Three academic publishing organizations recently released a short position paper called “Author and Publisher Rights for Academic Use: An Appropriate Balance” that is worth a look from all who are concerned about scholarly communications. For higher education, the position paper contains elements that evoke hearty agreement and others that demand objection.
If, as a recent comment on the LibLicense list suggested, the purpose of the paper is to call wide attention to two facts, that many scholarly journals already have very “scholar-friendly” policies built into their publication agreements and that copyright is not necessarily a barrier to academic discussion and comment, there would be little to argue with. It is quite true that many academic journals already allow authors to retain many or most of the rights necessary for subsequent teaching and research uses. It is important that authors read those agreements to be sure this is true in their specific case and to consider whether or not self-archiving or some other form of electronic deposit is permitted, since such access is becoming more and more important to scholars and to scholarship.
On the issue of digital “open access” availability, the position paper takes an awkward stance. While citing several journals that have adopted “author-pays” models of open access as leaders, the paper marshals several arguments against mandated public access for research funded with public money. Some of these arguments are self-contradictory; if one fear about open access is that it will “confuse the scientific record,” why is it suggested that a better course than mandating access to the final version of an article is to post pre-prints? While pre-print repositories seem less threatening to the traditional business model of journal publishing, the scientific record is best preserved when access to the scholar’s final word is available to all.
One comment at the very end of the report deserves comment. The publishing organizations take note of the educational exceptions and limitations built into copyright law but assert “that these exceptions are thus far limited to traditional photocopying and do not permit the exploitation of such materials [journal articles] over the Internet.” This is wishful thinking; no court, that I am aware of, has decided one way or another about how far educational exceptions apply in the digital realm. The TEACH Act, although largely a failure at its stated purpose, is clearly intended to apply some leeway for education to the Internet. And the oft-repeated assertion that copyright law is technology neutral implies that there is fair use on the Internet, as the recent Perfect 10 decision held, even if its educational boundaries have not yet been clarified.
It has got to be significant for higher education when the New York Times endorses open access textbook publishing. That is exactly what happened in yesterday’s editorial about a proposed discloser law for textbooks being considered in Washington state. The concern over textbook prices is not new, of course, but the attention the NY Times gives to an open access model surely is unusual. The editor moves from endorsing the proposed law to suggesting that disclosure is not enough; “creative solutions” like the Rice University Connexions project are required.
Connexions is an open-source and open content experiment at Rice, supported by the William and Flora Hewlett Foundation, that allows users to create and publish academic “modules” that others can locate, download and print for educational purposes. All of the content is offered under a Creative Commons license. The Times notes that one can print a 300 page textbook in electrical engineering from Connexions for a lot less money than it would cost to purchase a similar work, and right now users can also find featured course material for music and corporate governance at the site. In fact, there are almost 4,000 modules available on Connexions, browsably by subject area. With the NY Times getting on board, this may be a real harbinger of the future in higher education.
It has been a busy two weeks, and I am rather late in adding my comments to Raizel Liebler’s “Open Letter to Google.”
The letter, which points out that Google declines to treat government documents as public domain works, even though section 105 of the Copyright Act says that copyright is not available for any work of the US government, has attracted considerable comment, but I still want to add my two cents.
Although Google seems to be the biggest champion copyright reformers have these days, there are several reasons not to rely too heavily on a large corporation principly interested in its own bottom line. As I have noted before, if Google uses its deep pockets to settle its fair use conflict with publishers, the situation for the rest of us is likely to be worse, not better.
Another problem with the Google Book Project is the speed with which it is being carried out, and the consequent inability to take adequate care for the results. As I librarian, I was distressed to find, while helping a researcher who had located a”snippet” on Google, that the citation on the snippet page was not to the correct source of the passage. The title page image displayed with the snippet referenced yet a third work, neither the one cited nor the source of the snippet. Such lapses make Google very problematic for its stated purpose — online access to the world’s off-line literature.
Raizel’s letter points out another problem — Google is assuming a overly narrow view of the public domain. Whether government documents are excluded because it is too difficult and time consuming to decide what is or is not a government work or because of an obscure fear that copyrighted work might be cited with a government production, the public is being denied some of the benefit promised. Google’s representation of the public domain is further constrained by the assumption that all post-1923 works are protected, even though the protection on many will have lapsed due to non-renewal, back when renewal was required. The public domain according to Google is much smaller than it needs to be, and those who hope that Google will lead the way toward free digital access to our shared intellectual heritage should take note and scale back their expectations.
The copyright world owes a debt of thanks to Stanford University for creating a database of copyright renewal records for books published between 1923 and 1963. These dates are significant because anything published before 1923 has fallen into the public domain, while works published after 1963 had their copyrights renewed automatically by the 1976 Copyright Act. That leaves a lot of material in a kind of netherland — assuming the book was published with notice and registered, its copyright had to be renewed (under the earlier U.S. copyright law) after the initial 28 year term in order to have a second 28 year term. If a registration was not renewed (and many were not), the work fell into the public domain; if it was renewed, the work was automatically brought within the ambit of the new law and will be protected until at least 2019.
So it has been very important to know if these mid-century works were renewed or not. Unfortunately, the only Copyright Office records at the Library of Congress that are online are those filed after 1977, so there has been a big gap for which one either needed to search the printed volumes that were published every six months or just give up on knowing for certain. Now it is possible, and much easier, to determine with some precision whether or not many mid-century works are in the public domain and, therefore, freely available for scholarly use, digitization by libraries, etc.
It is interesting that the Google Book Project has treated all post-1923 publications (even government publications that are not subject to copyright protection) as still protected by copyright, giving that project an artifically narrow window on the public domain. Because Google’s scanning work is done so fast and in such volume, it is probably unrealistic to expect them to make fine copyright distinctions. Nevertheless, those distinctions just got a lot easier, and it is to be hoped that Google, or other digitization projects, will use the Stanford database to provided greater access to material that really is the common property of our intellectual heritage.
Three important pieces of legislation for the Open Access movement stalled in Congress last term. None were adopted, and it seems likely that some of these proposals will be reintroduced in the new Congress, although the form may change.
Both the Federal Research Public Access Act, which would have required public access within six months for all published research that was supported by federal funding from the major funding agencies, and the less well publicized CURES Act, which would have mandated public access for funded medical research (much narrower that FRPAA), died when the last Congress adjourned and will have to be reintroduced in the 110th Congress in order to be considered.
The best chance for any public access mandate last term had seemed to be the NIH Reauthorization bill, which contained language to make deposit of NIH-funded research, now merely suggested, mandatory. That language was removed, however, before the Reauthorization bill was approved.
So the status quo on public access reigns.
Digital publishing really involves three separable issues.
First is the author’s rights that are negotiated when a work is published in traditional media. This is where an author’s addenda comes in; they help preserve the right to make educational uses and to publish in online forums. These addenda are actually increasingly unnecessary, however, as publication agreements are thenmselves being modify to allow those rights in the first place. It is important for authors to negotiate with publishers to retain rights for digital publishing.
The second concern is the license that an online publisher obtains from the author for online distribution. If the work has been published in a traditional journal, the author has to be sure s/he has the right to allow online distribution, then they usually give a non-exclusive license to distribute to the online publisher.
The third concern is the license that the online publisher uses to try and control uses made of the work by the public who receives it. This is what the Creative Commons license is designed to do. The Creative Commons license relies on an assertion of copyright, so the person doing the licensing must hold the copyright for it to work. The CC license is a waiver of copyright, a statement that the copyright will not be enforced against certain uses (ie, attributed non-commercial uses) that will therefore not require any further permission.
For most online publications it is necessary to think about all three rights issues. The first will only arise if the online repository is publishing something that has already been published elsewhere. If the work is previously unpublished, this will not be a concern. The other two types of licensing issues will have to be decided, however.
Generally a digital publisher will want to get a non-exclusive license to publish the work from the author. This license should, in turn, confirm that the material will be distributed to the public under a Creative Commons license. By including in the license with the author a stipulation of how the material will be sdistributed, many later misunderstandings can be avoided. Indeed, prior awareness of each of these three rights issues in licensing digital content, and of how they inter-relate, will smooth over most of the potential legal rough spots as digital publication moves forward.
For a sample distribution license that anticipates distribution under the Creative Commons, see our Scholarly Communications Toolkit.