Category Archives: Open Access and Institutional Repositories

Open Access and Institutional Repositories, Scholarly Publishing

Caveat emptor!

This posting on the NY Times Technology blog – “On eBay, Some Profit by Selling What’s Free” – caught my eye over the holidays because it recounts a situation very similar to one in which we have found ourselves at my university. The post describes the experience of purchasing an old film from an eBay vendor only to discover later on that the entire film is available for free download from the Internet Archive site. The author is unsure whether to feel cheated, since he paid for something he could have obtained for free, or to recognize that the vendor had earned his fee by finding material the author wanted but would not have found himself. Both the vendor involved and Brewster Kahle, founder of the Internet Archive, basically take the latter position, with Kahle pointing out that no one is getting rich doing this while expressing the wish that more creative, transformative uses were being made of the older material.

At Duke we have been struggling to deal with a very similar situation. A great deal of effort went in to the creation of digital collections feature lots of wonderful material in our collections on the history of advertising. So our staff was understandably distressed to find out that an Internet entrepreneur had downloaded virtually the entire collection, which is mostly public domain images, and was selling the CDs through his own website and via eBay intermediaries. It is a well-established principle of copyright law, of course, that “sweat of the brow” does not give one rights in a collection of facts or public domain material. Nevertheless, we were unhappy because we made the collections available in order to facilitate scholarship and research without barriers of place or fees for access; selling the material undermines our vision of the research purposes of the collection.

We finally decided to send a letter asking the vendor to stop selling this collection. We based our request on three claims – a compilation copyright in the whole collection, which was copied in its entirety with our selection and arrangement (and some commentary) intact; a fear that, because the Duke name appears in a few places, there might be confusion about our relationship with the vendor (there is no such relationship, in fact); and our concern that some of the images may still be protected by copyrights held by the donor who gave us the material in the first place. Most galling to us is the fact that the vendor who has appropriate this material himself claims, on the site, to hold a compilation copyright in the material.

So far our letter has been ignored, and the material is still available for sale. We are unsure if we want to take further steps or what those steps might be. We have no desire to impede the flow of information to people who want or need it. But we do want to uphold the value of free access to the public domain, and also to protect and value the intellectual efforts of our fine curators. Perhaps the best thing I can do is to use this space to encourage readers to check out the free digital displays of this fascinating material on the Emergence of Advertising in America website. And remind all that when someone offers to sell this kind of material that looks like it came from a library special collection, let the buyer beware!

Open Access and Institutional Repositories, Scholarly Publishing

Changing the economics of scholarly publishing

Inside Higher Ed recently published an article about a “New Collaboration for Scholarly Publishing” that describes how five university presses hope to alter the discouraging economic situation for publishing scholarly books. NYU, Fordham, Temple, Rutgers and UVA presses are collaborating to create a joint system for copy editing, design, layout and typesetting a series of books about American literatures. The project, funding by a grant from the Mellon Foundation, aims to produce over 100 new books that otherwise might not have been published due to cost constraints. By reducing the expenses that are common to all publishing operations, the project expects to allow each press to issue 5 additional books each year over the 5 years of the project.

Two aspects of this project make it significant beyond its own goals. First, it is only the initial such project that Mellon plans to finance; similar projects in Slavic studies and ethnomusicology are already in the works. Second, and most important, this project will help demonstrate that cooperation between academic presses is possible without surrendering the unique features of which many university presses are justly proud. Each of the publishers in this first project will be responsible for selecting its own titles and will continue to select in the specific area within the broad topic that is their own specialty.

It is no secret that publishers routinely have to reject quality manuscripts because the costs of production make them poor financial risks, however good the scholarship may be, and that many young scholars therefore can not get their work published. The hope for this experiment is that the value of collaboration, in terms of significant cost savings so that more worthy monographs will see print, can be realized without losing distinctive reputations or sacrificing quality.

A far more radical push to change the economics of scholarly publishing is expressed in this post on “Digital Media, Games and Open Access” from the blog “Grand Text Auto.” It is written by Nick Montfort, an assistant professor of digital media at MIT, ostensibly to explain his reasons for refusing to review for traditional journals anymore, saving his efforts for open access publications. As Montfort says, “there must be a few things that those of us who are part of the scholarly publishing process can do to foster an open-access future. The easiest thing that I’m able to think of is simply not volunteering our labor to lock academic writing away from the public.” His explanation of the current inequitable system of journal publishing is both clear and scathing, leading to his conclusion that that system, based on restricting access to scholarship rather than encouraging it, should be called “anti-publishing.”

These two very different approaches to the economic problems of scholarly communication may seem poles apart, but each is founded on the recognition that our current systems do not serve scholarship very well and are likely unsustainable. Whether changes come through carefully planned collaboration or through the radical disruption of open access (or both), change is certainly in our future.

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

NIH public access mandate becomes law

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On the day after Christmas, President Bush signed the Omnibus Appropriations bill for fiscal year 2008, ending a long struggle with Congress over earmarks, appropriate funding levels for various government agencies and continued funding for the war in Iraq.  Buried deep in this huge and complex document (section 218, to be specific, although not all the sections seem to be numbered) is language that turns the voluntary program of open access deposit for research articles that are the result of National Institute of Health funding into a mandate.

Beginning immediately, apparently, when an NIH funded researcher has a article about her research accepted for peer-reviewed publication, she is required to deposit a copy of the final version of the article into the open access PubMed Central database within 12 months of publication.

Librarians, and many others in higher education, have lobbied for several years to get this requirement, and others like it for research funded by other taxpayer supported agencies, enacted.  Now the issues of implementation become both real and urgent.  How can we help faculty researchers understand the new mandate?  What publishers can we recommend, and can we help faculty review their publication contracts to be sure compliance (or even earlier public access to the article) is allowed?  Some publishers, like Elsevier, already promise to deposit copies of articles they publish for researchers.  Publishing with such a publisher is an easy way to comply with the mandate, but it will almost certainly result in the full 1 year delay before open access.  For many researchers, there will still be significant advantage in accomplishing open access much sooner than this.  So the task of assisting faculty with understanding their alternatives, negotiating their publication contracts and navigating the mechanics of open access deposit are even more urgent services that academic libraries can and should provide.

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

Property or privilege

The debate over how best to understand the odd notion of intellectual “property” is long-standing. Many find that an analogy between the products of intellect and creativity on the one hand, and property on the other, deeply inappropriate. There is no doubt that such an analogy is often badly abused. When the recording industry insists that music file-sharing be referred to as “theft,” for example, they ignore a fundamental difference between the physical and the intellectual realms. When physical property, a car, for instance, is stolen, the owner is entirely deprived of the enjoyment of that property. When music files are swapped, on the other hand, the owner may suffer a loss of value in her property, but she is not subject to the same total deprivation.

These issues are explored in a new book and an accompanying blog by Chapman Law School professor Tom Bell called “Intellectual Privilege.” Bell’s basic point is to suggest a better way to look at the legal protection of the products of human intellect; one that neither equates them entirely with physical property nor dismisses all such protection as a burden on the ideal of free use:

“I here offer a third view of copyright. I largely agree with my
friends on the left that copyright represents not so much a
form of property as it does a policy device designed to “promote
the Progress of Science and useful Arts” (as the Constitution
puts it). I thus call copyright a form of intellectual privilege.”

Bell’s project promises to generate some fascinating discussion about the nature and uses of intellectual production, and it models an emerging form of scholarship by making the text available pre-publication for public comment. For even more discussion, see the Lessig Blog, where an announcement of Bell’s book has also generated interesting comment.

I look forward to following this debate, but at the outset I want to note that the analogy between IP and physical property is not all bad and is sometimes quite useful. The basis of James Boyle’s now classic article on “The Second Enclosure Movement and the Construction of the Public Domain” is, after all, just such an analogy. And I recently used the analogy with physical property, appropriately, I hope, if less brilliantly, to refute some of the parade of horribles that some have suggested will follow from a mandate to make the products of NIH funded research available in open access.

Bell emphasizes that IP is a bundle of privileges granted by the government to enact certain policy goals. But this definition is equally applicable to physical property; property ownership is a government granted right to exclusively enjoy (that is, to exclude others from) a particular object or piece of land. As with IP, the exclusive rights of physical property ownership are subject to numerous restrictions and exceptions (taxes, zoning, etc.) that help serve public policy ends. The real object of the discussion should be to arrive at a careful understanding of both physical property and intellectual privilege and then look at how they relate, where they differ and what policy alternatives might result from the differing views. Tom Bell has offered us a wonderful opportunity to participate in that project.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories

To Assign or Not To Assign?

The International Association of Scientific, technical and Medical Publishers issued a statement last month on the benefits to authors of assigning copyright to publishers. The thrust of the statement is that publishers are better placed than authors to defend against plagiarism and copyright infringement, to ensure broad dissemination of the articles in question, and to manage issues like requests to reprint and migration to new formats. Each of these points is very debatable, and Peter Suber provides both excerpts of the document (which is itself very short) and a comment that refutes the assertions list above in a very concise and competent way. Not surprisingly, his conclusion is that publishers primary concern is to protect their own interests and that a concern for authors’ rights is, at best, secondary.

One point on which Suber and the STM publishers agree is that a complete assignment of copyright need not preclude authors from making their work available in open access through a personal webpage, institutional repository or disciplinary archive. Even when faced with a demand to assign the copyright, authors may negotiate to retain the right to deposit their work in the ways suggested, as well as to retain other rights. There seems to be little doubt, and the STM publishers do not even argue the point, that open access deposit is a benefit to scholarly authors. But authors will have to decide for themselves if assigning copyright while retaining that right really serves their best interests or whether they should negotiate to keep their copyrights and give the publisher a more limited permission to publish.

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

Second thoughts

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On Google — the New Yorker has a learned and fascinating article on the Google Library project this month, by historian Anthony Grafton. The Google project has gotten inordinate praise in some quarters, as well as its share of criticism (see here, for my contribution to the latter). But Grafton’s article is neither wholly critical nor wholly laudatory; his is an attempt to place Google in the history of efforts at building a universal library and to realistically assess what can actually be accomplished. He points out that a truly comprehensive history of humanity, which some have claimed Google will provide, will still remain out of reach. For example, much “gray” literature and archival material will never see the light of scanning, nor will the cultural production of many of the world’s poorest countries.

This latter point is especially troubling. Poor countries are not just consumers of cultural production, they do also produce it. The digitization of so much western/northern literature could have two negative effects on this production. One would be to push developing world literature further to the margins in the developed world. The other is that, in so far as technology is available within those developing countries, the easy access to material through Google could marginalize a country’s own cultural production even within its borders.

Nevertheless, Grafton is properly amazed at the level of access that digitization has made possible. As he says, picking up his opening theme, “Even [Alfred] Kazin’s democratic imagination could not have envisaged the hordes of the Web’s actual and potential users, many of whom will read material that would have been all but inaccessible to them a generation ago.” Digitization offers great things, but a realistic valuation of those benefits recognizes that no single means of access should replace all the others; the Internet will continue to coexist with libraries, archives and whatever the future holds that we can not yet imagine; all will be part of any genuinely comprehensive look at human history.

On Second Life — On a less exalted plane, the New York Post reported last week on a law suit filed by and against Second Life entrepreneurs alleging copyright infringement of products designed and sold entirely within the virtual environment. See another comment on the lawsuit here. As the comment points out, many educators are looking closely to consider the educational potential of Second Life or other virtual worlds. This lawsuit raises some interesting questions that will need to be answered in order to exploit that potential. For example, do real world laws protecting the rights of creators even apply to Second Life? Is copying someone else’s design in Second Life stealing, as the plaintiffs allege, or is it merely part of a giant “video game” that should not have real world legal consequences? The answer to that question should be a prerequisite to placing educational content into Second Life; teachers typically want to protect the content they produce, or at least share it on their own terms. Whether Second Life will be subject to real world laws, intra-world regulation amongst its members, or merely arbitrary decisions enforced by Linden Labs, its owner, will have a profound impact on how much time, money and content educators are likely to invest in Second Life.

Interestingly, the same defendant who argues that Second Life is a giant video game in which real world laws should not apply also claims that his home in Second Life was subject to an illegal search and seizure by the plaintiffs when they entered to photograph the allegedly infringing items. Just goes to show how hard it is for us to escape our real world notions of property and privacy.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

NIH public access and copyright

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Last Tuesday the Senate passed a FY 2008 appropriations bill that included language making it mandatory for investigators funded by the National Institute of Health to place the published versions of their results in the open access PubMed Central database within one year of publication. There is a new release about the policy, which was passed by the House in July, here from the Alliance for Taxpayer Access.

A consultant for publishing groups recently posted several questions about how the policy relates to authors’ copyrights on a library listserv, intended to convince academic authors that the policy is some kind of threat to them. By responding to those questions below, I hope to clarify the real relation between this new mandate and author’s rights.

The first question was whether supporters of the NIH mandate believe authors should own their copyrights, including the right to charge for their work. In my opinion, an author should have ownership rights in their own work. I also recognize that the unique nature of intellectual property means that those rights have to be subject to limitations and exceptions in the public interest. Every copyright law in the world, and all of the international treaties, recognize and allow for such limitations and exceptions, so this is not a radical proposition. In any case, the NIH policy is not a threat or challenge to copyright ownership. In fact, the explicit language of the provision passed last week requires that the mandate be implemented in a way consistent with an author’s ownership of copyright.

All that the NIH mandate requires is that authors give to the NIH a non-exclusive right to distribute their work no later than one year after it is published. This demand is a much more modest limitation on authorial rights than is the complete transfer of copyright still demanded by many publishers as a precondition of publication. There is no evidence that this delayed and non-exclusive license would harm an author’s ability to charge for her work, although that part of the copyright has little application in the world of academic authorship. On the other hand, there is evidence that public access as soon as possible will benefit an author’s reputation, which is the real value academic authors are able to extract from their copyright ownership.

The second question was whether supporters of NIH deposit believe that authors should have the right to transfer their rights by contract. Again, I support that right very strongly; I spend a good deal of my time advising academic authors about how to accomplish these transfers in a thoughtful manner that benefits them, not just the other party to the transfer. Again, the NIH policy will not impair the ability to do this, it will simply make such contracts subject to the non-exclusive license described above. Governments often put restrictions and requirements on the contents of contracts; it would be absurd to claim that the Uniform Commercial code has seriously impeded a manufacturer’s ability to sell his goods, even though contracts for sale are much more heavily regulated than a publication contract is, even after the NIH mandate.

One must remember that deposit in PubMed Central will not be required until one year after publication, so there is lots of room to negotiate the exact terms by which that non-exclusive license will be implemented. I will certainly advise authors to negotiate for earlier deposit, since it will be to their benefit to do so.

Finally, supporters were challenged about whether they believe academic work is “work for hire” that is owned by their employing universities, and whether they also felt other faculty work,like inventions, should belong to the school. It seems to me that academic work should not be work for hire, although I recognize the strong legal basis on which some universities claim that it is. My preference is for clear policies that leave academic ownership of copyright in the authors’ hands. But again, the NIH policy has nothing to do with work for hire; it certainly does not involve any claim that funding of research makes a work a work made for hire. Such a claim would be insupportable under our current definition of work for hire.

When something is a work for hire, the ownership of the copyrights vests immediately with the employer. In contrast, the NIH is only requiring, again, a non-exclusive license to distribute which will not have to come into being until well more than a year after the copyright vests in the author.

As for other types of intellectual property, I would note that many academics are not uncomfortable with a work for hire claim over patentable inventions because they recognize that university resources are much more involved in such creations and that the assistance of the university is needed to pursue the complex and expensive process of obtaining a patent. Copyright protection is very different in its origination and its terms, so it is quite rightly treated differently.

Responding to these challenges helped me clarify for myself that the real threat to authors’ copyrights is not the NIH public access policy, but an outdated approach to publishing that tries to build an exclusive market around a non-competitive good (which means a good that can be distributed widely without diminishing its supply or value to the creator).

Open Access and Institutional Repositories, Scholarly Publishing

Flipping out

Can it really be this easy? I have written several times about the difficulty of transitions from the increasingly unworkable subscription model for academic journal access to an open access model with some alternative form of financing. Now Peter Suber has developed an idea suggested in 2003 by Mark Rowse, who was CEO of Ingenta at the time, which offers an elegant mechanism for that transition.

Rowse’s suggestion is simply that a journal “flip” its business model by declaring that, from now on, what have previously been regarded as library subscription fees will now be considered authors’ subsidies and the contents of the journal will be available without barriers on the web. Such a decision would protect the journal’s income in the short run, and it would challenge subscribing libraries to refrain from canceling there payments to the journal, now identified as author’s fees, until a sustainable model to keep the contents available in open access is developed. Such a model would presumably involve incremental steps towards correlating what an institution actually pays with the publishing habits of its faculty in the journal. Some schools would pay less, some would pay more, and some that did not pay the high subscription rate at all would be convinced, one hopes, to pay appropriate fees for publishing their own faculty’s work.

This idea obviously involves a risk on the part of both the publisher and the libraries, but it seems like an excellent way to prod libraries into putting their money where their mouths are in regard to open access. As Rowse says, this technique suggests a way to transition to open access “without fundamentally destroying the existing scholarly publishing business.”

In addition to Suber’s article linked above, more comment can be found in this blog post by Heather Morrison.

Just for some context, this article about the decision of the Max Plank Society to cancel all of its electronic access to the 1,200 scientific publications from Springer Publishing due to the failure of negotiations for an acceptable price is another reminder that the current model is failing at the fundamental goal of facilitating scholarly communications. The kind of imagination and courage that could make Rowse’s suggestion work is sorely needed.

Open Access and Institutional Repositories, Scholarly Publishing

A Civil Debate about Open Access

Looking at these two articles about open access and scholarly publishing has made me aware of an online (and open access) journal that I did not know about before, “Script-ed” is the online journal of the Research Centre for Studies in Intellectual Property and Technology.  If these two articles, and the titles of others I have yet to read, are an accurate measure, this is an excellent publication for all interested in “law and technologies in the broadest sense.”

The two articles I want to recommend here are about the cost of open access to publishers, who fear loss of revenue if OA were to become the norm in the academic world, versus the social costs of continuing as things are, where fewer and fewer people have access to significant research as the toll for access to subscription journals rises.

From the perspective of an academic publisher, Kevin Taylor’s article is a calm and reasonable account of the current situation.  He recommends, and apparently practices at Cambridge University Press, where he is IP Director, sensible and even enlightened copyright policies for academic publishing.  It is only when he talks specifically about open access that he raises some fears that are not very well-founded.

In his response to Taylor’s article, A.A. Adams carefully refutes these fears and offers a font of helpful information about open access.  Perhaps his most important point is that book publishing in the academic world is very different that the business of publishing journal articles.  Academic authors do not write articles to gain direct economic benefit, which makes OA an important and entirely beneficial option in the world of articles, where it might be more contested if we were talking about monographs.

Adams’ section on “Routes to Open Access” is a superb introduction to the arcane jargon of the OA movement, explaining very clearly what green and gold OA are and how the various versions of these two “roads” to OA can work.

Copyright Issues and Legislation, Open Access and Institutional Repositories

When should the government intervene?

There has not been a lot of comment on this site about the launch of PRISM (The Partnership for Research Integrity in Science & Medicine – a coalition of publishing organizations that is campaigning against the proposals in Congress to require public access to federally-funded research. One reason for this lack of comment is that the actual arguments and assertions made by PRISM are so transparent and easily refuted; I called them simple-minded in an earlier post (here), and I have seen nothing that changes that judgment. Also, lots of other blogs and listservs have dealt extensively with the claims of PRISM, especially after the Director of Columbia University Press resigned from the Executive Council of the American Association of Publishers over its support of the Partnership and the Director of Cambridge University Press wrote a letter repudiating its absurd assertions (see news item in The Chronicle of Higher Education here).

But even a silly debate can produce significant points, and one of the most important contributions to this argument comes from William Patry, senior copyright counsel for Google, whose blog has been cited here several times before. The “PRISM principles” refer repeatedly to preventing “government intervention” in scientific research. The irony of complaining of government interference in research that is paid for from federal tax monies in the first place should be pretty obvious, but Patry adds another point that is worth our attention. As he says in this post, “Copyright is always Government Intervention.” By definition, copyright is a government-granted monopoly that artificially supports the price of intellectual property to provide an incentive to creation. Patry nicely explains the logic behind this government intervention and the reasoning that underlies the attempt to create a balance between incentives for creators and opportunities for users.

However one feels about whether we have struck the appropriate balance in the US or have erred to one side or the other, most will agree that the economic rationale for copyright as a government intervention in the free market is sound. We can only wonder if PRISM, however, will be true to its professed disdain for government measures and support the total abolition of copyright. Such a change would create a genuinely free market, where publishers would be free to compete with each other by publishing the same works at competitive prices; consumers would likely benefit from lower prices for books and movies, but it is pretty certain that creativity would suffer in the long run.