Category Archives: Open Access and Institutional Repositories

Open Access and Institutional Repositories, Scholarly Publishing, Technologies

More on e-textbooks

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A few weeks ago I did a post suggesting that universities should look at digital textbooks, both licensed and open access, as a way to help students reduce the cost of higher education. The reauthorization of the Higher Education act, with several provisions related to monitoring of costs, reminds us that lots of eyes are watching that topic.

A couple of recent news items suggest the richness of the opportunities, both for education and for innovative business models, that online textbooks can offer.

First there is this interview with Eric Frank, a founder of Flat World Knowledge, about that company’s venture into creating textbooks that will be freely available online and also can be purchased through a print-on-demand service and even as an MP3. Frank explains very clearly the imbalances of the current system for publishing textbooks, where high prices drive a thriving used book market that undermines sales and drives prices even higher and where new editions are created not because of changes in the field of study but in order to renew revenues lost to used book sales or piracy. More importantly, Frank describes in considerable detail the alternative business model that Flat World is pursuing, which combines a more consistent revenue stream with free availability for those who want only online access and many flexibility features for both the original author and other instructors to change and adapt the books for specific pedagogical needs. Flat World has at least 15 schools on board to experiment with its new model for textbook delivery; it is a beta test that should be carefully watched — whether or not it succeeds, it will provide valuable lessons about how we might harness the educational potential of online publishing and break the strangle hold of out-dated business models.

On a more whimsical note there is this brief article from the ABA Journal about a law professor who wants to create an animated “case book” for tort law. Professor James Cooper from California Western is proposing that animated videos of some of the most important cases in tort law be available on YouTube for students to study. This is obviously not just an impractical whim; Prof. Cooper has produced numerous short videos on legal topics (available here), including a public services announcement on DVD piracy called IP PSA (in Spanish).

My first thought about this was that the famous case in which NY Court of Appeals Judge (later Supreme Court Justice) Benjamin Cardozo decided that tort liability did not exist when the harm caused was unforeseeable would make a great video. That case, Palsgraf v. the Long Island Railroad Company, has great dramatic elements — a moving train, an exploding package of fireworks and a huge set of scales yards away falling on an innocent bystander. It is a set of facts that a first-year student is unlikely to forget, if they read the case in the first place. Unfortunately, the pressures of law school and the arcane nature of some of the opinions leads many students not to bother. The animated gallery of cases that Prof. Cooper suggests cannot replace traditional law school methods, but it could provide a helpful supplement. And since federal judicial opinions are almost always available on the open web, it is at least possible that a combination of this YouTube gallery with some sophisticated linking and added commentary could replace a casebook with an alternative both more economical and more likely to get students’ attention.

The “Law Librarian Blog” asks if this idea is innovative or insulting. From my point of view (as a relatively recent law school graduate), it is both innovative and representative of the kind of experimentation that needs to be taking place. Animation may not be the future direction of law school instruction, but all such experiments will help us arrive at a clearer vision of what that future can be, and they help us break the grip of traditional notions that are no longer working.

Copyright in the Classroom, Open Access and Institutional Repositories, Scholarly Publishing

Where should we spend our money?

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The attention paid in the last few weeks to the cost of textbooks and the promise, as well as the risk, of moving to e-texts has prompted me to consider the above question.

Some of the recent reportage has focused on e-textbooks as a way to reduce the costs students must pay for course materials; this article in USA Today is an example of this kind of story. There have also been several comments from open access advocates supporting the move toward open online textbooks; see this post by Georgia Harper and this one from Peter Suber.

There has also been some commentary recently on the abuse of new models of textbook distribution. The Boston Globe ran this article on “Textbooks, free and illegal, online” just a few days ago. It is unfortunate, but hardly surprising, that it is only in this article about “pirated” textbooks that the Association of American Publishers is quoted; they could do so much more if they were actively involved in a positive solution that could reduce textbook costs and improve access. But it is the faculty who write the textbooks who are quoted as seeking a legal solution, while the publishers merely resort to heavy-handed enforcement measures for a law that is rapidly becoming unenforcable in a technological environment for which it was never designed. The fuss usually works in individual cases — the Chronicle of Higher Education reports today that the specific site discussed is off-line — but it is ineffective to stem the digital tide.

But faculty do not come out unscathed in this discussion either, as is clear from this post about the practice of professors commissioning “custom” textbooks and receiving “royalties,” which William McGeveran of the University of Minnesota Law School calls “kickbacks,” from the required purchases by their students.

The lesson here seems to be that the digital environment is inevitably going to change the environment for textbooks as it has for most other kinds of intellectual property, for good or for ill. Georgia seems to feel that the publishers will eventually figure the market out and move to new profit models while supporting open access. But I think there is also an opportunity here for institutions to be more proactive and seek ways to invest in open access textbooks on a campus-wide level.

Why should schools consider doing this. First, with all the pressure that institutions of higher education are under to reduce the costs for students to attend, open access textbooks offers an avenue for proactive investment that will simultaneously reduce student costs and encourage faculty scholarship. Second, this is a place where universities actually can help combat copyright infringement. Universities have been made the scapegoats in the file-sharing wars, but there is really not a lot they can do to ameliorate that problem, especially since the vast majority of music and movie file-sharing does not occur over college and university networks. But by supporting open access to e-textbooks, we really can reduce the problem of infringement in that realm.

How can universities invest their funds in ways that will encourage open access textbooks and reduce costs (and therefore the incentive to infringe copyright) for students? I can think of three ways, off hand.

First, institutions could invest in infrastructure that would encourage new models for electronic course content. This means a great deal more than simply providing the storage space necessary for an institutional repository. Universities also need to support their faculty authors in efforts to retain copyright so that they can deposit their works in an IR and create new and unanticipated derivative works from those publications. The opportunity to combine materials located in an institutional repository in new ways would create a different spin on the custom textbook; it would offer a heretofore unimagined flexibility based on legal rights retained by the authors of the component parts and licensed to institutions or, using a Creative Commons license, to a broader group of users.

Second, universities and consortia could bring their purchasing power to bear to negotiate multi-user licenses for existing e-textbooks or new ones created in the commercial market. The current models all rely on students to each pay individually a licensing fee (putatively lower than the purchase cost of a hard copy) to obtain access, for a limited time, to an e-text. Multi-user site licenses could further reduce the price per user and give the university flexibility about whether to assess each student user for that lower cost or simply cite the funding to legislators as an investment in reducing student costs.

Finally, universities could make funds available for faculty to encourage the development of open access texts. There has been a great deal of talk recently about funding to support open access via “hybrid” publishing — traditional publications onto which an open access alternative is grafted if the author, or her institution, is willing to pay an added fee. It seems to me that a much wiser investment, and one with a greater return for the dollars spent, could be made by turning those funds to support faculty who want to create online open access textbooks that can be used by students on their own campuses and by others who teach similar courses. Adaptation by others, in that case, would provide an effective “peer-review” to measure the quality of the faculty author’s contribution. In this way, student costs could be reduced, faculty scholarship supported, and the real potential of the digital environment for collaborative learning more fully exploited.

Copyright Issues and Legislation, Open Access and Institutional Repositories

Reducing the number of orphan works in the world

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The two orphan works bills currently under consideration in Congress share many common features, the most obvious one being that both address the problem of orphan works by drastically reducing the penalties for using such a work without permission. They also both would create a very burdensome process for determining that a work is sufficiently likely to be an orphan to justify the reduced penalties in the presumably rare case that the user was mistaken.

These bills have gotten mixed reactions from the library and copyright communities in higher education. The American Library Association has indicated some level of support for the Senate version of the bill, while Public Knowledge and the Electronic Frontier Foundation have both strongly endorsed the Congressional efforts. Several individual voices for which the academic library community has great respect, however, have indicated opposition. Kenneth Crews suggests his reservations, while also criticizing the campaign against the bills, in this blog post, while Lawrence Lessig’s opposition was expressed forcefully in this New York Times Op-Ed.

My opinion is that the bills might do some good in a few situations, but they will not accomplish much. Part of the problem is that they are “remedy-based” solutions; they simply remove some of the risk attendant on using orphan works or, to look at it from the other perspective, the protection copyright owners have against infringement (Lessig puts the situation this way, but I am afraid that this formulation doesn’t recognize that for most of the works we are talking about, there really is no rights owner whose protection would be decreased). But in any case, these bills would do nothing to curb the ever growing number of orphan works. So I want to examine some of the alternatives to a remedy-based solution to orphan works and consider changes in the law that might actually reduce the number of orphaned works that now burden our copyright system.

Lessig suggests one such strategy in his NYT piece when he argues that a more efficient and fair solution to orphan works would be to reestablish a renewal process and give new materials only a short initial term. Thus authors and artists who did not plan to commercialize their works after that short initial period (during which the vast majority of works exhaust their value) would allow those works to pass into the public domain. Those who did plan to continue to protect and exploit their works would pursue a very simple, inexpensive renewal. This would clear reduce the orphan works problem going forward, although it would not help with the many orphans already in our collections. The biggest objection to this plan, however, is that it reduces “formalities” into the enjoyment of copyright in contradiction to obligations the US agreed to when it adhered to the Berne Convention and the TRIPs agreement. Those international treatises do not permit formalities, which is a big reason we went to automatic protection in the first place. It is true that the US has been quite inconsistent in complying with the various obligations we took on with Berne and TRIPs, so this objection is probably not insurmountable. But it would be a major argument to be used against such a change, and it would probably prevent Congress from enacting a renewal requirement.

There are a number of other ways to imagine changes in the law that would reduce the problem of orphan works, either by focusing on the commercialization of particular works, as Lessig’s suggestion does, or by taking advantage of efficiencies gained by returning ownership of unexploited works to the original authors or creators. An upcoming post or two will examine some of those other possibilities.

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

Getting off the copyright merry-go-round

Congress has been talking a lot recently about the farm bill and war spending. But amidst all that rhetoric and wrangling, some copyright work has also been done in the past two weeks. For one thing, the House passed the so-called PRO-IP bill last week, fortunately without its most troubling provision. One of the major provisions of that bill as proposed was an amendment to the copyright law that would have allowed much larger damage awards for infringement. As I wrote some while ago, this was a huge grab at more money for the recording industry especially, but that provision was dropped in the House-approved version. Now what PRO-IP would largely do is further bloat the federal bureaucracy (in a way opposed by the Justice Department) for IP enforcement.

Perhaps balancing out this sop to special interests, Congress has also been working on the Orphan Works bills, discussed earlier here. The Senate version, called the Shawn Bentley Orphan Works Act, was unanimously reported out of the Judiciary Committee on May 15, although it is clear that negotiation about some of its provisions is still going on. The House version, which includes the objectionable “dark archives” provision, is still being marked up in the House Judiciary Committee; whether that provision will remain is something I just don’t know right now. But I do know that several issues remain in controversy in both houses, specifically the language addressing state sovereign immunity and the role of Copyright Office certified statements of “best practices” in defining the scope of a “qualifying search” that would afford a user the shelter of the orphan works reduction in liability.

Amidst all this give and take about copyright, the question ought to be asked whether any of these incremental changes will really make much difference. From the perspective of higher education, at least, there is a sense of tinkering around the edges of a severely broken system. PRO IP simply creates more bureaucracy and further trumpets the “sky is falling” approach to copyright of the entertainment industry. Orphan works is an area in which real reform is sorely needed, but one can legitimately ask if the bills being considered would actually work; the bills may be so laden with expensive and unnecessary hoops to be cleared that they will not make truly beneficial uses of orphan works any more possible or likely. Another example of this futility may be found in the recently concluded work of the Section 108 Study Group: although the Study Group’s report raises some interesting and key issues, it was only able to reach agreement to actually recommend minor changes that will not make much real difference. Instead of waiting for reforms that never come in any helpful way, it may be more fruitful in higher education to ask ourselves how we might simply get off the copyright merry-go-round.

The answer, of course, is in open access to scholarship, and there may be some recent developments that point a direction for encouraging open access as an alternative to the current system of copyright protection for commercial monopolies. An article in this month’s College & Research Libraries News by David Lewis, Dean of the Library at IUPUI, forcefully asserts that it is time for libraries to stop putting more and more money into the bloated and dysfunctional journal publishing system and to move funds to support open access infrastructure and venues. His article proposes specific steps that libraries can take to move off the endless cycle of higher journal prices that leads to less money for monographs and overall reduced access. He is suggesting an important step to get us off the copyright merry-go-round.

A major obstacle to open access, however, has always been resistance from faculty, for whom the system usually seems to work just fine. Tenure and promotion have been built around the core of commercial publishing, and it is very hard to communicate the reasons for moving away from that core. Until now. With the lawsuit filed against Georgia State by three major publishers, a real opportunity has arisen to show faculty members that giving copyright away to publishers primarily interested in share holder profit, not dissemination of knowledge, is no longer in their own best interests. At its root, this lawsuit challenges what faculty members, who provide the content for scholarly publications, want to be able to do with their own work and the work of their colleagues – communicate it to students. If the copyright system determines that they cannot do that without paying yet more money on top of the exorbitant prices charged to buy the works back initially, perhaps there will be a general recognition that they should not freely give that content away in the first place. A return to first principles would remind faculty that these works belong to them unless and until they choose to give them away, and that they are free to negotiate the terms of any transfer of copyright. Ironically, this lawsuit’s frontal attack on a core value in higher education may prove to be the best weapon yet to move scholarship off the increasingly dangerous and unstable copyright merry-go-round.

Open Access and Institutional Repositories, Scholarly Publishing

Access to legal scholarship

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I have written several times before about scholarship in the field of law (here, for example, and here). For a variety of reasons, legal scholarship is an excellent laboratory for experiments in changing the traditional structures and economics of scholarship. Both open access and informal forms of scholarship have been more readily adopted and more quickly influential in law than in other fields. The unusual structure of most legal scholarship is a partial explanation for these facts, but many of the experiences and observations made in the legal arena offer substantive lessons for scholarship in other fields.

Nowhere are these experiences and observations better synthesized than in a recent article by Richard Danner, Ruffy Research Professor of Law and Associate Dean for Information Services at Duke University Law School. In “Applying the Access Principle in Law: the Responsibilities of the Legal Scholar,” Danner does a superb job of explaining what is unusual about legal scholarship, what the experiences of changing the publication models have been and what needs and responsibilities for individual scholars remain.

One of Danner’s observations particularly struck me when I read this article, and that impression was confirmed by a conversation I had this week with several librarians. Contrary to the oft-repeated claim that open access will inevitably lead to loss of subscription income for publishers, Danner documents the experience of Duke Law School when it moved all of its journals to open access web accessibility. As Danner tells the story, the school had concluded that the expected loss of subscription income would be offset by the values gained from greater exposure to its 6 print journals. But in fact, there was almost no such decline in print subscriptions, even after 10 years of free access. Only one journal showed an overall decline (of about 2%) over that time period, while four showed significant increases in subscriptions. The sixth journal experienced a small increase. Clearly better access leads to subscriptions from readers who otherwise would not have known about the journals, especially the specialized ones, which exhibited the largest increases. This week a librarian I was speaking with confirmed that she had also experienced this unusual form of marketing, when faculty have asked her to subscribe to journals they have discovered through open Web accessibility.

Overall, Danner’s article is a masterful analysis of the structure of publishing in a particular field and how the “access principle,” a concept taken from John Willinsky’s book of the same name, could transform a field of scholarship. In spite of the oddities of legal scholarship, Danner is very successful at offering both an analysis and a call to action that deserve to be translated and applied in other fields.

Copyright Issues and Legislation, Open Access and Institutional Repositories

How bad are the proposed Orphan Works bills?

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Two proposals on Orphan Works were introduced in Congress last week, one in the House of Representatives and a slightly different one in the Senate. Both bills are more complex than the version introduced and then largely ignored by the 109th Congress, but the core principle is the same – a remission of most of the available remedies for infringement if a user makes use of an orphan work (a work whose copyright owner can not be found) after a reasonable diligent search. The bills are designed to greatly reduce the risk for libraries and many others who want to make digitized versions of older, but still copyright protected, works available to the public. In some sense it is an attempt to balance the outlandishly long term of copyright with the reality that a huge percentage of works are not economically exploited at all after their first few years of existence.

The big question is whether either bill actually succeeds, with success defined as a reasonable likelihood that a thousand flowers will bloom from the soil of orphaned works that otherwise would not have been seen for many more years. Opinion in the blogosphere is mixed; Public Knowledge, which was deeply involved in helping to draft the bills, is guardedly hopeful. Georgia Harper, on the other hand, writes this deeply pessimistic blog post that declares the bills “DOA. Too late even for last rites.” The issue, as I will discuss it, revolves around how burdensome it would be for libraries to actually rely on the procedure outlined in the bills to support digitization projects. Three issues seem to need discussion.

First, there is the requirement in the House bill that users of orphan works file a “Notice of Use” with the Copyright Office that would be maintained in a “Notice of Use Archive.” The notice would have to contain a description of the search for an owner that was made by the user, as well as lots of identifying information and a certification of good faith. This requirement is only in the House version, and it renders the Senate version much more appealing. A database of uses raises the specter of copyright owners fishing for defendants in a stocked pool, for one thing. But, realistically, this seems pretty unlikely. First, access to the database would be restricted by unspecified regulation of the Copyright Office. More importantly, if a diligent search really has been made (and libraries almost certainly would be doing so) most copyright owners who would be on the lookout for infringement would have been found. More problematic is the burden of fulfilling this requirement, a burden that would be hard to measure until (and if) a version of the bill with this requirement is in place and being used.

I certainly would rather this not be included in a final bill. But I also know that librarians are investing a lot of time, labor and money in digital collections as things stand now. I doubt that even a burdensome reporting requirement will discourage the commitment to greater access that drives these projects, especially when the content is something that could genuinely benefit scholarship and that has been previously unusable.

A second potential problem is the instruction to the Copyright Office to develop “best practices” for different kinds of content that would have to be followed for a search to qualify as reasonably diligent. Georgia Harper thinks this is a guarantee that the content industries will write the rules, and she may be right. Unlike the case of proposed file-sharing legislation, however, such a role for industry is not actually specified in the bills. In any case, I think most librarians working on digital projects would welcome the guidance of best practices, even if the door to using orphan works were opened only a little bit. So much of our collections are unavailable for use as things now stand, and we have such high certainty that many of those works genuinely have no one to care about how they are used, that even restrictive rules for a qualifying search would advance the cause of digital access. Again, I think many libraries will take the necessary trouble when the content and the opportunity seem worthwhile. Restrictive rules will help only small digitization projects, of course, which may be the point, but even so the digital environment could be greatly enriched.

Finally there are the added rules for pictorial, graphic and sculptural works. These are the categories whose owners have most vocally opposed orphan works reform because they fear that it will be too easy to call these works orphans. The problem is that most such works carry no obvious notice of the copyright owner. The proposed bills specify that this lack by itself does not make the work an orphan, and it directs the Copyright Office to certify a database “to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection.” Such a database would actually probably be welcomed by libraries, since it would both facilitate use of orphan works and provide a source for needed metadata. The big problem is that such a source does not seem to exist right now, and creation of it would delay implementation of the orphan works exception for as much as 5 years. Since images and graphical works are a large part of the collections libraries would like to digitize, this kind of delay would be a huge blow to the effort to give the public access to much of our unexploited cultural heritage.

Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.

Open Access and Institutional Repositories, Scholarly Publishing

Freeconomics

What a delightful word to describe the increasing need to talk about the economics of free stuff. As strange as that idea sounds, it is the subject of a recent article in Wired magazine called “Free! Why $0.00 is the Future of Business.” Besides coining the word “freeconomics” (as far as I know), author Chris Anderson describes the forces that drive prices in the digital world down toward nothing. He identifies two important trends that tend to make the Web “the land of the free.”

First, there is the phenomenon of “cross-subsidies,” where a product or service is given away for nothing in order to create an income stream somewhere else. Anderson uses the example of King Gillette, who gave away his safety razors in order to get men hooked on using them and to make money selling the disposable blades. As Anderson points out, the Internet provides greater freedom for businesses to make money from one set of customers while giving things away to another. Advertising supported Web business are only one of many examples.

The other trend Anderson identifies is “simply that anything that touches digital networks quickly feels the effect of falling costs.” He provides a nice discussion of why the cost of Internet communication is approaching or has reached the point where it is close enough to free so that we can “round down to zero.”

Anderson’s article ends with a “taxonomy of free” that describes five business models built around a base price of zero.

What has this to do with scholarly communications? We are already seeing the pressure towards free for all kinds of intellectual property on the Web. Music, of course, was the first IP commodity to head to zero, and it did so before distributors could catch on and move to a zero-based business model. Now the music companies are scrambling to find ways to add value to music in order to move customers back from the lure of $0.00. That is a very difficulty task, needless to say.

As the same pressures are exerted on digital scholarship, those who make that scholarship available, whether traditional publishers, libraries or individual scholars, need to plan ahead for how they will at least recover basic costs as the price of access falls. If we sit on our hands and deny that this is happening, we may well witness “the end times for tradition journal publishing,” as was recently predicted in Inside Higher Ed.

The issue is going to be how to add value to what could be obtained for free, in order to recover costs. To guide us, here is one more article about “freeconomics” — In “Better than Free, Edge columnist Kevin Kelly suggests eight “generatives” that can move a product past free to a point where consumers will pay something, not for the product necessarily, but for the value that comes with it. Kelly’s discussion of these “generatives” — immediacy, personalization, interpretation, authenticity, accessibility, embodiment, patronage and findability — should be required reading for those who advocate, consider or foresee that move toward free access to scholarship. Even if we fear it, we are likely to have to deal with it. The ability to add value along the lines that Kelly suggests may keep us and the scholarly apparatus we have grown familiar with over the years afloat in the age of freeconomics.

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

Suddenly, Open Access is all the rage.

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

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

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

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

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

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

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

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

Open Access and Institutional Repositories, Scholarly Publishing, Uncategorized

Blogging law

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Trying to catch up on interesting developments over the past few weeks, I note the very interesting and wide-ranging discussion going on across several blogs dealing with legal scholarship about the value of blogging in that discipline. It seems to have started with several reports (here on Balkinazation, here on the Volokh Conspiracy, and here on Law Librarian Blog) about the rapid increase in citations to blogs in the legal literature. Lots of interesting questions are raised here. Why are these citations growing? Jack Balkin writes about the assimilation of blogs into the “larger universe of legal writing.” Is there a different ethic and etiquette for citing blogs in scholarly articles? Eugene Volokh suggests that there is and provokes a fascinating chain of replies. His discussion of the ethics of citing unpublished sources continues here. And finally, is this good for scholarship, or the beginning of the end? Brian Leiter writes a long piece on “Why Blogs are Bad for Legal Scholarship.” In spite of the apparent “liar’s paradox” here – telling others not to read blogs in a blog – Leiter makes an interesting argument about the importance of mediation and some way to test and evaluate the expertise of the one whose writing is being cited.

I have commented before on the growth of informal channels of scholarship, but have not written much about the relevant roles for different types of scholarly venues. These posts, and several others to which they link, do a nice job of starting that discussion. The linking itself is an important phenomenon; blogs provide a novel environment in which arguments and discussions can connect to and interpret each other. From that perspective, citing to a blog in a traditional article seems to defeat some of the principle advantages of blogging – the immediacy and interconnection.

It is also interesting to speculate on why legal scholarship seems to be the discipline in which this conversation is taking place. When I first read about it, I wondered if the unique aspects of legal scholarship, where most of the journals are edited by students rather than by full-time academics, might lead the professorate to feel less proprietary about their publications and thus more willing to experiment outside of the traditional confines of scholarship. Leiter suggests a somewhat different spin on this observation when he writes: “The problem is that reputational effects in the legal academy are mediate by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts… First, one of the major venues for legal scholarship remains the student-edited law reviews” (the second institutional problem is the “journalistic reception” of legal ideas). For Leiter, the problem to which this lack of expertise contributes is the “availability cascade” – “an opinion that appears to be informed gains credibility by virtue of being repeated and thus becoming current in discourse.” For its discussion of this phenomenon alone, Leiter’s piece is worth reading, even while recognizing that blogs are certainly here to stay and scholarship is going to have to find ways to deal with them.

Copyright Issues and Legislation, Open Access and Institutional Repositories

In search of a problem?

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I have written before about the PRO IP bill introduced in Congress in December of 2007; its primary purpose seems to be to dramatically increase the amount of statutory damages available to a copyright owner whose work is infringed. The specific way this is accomplished — by allowing a separate recovery of statutory damages for each individual work contained in an infringed collection — seems carefully crafted to benefit the Recording Industry Association of America and almost nobody else. So unusual is this provision that the Copyright Office convened a roundtable to discuss it. According to this report on the event from Public Knowledge’s Sherwin Siy, the most interesting part of that roundtable was the fact that very few participants seemed very strongly in favor of the provision. This seems to be the classic solution in search of a problem, at least to everyone but the RIAA, who simply want larger recoveries from all their litigation. Siy’s long post does an excellent job of explaining the provision, its context and the discussion at the roundtable.  This post by Google’s William Patry, another participant in the roundtable, offers his perspective as well.

What I want to focus on is the unintended consequences of this steep increase in statutory damages on the problem of orphan works. For libraries and higher education institutions, the difficulty with using a so-called orphan work (a work whose rights holder either cannot be determined or cannot be found) is that high risk is associated with great uncertainty. One cannot predict if a rights holder might turn up sometime after your digital display or YouTube video becomes available, but you do know that, if that happens, the potential liability is very great. Thus works that are serving no useful purpose at all remain hidden because statutory damages are so high that they discourage schools from taking even a small risk. Raising those damages as dramatically as PRO IP proposes would magnify this chilling effect, and the result would be a pure social loss — works that are not generating any profit at all for the rights holders will still be locked away from potential users, readers and viewers because of fear.

The Orphan Works legislation introduced in the last Congress was intended to address this fear, so it seems like a good time to consider re-introducing that proposal. The orphan works bill would have made statutory damages unavailable if a user had made a reasonably diligent effort to locate the rights holder and was not able to do so. If a rights holder reappeared after an unauthorized use had been made, they would be entitle to the reasonable licensing fee they could have collected if they had been around to ask in the first place, but not the draconian statutory damages designed to discourage piracy, not scholarship. With a proposal to increase those statutory damages now on the table, it seems like a great time to really press for the reintroduction of orphan works legislation as well. Only if orphan works protection is considered in conjunction with PRO IP can this legislation, which hardly seems to be needed at all, be prevented from doing far more harm than whatever good it is supposed to achieve.

Orphan works is important legislation in its own right; far too much of our cultural past is unavailable because libraries and universities do not dare risk the expensive vagaries of copyright law. A bill to make socially productive uses of this material possible without inhibiting profits at all is worth reintroducing on its merits. But it is absolutely vital at this point, as a corrective to the excessive protectionism of PRO IP. Lets hope someone in Congress sees the obvious connection between these two pieces of legislation, and orphan works protection makes a comeback.