Category Archives: Open Access and Institutional Repositories

Open Access and Institutional Repositories, Scholarly Publishing

Creative Commons and credit

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The November 2008 issue of College and Research Libraries News contains a lucid explanation of, and a convincing argument for using, the Creative Commons licensing system.  The article, “The beauty of ‘Some Rights Reserved‘” by Molly Kleinman, is a concise and cogent explanation of the CC system of licensing materials to permit sharing of creative and scholar works, as well as that reuse of protected material that is so necessary to “promote the progress of science and the useful arts.”  Kleinman describe efforts at the University of Michigan Library to teach faculty about the benefits to authors, teachers and scholars of using Creative Commons licenses, and her ability to explain the licenses so clearly must be a great boon to that effort.

I want to give the link to the “Get Creative” video that Kleinman references as an important part of their teaching of the CC licenses, since the link in the online article’s footnotes did not work for me — http://mirrors.creativecommons.org/getcreative/.  This too is worth a look for anyone who wants to understand how Creative Commons licenses work and wants to be entertained in the process.

But I also want to add a suggestion about one more point that might help convince faculty that a Creative Commons license on their works will serve them well.  In her section on the “benefits of Creative Commons in academic settings,” Kleinman emphases the large numbers of works available under CC licenses and the ease of reuse that those licenses make possible.  I want to add that CC licenses actually serve the fundamental values of academia better than does our copyright law in its current state.

Almost alone amongst the copyright laws of the world, our US law does not enforce any right of attribution.  Most countries recognize some “moral rights” that are often treated differently than the economic rights which are the sole subject of US law.  Attribution — the right of the creator to have his or her name associated with the work — is the most basic of these moral rights.  But that right is simply not protected in the United States except for a small group of visual artists who are entitled to attribution under a provision added to the copyright law in 1990.

Does this absence of an attribution right make any difference?  It certainly can.  There was a story in the higher education press about six months ago about a professor who found that his short book, published several years before and since out of print, had been incorporated whole into a larger work from the same publisher that carried the name of a different author.  Because the professor had transferred his copyright to the publisher, and the US has no moral right of attribution, he had no recourse to continue to get credit for his own scholarship.  For an academic author this is a dreadful fate, since scholarly publication is done more for reputation and standing in the discipline than it is for money (Samuel Johnson’s famous remark notwithstanding).

In an 2004 article on “The Right to Claim Authorship,” Professor Jane Ginsburg of Columbia describes the importance of an attribution right and discusses how other countries have structured that right for good or ill.  On the need to protect attribution she quotes an unnamed federal judge to this effect:

To deprive a person of credit to which he was justly entitled is to do him a
great wrong. Not only does he lose the general benefit of being associated
with a successful production; he loses the chance of using that work to sell
his abilities.

At the end of the article, Prof. Ginsburg proposes what the contours of a US attribution right might look like.  Her proposal makes a great deal of sense to me, but, and this is my point here, authors who use the Creative Commons licenses do not need a Congressionally recognized right of attribution because a CC license effectively leverages copyright ownership to ensure that the author gets proper credit.  In essence, a CC license, with its attribution condition on reuse, is a private law arrangement to effectuate what our public law has failed to do.

Because reputation is the foundation of the academic reward system, and giving proper credit to authors and creators is the most basic tenant of academic ethics, the protection of attribution is a fundamental value of scholarship.  And since the Creative Commons license protects attribution, and our copyright law by itself does not, the value of the former for those who live within the academic system and embrace its values is vastly increased.

Copyright Issues and Legislation, Open Access and Institutional Repositories

Looking for the devil in the details

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The more I read the Google Books settlement agreement, and the commentary it has spawned, the more I become convinced of two things.  First, this beast of a document will keep many lawyers in business and give many librarians headaches.  Second, it is the things we do not know that will be most troublesome.  The following is an unsystematic list of issues that I have been thinking about regarding the agreement, with no particular order and few definite conclusions.

Advertising — Perhaps it should be obvious, but Google Books is about to take on a very different look, as it becomes populated with advertising.  Up til now, Google has not sold advertising for these pages, probably to avoid undermining its fair use argument.  At this point, the only commercial links one gets when doing a search in Google Books are those to sources from which one can buy the books.  The settlement agreement explicitly authorizes advertisements on the Preview Use pages and anticipates ads on the results pages as well.  The agreement provides for the standard 70/30 split for advertising revenues (the Registry that represents publishers and authors gets the larger percentage), so it is now in the interests of the rightsholders to permit and encourage advertising.  This is not shocking, but it does further detract from the “social benefit” justification that Google has used for years and that has made it so appealing to librarians.  Book searches on depression or Alzheimer’s being used to sell the latest fad pharmaceuticals to treat those conditions might cause libraries to rethink the place of even free access to the Google product in their overall mission.

Orphan works — Does this agreement really spell the end of legislative attempts to reduce the risk of digitizing books that are still in copyright protection but for which no rightsholder can be found?  Larry Lessig certainly implied that it does in his initial post reacting to the deal.  Consider that there will be much less incentive to adopt such a proposal if many of the works involved are available for viewing via institutional subscriptions to Google Books or even for individual purchase.  By making allowance for unclaimed funds coming into the Registry that the settlement agreement will create, Google and the publishers clearly expect to make money off of orphan works.  As I suggested earlier, pay-per-use may well replace legislative attempts to refine the balance between rights protection and socially valuable uses, and libraries that want to make obscure works available to a broader public will be the losers.

It is worth noting that the agreement itself makes some allowance for the adoption of orphan works legislation, providing that both Google and the Fully Participating Libraries can take advantage of such legislation if it ever becomes law.  What we do not know is whether or not the Book Rights Registry would become available to users who wanted to use orphan works as part of their diligent search for rightsholders; it would be a tremendous resource but, at least initially, it is structured as a closed and private database.  See Georgia Harper’s interesting post on this issue here.  We also don’t know if the agreement will have such a pervasive effect that Congress will not bother to take up orphan works in the first place; they certainly have not been on fire to do so up to now.

Defining the public domain — I have complained before that Google has used a very narrow definition of the public domain, especially in regard to government publications.  On this score, the agreement seems to move things in a positive direction, at least in regard to the contents of the Google Books product itself.  Google has argued that it had to be careful about using government works because of the possibility that they would contain “inserts” (to use the term now adopted in the settlement agreement) for which there could be a continuing copyright interest.  This agreement would seem to remedy that concern by allowing for uses of such works unless the owner of the rights in the insert objects.  Even then, Google can appeal the objection using the dispute resolution procedure specified.  The restrictions on other public domain works that are still commercially available seem sensible to me.  If a PD work contains an insert to which a copyright interest still adheres (an introduction, for example), then all earlier editions of the PD work that contain that insert are treated as commercially available (and therefore “non-display”).  Editions without such inserts will remain in the public portion of the Google database.  On the other hand, out-of-print editions of a work that is still in copyright and is commercially available in another edition will all be treated as commercially available.

Future publications — One of the trickiest aspects of understanding this document is the definition of “books” that it uses.  Careful reading indicates that that term encompasses only works that are in copyright protection and registered with the Copyright Office as of the settlement date.  That means that this agreement deals only with works already published; it does not seem to tell us anything about how or if Google will deal with books (in the non-technical sense) published in the future.  The obvious conclusion is that publishers will be able to opt-in to all or some of the “display use” (snippets, preview, sales of institutional subscriptions or individual titles).  I wonder if such new publications will be subject to non-display uses (text minig, i.e.) when and if Google scans those works, or if those too will be opt-in only.  I also wonder what will happen when works published after the settlement go out of print.  Will publishers have to opt them out of display uses at that point, or will the original opt-in still control?  Finally, how often will the database to which institutions can subscribe be updated, and how will the effect of new content have on the price for that product be determined?

Commentary that is worth reading about the settlement agreement includes:

Karen Coyle’s “pinball” comments here.

Open Content Alliance’s objections here.

This Washington Post article on Google’s New Monopoly (requires free membership).

PC World’s article on how business considerations have trumped ideals in this negotiation.

Copyright Issues and Legislation, Fair Use, Open Access and Institutional Repositories

Deep impact?

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That a settlement between publishers, authors and Google over the latter’s Book Search project was in the works was not exactly a well-kept secret over the past few weeks.  Nevertheless, the announcement of the complex agreement has set many people buzzing, even before its provisions were fully digested.  There is a collection of comments to be found here, on Open Access News, and Siva Vaidhyanathan gives his initial view here.  As I read over the agreement, I am not sure its impact will be as deep, nor as overwhelmingly positive, as many of the commentators have suggested.  There is a nicely nuanced reaction to the agreement here, from Jack Balkin of Yale Law School.

First, it is important to realize that this is a proposed agreement to settle a pending law suit. It must be approved by the court and may change in its details during that process. The plaintiff classes in this class action suit are very large, so the process of notification will be complex and it is likely that class members will object and want to discuss changes in the agreement. This is not the final word.

I also want to note up front that this settlement would not resolve the fair use argument that is at the heart of the lawsuit; the parties have been very clear that they still have a significant disagreement over whether Google’s activities to date infringe copyright or are authorized as fair use. A decision on that issue would have provided libraries with more guidance as we proceed (or not!) with digitization projects, but both sides in the case, I suspect, wanted to avoid getting to that point. The likely result, unfortunately, is that the next time someone considers pushing the envelope on fair use, there will be even more pressure to just pay the costs of licensing up front and not go down the fair use path at all.

Under this agreement, it seems likely that the availability of in-copyright but out-of-print books would improve in the Google Book Search. Google would be able to show both the “snippet view” for such works that is already available and a “preview” view that would display up to 20% of a work, although no more than 5 adjacent pages and not the last pages of a work of fiction. For out-of-print works this would be the default availability, with the rightsholders able to opt out. For in-print books, the rightsholders would have to opt-in. So while it seems likely that, overall, there will be increased access in the Google Book Search product, some in-print works will also likely disappear, even from the snippet view, as rightsholders elect not to opt in.

The participating libraries are in an interesting “in-between” position here. They have no voice in the settlement agreement, and it appears that, for some of them, the options for using the digital scans of books that they receive from Google will be reduced. That depends on how their original agreements were worded, and that wording seems to have varied among the partner libraries. Under this proposed settlement, the libraries that provide books for scanning can receive digital files for any title they hold in their collections, even if they did not provide the copy of that title that was actually scanned. But there are strict limits on how those files can be used. They cannot be made available for reading even on campus, much less linked into a catalog. They cannot be used for interlibrary loan, e-reserves or in a course management system. They are essentially preservation copies, although there is a provision to allow research based on “text-mining.”

All libraries, of course, will be able to purchase institutional subscriptions which will give them access to the full text of many in-copyright works which publishers decide either not to opt out of this use (for out-of-print books) or which are opted in (for in-print works). We do not know much about the pricing structure yet, but, given the rather small amount of money changing hands at settlement, I think that the publishers are counting on making significant profit here. It will be especially interesting to see if some of the partner libraries choose to subscribe to this more robust version of the database to get the level of access that is denied to them with the scanned files of their own works.

Consumers will also be able to purchase digital copies of individual titles; the pricing structure could allow prices anywhere from $2 to $30 per title, but that structure will undoubtedly undergo further revision.

Finally, there are provisions for free access to this “fuller-text” version of the Google product, via dedicated terminals. One such terminal would be offered to every public library, although it is not clear if public libraries that still lack broadband access would benefit much from this offer. A free terminal would also be available to “colleges and universities,” with one such terminal for each 10,000 FTE (one per 4,000 for community colleges). I am sure that the exact definition of what is a college or university for this purpose will be a matter of some debate.  It is also interesting that no allowance is made for free access at the K-12 level.

For all three of these approaches to “access uses,” there are pretty strict limits imposed on cutting and pasting, and on printing.

Overall, I believe this agreement would increase access to a lot of books that are currently hard to find or even to know about. But there are significant strings attached to that access; for most people, it will probably come with a hefty price tag, which was not part of Google’s original, Utopian vision for its project.  The strict limits on access, both to the libraries’ own digital copies of books and to the public “access use” versions, seem to be what led Harvard to decide to continue to withhold in-copyright works from the project and remain at its limited level of participation.  Most troubling to me, however, is that this agreement would seem to move us one more big step in the direction of per-pay-use, where every library resource would be licensed and metered.

Open Access and Institutional Repositories, Technologies

Just ’cause you’re paranoid…

When I wrote a post about a week and a half ago called “Can Copyright kill the Internet?,” I worried that my title might be considered a little bit extreme.  After all, the Internet is a big, sprawling “network of networks;” surely the puny efforts of legal enforcement cannot really do that much harm.  In some senses this is true, since it is difficult to apply national laws to the persistently international Internet.  On the other hand, as I pointed out in the earlier post, a business wanting to engage in commerce on the Internet has to take account of national laws around the world, and is frequently circumscribed by the most stringent law to be found regarding any particular activity.

But what really convinced me that my earlier post was not exaggerating the threat was this news item from Ars Technica called “‘Net filters “required” for all Australians, no opt-out.”  Incredibly, to my mind, at least, Australia is moving ahead with a plan to force Internet Service Providers to impose filters on ALL Internet access in the country to filter out “illegal” content.  The government would maintain two “blacklists” of material that must be blocked.  Australians who requested “unfiltered” access would not have material on the “additional material” blacklist blocked, but there would be no way to get access to Internet sites that the government deemed illegal and so put on its prinicple list of blocked content.

There are many problems with this plan, but I want to focus on two.  First, filters never work.  It is usually possible to get access to “bad” content in spite of the filter, and filters almost always filter out useful content as well as the bad stuff.  In the case of this plan, the task of updating the blacklist will be monumental, as banned material can switch locations and URLs faster than the content police can keep track.  And even when content is blocked, the blocking itself will serve as a challenge to many sophisticated computer users to find a way around the filter and gain access to the site.  Digital locks are usually broken in a matter of days, and the unfortunate result of filters has always been that law-abiding users find their choices of legitimate content constricted, while those who want to violate the rules find ways to do so.

The other problem, of course, is deciding what consititutes “illegal” material.  Few would dispute the need to reduce the amount of child pornography available on the ‘Net, but there are lots of other categories of sites where there is a legitimate debate.  What is defamatory in some countries, for example, is protected as political speech in the United States.  Will Australian officials be able to keep criticism of government policies (like this) off of Australian computers by declaring it “illegal” because potentially libelous?  What about material that potentially infringes copyright?  Will all such material be blocked?  And how will that determination be made?  Many sites — YouTube is the most obvious example — contain material that is authorized by the rights holder as well as videos that are clearly infringing.  Is YouTube a legal or an illegal site?

Ars Technica has followed up its original post with this one noting that the government in Australia is trying to suppress criticism of its plan.  This strengthens the fear that the filtering plan might be used to silence opposition, even though there ought to be a clear distinction made between what is illegal and what is merely dissent.  The article also notes that the point made above — that filters seem seldom to work very effectively — is being borne out in this instance.

So here is a concrete example of terribly bad policy that really does threaten the existence of the Internet as the revolutionary tool for democratic communication that it ought to be.

Open Access and Institutional Repositories, Scholarly Publishing

OA @ Duke — why it matters very much!

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As part of our Open Access Day celebration at Duke, we held a keynote and panel event on Tuesday, Oct. 14th featuring Duke faculty and a student talking about why open access is important to them and important to Duke.  About 50 staff and faculty members attended, and following is a brief summary of the very exciting talks we heard.

Prof. James Boyle of the Duke Law School and the board of Creative Commons began the afternoon with an entertaining and inspiring talk on why Open Access matters.  He pointed out that the Web, which was designed to share scientific information, now works very well for sharing pornography or bargain offers for shoe shoppers, but really is not very effective at sharing science.  The message of his talk was “Its the links, stupid” — the ability to build links into scientific work is key to speeding up the progress of science and innovation to the pace promised by this powerful technology.  Linking permits all kinds of new discovery, whether through text mining or “waterhole searching” (following the tracks of other).  But linking depends on information being freed from the access barriers that currently wall off most scholarship on the web.

Boyle offered a vision for open access based on three stages.  At “Open Access 1.0,” scientific research and information will be exposed to many more human eyeballs.  At the stage of Open Access 2.0, computers will have access to a depth of scientific information that will permit text mining for new and serendipitous discovery.  Finally, with Open Access 3.0 computers and humans will work together to create a map of knowledge within in a given field and amongst fields where relationships were previously not discoverable.

Law School Assistant Dean for Library Services Melanie Dunshee followed Boyle with some interesting information about Duke Law’s ten-year-old experiment with open access to legal scholarship.  Her talk gave a nice illustration of the path to open access, which consists in aligning faculty interests with the mission of the university to produce and disseminate knowledge.  The services provided by the Law School Library, and the many new ways that faculty scholarship is exposed and promoted, made the point about how to accomplish that alignment very concretely.

Next up was Dr. Ricardo Pietrobon from the Medical School, where he chairs the group that is doing “Research on Research.”  His presentation really built on Boyle’s call by suggesting that we need to move beyond text mining and data mining (once we get there) to consider what he called “scientific archeology.”  Only at that point, when open access encourages not just access but replicability, accountability and transparency, will the promise of the Internet for scientific learning be fulfilled.

The climax of the afternoon, and what made the need for open access very real to our audience, was the remarks by Josh Sommer, a Duke student who was diagnosed with a rare form of brain tumor during his freshman year.  Now three years out from surgery, Josh has refused to accept the “average” seven year life span of chordoma patients that he was given.  Instead, Josh has co-founded the Chordoma Foundation and has himself become actively involved in research to understand and treat this disease.  His story of how the privileged access he has as a Duke student has helped significantly in his research is only part of the story.  He also tells of previously unknown connections between other forms of cancer research and the effort to treat chordoma that have been discovered using open access medical literature.  Finally, Josh talked about his young friend Justin who died from chordoma earlier this year; a young man who did not have the advantages that have given Josh the ability to fight his grim prognosis (see the link above for more on Justin’s short life).  As Josh puts it, there is no reason that the knowledge that could have saved Justin’s life is walled off behind access barriers.  Josh Sommer personified for our event  the very message he wanted to deliver to those engaged in the effort to acheive more comprehensive open access to knowledge — perseverance.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Technologies

Copyright creep?

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When I first became aware of the lawsuit filed by publishing giant Thomson Reuters against George Mason University to stop the release of the open source citation management program Zotero (hat tip to my colleague Paolo Mangiafico for directing me to this story), I wasn’t sure how it was relevant to issues of copyright and scholarly communications.  After all, this is essentially a licensing dispute; Thomson alleges that, in order to develop the newest version of Zotero, software developers at GMU “reverse-engineered” the proprietary .ens file format used by Thomson product Endnote in violation of a licensing agreement. Endnote, of course, is a very popular tool in academia, and it is alleged that GMU is marketing its new version of Zotero with the specific boast that it now allows users to convert EndNote files into its own open source and freely-sharable file format

I cannot comment on the merits of the breach of contract claim, and I have no argument with the right of Thomson Reuters to use a licensing agreement to protect its intellectual property.  Nevertheless, the idea of protecting these files, which simply organize data about books, journal articles and web sites into a form that can then be mapped into different citation styles, raises interesting questions about the scope of copyright law and where new and troubling developments might take it.

At least since the Supreme Court decided Feist v. Rural Telephone in 1991, we have known that facts and data are not themselves protected by copyright, and that collections of facts must meet a minimum standard of originality (greater than that found in the phone books that were at issue) in order to be protectable.  I do not know if the file format EndNote has created to store citation data is such an original arrangement of data and, apparently, neither do they.  Rather than rely on copyright law, they wrote a license agreement to try to prevent what they allege took place at GMU.  But two questions still bother me.

First, should universities agree to licenses that prevent reverse engineering?  In today’s high-tech environment, reverse engineering is a fundamental way in which innovation proceeds.  Our copyright law, in fact, recognizes the importance of such activities, providing specific exceptions to certain prohibitions in the law for cases of reverse engineering that have potential social benefits, such as encryption research or making materials available to handicapped persons.  So one could legitimately ask if a court should consider the benefits of the research being done when deciding whether and how strictly to enforce a contractual provision against reverse engineering.  In general, open source software is a gift that many universities like George Mason give to the academic community as a whole, and the value of that gift is increased if it is possible for scholars who have been using a costly commercial product to move their research resources from the latter into the former.  That increased value (an “externality” in economic jargon) could be weighed against Thomson’s loss (which they allege is around $10 million per year) in reaching a reasonable decision about contract enforcement.

Second, will we see a movement to cover databases under some kind of database protection law, potentially separate from copyright, if corporate database verdors are unsatisfied with even the low bar necessary for copyright protection and with the need to use licensing provisions where that protection is unavailable?  It is this kind of extension of intellectual property protection to subject matter that has traditionally not been protected that I mean by the phrase “copyright creep.” Such sui generis protection (not rooted in copyright principles) has been adopted in the European Union, and it is common these days to hear complaints about it from scholars in EU countries.  At a minimum, such protection would raise costs for obtaining access to commercial databases and, as is shown by the Zotero lawsuit, could be used to stifle innovation and cooperation.  The last attempts to introduce legislation for database protection in the US were several years ago — there is a nice summary of those efforts and the issues they raised here — but it is a topic that keeps coming back and about which higher education needs to be vigilent.  In many ways our interests would cut both ways in any database protection debate, so it is a case where careful thought and balance would be needed.

Open Access and Institutional Repositories, Scholarly Publishing

Open Access Day @ Duke

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Mark your calendars for world-wide Open Access Day!  October 14, 2008 is being marked as Open Access day by three important organizations in the fight for more openness in scholarship and research — SPARC, the Public Library of Science, and Students for FreeCulture.

The big international event will be a webcast feature Noble Prize Laureate Sir Richard Roberts and Prof. Philip Bourne, the founding editor of “PLoS Computational Biology.”  This will be a wonderful opportunity to learn about the benefits of, and opportunities for open access, especially in the area of health and medical information and scholarship.  More information about the webcast, and the celebration of Open Access Day in general, is available at this website.

At Duke we also have some special events planned.  The webcast will be received in two locations — in the Medical Center Library and in the Perkins/Bostock Library.  Both opportunities will be a 7 pm, and participants will be able to ask questions of the presenters and also discuss the issues raised amongst themselves.  There will also be an event focused on local efforts — OA @ Duke — in the afternoon of October 14.  From 2 pm until 3:30 we will gather in Perkins Library 217 to here about what is being done at Duke and what opportunities are available for scholars.  Our keynote address will be by Prof. Jamie Boyle of Duke law school, and there will also be short presentations by Law Librarian Dick Danner, Dr. Ricardo Pietrobon of the Medical School faculty and Duke student Josh Sommer, a passionate and articulate spokesman for patients’ rights.  Tables will be set up in both libraries throughout the day to distribute literature and to allow view of several videos about the important role of open access to scholarship.

If you are in the vicinity of Duke on Oct. 14, please join us to learn and celebrate Open Access, at Duke and around the globe.

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

E-textbooks: the state of play

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

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

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

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

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

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

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

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

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

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

A template for authors’ rights, and a modest proposal

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

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

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

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

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

Updates on NIH Public Access

It seems like a good time to collect some of the interesting news items coming out lately about the NIH Public Access Policy, which has now been mandatory for just over 4 months. Most of these items come from Peter Suber’s Open Access News blog, to whom we direct a sweeping tip of the hat.

First is the important clarification that NIH issued about how author submission occurs. In greatly simplified language, the NIH outlined four methods by which submission can happen — publication in a journal that has an agreement to put all of its contents in PMC, arrangements with the publisher for deposit of a specific article, self-deposit of the article, or completion of the deposit process when the publisher has sent the final peer-reviewed manuscript to PMC. For more details, see the NIH policy home page.

Next came this report in Library Journal that submissions to PubMed Central have more than doubled in the six months since the mandatory policy was passed by Congress.

Then last week Oxford University Press announced that it would begin depositing articles that are funded by NIH for authors. In effect, this means that Oxford authors will be selecting the fourth of the methods NIH has identified, which is much easier for Oxford authors than the self-deposit on which they had to rely up till now.

Finally there is this note from Library Journal Academic Newswire, which both reports on the OUP decision and notes that NIH is confirming the fact that most journals which handle deposit for the authors are selecting a twelve month embargo on the articles, the longest embargo currently permitted by law.

Taken together, I think these reports indicate two things. First, the Public Access Policy is working, by which I mean that public access to bio-medical research is increasing dramatically without creating any real danger to the publishing industry. The announcement by OUP that they would cooperate in depositing articles indicates that publishers are coming to terms with the requirement and accepting it. Even the news that most publishers elect the 12 month embargo is a sign of growing accommodation; that overly-long embargo provides even the most skittish publishers enough security to adapt to the growing open access movement. Shorter embargoes are undoubtedly sufficient to protect publisher revenues, but the move to those shorter delays will have to take place gradually, as more and more publishers realize that, whatever the threats to their traditional business models are, NIH Public Access is not one of them.

Second, I hope that we are seeing an awakening realization on the part of scholarly authors that they have genuine choices as they consider how to disseminate their work. The soaring PMC submission rate, and the decisions by major publishers not to resist it, suggest that making submission easier for authors is rapidly becoming a competitive advantage. As authors realize that they have control over their work for as long as they retain copyright ownership, publishers might have to take on a service role they have never really played before, competing for the best scholarship by help authors meet the requirements of the funders who underwrite the research.