Category Archives: Open Access and Institutional Repositories

Open Access at the tipping point

Open Access Day bookmark used under CC-BY license from[ guest post by Paolo Mangiafico ]

As readers of this blog almost certainly know, this week was Open Access Week, and it’s been heartening to see all of the stories about how open access is creating new opportunities for scholarship, and transforming scholarly communication.

It’s also been interesting to see organizations that one might not think of as being open access proponents proclaiming their OA bona fides this week. On Tuesday this press release from Nature came across my Twitter feed. I shared it with my colleagues Kevin and Haley, joking that our job was done and we could go home, now that even in Nature over 60% of published research articles were open access under Creative Commons licenses.

Even though Nature neglects to mention in this release that they are bringing in a lot of money from open access through high article processing charges (they aren’t doing this just to be nice) I still think it’s an important milestone because it shows that open access is becoming the norm, even in mainstream, high visibility journals. I’m optimistic that this is another indicator that we’re on our way to some kind of tipping point for open access, where other effects will come into play.

One of the statistics given in the press release is that the percentage of authors choosing CC-BY licenses in Nature Publishing Group’s open access journals rose from 26% in 2014 to 96% in September 2015. Just last year, a study by Taylor & Francis indicated that, when asked (or at least when asked with the leading questions in the T&F study), authors were more likely to choose other CC variants, yet in Nature open access journals the choice of CC-BY is now nearly unanimous. Maybe “choice” is too strong a word – they appear to have achieved this primarily by setting CC-BY as the default. Just as in the past when signing over all your rights to a publisher was the default (and, unfortunately, in many journals still is), it seems that few authors realize they can make a change, or see a strong reason to do so. What this signals is the power of setting a default.

When we were working toward an open access policy for Duke University faculty in 2010, we talked about setting the default to open. As we discussed the proposed open access policy with Duke faculty, we never called it a mandate, and we haven’t treated it as a mandate, in that the policy doesn’t force anyone to do something they are disinclined to do. But absent any expressed desire to the contrary (via an opt out) the policy enabled the faculty and the University to make as much scholarship produced at Duke be as widely available as possible. We approached the policy as a default position, and built services to make it easy for Duke authors to make their work open access via an institutional repository and have it appear on their University and departmental profile pages, so there are few reasons now not to do it. It will still take time, but I think this “green” open access option is something authors will increasingly be aware of and see as a natural and easy step in their publishing process. They’ll see open access links showing up on their colleagues’ profiles, being included in syllabi and getting cited by new audiences around the world, and linked from news stories, for example, and word of mouth will tell them that it’s really easy to get that for themselves too.

What makes me optimistic about the figures in the Nature press release is that they point to an environment where even in high visibility journals open access is no longer that thing only your activist colleague does, but is something that many people are doing as a matter of course. And as the percentage of authors making their work open access grows, suddenly various decision-making heuristics and biases start to tip in the other direction. Pretty soon the outlier will be the scholar whose work is not openly available, either via “green” repositories or “gold” open access journals, and I think momentum toward almost universal OA will increase.

Our work isn’t done, of course. Even with open access as a default, the next challenge will be to manage the costs. So far the shift to OA has mostly been an additional cost, and the big publishers who made big profits before are continuing to make big profits now via these new models. Even as OA becomes prevalent, and scholars see it as the norm, we’ll still have to work hard to find ways to exert downward pressure on author processing charges and other publishing costs, so that open access doesn’t just become another profit center that exploits scholarly authors and their funders and institutions. We need to do better to surface these costs, and to put in place mechanisms and perhaps shift to supporting other publishers and other models that will keep costs down.

But for now let’s call this a victory. Recognizing there’s still a lot to do, let’s pop the champagne bottle, celebrate open access week, and then get back to work on the next round of creating a better scholarly communication ecosystem.


Sit, Stay, Pay: Paywalls and Popular Research

A couple of weeks ago, an article detailing new research findings by the Duke Canine Cognition Center appeared in our Raleigh area newspaper, the News and Observer. The researchers found that tone of voice can affect how different types of dogs—calmer dogs versus more energetic dogs—respond to their owners’ commands. As a dog owner myself, this is a potentially useful discovery that could help me and many others develop better relationships with our pets.

For those readers who wanted to delve deeper into the researchers’ methods and results by reading the original article, the News and Observer thoughtfully included a link to the article from the journal in which it was published: Animal Cognition. However, clicking on the link takes the reader not to the article itself but to an intermediary page that requires a payment of $40 in order to access the article. In the parlance of scholarly communication, the reader is “hitting a paywall.” By charging prohibitively high fees to view single articles, journals create a barrier between readers without a subscription (read: most of the general public) and the research they want to access.

This problem is not a new one. The open access movement has been trying to address the paywall issue for the better part of two decades. In 2010, as a part of that effort, the Duke faculty adopted a university-wide open access policy to facilitate wider access to their research. The policy enables faculty members to archive copies of their research articles in our institutional repository, DukeSpace. Open self-archiving is accepted by most journals, and many of Duke’s faculty members have uploaded their work to the repository. Anything archived in DukeSpace is free and open to anyone with an internet connection.

For the past two years, to raise awareness about the availability of DukeSpace as resource for making faculty work available to the public, the Duke Libraries Office of Copyright and Scholarly Communication has been collaborating with our Office of News and Communication to provide open access copies of research papers that are featured in the news. When a news story is about to be released, we are alerted so that we can get in touch with the authors and request a copy of the research article. Most authors get back to us within a day or two. My colleagues and I then upload the article to the repository and provide the permanent link to Duke News to include in the story.

Since we began seeking these articles out, we’ve uploaded dozens of papers to the repository, many of which have seen very high numbers of downloads. One particular article about a new material that can harvest power from the airwaves has been viewed nearly 17,000 times since it was archived in DukeSpace in 2013. And the readership wasn’t limited to the United States. Many of the downloads came from other countries, including India, China, Russia, and Japan.

Like that article, we wanted to make the Canine Cognition Center’s paper available openly. Though the News and Observer is not a Duke publication, we still saw the opportunity to leverage our open access policy to provide wider access to the article. When the authors received my request, they were—like most of the authors we contact—more than happy to provide a copy of the article. They were quite appreciative, in fact, of the offer to upload it on their behalf, as it would help increase the impact of the article’s findings. It is now available for download free of charge in Dukespace.

I hope that this case will raise awareness among news agencies of the limited access the public has to academic research, but also of ability to collaborate with authors and institutions to provide open copies of research articles. By contacting the researchers and asking them to post an open access version of their paper, you will not be imposing on them, but helping them increase the reach and impact of their scholarship. And in so doing, you’ll be affording more readers the opportunity to engage with current research.

For all the dog lovers out there, enjoy the article.

A distinction without a difference

The discussion of the new Elsevier policies about sharing and open access has continued at a brisk pace, as anyone following the lists, blogs and Twitter feeds will know.  On one of the most active lists, Elsevier officials have been regular contributors, trying to calm fears and offering rationales, often specious, for their new policy. If one of the stated reasons for their change was to make the policy simpler, the evidence of all these many “clarifying” statements indicates that it is already a dismal failure.

As I read one of the most recent messages from Dr. Alicia Wise of Elsevier, one key aspect of the new policy documents finally sunk in for me, and when I fully realized what Elsevier was doing, and what they clearly thought would be a welcome concession to the academics who create the content from which they make billions, my jaw dropped in amazement.

It appears that Elsevier is making a distinction between an author’s personal website or blog and the repository at the institution where that author works. Authors are, I think, able to post final manuscripts to the former for public access, but posting to the latter must be restricted only to internal users for the duration of the newly-imposed embargo periods. In the four column chart that was included in their original announcement, this disparate treatment of repositories and other sites is illustrated in the “After Acceptance” column, where it says that “author manuscripts can be shared… [o]n personal websites or blogs,” but that sharing must be done “privately” on institutional repositories. I think I missed this at first because the chart is so difficult to understand; it must be read from left to right and understood as cumulative, since by themselves the columns are incomplete and confusing.  But, in their publicity campaign around these new rules, Elsevier is placing a lot of weight on this distinction.

In a way, I guess this situation is a little better than what I thought when I first saw the policy. But really, I think I must have missed the distinction at first because it was so improbable that Elsevier would really try to treat individual websites and IRs differently. Now that I fully understand that intention, it provides clear evidence of just how out of touch with the real conditions of academic work Elsevier has become.

Questions abound. Many scientists, for example, maintain lab websites, and their personal profiles are often subordinate to those sites. Articles are most often linked, in these situations, from the main lab website.  Is this a personal website? Given the distinction Elsevier makes, I think it must be, but it is indicative of the fact that the real world does not conform to Elsevier’s attempt to make a simple distinction between “the Internet we think is OK” and “the Internet we are still afraid of.”

By the way, since the new policy allows authors to replace pre-prints on ArXive and RePEC — those two are specifically mentioned — with final author manuscripts, it is even clearer to see that this new policy is a direct attack on repositories, as the Chronicle of Higher Education perceives in this article.  Elsevier seems to want to broaden its ongoing attack on repositories, shifting from a focus on just those campuses that have an open access policy to now inhibiting green self-archiving on all university campuses.  But they are doing so using a distinction that ultimately makes no sense.

That distinction gets really messy when we try to apply it to the actual conditions of campus IT, something Elsevier apparently knows little about and did not consider as the wrote the new policy documents.  I am reminded that, in a conversation unrelated to the Elsevier policy change, a librarian told me recently that her campus Counsel’s Office had told her that she should treat the repository as an extension of faculty members’ personal sites.  Even before it was enshrined by Elsevier, this was clearly a distinction without a difference.

For one thing, when we consider how users access these copies of final authors’ manuscripts, the line between a personal website and a repository vanishes entirely. In both cases the manuscript would reside on the same servers, or, at least, in the same “cloud.” And our analytics tell us that most people find our repositories through an Internet search engine; they do not go through the “front door” of repository software. The result is that a manuscript will be found just as easily, in the same manner and by the same potential users, if it is on a personal website or in an institutional repository. A Google or Google Scholar search will still find the free copy, so trying to wall off institutional repositories is a truly foolish and futile move.

For many of our campuses, this effort becomes even more problematic as we adopt software that helps faculty members create and populate standardized web profiles. With this software – VIVO and Elements are examples that are becoming quite common — the open access copies that are presented on a faculty author’s individual profile page actually “reside” in the repository. Elsevier apparently views these two “places” – the repository and the faculty web site – as if they really were different rooms in a building, and they could control access to one while making the other open to the public. But that is simply not how the Internet works. After 30 years of experience with hypertext, and with all the money at their disposal, one would think that Elsevier should have gained a better grasp on the technological conditions that prevail on the campuses where the content they publish is created and disseminated. But this policy seems written to facilitate feel-good press releases while still keeping the affordances of the Internet at bay, rather than to provide practical guidelines or address any of the actual needs of researchers.

From control to contempt

I hope it was clear, when I wrote about the press release from Elsevier addressing their new approach to authors’ rights and self-archiving, that I believe the fundamental issue is control.  In a comment to my original post, Mark Seeley, who is Elsevier’s General Counsel, objected to the language I used about control.  Nevertheless, the point he made, about how publishers want people to access “their content,” but in a way that “ensures that their business has continuity” actually re-enforced that the language I used was right on the mark.

My colleague Paolo Mangiafico has suggested that what these new policies are really about is capturing the ecosystem for scholarly sharing under Elsevier’s control.  As Paolo points out, these new policies, which impose long embargo periods on do-it-yourself sharing by authors but offer limited opportunities to share articles when a link or API provided by Elsevier is used, should be seen alongside the company’s purchase of Mendeley; both provide Elsevier an opportunity to capture data about how works are used and re-used, and both  reflect an effort to grab the reins over scholarly sharing to ensure that it is more difficult to share outside of Elsevier’s walled garden than it is inside that enclosure.

I deliberately quote Mr. Seeley’s phrase about “their content” because it is characteristic of how publishers seem to think about what they publish.  I believe it may even be a nearly unconscious gesture of denial of the evident fact that academic publishers rely on others — faculty authors, editors and reviewers — to do most of the work, while the publisher collects all of the profit and fights the authors for subsequent control of the works those authors have created. That denial must be resisted, however, because it is in that gesture that the desire for control becomes outright disrespect for the authors that publishing is supposed to serve.

Nowhere is this disrespect more evident than in publisher claims that the works they publish are “work made for hire,” which means, in legal terms, that the publisher IS the author.  The faculty member who puts pen to paper is completely erased from the transaction.  To be clear, as far as I know Elsevier is not making such a claim with its new policies.  But these work made for hire assertions are growing in academic publishing.

Three years ago I wrote about an author agreement from Oxford University Press that claimed work made for hire over book chapters; that agreement is still in use as far as I am aware.  At the time, I pointed out two reasons why I thought OUP might want to make that claim.  First, if something is a work made for hire, the provision in U.S. copyright law that allows an author or her heirs to terminate any license or transfer after 35 years simply does not apply.  More significantly, an open access license, such as is created by many university policies, probably is not effective if the work is considered made for hire.  This should be pretty obvious, since our law employs the legal fiction that says the employer, not the actual writer, is the author from the very moment of creation in work made for hire situations.  So we should read these claims, when we find them in author agreements, as pretty direct assaults on an author’s ability to comply with an open access policy, no matter how much she may want to.

As disturbing as the Oxford agreement is, however, it should be said that it makes some legal sense.  When a work is created by an independent contractor (and it is not clear to me if an academic author should be defined that way), there are only selected types of works that can even be considered work made for hire; one of them is “contribution[s] to a collective work.”  So a chapter in an edited book is at least plausible as a work made for hire, although the other requirement — an explicit agreement, which some courts have said must predate the creation of the work — may still not be met.  In any case, the situation is much worse with the publication agreement from the American Society of Mechanical Engineers (ASME), which was recently brought to my attention.

ASME takes as its motto the phrase “Setting the Standard,” and with this publication agreement they may well set the standard for contemptuous maltreatment of their authors, many of whom are undoubtedly also members of the society.  A couple of points should be noted here.  First, the contract does claim that the works in question were prepared as work made for hire.  It attempts to “back date” this claim by beginning with an “acknowledgement” that the paper was “specially ordered and commissioned as a work made for hire and, accordingly, ASME is the author of the Paper.”  This acknowledgement is almost certainly untrue in many, if not most, cases, especially since it appears to apply even to conference presentations, which are most certainly not “specially commissioned.”  The legal fiction behind work made for hire has been pushed into the realm of pure fantasy here.

What’s more, later in the agreement the “author” agrees to waive all moral rights, which means that they surrender the right to be attributed as the author of the paper and to protect its integrity.  Basically, an author who is foolish enough to sign this agreement has no relationship at all to the work, once the agreement is in place.  They are given back a very limited set of permissions to use the work internally within their organization and to create some, but not all, forms of derivative works from it (they cannot produce or allow a translation, for example).  Apparently ASME has recently started to disallow some students who publish with them to use the published paper as part of a dissertation, since most dissertations are now online and ASME does not permit the  writer to deposit the article, even in such revised form, in an open repository.

To me, this agreement is the epitome of disrespect for scholarly authors.  Your job, authors are told, is not to spread knowledge, not to teach, not to be part of a wider scholarly conversation.  It is to produce content for us, which we will own and you will have nothing to say about.  You are, as nearly as possible, just “chopped liver.”  It is mind-boggling to me that any self-respecting author would sign this blatant slap in their own face, and that a member-based organization could get away with demanding it.  The best explanation I can think of is that most people do not read the agreements they sign.  But authors — they are authors, darn it, in spite of the work for hire fiction — deserve more respect from publishers who rely on them for content (free content, in fact; the ASME agreement is explicit that writers are paid nothing and are responsible for their own expenses related to the paper).  Indeed, authors should have more respect for themselves, and for the traditions of academic freedom, than to agree to this outlandish publication contract.

Stepping back from sharing

The announcement from Elsevier about its new policies regarding author rights was a masterpiece of doublespeak, proclaiming that the company was “unleashing the power of sharing” while in fact tying up sharing in as many leashes as they could.  This is a retreat from open access, and it needs to be called out for what it is.

For context, since 2004 Elsevier has allowed authors to self-archive the final accepted manuscripts of their articles in an institutional repository without delay.  In 2012 they added a foolish and forgettable attempt to punish institutions that adopted an open access policy by purporting to revoke self-archiving rights from authors at such institutions.  This was a vain effort to undermine OA policies; clearly Elsevier was hoping that their sanctions would discourage adoption.  This did not prove to be the case.  Faculty authors continued to vote for green open access as the default policy for scholarship.  In just a week at the end of last month the University of North Carolina, Chapel Hill, Penn State, and Dartmouth all adopted such policies.

Attempting to catch up to reality, Elsevier announced last week that it was doing away with its punitive restriction that applied only to authors whose institutions had the temerity to support open access. They now call that policy “complex” — it was really just ambiguous and unenforceable — and assert that they are “simplifying” matters for Elsevier authors.  In reality they are simply punishing any authors who are foolish enough to publish under these terms.

Two major features of this retreat from openness need to be highlighted.  First, it imposes an embargo of at least one year on all self-archiving of final authors’ manuscripts, and those embargoes can be as long as four years.  Second, when the time finally does roll around when an author can make her own work available through an institutional repository, Elsevier now dictates how that access is to be controlled, mandating the most restrictive form of Creative Commons license, the CC-BY-NC-ND license for all green open access.

These embargoes are the principal feature of this new policy, and they are both complicated and draconian.  Far from making life simpler for authors, they now must navigate through several web pages to finally find the list of different embargo periods.  The list itself is 50 pages long, since each journal has its own embargo, but an effort to greatly extend the default expectation is obvious.  Many U.S. and European journals have embargoes of 24, 36 and even 48 months.  There are lots of 12 month embargoes, and one suspects that that delay is imposed because those journals that are deposited in PubMed Central, for which 12 months is the maximum embargo permitted.  Now that maximum embargo is also being imposed on individual authors.  For many others an even longer embargo, which is entirely unsupported by any evidence that it is needed to maintain journal viability, is now the rule.  And there is a handful of journals, all from Latin America, Africa, and the Middle East, as far as I can see, where no embargo is imposed; I wonder if that is the result of country-specific rules or simply a cynical calculation of the actual frequency of self-archiving from those journals.

The other effort to micromanage self-archiving in this new policy is the requirement that all authors who persevere and wish, after the embargo period, to deposit their final manuscript in a repository, must apply a non-commercial and no derivative works limitation on the license for each article.  This, of course, further limits the usefulness of these articles for real sharing and scholarly advancement.  It is one more way in which the new policy is exactly a reverse of what Elsevier calls it; it is a retreat from sharing and an effort to hamstring the movement toward more open scholarship.

The rapid growth of open access policies at U.S. institutions and around the world suggests that more and more scholarly authors want to make their work as accessible as possible.  Elsevier is pushing hard in the opposite direction, trying to delay and restrict scholarly sharing as much as they can.  It seems clear that they are hoping to control the terms of such sharing, in order to both restrict it putative impact on their business model and ultimately to turn it to their profit, if possible.  This latter goal may be a bigger threat to open access than the details of embargoes and licenses are. In any case, it is time, I believe, to look again at the boycott of Elsevier that was undertaken by many scholarly authors a few years ago; with this new salvo fired against the values of open scholarship, it is even more impossible to imagine a responsible author deciding to publish with Elsevier.

Listening to Lessig

Like many other attendees, I was pleased when I saw that the closing keynote address for this year’s Association of College and Research Libraries Conference was to be given by Professor Larry Lessig of Harvard.  But, to be honest, my excitement was mingled with a certain cynicism.  I have heard Lessig speak before, and I am afraid I worried that I would be listening to essentially the same lecture again.

My suspicion was not wholly unwarranted.  In part I think it is the fault of Lessig’s instantly recognizable lecture style.  It is energetic and entertaining, but because its rhythms and conventions are so idiosyncratic, I think it may flatten the message a little bit.

In any case, I sat down in the ballroom of the Oregon Convention Center on Saturday with somewhat mixed expectations.  But what I did not expect was for Lessig to begin his talk by acknowledging that all his public lectures were really the same.  Had he read my mind?  No, his point was a little different.  Over the years, he told us, he has had three major themes – political corruption, net neutrality, and copyright/open access.  But, he told his audience of attentive librarians, those three themes are fundamentally just one theme.  Each is about equality.  Not three themes, but only one — equality.  Equality of access to the political process is the heart of his current campaign against the corruption of our political system by the endless pursuit of money.  Equality of access to the means of communication and culture is key to the fight for net neutrality.  And equality of access to knowledge is what animates the open access movement.

So it turns out that my worry, prior to the talk, was both unfair and, in a sense, correct.  All Lessig’s lectures are very much the same, because the underlying value he is asking us to focus on is the same.

Thinking about this unity-behind-diversity in the messages about political corruption, net neutrality and open access set me thinking about the way my colleagues and I frame our advocacy for the last of those items, open access to scholarship.  Our messages, I think, tend to focus on incremental change, on the benefits to individual scholars, and on not rocking the academic boat too much.  Lessig reminded me that there are good reasons to rock a little bit harder.  Publishing in toll access journals and neglecting open access options or additional means of dissemination is not just short-sighted.  It is dumb, and it is harmful.  We need to say that occasionally.

Publishing exclusively through closed access channels is dumb because it ignores huge opportunities available that can, quite simply, make the world a better place.  And such publishing fails to take full advantage of the greatest communications revolution since the printing press.  Indeed, online toll-access deliberately breaks network technology in order to protect its outmoded and exclusionary business model.  Doing this is simply propping up the buggy whip manufactures because we are afraid of how fast the automobile might travel.  The academy is not usually this dumb, but in this case we are wasting vast amounts of money to support an obsolete technology.  I know that the promotion and tenure process is often cited as the reason for clinging to the old model, but this is simply using one outdated and inefficient system as an excuse for adhering to another such system.  Traditional modes of evaluation are breaking down as fast as traditional publishing and for the same reasons.  Hiding our heads in the sand is no solution.

More to the point, however – more to Lessig’s point – is the fact that this traditional system we are so reluctant to wean ourselves from actually hurts people.  It fosters ignorance and inequality.  It makes education more difficult for many, retards economic progress, and slows development worldwide.  As academics and librarians who by inclination and by professional responsibility should be committed to the most universal education possible, it is shameful that we cling to a system where only the rich can read our scholarship, only the privileged gain access to the raw materials of self-enlightenment.  How can a researcher studying the causes and treatments of malaria, for example, be satisfied to publish in a way that ensures that many who treat that disease around the globe will never be able to see her research?  How can an anthropologist accept a mode of publishing that limits access for the very populations he studies, so they will never be able to know about or benefit from his observations?  Why would a literary scholar writing about post-colonialist literature publish in a way that fosters the same inequalities as earlier forms of colonialism did?

In this wonderful column from Insider Higher Ed., the ever-insightful Barbara Fister writes about what we really mean when we talk about serving a community, and what we might mean by it.  She comments on the “members-only” approach to knowledge sharing that has become an accepted practice, and challenges us to rethink it.  Like Lessig, Fister is calling us to consider our core values of equality and the democratization of knowledge.  She also reminds us of how dumb – her word is wasteful – the current system is.

Perhaps the most vivid example of how subscription-based publishing fosters, and even demands, inequality is found in the ongoing lawsuit brought against a course pack publisher in India by three academic publishers.  Two of the “usual suspects” are here – Oxford University Press and Cambridge University Press (joined, in the Delhi University suit, by Taylor and Francis) – and this lawsuit is even more shameful than the one brought against Georgia State.  The problem, of course, is that the books published by these modern-day colonialists are too expensive for use in India.  I once was told by a professor of IP law in India that a single textbook on trademark law cost over a month’s salary for his students.  Photocopying, whether it is authorized by Indian law or not (and that is the point at issue) is a matter of educational survival, but these publishers want to stop it.  Their rule – no one should ever learn anything without paying us – is a recipe for continued ignorance and inequality.  It is disgraceful.

I use the word colonialists in the paragraph above quite deliberately.  What we are seeing here is the exploitation of a monopoly that is imposed on a culture with the demand that people pay the developed world monopoly holders in order to make progress as a society.  We have seen this too many times before.

The thing I like best in the article linked above – the whole thing is well worth a careful read — is the brief story of how a student group in India began handing out leaflets about the lawsuit at a book fair where CUP representatives were hawking their wares.  They wanted to let people know that buying books from Oxford and Cambridge is supporting a worldwide campaign of intimidation that is aimed at reducing access to knowledge and culture.  Publishing with these presses is a form of colonial occupation that extorts from whole populations a high price to obtain the means of cultural and intellectual growth.  The reaction, of course, was predictable; the publisher summoned the police to protect themselves and others from these unpleasant truths.  But the technique has merit; perhaps we can also find ways to shame these publishers when they attend our academic or professional conference, when they send salespeople to our campuses, and when they recruit our colleagues to write and review for them.  A commitment to equality demands no less.

Copyright, Open Access, and Human Rights

The United Nations Human Rights Council is holding its 28th session this month, and one item on the agenda is discussion about a report from Farida Shaheed, who is a “Special Rapporteur” in the area of “cultural rights.”  Ms. Shaheed is a well-known Pakistani sociologist and human rights activist.  Her report is a remarkable document in many ways, with a lot of things to like for those who are concerned about the overreach of copyright laws.  There are also some points that are troubling, although, on balance, I would love to see this report get attention and action from the U.N.

In some sense, the most remarkable thing about this report is its frank recognition that intellectual property laws are in tension with the fundamental human right of access to science and culture. In only its third paragraph, the report reminds us that since at least 2005, the World Intellectual Property Organization, a U.N. agency, has been mandated (whether effectively or not) to give “renewed attention to alternative policy approaches to promote innovation and creativity without the social costs of privatization.”  In short, the WIPO is charged, whether effectively or not, to find ways to facilitate open access to science and culture.  This charge is made explicit in the recommendations, where the Special Rapporteur directly suggests that “[p]ublic and private universities and public research agencies should adopt policies to promote open access to published research, materials, and data on an open and equitable basis, especially through the adoption of Creative Commons licenses” (para. 113).

When librarians and other open access advocates discuss OA policies with their faculties, perhaps we should recognize that there is a compelling argument to be made that this is not just a “what’s best for academia and for my interests” issue, but a true human rights issue.  Ms. Shaheed’s report makes this case in a concise and compelling way.  And this point also reminds us of why open access that is achieved simply by paying the commercial publishers to release articles is not a solution, because it does not really promote equitable access.  The fees charged are too high for many authors, they are not administered in a transparent way, and, frankly, some of the publishers cannot be trusted to fulfill their end of the bargain.  Barbara Fister discussed some of these problems in more detail in her recent Inside Higher Ed blog post, called “New Predatory Publishing in Old Bottles.”  If we take open access seriously as a step toward a more democratic and equitable culture, we must embrace a wider variety of “flavors” of OA, and not assume that the “usual suspects” can do it for us.

To return to a reading of the Human Rights Council report, there are strong endorsements of the idea that cultural and scientific development depends on restraining the reach of IP protections.  The section on “Copyright policy and cultural participation” is structured around three themes that all begin with “promoting cultural participation through…” and then go on to discuss copyright limitations and exceptions, international cooperation, and open licensing.  Here are some specific recommendations that I found very encouraging:

  • In regard to negotiations that are already underway, the report endorses ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Disabled, or Otherwise Print Disabled.  On the other hand, Ms. Shaheed expresses concern (para 19) about the Trans-Pacific Partnership Agreement that is currently being negotiated in secret, which is the problem that the report focuses on, calling for all such multinational agreements to be discussed in a transparent way (para 92).  Since the TPP is often defended with the claim that it will benefit developing countries, it is fascinating to see it cited as an example of a “democratic deficit in international policy making.”  From a different article, this editorial about the TPP by a U.S. Senator raises the same type of concern, and together they make a strong case against the agreement.
  • In paragraph 22 the report discusses the potential that a pervasive licensing environment can inhibit artistic self-expression and slow cultural development.
  • The report calls for the adoption of international treaties on copyright limitations and exceptions for libraries and education.  Given the current climate in the WIPO, this seems like a long shot, but is valuable in part because it calls attention to that climate, which is dominated by representatives of commercial interests (including, unfortunately, the U.S. Trade Representative).
  • On the issue of copyright limitations and exceptions, the report specifically points to fair use as a tool for allowing a more “comprehensive and adaptable” approach to unlicensed uses (para 73).  The report notes that most countries take the route of adopting exceptions for specific types of use, which provides more certainty, but adds that that approach may be inadequate in the current environment.  In general the report calls for a flexible approach to “uncompensated use of copyrighted works , in particular in contexts of income disparity, non-profit efforts, or under-capitalized artists” (para 106).  It specifically asserts, in this regard, that member states should not take a rigid approach to the so-called “three-step test” for copyright exceptions that is found in the Berne Convention (para 104), which is often used as a weapon by commercial interests against broadly applicable exceptions.
  • One of the recommendations I like best in this report, found in paragraph 107, is that states should enact laws that would prevent copyright limitations and exceptions from being overruled by contractual provisions, and protect such exceptions from excessive technological interference as well.  The UK has recently adopted the contractual part of this idea, stating that certain uses that are allowed by the law cannot be prohibited by contracts.  As I have said before, this is an idea we need to incorporate into U.S. copyright law, and it is good to see the U.N. special rapporteur endorse it so firmly.

There is an overall emphasis in the report that focuses on copyright as an authors’ right, and it is this focus that gives me some ambiguous feelings about the document.  On the one hand, I agree that a focus on authors and supporting authorship will help re-balance our approach to copyright.  Where we have most often gone wrong in this area is when we have allowed copyright discussions to focus on supporting the business models of intermediary organizations, regardless of whether or not those models really helped incentivize authors and creators.  Throughout its history, copyright has been called an authors’ right and treated like a publishers’ privilege.  Re-focusing on authors is part of restoring copyright to its proper function, and makes sense in a document about human rights.  And yet, it is also true that too much stress on author rights can also become unbalanced.  Copyright cannot benefit society unless it weighs the rights of both users and creators, especially since the former often aspire to become the latter.  Authorial control is an important part of the creative incentive, but it can easily go too far.

One troublesome area where this is a real danger is protection for “traditional knowledge and traditional cultural expressions” — the cultural creations of indigenous peoples.  This is an area where there have certainly been abuses, and it is not surprising to find a concern over TK and TCE, as the international community abbreviates them, in a report about IP and human rights.  Unfortunately, protection for these cultural products raises as many problems as it does solutions.  Should there be a public domain for TCEs?  If not, why not?  And who is the legitimate rights holder in traditional knowledge?  The national government?  In an article back in 2011, David Hansen explored some of these issues and found real incompatibility between traditional knowledge protections and the values that animate IP law.

So my final attitude toward this report is mixed, but still strongly positive.  I think it recommends many of the right steps toward restoring copyright and other IP rights to their proper scope and function.  It rightly places the focus on authors and on economic and cultural development.  It reminds us that all high-level copyright conversations should have a human rights perspective.  Where I have concerns, I see a chance for continued conversation.  But at least those conversations would take place with the proper grounding, if the report is taken as seriously as it deserves.

Paying the bills

Open access is not free.  By saying that up front, I hope to confound some of the more extreme critics of the open access movement, who sometimes pretend that all OA supporters are dreamy-eyed and woolly-headed librarians who imagine that all information “wants” to be free.  So I start from the premise that open access costs money, but I do immediately need to qualify that statement.  By definition, open access does not charge the consumers of information any fee for access.  It is free in that sense, but not in the sense that there are no costs involved in producing the works or making them freely available.

Of course, for most academic work, the majority of the “first copy” costs are already paid for outside the subscription system.  Taxpayer money, research grants or private university funds support the research underlying scholarship, as well as the time of the authors who produce it.  The work of reviewing and improving both articles and books is also borne by these sources, in large part.  Commercial publishers, then, “free ride” on this investment, which is a sign of a failure in the market.

One truth that lies behind much of the open access movement is simply that there are more efficient ways to produce scholarship than the way it has been done in the past.  Digital communications have brought down the cost of other types of content, but publishers continue to raise prices, arguing, improbably, that there are no significant savings in the transition from print to online distribution.

So here is a simple assertion — we must find ways to pay for open access to scholarship, but simply paying traditional commercial publishers to do it for us would just replicate a system whose failure in the online environment is all too obvious.  Gold, or hybrid gold, open access is NOT a solution IF it is expected to simply replace subscription revenue and does not provide an opportunity for a more realistic assessment of costs.

There is a really nice article by Kevin Hawkins from the University of North Texas Libraries about “How We Pay for Publishing” in the latest issue of “Against the Grain.”  I don’t think the issue is openly available, but there is a pre-print of Kevin’s article in the UNT Digital Library here.  The article is a concise overview of “how we got into this mess” and “how might we get out.”  Kevin concisely summarizes the various proposals that would shift library investments from the consumption side of the research process — where we simply buy the products that are sold only to a limited set of buyers/subscribers — to the production side, where library funding helps support the creation of knowledge products that are available to all.  As Hawkins points out, there is a potential free-rider problem here as well, and he writes about how different possible models can address it.  When he turns to the impact of these models on university presses, he envisions a more mission-driven view of those organizations that would recognize that it is unrealistic to expect them to pay for themselves at the end of each fiscal year.  Instead, we should look closely at costs and benefits, recognizing that increased access is a benefit, and support university presses as well as other organizations that are prepared to experiment with new models for more efficient production and broader access.

Costs, of course, are the elephant in the living room whenever improving access is under discussion.  In a recent blog post on open access books and double dipping, Martin Eve of the Open Library of the Humanities questions the claim that a particular publisher must recoup $17,500 to make a single monograph OA.  Martin’s concern is that the publisher in question may be “double-dipping” by demanding the full-cost of the publication as an up-front OA charge and selling print copies as well.  It seems that the OA charge could be reduced by the amount earned through print or e-book sales, just as journal subscription costs ought to come down as author’s select “open choice” options.  The fact that neither reduction is occurring, at least in a wide-spread way, is a sign that we need to ask much harder questions about the actual cost of production as we make this transition to supporting OA on the production side.  The study announced by Ithaka last month should help us get a better handle on the true cost of publishing a monograph.

Those nations that use central funding to support open access publication — and there are a growing number of those — especially need to look at costs to be sure they are not wasting money.  In this guest post on the Digital Science blog, Jan Erik Frantsvag from Norway considers the path that would simply pay article processing charges (APCs) to commercial publishers in order to achieve open access, and lays out some concerns.  Most especially, he explains why the Norwegian Research Council has decided that the funds offered to researchers to fulfill their open access mandate may not be spent on hybrid publications, where only certain articles are made open access after a fee is paid, while a subscription fee is still charged for access to the entire journal.  Frantsvag cites three concerns that caused the Norwegian government to reject this hybrid model.  First, because it double-dips, as described above.  Second, because hybrid journal APCs are higher than those for other OA publications, raising precisely this issue of cost that we have been discussing.  As more and more government funds are used to pay APCs, it seems likely that we will see more probing questions about cost being asked.  Indeed, if U.S. universities are going to develop campus-based funds to support article process charges, we ought to be asking the same questions, and using caps on our funds to encourage more reasonable APCs.  The third reason Frantsvag cites is simply that money for open access should support innovation and experimentation, not simply go to keeping the old business model afloat.

In each of these examples we see that efforts to encourage open access and find new models for supporting research must necessarily look at how much the production of knowledge products — monographs, journal articles, digital visualizations, etc. — actually costs.  In the past these costs have been obscure to universities, hidden in the steady upward spiral of subscription expenses.  But now we are seeing signs that the academic community is beginning to do what it probably should have done long ago — look closely at the actual costs and begin to evaluate the money we are willing to invest in each form of scholarly dissemination.

Who should we trust?

A recent discussion on an e-mail list, about university open access policies, raised the issue of trust.  The participants correctly noted how important it is that there be some level of trust between faculty, administrators and the library (which is usually charged with managing an open access repository once a policy is in place) in order for an open access policy to be adopted and successfully implemented.  Inevitably, the comments brought out the irony that faculty authors often seem very suspicious about administrator motives when debating an OA policy — fearing that someone is trying to “steal their stuff” — yet are perfectly willing to give that “stuff,” in its entirety and for no remuneration, to commercial publishers.  And they do this even though it is obvious that commercial publishers do not share the fundamental values of academia about research and access.

When one looks a little deeper, it is easy to see, I think, that academic authors do not really trust the commercial publishers either; we hear lots of wry comments about how absurd the current system is, followed by a shoulder-shrug expressing resignation.  It is absurd, but it is what we have got.  “Trust” is probably the wrong word for what authors feel as they give away their work.

Perhaps it really is just resignation in the face of how things have been done for hundreds of years.  There was a fine column published recently in the Educause review that encapsulates this scholarly stagnation with a story about a Buddhist monastery where the practice of tying up the monastery’s cat, begun because it disrupted the abbot’s lessons to novices, continued for centuries, through many successive abbots and cats, until it came to be invested with a false sense of significance.  Mark Edington makes the case that we have become unreasonably wedded to a system that once had considerable utility for a set of circumstances that no longer exist, and are reluctant to embrace the changes needed for our new environment.  There certainly is an element of “tying up the cat” in our continued dependence on commercial publishers and our willingness to pay them to do things that, in many cases, we can now do better and more economically ourselves.  It is simply easier to do what we have always done, and to let the dissemination of scholarship remain in the hands of those who have done it for us for 300 years.

It is not that we exactly trust commercial publishers, nor do we exactly distrust them. We may recognize that the values and goals of the commercial publishing business are different from, and even in conflict with, the best interests of scholarly authors and of scholarship itself.  Perfectly nice people, working to advance their own interests as best they can, come in to conflict as the conditions for research and teaching change. And a real ambivalence is created because of how interwoven the parts of the academic enterprise are.  More than just inertia is a work; important aspects of the academic enterprise remain interlocked with traditional forms of publication.

Most obviously, the rewards system in higher education, which by definition has worked well for many of our most influential faculty, is highly entwined with traditional journal and monograph publishing. In the digital age, when we can actually learn so much more relevant information about the uses made of an individual scholarly article, it may be absurd to continue to look at impact factor and the “brand name” of the journal as evaluative measures, but the systems we have built around those factors are well entrenched.  Change seems inevitable, but it will be slow.  One of my major concerns is the cost of this snails’ pace, and the danger that “the usual suspects” will succeed in co-opting the new opportunities and convincing us to pay them for open access and alt-metrics, when we should look for ways to save money and preserve more local control over these new, digital opportunities.  An example of this danger can be found in the “Open Access Roundtable” sponsored by the Copyright Clearance Center that warned about the complexity of article processing charges.  The CCC, of course, sees itself as a solution to that problem, while the role of universities is simply to pay others, through them, for the benefits of open access.

Late last year Jason Schmitt, a professor at a small liberal arts college, posted a column in the HuffPost called “Academic Journals: The Most Profitable Obsolete Technology in History.”  He makes a good point.  It seems odd that academia, which should be in the forefront of leading managed change, should be propping up a technology that has outlived its usefulness.  We would laugh at people who continued to buy buggy whips well into the automobile era, yet we, as academics and librarians, are in danger of becoming those very laughing-stocks. Schmitt focuses on ideas for change laid out by Sam Gershman and John Bohannan and stresses the societal obligation we have to make the knowledge created in our colleges and universities more accessible.

Of course, trust is a key element in moving toward the open access future that Schmitt, like so many others, envisions.  The systems we are moving toward will not be simple; it will involve multiple and diverse business models, and accommodation for lots of different needs.  We will need to decide what parts of the scholarly communication system we can take over on our own campuses, where we should focus collective funding, and what elements might still be most reasonably “outsourced” to commercial firms.  These decisions will be difficult, and different on each campus.  At each stage we will need to decide who we trust; who are the right partners for this part of the journey.

The key to those trusted relationships, I think, is common values.  As we move toward a more open future for scholarly communication, we need to focus on what are the best interests of scholarship and of individual scholars.  The best way to overcome distrust between faculty and administrators, for example, is to ground the conversation on shared or complementary needs and goals — faculty want maximum attention and impact for their work, and administrators want to build and protect the reputation of the institution; open access, implemented thoughtfully, can bring those goals into alignment. Libraries, which are traditionally highly-trusted entities on campus, must keep their focus where, I hope, it has always been, on making teaching and research easier and better.  In all of our conversation about changing the system of scholarly communications, we should keep that goal as our foundation.  Even more importantly, we need to “walk the talk.”  In our decisions about how we spend our money, especially, we should be guide by, and be seen to be guided by, those best interests of our scholars and our institutions. I firmly believe that those interests will lead us, by the shortest reasonable route, to our open future.

Cancelling Wiley?

Because they were spaced almost a full year apart, I really did not connect the dots when two Canadian universities announced that they were cancelling their “Big Deals” with John Wiley & Sons publisher.  The Times Higher Education reported on the decision at the University of Montreal back in January 2014, while the announcement made by Brock University came only a few weeks ago.  I would not have considered this a trend worth commenting on had it not been for conversations I had last week at the Fall CNI Membership meeting.  During that meeting, two different deans of large university libraries told me, unbidden and in separate conversations, they they were also considering ending their deal with Wiley.  I was struck by the coincidence, which caused me to remember these two announcements from Canada and to begin to ponder the situation.

Two different questions occurred to me when I thought about these four significant cancellations or potential cancellations, all directed at a single publisher.  First, why was Wiley the focus of this dissatisfaction?  Second, what is the next step?

As for what the complaints are about Wiley, the answer is pretty much what it always is — money.  The THE article and the Brock University report both tell us that exchange rates have made the annual “higher than the inflation rate” price increases for these packages even harder to bear than usual.  They also point to another problem.  Pricing is based on the large number of titles included in these package deals, but many of those titles are not very useful.  The Brock post notes that the Wiley package has a significantly higher cost per use than does their Elsevier package, which presumably reflects the fact that many of the titles the University is paying for in the package simply do not get used.  The same reality is probably behind the fact noted by THE that Montreal would subscribe to less than 25% of the titles that had been included in the package it was cancelling.  It would be interesting to find out, a year on, how much those other titles have been missed.

In my conversations with the two library deans, much the same thing was said about Wiley — demanding a large price increase, being inflexible in negotiation, and selling “a lot of junk that I don’t need” in the package.  Libraries are beginning to discover that they do not need to put up with those tactics.  Publishers often tell us that they are publishing so many more articles, which justifies their price increases, and they tell us how selective their flagship journals are.  But when we look at these big deals, it is clear that selectivity is not an across-the-board approach; many articles that are not very useful just slide down the hierarchy to get published in journals whose main purpose is to pad out a “big” deal.

To me the more important question is “what now?”  Unfortunately, many times when a library makes this kind of decision there is actually little money saved, since the funds simply go into re-subscribing to a smaller, selected list of titles from the same publisher.  But presumably some of these cancellations result in dollars saved.  And when they don’t, I propose that libraries ought to reexamine their approach.  When you have cancelled a dross-laden package, think twice before reinvesting all of that money in as many individual subscriptions from the same publisher as possible; make a careful decision about where the division between useful titles and unnecessary ones really lies.  Because here is the thing — money that can be saved and reinvested in open access projects will give us a higher return on our investment, because those projects will provide greater access.

It seems clear that, over time, libraries will need to move more and more of their spending away from the consumption side of scholarly production and do much more to support the creation and dissemination of knowledge directly.  Commercial publishers hope to capture those dollars as well, but one of the real benefits of supporting open access can and should be more freedom from businesses addicted to 30% profits.  I would like to challenge libraries to consider, when they have to cancel, using the money to support non-profit or lower profit open access projects.  Work with a society to provide subvention for a scholarly journal to become OA.  Work with your university press to support OA monographs.  Finally, even if not compelled by immediate budget realities, think about making some strategic cancellations in order to take these kinds of steps.  We know that open access is our future, and it is vital that we take control of that future before others take it from us.

I don’t know if Wiley is the worst offender amongst the large commercial publishers, or whether there is a real trend toward cancelling Wiley packages.  But I know the future of scholarship lies elsewhere than with these large legacy corporations.  The process of weaning ourselves from them will be slow and drawn-out.  But especially when the cancellations are going to happen anyway, we should have the idea of using the funds to advance the transition to open access foremost in our minds.

For a similar, but likely better informed, perspective on the idea of cutting subscriptions to support open access, please read Cameron Neylon’s post on “Letting it go — Cancelling subscriptions, funding transitions,”which ties the idea in his title to the discussion going on in the Netherlands about Elsevier’s big deal.