Category Archives: Open Access topics

Open Access topics

Enough is Enough: UC Leadership and the Transformation of Scholarly Publishing

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This is a guest post by Jeff Kosokoff, Assistant University Librarian for Collection Strategy, Duke University; and Curtis Brundy, Associate University Librarian for Scholarly Communications and Collections, Iowa State University

With the University of California’s (UC) announcement that they have broken off talks with mega-profitable commercial publisher Elsevier, we have moved closer to a tipping point in the ongoing struggle to correct asymmetries in the scholarly information ecosystem. Elsevier, along with the rest of the Big Five (Wiley, SpringerNature, Taylor & Francis, and Sage), has been put on notice: things as they are cannot stand. UC’s leadership in advancing open access is longstanding, and we applaud their continued efforts to seek new models that would transform scholarly publishing.

This is a great day to be a librarian, and a great day for scholars and scholarship. A day when the needle visibly moved in the right direction. Like the UC, we must openly and strongly engage publishers if we want to find mutually agreeable and sustainable long-term solutions to the current crisis. While profit-driven publishers whose business models depend on artificial scarcity to control scholarly content may object, the privatization of the common goods represented by research outputs no longer serves the best interest of academia or society at-large. To be clear, we are not rooting for large commercial publishers to go out of business. The Big Five provide substantial value through their publishing services and journals. However, journal subscription pricing has increased beyond what even the most well-resourced institutions can afford. As a result, an increasing number of preeminent institutions in North America have been quietly cutting their subscription inventories. See SPARC’s Tracking page for an incomplete but helpful list of institutions and packages they have cut. We are not aware of any academic institution that does not have renegotiation of big deals in its plans.

In the name of efficiency and effective provision of service, a growing number of librarians seek to create, negotiate and support transformative models that move scholarly publishing to be immediately and openly available. Collections are a service, and we, like the UC, believe the scholarly community will be better served by collection budgets that support and advance open access. These efforts are farther along in Europe, with the recent Wiley-Projekt DEAL agreement serving only as the latest example. But interest in transformative open access models in the United States is rapidly growing. The UC System is not alone in their desire to increase their support for open access while reducing support for subscriptions and paywalls.

Elsevier’s present impasse with California should be understood in the context of the broader worldwide movement to transform scholarly communication. This is a movement that has seen significant recent acceleration, and it is one that transcends country and institution type. If and when Elsevier shuts off access to UC campuses, its researchers will be in good company, joining researchers from Germany and Sweden who have also seen their access cut off after negotiations failed to produce a transformative agreements. One wonders how many of the world’s researchers must lose access to Elsevier content before they finally come around to a position where they will be our partners in solving the scholarly communication problem. Let’s also keep in mind that UC was able to take this stand partially because the libraries have worked hard to help their faculty see the value in openness and the resulting UC Academic Senate support for this difficult decision.

Costs to institutions and the profit margins of publishers are out of control and unsustainable. It is time for more research to come out from behind paywalls. Paywalls as such only benefit the payee. UC’s approach is an attempt to address the access and the market distortions together, which makes a lot of sense. Libraries have a growing list of trusted partners working to advance open access, including the Open Library of the Humanities, Public Library of Science, Libraria, and Knowledge Unlatched. Many libraries stand ready to support common sense experiments to find ways that work better for our scholars and scholarship. We are always seeking willing partners, be they existing publishers and publications open to re-imagining scholarly publishing, or new platforms seeking more dramatic transformation. It is time to stop pouring our money into the black hole of excessively for-profit publishing that seeks to control scholarly information. Let’s work to open up the ecosystem.

Open Access and Institutional Repositories, Open Access topics, Scholarly Publishing

Open Access at the tipping point

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Open Access Day bookmark used under CC-BY license from http://www.openaccessweek.org/page/englishhigh-resolution-1[ guest post by Paolo Mangiafico ]

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

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

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

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

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

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

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

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

 

Open Access and Institutional Repositories, Open Access topics

Sit, Stay, Pay: Paywalls and Popular Research

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

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

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

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

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

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

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

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

Open Access topics, Scholarly Publishing

Who pays, and what are we paying for?

[ guest post by Paolo Mangiafico ]

I wasn’t at the Society for Scholarly Publishing’s annual meeting in Virginia last week, but was able to follow some of the presentations and discussions via the #SSP2015 hashtag on Twitter and some followup blog posts. Something that caught my eye yesterday was a post on Medium by @CollabraOA titled “What exactly am I paying for?” that summarized a panel discussion at SSP on the topic of “How Much Does it Cost?” versus “What are you Getting for/doing with the Money?” An Overview and Discussion of the Open Access Journal Business Model, (lack of) Transparency, and What is Important for the Various Stakeholders.

The post has summaries (and links to slides) of the presentations by panelists Dan Morgan (University of California Press), Rebecca Kennison (K|N Consultants), Peter Binfield (PeerJ), and Robert Kiley (The Wellcome Trust), as well as links to other readings on the topic, such as this article from a couple of years ago titled “Open access: The true cost of science publishing” by Richard Van Noorden in Nature.

A few things from the summary of the panel discussion that stood out to me (excerpted or paraphrased here):

  • From Robert Kiley’s discussion of the Wellcome Trust’s experience with paying article processing charges (APCs) on behalf of their funded authors: the average APC levied by hybrid journals (which publish both subscription and OA [open access] articles) is 64% higher than the average APC charged by wholly OA, or “born OA”, journals. Despite these higher prices, some of the problems the Trust have encountered, such as articles not being deposited to Europe PubMed Central, incorrect or contradictory licenses appearing on articles, and confusion as to whether the APC has been paid, were almost exclusively related to articles in hybrid journals. Robert asked: “Are we getting what we pay for?”
  • From Rebecca Kennison’s discussion on transparency of publishing costs, and how the initial APC for PLOS Biology was set when it was launched: it was based on the average price paid by authors publishing in that era’s top science journals, for page and color charges, etc. The thinking was that if biology authors are used to paying around $3000 USD to get published in a subscription journal, they will be able to transfer this to pay the APC for PLOS Biology instead. She noted how much of a role this $3000 price point has played in OA price-setting since the early 2000s. This is fascinating when you consider that it was a “What the Market Will Bear” price point, and not based on publishing costs. / The desire for transparency is not so much to make publishers reveal all costs, or push publishers to offer services “at cost”, but to ensure that librarians and funders, or anyone paying an OA charge, are simply more aware, and sure, of what they are paying for, and whether it is the best use of funds. It is not a matter of caveat emptor, but emptor informari.
  • From Pete Binfield’s discussion of the relationship between cost and prestige: despite the fact that “born OA” publishers can be much more efficient, authors still seem to be willing to pay for things like “prestige” and “the best venue for discoverability,” where more traditional publishers are still perceived to have an advantage because of established “brands.”

This discussion resonated with a different one that has been playing out among anthropologists in the past few weeks, regarding whether and when to transition the long established journals of the American Anthropological Association (AAA) to open access, a process that has already begun with the high profile Cultural Anthropology journal.

In an editorial in the February 2015 issue of American Anthropologist, the editor, Michael Chibnik, argued that while he “cannot disagree with the rhetoric of those advocating open access for American Anthropologist” he also could not see how to make the finances work without continuing to rely on the existing subscription model via a publisher like Wiley Blackwell. While admitting “I do not know all the details of the financial arrangements between AAA and WB” (see discussion about the lack of transparency explored in the panel mentioned above) he briefly outlines why several alternative funding models he has heard about are unlikely to work, concluding “The obstacles to AA becoming open access in the near future may be difficult to overcome.”

This elicited several responses, from Martin Eve, who challenged many of the assertions in the piece, one by one; from the Board of the Society for Cultural Anthropology, who argued in a commentary titled “Open Access: A Collective Ecology for AAA Publishing in the Digital Age” that open access was the right thing to do despite the difficulties; and from Alex Golub, who wrote a blog post titled “Open access: What Cultural Anthropology gets right, and American Anthropologist gets wrong.”

The Society for Cultural Anthropology commentary points out that research libraries are key stakeholders in the emerging OA landscape, and potential partners with scholarly societies for new models of scholarly publishing. Both SCA and Golub reference some new projects like Collabra, Open Library of the Humanities, Knowledge Unlatched, and SciELO, that, in Golub’s words, “blur the distinction between journal, platform, and community the same way Duke Ellington blurred the boundary between composer, performer, and conductor” and are examples of “experiments to move beyond cold war publishing institutions.”

It’s not clear yet what financial models will ultimately prove successful and sustainable for scholarly publishing and scholarly societies going forward, but simply maintaining the status quo with its hidden and inflated costs and frequently vestigial practices is almost certainly not the answer. As Alex Golub concludes in his post:

The AAA wasn’t always structured the way it is today, and it may not be structured this way in the future. The question now is whether the AAA can change quickly enough to be relevant, or whether institutions like the SCA are the true future of our discipline. These are issues tied up with a lot more than just publishing: The shrinking of academe, the growing role of nonacademic stakeholders in academic practices, and much besides. Does Cultural Anthropology face a lot of issues down the road? Absolutely. Is complete and total failure on the menu? Yes. But I reckon that in ten years when I sit down to reblog this post, we will look back on this debate and say: The people who did the right thing and took a leap of faith fared far better than the ones who clung to a broken solution. Cultural Anthropology acted like Netflix, while American Anthropologist acted like Blockbuster. Except, of course, no one will remember what Blockbuster was.

Libraries, Licensing, Open Access topics

The truth about contracts

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The impetus behind this post is a specific discussion that took place on an e-mail list.  The question under discussion was how to license student work for deposit in an institutional repository.  At one point I said that a license could be created by a simple line in the syllabus for a course that said that certain designated works would be put in the repository, followed by the “performance” (used in contract law to refer to conduct related to the bargain) of handing in those works.  This claim, which I thought was innocuous, was disputed.

The whole discussion reminded me that there are some serious misapprehensions about contracts, contract law, and licensing in the academic world.  So rather than continue the debate on the list, I thought I would offer some basic truths about contracts and licenses in this space.  That way my musings only clutter the in-boxes of those who subscribed, rather than everyone on the list.  And the debate, if needed, can continue, because the comments will be open, as they are for all posts on this blog.  I should add that what I say here is based on U.S. law, and mostly on the Uniform Commercial Code, which has been adopted into the commercial law governing contracts in every U.S. state.

So let’s start at the beginning.  A contract is simply a promise that the law will enforce.  The law does not enforce all promises, but a promise need not be very formal to be a binding contract.  All that is needed is an offer, an acceptance of that offer, and some “consideration,” which simply means that each party must get something out of the bargain.

But there is more to say about contracts.  One of the most important points is that contracts are business documents, intended to accomplish specific goals shared by the parties.  Legal language is less important to a contract than a clear expression of the intent of the parties — what they want the contract to accomplish in their relationship.  Lawyers are actually not the most important people in the drafting of a contract, the parties are, because they know what they want the contract to do.  The cleanest or most formal legal language in the world is useless if it fails to express those intentions.

Perhaps because we so often deal with obscure and lengthy database licenses from vendors with lots of lawyers on staff, librarians tend to think of contracts as big, formal and very serious, even frightening, documents.  But a contract can be very simple, and it need not even be a document.  If my neighbor comes to my door and offers to cut my lawn for $30, and I say OK, we have formed a contract at that moment.  Note what the “consideration” is — a promise to cut my lawn and a promise to pay $30.  Promises are the most common type of consideration in a contract, but an offer for a contract can be accepted by performance.  Suppose I asked my neighbor if he would cut my lawn for $30 and he said nothing.  But later that same day, he does cut my lawn.  I owe him $30 and the law would enforce the promise because my neighbor accepted my offer in a timely way by the act of cutting the lawn — there was an offer, acceptance by performance, and consideration on both sides; I got a neater lawn and he got my enforceable promise to pay $30.

Another reason librarians might think that contracts are formal and serious is because they hear so often that contracts “trump” copyright law.  Since copyright law is a very important federal law, contracts must be an even more serious matter to trump it.  But, actually, we allow contracts to supersede copyright law not because they are so “big” but because they are small.  U.S. Copyright law binds every person who is subject to its jurisdiction, but a contract binds only the parties who agree to it.  A contract is a “private law” arrangement by which two parties (or sometimes more) rearrange their own relationship.  Within that relationship, we will allow parties to agree to give up various rights — under copyright, for example.  They could even surrender their free speech rights in some limited cases.  This is not because contracts are “stronger” but because they are “weaker” then other parts of the law — they only rearrange the rights of those who agree to them.

One way we can tell that contracts are “weaker” in this sense than the law that binds all citizens is that the risk associated with failing to fulfill a contractual promise is usually much lower than it is for a violation of public law.  Contract damages are generally determined by the intended relationship expressed in the contract.  In my example above, if I “breach” the contract by not paying my neighbor, the law could force me to give him “the benefit of the bargain,” which in that case was $30.  In most situations, that would be it; there are no statutory damages for contracts as there are in copyright law, for example, and the goal of contract “remedies” is usually either just to see that the parties get what they bargained for, or, at least, to put them back in the positions they were in before the contract was formed.  As a lawyer, I would never advise someone to do something I believed was an infringement of copyright, but it is possible to imagine situations where breaching a contract could make sense; the classic example is where a business person can make a greater profit if they get out of the contractual relationship even if they have to pay damages.  Such a situation is called an “efficient breach of contract.”

One final general point about contracts before we turn to licenses specifically.  A contract is often “implied” by the way the parties behave.  In my example above we saw that a contract could be formed when the person who received my offer simply acted on it; his acceptance was implied by performance.  Only a very few contracts must be in writing, and they are specified by law.  The copyright law tells us, for example, that transfers of copyright and exclusive licenses must be in writing (see section 210(d)), but non-exclusive licenses can certainly be implied.  Most states require that sales of real property be in writing, through laws referred to as “Statute(s) of Fraud,” but it is quite clear that many other contracts can be oral, or even evidenced by some kind of action.  “Shrink wrap” licenses for software are a good example, where opening and using the product is a sufficient indication that the purchaser has accepted the terms of use (see ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

In the copyright realm, implied licenses are actually quite common.  A license, remember, is simply “a revocable permission to commit some act that would otherwise be unlawful” (from Black’s Law Dictionary).  Note that a license is presumed to be revocable unless there is explicit agreement otherwise; for this reason, an implied license is always revocable.  But, as I say, they are very common.  The example we all rely on most, I dare say, is the implied license created whenever someone puts a page up on the Web.  When I look at that page, I am making an apparently unauthorized copy in the cache of my computer, which looks like an infringement.  But courts around the world have recognized that it would be absurd to allow a webpage author to sue anyone who looked at the page for infringement, and have instead found an implied license in the act of uploading a page.  There is an interesting discussion of a case that tested the limits of an implied license here, on Forbes.com.

A license is not always a contract, but most are.  In the case of an implied license to view a web page, one could argue that there is offer and acceptance, but it does not seem that there is consideration, something that each side gets out of the bargain.  So it may be a non-contractual license, but it is a license all the same.

When we turn, finally, to the case of a syllabus that informs students that certain work they hand in will be made publicly accessible through an institutional repository, I think we can now see that all of the elements of a license, and even a contractual license, are present.  There is an offer made — in exchange for a grade and credit in this course, you will give the school a license for IR deposit.  And when the work is handed in, there is a performance from which acceptance of that offer is readily implied.  In this case, I also think there is consideration, since the student gets that grade and credit she bargained for (she could, of course, have rejected the offer by dropping the course, or she could even have counter-offered by asking for different terms), and the school gets a license.  This is a valid contract that creates a license upon which the school can rely.

To say that the license is valid is not the same as saying it is wise to do this.  It also ignores some other issues.  A university might decide, for example, that putting work in a repository implicates privacy rights and therefore requires an explicit writing.  But as a contract matter, the license is real and reliable.  It is presumptively revocable, as explained above.  So the situation might arise where the student decides she now longer wants her undergraduate essay on the web and requests that it be removed.  In that situation I would first want to talk with the student and see if we could find an agreement that would leave the terms of the course assignment intact.  If we could not reach such an agreement, I would suggest that the school should remove the work, because once the license is revoked the continued distribution could be an infringement of the student’s copyright.  But in that instance, the school is then entitled to consider whether the student has met the requirements for credit.  If public distribution is considered a sufficiently important part of the pedagogy, the school could conclude that credit for the course should be revoked. This is simply acknowledging the mutual bargain that exists in all contracts.

As I argued on the list, this form of implied license is not legally different from many teaching strategies that implicate copyright.  Suppose an art class tells students (either orally or in the syllabus) that their final projects will be included in a public departmental exhibition.  Copyright is implicated, and a license is implied when the final project is handed in.  The same would be true if a class assignment required students to create a web page, post a video to YouTube, or have a class discussion via Twitter.  The point here is not to recommend or condemn any of these strategies, but merely to explicate the law that would support all of them.

The truth about contracts is that we deal with them every day.  They need not be formal, and they need not intimidate us.  They are simply the mechanism we use to arrange our relationships in a great many situations, including teaching situations that implicate the copyrights held by students.

Copyright Issues and Legislation, Fair Use, Open Access topics, Scholarly Publishing

Are fair use and open access incompatible?

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There has been a spirited discussion on a list to which I subscribe about the plight of this graduate student who is trying to publish an article that critiques a previously published work.  I’ll go into details below, but I want to start by noting that during that discussion, my colleague Laura Quilter from the University of Massachusetts, Amherst captured the nub of the problem with this phrase: “the incompatibility of fair use with the policies of open content publishers.”  Laura’s phrase is carefully worded; the problem we need to unpack here is about the policies of open content publishers, and the solution is to help them understand that fair use and open licensing are NOT incompatible.

Briefly, the situation is this.  An author has written a paper that critiques previous work, specifically about the existence, or not, of “striped nanoparticles.”  In order to assess and refute evidence cited in some earlier papers, the author wants to reproduce some figures from those earlier publications and compare them to imagery from his own research.  He has encountered two obstacles that we should consider.  First, his article was rejected by some traditional publications because it was not groundbreaking; it merely reinterpreted and critiqued previously published evidence.  Then, when it was accepted by PLoS One, he encountered a copyright difficulty.  PLoS requires permission for all material not created by the author(s) of papers they publish.  One of the publishers of those previous papers — Wiley — was willing to give permission for reuse but not for publication under the Creative Commons Attribution (CC BY) license that PLoS One uses.  Wiley apparently told the author that “We are happy to grant permission to reproduce our content in your article, but are unable to change its copyright status.”

It is easy to see the problem that PLoS faces here.  Once the article is published under a CC license, it seems that there is little control over downstream uses.  Even if the initial use of the Wiley content is fair use — and of course it probably is — how can we ensure that all the downstream uses are fair use, especially since the license permits more types of reuse than fair use does?  Isn’t this why fair use and open licensing are incompatible?

But this may be an overly simplistic view of the situation.  Indeed, I think this researcher is caught up in a net of simplified views of copyright and scholarly publication that creates an untenable and unnecessary dilemma.  If we start by looking at where each player in this controversy has gone wrong, we may get to a potential solution.

Let’s start with Wiley.  Are they in the wrong here in any way?  I think they are.  It is nice that they are willing to grant permission in a general way, but they are probably wrong, or disingenuous, to say that they are “unable” to change the copyright status of the material.  Under normal agreements, Wiley now owns the copyright in the previously published figures, so they are perfectly able to permit their incorporation into a CC licensed article.  They can “change the copyright status” (if that is really what is involved) if they want to; they simply do not want to.  The author believes this is a deliberate move to stifle his criticism, although it is equally possible that it is just normal publishing myopia about copyright.

There is also some blame here for the system of scholarly publishing.  The roadblock encountered with traditional publishers — that they do not want articles that are “derivative” from prior work — is common; most scientists have encountered it.  In order to generate high impact factors, journals want new, exciting and sexy discoveries, not ongoing discussions that pick apart and evaluate previously announced discoveries.  We have found striped nanoparticles!  Don’t dispute the discovery, just move on to the next big announcement.

This attitude, of course, is antithetical to how science works.  All knowledge, in fact, is incremental, building on what has gone before and subject to correction, addition and even rejection by later research.  The standard of review applied by the big and famous scientific journals, which is based on commercial rather than scholarly needs, actually cuts against the progress of science.  On the other hand, the review standard applied by PLoS One — which is focused on scientific validity rather than making a big splash, and under which the article in question was apparently accepted — better serves the scientific enterprise.

But this does not let PLoS off the hook in this particular situation.  It is their policies, which draw a too-sharp line between copyright protection and open content, that have created a problem that need not exist.

First, we should recognize that the use the author wants to make of previously published figures is almost certainly fair use.  He is drawing small excerpts from several published articles in order to compare and critique as part of his own scholarly argument.  This is what fair use exists to allow.  It is nice that Wiley and others will grant permission for the use, but their OK is not needed here.

Second, the claim that you cannot include material used as fair use in a CC-licensed article is bogus.  In fact, it happens all the time.  I simply do not believe that no one who publishes in PLoS journals ever quotes from the text of a prior publication; the ubiquitous academic quotation, of course, is the most common form of fair use, and I am sure PLoS publishes CC-licensed articles that rely on that form of fair use every day.  The irony of this situation is that it points out that PLoS is applying a standard to imagery that it clearly does not apply to text.  But that differential treatment is not called for by the law or by CC licenses; fair use is equally possible for figures, illustrations and text from prior work, and the CC licenses do not exclude reliance on such fair uses.

Next, we can look at the CC licenses themselves to see how downstream uses can be handled.  If we read the text of the Creative Commons license “deed” carefully, we find these lines:

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.

Obviously, the CC licenses themselves expect that not everything that is part of a licensed work will be equally subject to the license; they realize that authors will — indeed must — rely on fair use as one of those exceptions and limitations to copyright.  How should licensors mark such material?  The most usual way is a footnote, of course.  But a caption to the figure that indicates the source of the different pieces and even says that copyrights may be held by the respective publishers would work as well.

Finally, let’s acknowledge that there is nothing new or unusual in the procedure recommended above. Traditional publishers have done things this way for years.  When Wiley publishes an article or a textbook that asserts that they, Wiley, own the copyright, they are not asserting that they own copyright over the text of every quotation or the images used by permission as illustrations.  Such incorporated material remains in the hands of the original rights holder, even after it is included in the new work under fair use or a grant of permission.  The copyright in the new work applies to what is new, and downstream users are expected to understand this.  Likewise, the partial waiver of copyright accomplished by a CC license applies to what is new in the licensed work, not to material that is legally drawn from earlier works.

So I think there is a way forward here, which is for PLoS to agree to publish the article with all of the borrowings under fair use or by permission clearly marked, just as they would do if those borrowings were all in the form of textual quotations.  And I think we can learn two lessons from this situation:

  1. The standard of review applied by open content publishers is more supportive of the true values of science than that used by traditional publishers.  Over reliance on impact factor hurts scholarship in many ways, but one of them is by pushing publishers to focus on the next big thing instead of the ongoing scientific conversation that is the core of scholarship.  The movement toward open access has given us a chance to reverse that unfortunate emphasis.
  2. Open content licenses should not be seen as all-or-nothing affairs, which must either apply to every word and image in a work or not be used at all.  To take this stance is to introduce rigidity that has never been a part of our copyright system or of traditional publishing.  It would be a shame if excessive enthusiasm for openness were allowed to actually undermine the value of research by making the scientific conversation, with all its reliance on what has gone before, more difficult.
Libraries, Open Access topics, Scholarly Publishing

The big picture about peer-review

4 Comments

In many mystery novels, there is a moment when someone makes an attempt to frighten or even kill the detective.  Invariably, the detective reacts by deciding that the threat is actually a good thing, because it means that he or she is getting close to the truth and making someone nervous.  In a sense, the article in Science by John Bohannon reporting on a “sting” operation carried out against a small subset of open access journals may be such a moment for the OA movement.  Clearly the publishers of Science are getting nervous, when they present such an obviously flawed report that was clearly designed to find what it did and to exclude the possibility of any other result.  But beyond that, we need to recognize that this failed attempt on the life of open access does point us toward a larger truth.

A good place to start is with the title of Bohannon’s article.  It is not, after all, “why open access is bad,” but rather “Who’s afraid of peer-review?”  Putting aside the irony that Bohannon’s own article was, apparently, never subjected to peer-review (because it is presented as “news” rather than research), this is a real question that we need to consider.  What does it mean for a journal to be peer-reviewed and how much confidence should it give us in articles we find in any specific title?

In the opening paragraphs of his article, Bohannon focuses on the Journal of Natural Pharmaceuticals as his “bad boy” example that accepted the bogus paper he concocted.  He quotes a mea culpa from the managing editor that includes a promise to shut down the journal by the end of the year.  But I want to think about the Journal of Natural Pharmaceuticals and about Science itself for a little bit.

I was a bit surprised, perhaps naively, to discover that the Journal of Natural Pharmaceuticals is indexed in two major discovery databases used by many libraries around the world, Academic OneFile from Gale/Cengage and Academic Search Complete from EBSCO.  These vendors, of course, have a strong economic incentive to include as much as possible, regardless of quality, because they market their products based on the number of titles indexed and percentage of full-text available.  Open access journals are great for these vendors because they can get lots of added full-text at no cost.  But they do help us sort the wheat from the chaff by letting us limit our searches to the “good stuff,” don’t they?  Maybe we should not be too sanguine about that.

I picked an article published last year in the Journal of Natural Pharmaceuticals and searched on one of its key terms, after limiting my search in both databases to only scholarly (peer reviewed) publications.  The article I selected from this apparently “predatory” journal was returned in both searches, since the journal identifies itself as peer-reviewed.  This should not surprise us, because the indexing relies on how the journal represents itself, not on any independent evaluation of specific articles.  Indeed, I am quite confident that once this latest issue of Science is indexed in these databases, a search on “peer review” limited to scholarly articles will return Bohannon’s paper, even though it was listed as “news,” not subject to peer-review, and reports on a study that employed highly questionable methods.

Librarians teach students to use that ability to limit searches to scholarly results in order to help them select the best stuff for their own research.  But in reality it probably doesn’t do that.  All it tells us is whether or not the journal itself claims that it employs a peer-review process; it cannot tell us which articles actually were subjected to that process or how rigorous it really is.  From the perspective of a student searching Academic OneFile, articles from Science and articles from the Journal of Natural Pharmaceuticals stand on equal footing.

Of course, it is perfectly possible that there are good, solid research articles in the Journal of Natural Pharmaceuticals.  These indexes list dozens of articles published over the last four years, written by academic researchers from universities in Africa, India, Australia and Japan.  Presumably these are real people, reporting real research, who decided that this journal was an appropriate place to publish their work.  And we simply do not know what level of peer-review these articles received.  So the question remains — should we tell our students that they can rely on these articles?  If not, how do we distinguish good peer-review from that which is sloppy or non-existent when the indexes we subscribe to do not?

The problem here is not with our indexes, nor is it with open access journals.  The problem is what we think peer-review can accomplish.  In a sense, saying a journal is peer-reviewed is rather like citing an impact factor.  At best, neither one actually tells us anything much about the quality of any specific articles, and at worst, both are more about marketing than scholarship.

The peer-review process is important, especially to our faculty authors.  It can be very helpful, when it is done well, because its goal is to assist them in producing an improved article or book.  But its value is greatly diminished from the other side — the consumption rather than the production side of publishing — when the label “peer-reviewed” is used by readers or by promotion and tenure committees as a surrogate for actually evaluating the quality of a specific article. Essentially, peer review is a black box, from the perspective of the reader/user.  I don’t know if the flaws in the “bogus” article that Bohannon submitted were as obvious as he contends, but had he allowed its acceptance by the Journal of Natural Pharmaceuticals to stand, that article would look just as peer-reviewed to users as anything published in Science.  The process, even within a single journal, is simply too diverse and too subject to derogation on any given day because a particular editor or reviewer is not “on their game” that day to be used in making generalized evaluations.

So what are we to do once we recognize the limits of the label “peer-reviewed?”  In general, we need to be much more attentive to the conditions under which scholarship is produced, evaluated and disseminated.  We cannot rely on some of those surrogates that we used for quality in the past, including impact factor and the mere label that a journal is peer-reviewed.  Those come from a time when they were the best we could do, the best that the available technology could give us.  Perhaps it is ironic, but it is open access itself that offers a better alternative.  Open peer-review, where an article is published along with the comments that were made about it during the evaluation process, could improve the current situation.  The evaluations on which a publisher relies, or does not rely, are important data that can help users and evaluators consider the quality of individual works.  Indeed, open peer review, where the reviewers are known and their assessments available, could streamline the promotion and tenure process by reducing the need to send out as many portfolios to external reviewers, since the evaluations that led to publication in the first place would be accessible.

There are many obstacles to achieving this state of affairs.  But we have Bohannon’s article to thank for helping us consider the full range of limitations that peer-reviewed journals are subject to, and for pointing us toward open access, not as the cause of the problem, but potentially as it solution.

Open Access topics

Almost there

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As I write this, the White House’s “We the People” petition on requiring online public access to scientific journal articles that arise from tax-payer funded research is nearing 21,000 signatures after only 10 days.  This is great news; since the threshold to bring this to the formal attention of White House policy makers and require a official response is 25,000 signatures in 30 days, we are really getting close. But we still need slightly more than 4,000 people to sign for this to happen; I encourage you to consider signing the petition, if you haven’t yet, and to bring it to the attention to acquaintances who might be interested.  For those who care about scientific progress, innovation, teaching and simply getting a reasonable return for the tax monies that are spent to support research, signing this petition should be an obvious step.

Public access to the results of federally-funded research is an especially appropriate issue for the White House to address in an election year, and we hope that this petition will lead to a robust discussion and concrete action.  Offering a greater return on their investment in science to taxpayers ought to play well, of course.  But so should the benefits of broadening and accelerating the audience for science, since those benefits include more innovation and jobs.

There is a nice short article about the reasons they support the petition on Wikimedia’s “News and Notes.”

To sign the petition you must create an account, which ensures fair play.  All you need is your name and an e-mail address.  Only you first name and last initial display on the petition, so there is no threat to privacy here.  This is your chance to put a very worthwhile cause over the top.

Copyright Issues and Legislation, Fair Use, Libraries, Open Access topics

Stop the Internet, we want to get off!

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It seems I spoke too soon.  Only hours after I posted on this site a comment about why the HathiTrust orphan works project should not be controversial came news that the US Authors Guild, joined by similar associations in two other countries and eight individual authors, has filed suit to enjoin Hathi from proceeding with the project and seeking to impound all seven million digital volumes held by Hathi that may still be protected by copyright.  Professor James Grimmelmann of New York Law School declares that “the Orphan Wars are upon us.”

Let’s start by being very clear about what these plaintiffs are asking.  In their complaint they list 62 works to which named plaintiffs hold copyright and also assert “associational standing” based on their representation of other unnamed copyright holders in unnamed works.  To protect those few works from distribution by Hathi, which as I far as I can tell is not actually imminent, the plaintiffs ask to impound and remove from Hathi 7 million files.  AG President Scott Turow calls Hathi “an intolerable digital risk.”  To me the real risk is that the foolish actions of Turow and his handful of followers (all but one of the plaintiffs are officers of one of the associations) will threaten the tremendous cultural potential of Hathi and similar projects simply because they are frightened of the Internet and have not yet figured out how to make money off of it.

Professor Grimmelmann has an excellent analysis of the complaint at the link above, and Kenny Crews of Columbia offers his comments here.

My own reading of the initial complaint — I doubt it is the final version — suggests a notable absence of logical argument.  The press release the plaintiffs issued yesterday was full of protests and anguish, but did little to state a real case against Hathi.  As it turns out, the complaint itself is not much clearer.

As Grimmelmann points out, one issue for the association will be standing to sue.  Assuming that plaintiffs hold valid copyrights in some works that were digitized by Google and are held in the HathiTrust, they claim to have standing to object to the digitization of their works — but Google is not named as a defendant — and to the distribution of digital files back to the universities and into the HathiTrust.  By itself, this would not, in my opinion, support an injunction; there is no sense of imminent harm.  So then the complaint makes a dramatic turn and addresses the orphan works project, claiming that it is an illegal distribution.  But they provide no evidence that any of the plaintiffs actually hold any rights in those works identified as orphans or that they represent anyone who does.  So if the whole argument is needed to justify the injunction being sought, there may be a question of whether any of these plaintiffs have standing to seek it.  They need to show an immediate prospect of particularized harm, and I don’t think they can do it.

Another place where logic fails in the complaint is when the plaintiffs try to explain why the digitization and preservation is illegal.  Early on in the document they note that “The Universities have publicly defended their unauthorized digitization activities by claiming their conduct benefits society and is permissible under the fair use doctrine set forth in section 107 of the United States Copyright Act.”   They then declare that “[t]his position is without legal support” and immediately turn to a discussion of section 108 of the copyright act.  They never again mention fair use or address it as a potential defense, although they dedicate three pages later on to an elaborate, and irrelevant, discussion of section 108, which is the section that lays out specific exceptions for library preservation and for interlibrary loan.

The argument here seems to be that section 108 fully defines what libraries can do with copyrighted work and, if it is not permitted under 108 or authorized by the rights holder it is therefore infringing.  But this is wrong; the argument is defeated by a single short phrase found in section 108 itself, at subsection (f)(4), where the law states that “Nothing in this section… in any way affects the right of fair use as provided by section 107.”  Libraries still can rely on fair use, and it is interesting that the text of the law itself calls fair use a “right,” not merely a defense.  Like it or not, the plaintiffs’ claim will have to withstand an assertion of fair use, and if they cannot address that fair use claim they are doomed, one hopes, to failure.

The fact is that the Authors Guild has not been doing very well on the litigation front recently.  Their attempt to sue Google and then settle with it in a way that would allow the monetization of orphan works has failed, and the case is currently in limbo.  It is interesting to speculate on whether or not this filing is intended in any way to influence the outcome of that case; perhaps they hope to persuade Judge Chin in that case that Google and its partners are not reliable actors to deal with the orphan works problem.  The Authors Guild was also recently dealt a setback in its long-standing Tasini litigation when another judge refused to certify a class for class action status.  Instead of becoming litigation-shy, it appears that the Authors Guild wants to raise the stakes.  At least they have not tried to bring this case as a class action as well.

The reference to how we might solve the orphan works problem in this country and elsewhere gives us a clue, I think, to what is behind this lawsuit and why it takes such an odd and twisted form.  I think what is really going on here is an attempt to forestall ANY exploitation of orphan works until and unless the industry lobbyists can convince Congress to pass legislation that allows them to make money from those works. The plaintiffs never address the defendants’ claim, to which they refer, that Hathi provides a social benefit, and I think that the point of the lawsuit is to make sure that they get paid before anyone is able to take advantage of that benefit.  I will have more to say about this possibility in my next post.

Open Access topics, Scholarly Publishing, Technologies

What does scholarly communications mean to you?

3 Comments

Recently I had a somewhat unusual question from a library student who is working in a library where part of her assignment is to look for grant funding opportunities related to developing a scholarly communications program.  After telling me that the whole concept of scholarly communications was somewhat bewildering, the student asked me what search terms I thought she should use when looking in databases of grants and funders.

The question was sufficiently off center, I think, that it forced me to reflect on the meaning of this “baggy monster” discipline from a different perspective and to formulate a fairly succinct but comprehensive reply.  Here is my answer:

“Let my answer this by suggesting four words that I would search on and, with a bit of explanation about each word, maybe give you some perspective on what scholarly communications means (in my opinion, anyway).

“Publishing” – the origin of most scholarly communications work is in trying to understand how the publishing process for scholarship is changing in the light of new technologies, and what the library role is in assisting or adapting to those changes.

“Copyright” – when some institutions talk about scholarly communications, their major need is advanced knowledge about copyright law.  This has become a problem on lots of campuses, again because of advances in technology, and it explains why so many people who are hired into scholarly communications positions (including me) are lawyers.

“Open Access” – this is the area where the seems to be the most push for change to traditional publishing models, and the place where libraries are developing lots of programs.  Libraries often administer institutional repositories, for example, which provide open access to faculty and student scholarship.  These efforts co-exist, usually, with traditional publication, and figuring out if and how scholarly publishing will transition to open access is the big issue for scholarly communications right now.  BTW, other open access projects in libraries include hosting open journal publishing platforms, administering funds to pay the article processing charges that some open access journals charge, and advocating for public access programs like the NIH’s PubMed Central requirement.

“Research process” – at its core I believe that libraries’ attention to scholarly communications means a deeper involvement with the whole research process as it occurs on our campuses, where in the past we have focused only on the output and input (published works) stages.  This means that libraries may be more involved in help to curate research data, manage versions of research output, and focus on access to the local resources of a particular campus, rather than on those published resources that are increasingly available to all without the intervention of libraries.

Looking back on what I have written, I guess I would add “technology” and “institutional repository” as search words.”

While I hope this reply was helpful to the student, I realize how incomplete and sketchy it is.  It seems like a perfect opportunity to ask others to comment. So please leave a comment and suggest other words that would be appropriate search terms and other ways to describe and discuss the ones I have mentioned.  Let’s see if this can be a useful thought experiment.