentive system of copyright will be undermined. No monetary incentive currently exists for the vast majority of academic publishing, from the point of view of faculty, yet academics keep writing. There is no evidence at all that this well of free content will suddenly go dry if publishers are not able to collect an additional income stream from that well. If this suit goes forward in spite of sovereign immunity, that should be the issue on which the court focuses its attention.

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.

Copyright Issues and Legislation, Fair Use

Limitations and exceptions

Are getting a lot of attention lately. This is the phrase, used primarily in international copyright discussions and negotiations, to refer to the many compulsory licenses, declarations that an apparently infringing act will not be considered infringement, and restrictions on when a copyright can be claimed that make copyright material usable, to a degree, by the rest of us. Without limitations and exceptions, the exclusive rights granted by copyright would frustrate copyright’s fundamental purpose to encourage progress and creativity. It is one thing to guarantee a financial incentive for intellectual creation, but if that creation cannot be used by others, innovation grinds to a halt.

That is why so much of the Copyright Act is dedicated to exceptions to the exclusive rights. In the Government Printing Office edition, over one-third of the text is dedicated to sections 107 through 122, which incorporate most, but not all, of the limitations and exceptions.

In international treaties, the limitations and exceptions to copyright are supposed to be subject to a “three-step test” which has its origin in the Berne Convention, initial adopted by many countries (but not the US) in 1886. The US joined Berne in 1988 and oversaw its incorporation into international trade law in 1994. As it now stands, the three step reads like this:

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. (Art. 9(2) of Berne and Art. 13 in the TRIPs Agreement)

It is an interesting question whether some of the exceptions in the US Copyright Act violate this three step test – does fair use apply only to special cases, for instance, or conflict with normal exploitation of a work? The recent emphasis our courts have placed on transformative use as the sine qua non of fair use may be a direct reaction to this three part test.

So far, only one provision of the US Copyright Act has been found to violate the TRIPs three step test – the section 110(5)(B) exemption for businesses that allows installed TV sets and radios to “publicly perform” copyrighted works for patrons of those establishments. As interesting as that case is, the discussion of how fair use fits into this framework is even more interesting and important. A recent blog post by William Patry on this subject arguing that fair use does not violate the three step test is a great primer about this discussion.

Other attention to limitations and exceptions include this discussion of a proposal made to the World Intellectual Property Organization for a formal discussion and agreement about limitations and exceptions, something the US says it is not ready for. Closer to home, of course, is the recently released report by the Section 108 Study Group, proposing changes in the US copyright exception that permits library preservation work and interlibrary loan.

Most exacting, from my point of view, is this full-day conference being held at Duke Law School this Saturday on the topic of “Copyright Limitations and Exceptions: from access to research to transformative use.” There will be an exciting group of scholars from the US and European here to discuss the various issues and problems, with a focus on practical strategies to encourage creative uses of digital content. I hope any readers who are close to the North Carolina Research Triangle will consider attending this conference, and that those who cannot will look for podcasts, which are often posted by the Center for the Study of the Public Domain.

Copyright Issues and Legislation, Fair Use, Technologies

Turnitin and hold your nose

3 Comments

I have been very neglectful of posting for the past two weeks, mostly due to the pressures of other work, but the attention paid to the recent court decision involving the online plagiarism detection service Turnitin has finally provoke me enough.

Turnitin is a web-based service that compares submitted papers to vast database of essays available on the web and it is own proprietary database. It offers instructors a report on how likely it is that the given paper is plagiarized. Four high school students from Virginia who were required to submit their work to Turnitin or get a zero challenged the company in court. The district court’s opinion, dismissing all of the students claims, was issued March 11 and has provoked a lot of reaction, The Chronicle of Higher Education has a story about those reactions here, and William Patry discusses several aspects of the case in his blog post called “Turn-it-it and Kiss-it-goodbye.”

One aspect of the decision worth mentioning is its discussion of the claim that Turnitin infringes copyright because it adds a copy of every paper to its database as soon as the paper is submitted so it can be compared to later submissions. The plaintiffs tried to prevent this by indicating their lack of consent to have their work copied in this way on the papers they submitted, but the court found that the click-through contract they were obligated to agree to in order to submit in the first place took precedence. More on that in a moment. On the copyright issue, the court found that the company had a valid fair use defense regarding their storage and use of student work, even if the contract giving them permission had failed (which it did not).

I have been torn about the fair use analysis the court used in this case. I have a hard time justifying to myself the business model Turnitin use, although my doubts are likely bound up with broader concerns about this kind of attempt to use technology to force people to behave with integrity. But, to my mind, Turnitin’s business model is as dependant on infringement as is Grokster. The district court disagreed, finding that Turnitin made a transformative use of the works it archived for later comparision. What strikes me most about this decision is the way “transformative use” has become a talisman, invoked whenever the court wants to find fair use. The copyright statute seems to indicate pretty clearly that even non-transformative uses can be fair use, but courts are now so enamored with the notion of transformation that they are now finding it even in unlikely situations because it has become the sine qua non of fair use. This is both good and bad for higher education; some educational uses of copyrighted works seem to be purely iterative, not transformative, and fair use in those cases seems increasingly hard to argue. On the other, the more the concept of transformative use is expanded, the better it will be for educational; some of those uses that don’t seem transformative to me may well seem so to our courts.

The other, more troubling aspect of the Turnitin decision was the court’s attitude to the click-wrap license. The plaintiff students had no choice but to click through the license; they faced a zero if they didn’t and there was no way to communicate with Turnitin until they had accepted the license. Nevertheless, they tried to make their objection to the term that allowed Turnitin to copy and save their work as soon as possible; they included a notice with their paper that said they did not consent. Tough luck, said the court; you agreed to the license and you have to live with it. This strict enforcement of a “take it or leave it” license even when the party on whom it is imposed objects in a timely way seems to make a mockery of the notion of a contract as a bargain that may be “unconscionable” if there is no meaningful chance to negotiate.

If we need further confirmation that the court was aiming at a particular result and disregarding a reasoned discuss of the law, there was its astonishing dismissal of the plaintiff’s argument that, as minors, contracts they entered into are voidable. The court recognized that this was the usual rule in contract law, but said that the plaintiffs could not avail themselves of it because they had accepted the “benefits” of the contract. What benefit had they accepted, I wondered. Standing to sue, the court replied, the right to bring the case to challenge the contract itself. By this logic, of course, no contract could ever be challenged on the basis of “infancy.” Such absurd and circular reasoning can only serve, as Bill Patry says, to increase the cynicism so many people feel toward our courts.

Copyright Issues and Legislation, Digital Rights Management, Fair Use, Uncategorized

Copyright Reform Suggestions, part 2

They are almost five months old but now, and I meant to point them out a long time ago, but the six-point proposal for copyright reform released by Public Knowledge is well worth reading, studying and mailing to your local Congressman.

As has been said before on this site, it is probably passed time that our copyright law be throughly revised and made flexible enough to address new technologies that have come into existence since 1978 as well as to anticipate and accommodate those that have yet to be invented or widely-used. But there is not a lot of political will to undertake a comprehensive copyright reform these days, and the overwhelming influence the biggest content companies seem to wield with major players in Congress suggests that comprehensive reform might do more harm to the interests of consumers and, especially, educators, then good. Until we can reasonable hope for through-going reform in a positive direction, the kind of incremental changes suggested by Public Knowledge seem like the best direction to focus our energies. Although it is fair to call these proposed reforms “more modest,” some of them would be quite radical in practice.

Two of the suggestions made by Public Knowledge will be quite familiar to those who follow copyright issues — fair use reform that would make the four factor test more usable and sensible in today’s digital environment and orphan works legislation to reduce the risk of making productive, socially beneficial works that are not currently subject to commercial availability and whose rights owners are AWOL. One proposal that I have not written about before in this space, but have discussed elsewhere, is that copyright holders should be required to give notice to consumers whenever they are imposing contractual or technological restrictions on a work that takes it outside of the uses reasonable expected under copyright law with its exceptions, including fair use. The principle that consumers should know what they are buying and whether they an use it for reasonably foreseeable purposes is actually quite basic in our commercial law, and neither contracts nor DRM systems should be allowed to defeat reasonable expectations of a purchaser without prior notice.

All of these suggestions — the remaining three are limits on secondary liability, protections against copyright abuse and simplified, fairer licensing rules — deserve our attention and support, at least until a more comprehensive and fair reform of copyright seems possible.

Copyright Issues and Legislation

The discordant argument for harmony

2 Comments

Last Monday, in his regular column for the Financial Times, James Boyle discussed the ubiquitous argument that copyright laws should be harmonized around the world. Often phrased as a argument about competitive advantage, the call for harmonization, Boyle points out, only goes in one direction — upwards. No one ever asks that the laws be harmonized downward in favor of lesser protection, even when there is substantial evidence that copyright protection is now far more restrictive and protective than is necessary to accomplish the purpose for which it is intended, to provide incentives for creation. As Boyle indicates, copyright has become an “evidence-free zone” where the mounting number of studies that suggest that we are over-protecting intellectual property in a way that actually discourages and depresses creativity and innovation are consistently ignored. One economic study that Boyle cites, for example (and that I have mentioned before in this space), finds that the optimal term of copyright protection is only 15 years, not the average term we now have of approximately one-hundred years.

As if on cue, another industry lobbying group, dressed up as a think-tank, is touting their latest argument for additional protection; the Progress and Freedom Foundation wants to extend the performance right in US Copyright law to include recording artists. The principle argument for this grab at additional royalties, of course, is that other countries give recording artists such a right, and the laws ought to be harmonized. No thought is given, of course, to the possibility of seeking harmonization by lobbying other countries to drop this particular right, even though its absence in the United States is not shown to have done any harm to our recording industry. The argument that radio play is an economic benefit to the recording industry is dismissed as irrelevant, proving Boyle’s point about the fear of actual evidence.

Until legislators start to demand hard economic evidence for the changes they are asked to make to intellectual property laws, we will continue to have this game where lobbyists convince one nation to adopt a stricter IP regime than the rest of the world, then try to force that regime down everyone else’s throats in the name of harmony.

Copyright Issues and Legislation

Silly copyright reform and its serious implications.

On February 11, Senator Arlen Specter (R-PA) introduced a very specific reform measure for the US Copyright Act — a bill that would add to the exceptions to the public performance rights a special provision to allow churches to host Super Bowl parties.

Senator Specter is justifiably angry at the NFL for intimidating churches that want to host parties where folks get together, often share a meal or heavy snacking, and watch the big game. Some churches also use the events as an opportunity to raise money for various causes (like the “Souper Bowl” movement to assist community food pantries) or to have Sunday evening services. For several years the NFL has sent letters to such churches telling them that the parties infringe rights in the trademarked name “Super Bowl” and in the NFL’s copyright in its broadcast.

So Senator Specter has introduced an amendment that would allow only churches, based on a definition in the IRS code, to host viewings of “professional football contests.” Presumably a World Series party would still be potentially infringing, as would a party held at the local Elks or Kiwanis club. His anger is justified, but his narrow solution makes the legislation look silly and like special pleading. What is needed is a more comprehensive reevaluation of the copyright exceptions with a eye to the foundational purpose of copyright law.

The question that should be asked is “if the exclusive right is intended to provide an incentive for creativity and innovation, does this exception put that incentive at risk?” When the answer is clearly no, as it is here, the correct approach is to determine how broad the exception should be based on the public interest to be served, not to craft a narrow exception to penalize over-reaching, however satisfying that punative urge may seem.

Here, the ridiculous claims of the NFL seem to be unrelated to any incentive to create new TV broadcasts.  The same number of eyeballs, if not more, will witness the advertising that is the true purpose, and often the true entertainment value, of a Super Bowl broadcast.  And there is no indication that the NFL or the networks are trying to extract a licensing fee from the churches that host these parties.  But if restricting the viewing of broadcast TV to personal homes and a few closely defined exceptions does not serve an incentive purpose, why are we doing it at all?  Why not recognize that sporting event parties, “Sopranos” get-togethers, and lots of other gatherings to watch TV that seem like public performances, pose no risk to the reasoning behind copyright law and simply ought to be allowed?  Instead of punishing the NFL, however much that punishment is earned,  lets take the opportunity to discuss whether the public performance exceptions ought to be much broader than they are in order to serve legitimate public interests.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

Suddenly, Open Access is all the rage.

In December the National Institute of Health made public access to research articles that grow out of NIH funded research mandatory; research are now required to place their final version of articles accepted for publication after April 7 into the PubMed Central database at NIH within one year of publication.

This was a victory for many library and higher ed. advocates of public access, but there is a certain element of “be careful what you wish for” here. Many campus are now scrambling to figure out the legal, practical and financial implications of complying with this mandate. Three issues must be addressed in a relatively short time frame.

1. How will authors manage their copyrights to comply with the mandate? It has long been important for authors to think about and negotiate for an appropriate copyright arrangement with publishers. Insofar as this mandate forces them to do what they ought to have been doing for years, its impact is salutary. But it will still come as a shock to many researchers and will increase the need for sound copyright guidance and policies on campuses.

2. How will campuses deal with the mechanics of deposit? Since lack of compliance could imperil future research funds, this is an issue which should not be left entirely to individual authors. Institutional repositories, where they exist, are in a good position to help with the mechanics of deposit, and library staffs will also need to be aware of the process and ready to assist. Although the process is not hard, and is easier to accomplish if the author is involved, it is clear that institutional guidance and assistance is called for.

3. Likewise, researchers will need assistance locating and tracking the PubMed reference numbers of their articles that are deposited with NIH. Starting with the May round of grant funding, NIH will require that these numbers be included as part of the investigators previous work with NIH when applying for renewals or new funding. Again, libraries are in the best position to help researchers locate and retrieve this information.

Hard on the heels of this public access mandate came news of the vote this week by the Harvard faculty to require deposit of all articles written by the Arts and Sciences faculty in Harvard’s own institutional repository. The faculty agreed unanimously to automatically grant to Harvard a non-exclusive license to their work to put those articles in the repository; authors retain copyright and are free to publisher their work anywhere they lack as long as the publisher will accept that copyright is subject to this prior license. The decision is a strong affirmation of the value of open access to academic research, both to the public and to the academy itself.

Lots of commentary on these two decisions is available. This comment by William Patry addresses both, and there is an excellent roundup of information and comment on the Harvard decision here on Open Access News and on Mike Carroll’s blog here. I have written about the NIH mandate here.

Have we arrived at a “tipping point” for open access? At the very least, these developments are a great opportunity to begin or deepen a campus conversation about open access – what it is, all the different whys it can be accomplished and, most importantly, why it is so important, both in our own best interests in higher education and in the public interest.