A couple of months ago I wrote about Educause’s “7 Things You Should Know About Creative Commons,” which is part of a series designed to help faculty and administrators keep current with technologies that impact scholarly communications. Now a new virtual pamphlet is available, “7 Things You Should Know About RSS.” RSS, which is usually said to stand for “Really Simple Syndication,” is an Internet protocol that allows users to subscribe to content feeds from lots of blogs and other web resources, and aggregate that content into a convenient reader.
Many readers of this blog probably already know about RSS, since it is one of the ways to subscribe to our feed. But it is worth keeping this simple, jargon-free explanation in mind, along with the other 2-page pamphlets in the series, because they are so useful for explaining to others those things that we ourselves might use frequently but have difficulty articulating. As it does so often, Educause has provided an important service to the world of technology in higher education.
A recent NPR story highlighted fair use as an important exception to the exclusive rights of copyright holders and discussed the Stanford Fair Use Project, a legal clinic designed to help artists, scholars and others defend fair use as they create new works. Although the focus of the story was a humorous and highly irreverant video creation that depicts Jesus Christ dancing to Gloria Gaynor’s well-known song “I Will Survive,” there is a good deal in the story for more traditional academic authors and creators to take note of, and perhaps to worry about.
The Stanford Fair Use Project convinced Universal, the music company that owns the rights to the Gaynor song, to back down by sending a letter pointing out the strong protection given to parody in fair use doctrine. Many scholars will also have heard of the Fair Use Project earlier this year because of their role in helping a scholar who wrote a book about James Joyce’s daughter Lucia wrest from the Joyce estate a concession that she could publish letters written by Lucia and her father as part of her work. (There is an interesting article about Lucia Joyce and Professor Schloss’ work here.) One of the points from that conflict, that is reenforced in the NPR story, is that publishers are often unwilling to publish work that uses copyrighted material in spite of the vital role of fair use in making critical scholarship and comment possible.
Almost any campus official who deals with copyright can tell stories about the trials of helping scholars get work published when copyrighted material — often letters and/or illustrations — is involved. Sometimes the publisher demands that the author obtain and pay for all the permissions, even when a clear case for fair use can be made and the project lacks the funding to pay permission fees, or else a copyright holder denies permission (as the Joyce estate did) and the publisher is unwilling to proceed in reliance on fair use.
It is not surprising that publishers are wary of getting sued, no matter how strong their fair use defense might be. It is expensive to defend even a baseless lawsuit, and, as the Director of the Stanford Project pointed out to NPR, copyright holders frightened by the digital revolution are resorting more and more to frivolous threats in order to prevent creators from relying on fair use.
Scholars should take note that a critic of the Stanford Center and of strong fair use protection in general claims in the story that universities are trying to destroy the very idea of intellectual property and he advocates a greatly restricted application of fair use. As absurd as the first claim is, since scholars are major producers of intellectual property, the threat of more restricted fair use protection is very real. Powerful voices are calling for less fair use, an academics must be aware of its role in scholarly production and actively assert it where it applies. The goal is not so much to push the fair use boundaries forward but merely to keep them where they have traditionally been, as a bulwork to encourage and protect scholarly creation.
It has got to be significant for higher education when the New York Times endorses open access textbook publishing. That is exactly what happened in yesterday’s editorial about a proposed discloser law for textbooks being considered in Washington state. The concern over textbook prices is not new, of course, but the attention the NY Times gives to an open access model surely is unusual. The editor moves from endorsing the proposed law to suggesting that disclosure is not enough; “creative solutions” like the Rice University Connexions project are required.
Connexions is an open-source and open content experiment at Rice, supported by the William and Flora Hewlett Foundation, that allows users to create and publish academic “modules” that others can locate, download and print for educational purposes. All of the content is offered under a Creative Commons license. The Times notes that one can print a 300 page textbook in electrical engineering from Connexions for a lot less money than it would cost to purchase a similar work, and right now users can also find featured course material for music and corporate governance at the site. In fact, there are almost 4,000 modules available on Connexions, browsably by subject area. With the NY Times getting on board, this may be a real harbinger of the future in higher education.
The copyright world owes a debt of thanks to Stanford University for creating a database of copyright renewal records for books published between 1923 and 1963. These dates are significant because anything published before 1923 has fallen into the public domain, while works published after 1963 had their copyrights renewed automatically by the 1976 Copyright Act. That leaves a lot of material in a kind of netherland — assuming the book was published with notice and registered, its copyright had to be renewed (under the earlier U.S. copyright law) after the initial 28 year term in order to have a second 28 year term. If a registration was not renewed (and many were not), the work fell into the public domain; if it was renewed, the work was automatically brought within the ambit of the new law and will be protected until at least 2019.
So it has been very important to know if these mid-century works were renewed or not. Unfortunately, the only Copyright Office records at the Library of Congress that are online are those filed after 1977, so there has been a big gap for which one either needed to search the printed volumes that were published every six months or just give up on knowing for certain. Now it is possible, and much easier, to determine with some precision whether or not many mid-century works are in the public domain and, therefore, freely available for scholarly use, digitization by libraries, etc.
It is interesting that the Google Book Project has treated all post-1923 publications (even government publications that are not subject to copyright protection) as still protected by copyright, giving that project an artifically narrow window on the public domain. Because Google’s scanning work is done so fast and in such volume, it is probably unrealistic to expect them to make fine copyright distinctions. Nevertheless, those distinctions just got a lot easier, and it is to be hoped that Google, or other digitization projects, will use the Stanford database to provided greater access to material that really is the common property of our intellectual heritage.
The consolidation of the publishing industry through mergers and acquisitions has caused quite a few concerns for libraries and universities. Economists who are studying this market have found that it does not act like the market for most common goods.
The academic journal market is very inelastic — there are no perfect substitutes for a scholarly journal. Each journal has its own unique content and emphasis. For example, an academic health sciences library needs to subscribe to both PEDIATRICS and JOURNAL of PEDIATRICS; it would be difficult, if not impossible, to rely on just one of these publications.
When a large publisher buys a smaller one, it can raise the cost of subscriptions and libraries still have to purchase the subscription. Historically, prices have increased after mergers and acquistions.
As a publisher increases the number of titles, the library begins to pay more and more to that publisher instead of several smaller ones. With the creation of “big deal”, discounted packages of all or a portion of the publisher’s journals, a library can be faced with spending all its funding on a few big packages and not having money to purchase journals from smaller publishers. Acquiring new titles to support facult and students becomes more and more difficult since funds are tied up by these big deals.
With consolidation and larger market shares held by a few publishers, it also becomes more difficult for a competitor to enter the market.
The library community through the Information Access Alliance has been working with antitrust lawyers and economists to study the dynamics of mergers on the marketplace. They have also been alerting the US Department of Justice to the potential impact of current and future mergers. Read their special report Publisher Mergers: A Consumer-Based Approach to Antitrust Analysis to find out more about the impact on the marketplace. There is also a document describing the most recent acquisition of Blackwell Publishing (a publisher of society journals) by Wiley.
If you are a member of a journal editorial board that is involved in a merger or acquisition, you may want to ask whether this is not only good for the journal, but also good for academic access to information.
Our Scholarly Communications colleague at UNC, Deborah Gerhardt, just published this important warning about publication contracts in the Chronicle of Higher Education.
Her point that so-called “non-compete clauses” can hamper a scholar’s ability to publish later work on a particular topic is another reminder that, as the conflicts over copyright get more intense, it is vitally important to read publication contracts carefully. Deborah provides examples of language to look for and language to beware of, and the Duke Scholarly Communications office is always willing to help examine publishing agreements for faculty and student authors in order to protect those rights that are most important for supporing continued creativity and scholarship.
My colleague Aisha Harvey passed on an e-mail pointing out one of the most absurd and troubling requirements I have ever heard of from a publisher. Apparently, at least some journals from Haworth Press, which publishes lots of “niche” journals in library science and other social sciences, claim to require a transfer of copyright to the publisher before they will begin the peer-review process.
Many journals, of course, still require a transfer of copyright before they will publish an article, although more and more are realizing that all they really need is an exclusie right of first publication. But to require the transfer before sending a submission out for peer-review is unheard of and unnecessary. I would not have believe it was true had I not seen the language on a web page of instructions for a Haworth journal myself.
Requiring copyright transfer before review raises the interesting question of what happens when a submission is rejected for publication in the Haworth journal. One has to wonder if this departure from the normal practice of waiting till acceptance to request a transfer indicates that the peer-review process is really a sham and that material is seldom if ever rejected by the journal.
I have published a couple of times in one of Haworth’s library science journals, but I will certainly think twice before doing so again. I hope others in the library community will reconsider both publishing and server as an editor or reviewer for any journal that has this silly policy; as librarians we should both know better and set an example of good practices in scholarly publishing.
The Authors Guild recently ran this ad — Don’t Sign that Book Contract — to warn potential authors of the traps that might lurk behind the fine print in publication agreements. The graphic of a tiny author, pen in hand, standing in the middle of a bear trap, makes their point vividly.
Scholarly authors face similar traps today; with all kinds of new methods for distributing and using scholarly work available to them, especially on the Internet, it is more important then ever to read publication agreements carefully and to negotiate to reserve appropriate rights when necessary. Just as the Authors Guild offers assistance to its members, the Scholarly Communications Office is happy to help faculty and student authors at Duke understand their copyrights and manage those rights as they navigate the publication process. Let us help you stay out of the trap!
As the options for scholarly publication, and for reusing material in multiple different formats, expand, it is increasingly important that scholarly authors retain the right to reuse their own work in the classroom, in later publications and in open access repositories and webpages. While many people assume they have always retained these rights, until recently most publication agreements did not allow these uses, even by the original authors.
Fortunately, more and more publishers, especially academic presses, are beginning to rework their publication agreements to allow for these new oppotunities in the digital environment.
Duke University Press uses a publication agreement that can serve as a model for faculty authors; it is simple, readable, and permits authors to retain an “unretricted right” to make non-commercial uses of there own work. See a copy of this agreement here:
Duke Univesity Press journal publication agreement.
It is also worth noting that Duke University Press will accept an exclusive right of first publication in situations where an author does not want to assign his or her copyright to the publisher. These arrangements are an excellent example of what authors should seek when publishing scholarly work.
The most important message for scholarly authors is to read your publication agreement carefully. For more information, click on the page listed above “For Faculty Authors” or contact the Scholarly Communications Office.
Two recent books provide brief and interesting insights into two different aspects of scholarly communication.
Richard Posner, the amazingly prolific federal judge, has recently published “The Little Book of Plagiarism.” As both an academic and a judge, Posner is well placed to comment on the rash of high-profile accusations of plagiarism. His book is a thoughtful attempt to sort out why plagiarism is such an issue and to distinguish those situations in which it is worthy of sanction from those in which it is forgiveable and even desirable. Among other useful discussions is his distinction between plagiarism per se and “creative imitation,” which is something upon which culture depends, and Posner’s use of “detrimental reliance,” a concept from contract law, as a way to highlight why certain instances of plagiarism are especially blameworthy. Apart from its overly sanguine assessment of the TurnItIn software product as heralding the end of plagiarism, this is an interesing and helpful meditation on a vexing contemporary issue.
“Art History and Its Publications in the Electronic Age” is a report issued in September of 2006 that takes an in-depth look at the special problems and potential of scholarly publication in art history, where the need to reproduce high quality images adds layers of copyright uncertainty, permissions expenses and production complexity to the already strained system of academic publishing. Its discussion of copyright issues is a balanced look at the needs of artists as well as those of scholarly authors, and its examination of the publication process should be enlightening to many readers. The concrete recommendations about how libraries and university presses might collaborate to improve the climate for art historical scholarship deserve widespread attention and consideration.
The art history report, incidentally, is available on the Internet under a Creative Commons license at http://cnx.org/content/col10376/1.1, or from Rice University Press’s digital print on demand service. I think this is the first POD book I have ever purchased, and I am very impressed by the speed and quality of Rice’s service.