Category Archives: Open Access topics

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.

The truth about contracts

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.

Are fair use and open access incompatible?

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.

The big picture about peer-review

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.

Almost there

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.

Stop the Internet, we want to get off!

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.

What does scholarly communications mean to you?

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.

Brilliant!

Two wonderful resources for academics thinking about public access and open access came to my attention recently, and I want to share them as widely as possible.

The first is this video of a short speech given to the 40th LIBER Annual conference in Barcelona by Neelie Kroes , the European Commissioner for the Digital Agenda.  LIBER is the Association of European Research Libraries, and Ms. Kroes gave their keynote address at the end of last month.

In her four-minute speech Commissioner Kroes does two important things.  First, she succinctly states the case for public access to government-funded research, including the data that underlies research.  She provides a sterling example of a politician (she was in both the Dutch Parliament and its cabinet) who really understands the needs and difficulties of scholarly research, as well as the opportunities provided by the digital environment.  The second important part of Commissioner Kroes’ speech is her announcement that the European Commission will expand its public access mandate for funded research to include all research supported by the EC.  Time for the U.S. to follow suit, if we do not want to lose ground in innovation and economic development.

The second brilliant resource I want to point is this 12 point explanation of the relationship between Open Access and Copyright by Peter Suber.  It is an unfortunate reality of my job that I am frequently reminded about how many misconceptions regarding copyright persist amongst scholars.  Unfortunately, there are some who try to exploit the misunderstands to convince scholars that copyright is simply too complex for them to manage, and surrendering all their rights is the path of least resistance.  Professor Suber’s 12 points do a superb job of debunking some of the myths and clarifying that open access and copyright are not only perfectly compatible, but also that good copyright management can be a tremendous (and attainable) benefit to scholars.

OA policies and future directions

As we wrap up our series of blog posts on open access topics — you can see the whole category here — I want to remind readers of three points about open access at Duke and open access in general.

First, the OA policy approved by the Duke faculty last spring was primarily a unanimous vote in favor of open access in principle.  By giving the university a license to make works available in an institutional repository, the policy changes the default for scholarship at Duke to openness.  Still, it was clear from the start of the process that participation in the repository program would depend on how easy the process of getting works into DukeSpace is made.  Implementation, in this regard, is everything; adding extra work for busy faculty is a unpromising way to get buy-in to a new program.  Thus while we hope to unveil a self-deposit portal for faculty during Duke’s OA Week observances, we remain committed to using automated processes (automated, at least, from the faculty perspective) as the primary way to get content into DukeSpace.  We hope many interested parties, especially amongst the Duke faculty, will join us for a discussion of these plans on Tuesday, Oct. 19.

I love the system in place at Harvard, where much of the work of gathering and verifying citations, then clearing rights for deposit, is done by OAFs — Open Access Fellows, who are student employees.  I hope the academic world will soon see lots of OAFs (what a great acronym!) working on many campuses.

Second, the OA policy at Duke is part of a larger and multifaceted commitment to open access.  That commitment ranges from support of national legislation to work on the local repository.  It stretches back over a decade, thanks to the leadership of the Law School that Melanie Dunshee described in our previous posting.  One new development in that long-standing commitment is the announcement made last week of a COPE fund at Duke.  This is a fund designed to help authors pay article processing fees that are changed by some open access journals as a way to replace subscription income.  The COPE movement, with a brief acknowledgment of Duke’s participation, is described in this article from Inside Higher Ed.  That the movement has been slow may be true, but part of the reason for the pace is that the goals of COPE funds are really long-term.  The point is not to subsidize a particular journal or even a particular set of authors.  Rather, the goal is to create a new incentive structure to encourage journals to consider open access business models and to remove barriers that might exist for authors who want to publish in OA journals.

Finally, I want to encourage readers to look back at this site over the next few weeks for news from the Berlin 8 Open Access conference.  My colleague Paolo Mangiafico and I will be traveling to Beijing, the site of the B8 conference this year, with lots of questions about how we can cooperate internationally on open access to scholarship and how our values, goals and methods around OA are similar or different from those in other countries.  We will be reporting what we learn  in this space, with, I hope, pictures.

The movement for free access to law

By Melanie Dunshee, Assistant Dean for Library Services, Duke Law School

It is amazing to see how quickly the annual Open Access event has evolved from a one-day student event led by Students for Free Culture in 2007 to the global International Open Access Week organized by SPARC.   While the OA movement has its roots in the sciences, open access to legal materials is also a growing movement grounded on principles that open access to legal information promotes justice, transparency in government, and the rule of law.  Projects involving both primary legal materials and interpretative materials, particularly journals of legal scholarship, are growing all over the world.

Primary Legal Materials

Open access for legal materials often focuses on “primary” legal materials, such as legislation, regulations, court opinions, and treaties.  Governments have responded to advocates and interested groups to improve access to some of these materials in recent years, for example GPO’s Federal Digital System.  Open access advocates also argue for the right of non-governmental organizations, particularly non-profit groups, to have access to these materials so that they can develop systems to maximize discovery and distribution, and provide opportunities to use legal materials in new ways and across jurisdictional boundaries. Authentication and preservation of legal materials in electronic formats present critical and complex issues to solve in order that users of the information can rely on it.   Below are just a few examples of projects in this area.

– The World Legal Information Institute is an international leader in this area promoting free access to legal information and, more importantly, creating search and discovery systems to access materials made available by regional and national legal information institutes in a unified system.

Law.Gov describes itself as “A Proposed Distributed Repository of All Primary Legal Materials of the United States” and has recently conducted workshops around the country to promote its ideas and examine the issues involved.

Legal Information Institute (LII) housed at Cornell Law School has been providing access to legal information since the early 1990’s . “We are a not-for-profit organization that believes everyone should be able to read and understand the laws that govern them, without cost. We carry out this vision by:  Publishing law online, for free; Creating materials that help people understand law; Exploring new technologies that make it easier for people to find the law.”

American Association of Law Libraries ELIACC This committee has been working on various projects particularly regarding state legal materials, and is currently drafting a uniform law that would serve as a model for adoption in all states, the Authentication and Preservation of State Electronic Legal Materials Act.

Legal Scholarship

Providing open access to interpretive materials about the law is in many ways similar to other disciplines, with scholarly articles as the predominant form of legal scholarship in the United States.  For instance, many law schools are using repositories to collect and provide open access to law school publications and faculty scholarship, including Duke Law Scholarship Repository launched in 2005.  However, the publication system for journals in law is quite different than other disciplines consisting primarily of student-edited journals published by law schools, making the incentives and barriers for OA somewhat different. You might think that law school published journals would be more likely to adopt OA models, but this has not yet generally been the case.

Duke Law School has been a leader in electronic publication of legal scholarship and active promotion of open access to legal information. In 1998, Duke Law made the full content of articles published in its student-edited journals freely available on the law school’s web site. The journal editorial boards were early adopters of the Open Access Law Journal Principles with a commitment to practices of free, neutral access, and requiring minimal licensing rights so that authors control further dissemination of their works.

The Durham Statement on Open Access to Legal Scholarship calls for US law schools to stop publishing their journals in print format and to rely instead on electronic publication with a commitment to keep the electronic versions available in stable, open, digital formats. A workshop at Duke Law School exploring issues and best practices for law journals to consider as they move into electronic publishing entitled Implementing the Durham Statement: Best Practices for Open Access Law Journals is scheduled during Open Access Week on October 22.