Category Archives: Scholarly Publishing

Attacking academic values

A new thing started happening here at Duke this week; we began getting inquiries from some faculty authors about how to obtain a formal waiver of our faculty open access policy.  We have had that policy in place for over three years, but for the first time a single publisher — the Nature Publishing Group — is telling all authors at Duke that they must obtain a waiver of the policy before their accepted articles can be published.  It is not clear why NPG suddenly requires these waivers after publishing many articles in the past three years by Duke authors, while the policy was in force and without waivers.

Indeed, the waivers are essentially meaningless because of the way Duke has implemented its open access policy.  When the policy was adopted unanimously by our Academic Council in March 2010, the statement in favor of openness was pretty clear, but so was the instruction that implementing the policy not become a burden to our faculty authors.  So throughout the ensuing years we have tried to ensure that all archiving of published work in our repository be done in compliance with any publisher policies to which our authors have agreed.  NPG allows authors to archive final submitted manuscripts after a six month delay, so that is what we would do, whether or not the author sought a policy waiver.  But suddenly that is not good enough; Nature wants a formal waiver even though it will have no practical effect.  The demand seems to be an effort to punish authors at institutions that adopt open access policies.

There are some comical aspects to this sudden requirement for waivers.  As I said, it seems to have taken NPG three years to figure out that Duke has an open access policy, even though we have made no secret of the fact.  Even more oddly, the e-mail that our faculty authors are getting from NPG lists nine schools from whose faculty such waivers are being required; apparently it was only four schools until recently.  But there are over thirty institutions with faculty-adopted OA policies in the U.S. alone.  Some of the largest schools and the oldest policies have not yet showed up on Nature’s radar; one wonders how they can be so unaware of the scholarly landscape on which their business depends.  NPG looks silly and poorly-informed, frankly, in the eyes of the academic authors I have spoken to.

In addition to making NPG look foolish, this belated demand for waivers has had positive effects for open access on our campus.  For one thing, it simply reminds our authors about the policy and gives us a chance to talk to them about it.  We explain why Nature’s demand is irrelevant and grant the waivers as a matter of course, while reminding each author that they can still voluntarily archive their work in compliance with the rights they have retained (which is the same situation as without the waiver).  I suspect that this move by NPG will actually increase the self-archiving of Nature articles in our repository.

Another effect of these new demands is that open access and the unreasonable demands of some commercial publishers has gotten back on the radar of our senior administrators.  Our policy allows the Provost to designate someone to grant waivers, and, in figuring our who that would be, we had a robust conversation that focused on how this demand is an attack on the right of our faculty to determine academic policy.

This last point is why I have moved, in the past few days, from laughing at the bumbling way NPG seems to be fighting its battle against OA policies to a sense of real outrage.  This effort to punish faculty who have voted for an internal and perfectly legal open access policy is nothing less than an attack on one of the core principles of academic freedom, faculty governance.  NPG thinks it has the right to tell faculties what policies are good for them and which are not, and to punish those who disagree.

As my sense of outrage grew, I began to explore the NPG website.  Initially I was looking to see if authors were told about the waiver requirement upfront.  As far as I can tell, they are not, in spite of rhetoric about transparency in the “information for authors” page.  The need for a waiver is not even mentioned on the  checklist that is supposed to guide authors through the publication process.  It seems that this requirement is communicated to authors only after their papers have been accepted.  I suspect that NPG is ashamed of their stratagem, and in my opinion they should be.  But as I looked at NPG policies, and especially its License to Publish, my concern for our authors grew much deeper.

Two concerns make me think that authors need to be carefully warned before they publish in an NPG journal.

First, because this contract is a license and tells authors that they retain copyright, it may give authors a false sense that they are keeping something valuable.  But a careful reading shows that the retention of copyright under this license is essentially a sham.  The license is exclusive and irrevocable, and it encompasses all of the rights granted under copyright.  It lasts for as long as copyright itself last.  In short, authors are left with nothing at all, except the limited set of rights that are granted back to authors by the agreement.  This is not much different than publishing with other journals that admit up front that they require a transfer of copyright; my concern is that this one is dressed up as a license, so authors may not realize that they are being just as completely shorn of their rights as they are by other publishers.

My bigger concern, however, is found in clause 7 of the NPG “license,” which reads in its entirety:

The Author(s) hereby waive or agree not to assert (where such waiver is not
possible at law) any and all moral rights they may now or in the future hold
in connection with the Contribution and the Supplementary Information.
I don’t think most publishers require authors to waive moral rights (I have actually added them in to a publication contract), and insisting on doing so is a serious threat to core academic values.  Moral rights are recognized by most countries of the world (including the UK, where NPG has its corporate offices) and usually include two basic rights — the right of attribution and the right to preserve the integrity of one’s work.  The United States is something of an outlier in that we do not have a formal recognition of moral rights in our copyright law, although we always assert that these values are protected by other laws.  But my point here is to wonder why NPG requires all of its authors to waive their right of attribution.  This is not an incidental matter; the clause is carefully structured to attempt to get authors even from the countries that do not allow the waiver of moral rights — they are considered that important —  still to promise not to assert those rights (whether or not that would be enforceable in those countries).  Nature actively does not want its authors to be able to insist that their names always be associated with their work.  Why?  Does NPG imagine reusing articles it is given to publish in other ways, without providing proper attribution?  If this seems like a remote possibility, it remains the only conceivable reason that NPG would insert this bizarre clause.
So this week I discovered two ways in which Nature Publishing Group is actively attacking core academic values.  First, by trying to interfere in academic policy decisions made through independent faculty governance processes.  Second, by trying to exempt themselves from the core principle of scholarship that scholars should get credit for the work they do.  Authors publish with Nature because they believe that the brand enhances their reputation.  But by giving NPG the ability to disassociate their work from their name, that value of the Nature brand is lost.  Why would any author agree to that?
Starting with those silly demands for a waiver of the open access policy, I discovered a much deeper threat being posed to our faculty authors.  With each waiver request I now have to have a conversation with all authors who publish with NPG.  I will use those conversations as an opportunity to encourage self-archiving.  But I now know that I also must warn authors that by signing the NPG license they are giving up the most precious thing they have — the right to get credit for their work.  I hope many of our authors will reconsider signing that license unaltered.  Since NPG has singled us out, I will now be singling out NPG for its especially egregious attack on fundamental academic values.

 

More than meets the eye

When I first saw the story about the conflict between the Social Science History Association (SSHA) and Duke University Press (DUP), I thought I had best not comment about it. But since then a number of my colleagues have gotten in touch with me and also made comments about the case that miss some essential elements, in my opinion. So I decided I will express my opinion about the dispute thus far, which is that there is probably no good outcome to this case.

Let me start by saying, however, that even though I work for Duke and specialize in copyright issues, I have absolutely no involvement in this case and no “insider” information. As Will Rogers said, “all I know is what I read in the papers.” What I say here is my own opinion based on those reports and nothing more.

The basic facts are easy to restate.  The SSHA has informed DUP that it wants to end its long-standing association and look for a different publisher for its flagship journal, Social Science History.  The Press, however, asserts that language in their original contract means that the SSHA can stop participating in the journal, but cannot remove it from the control of DUP.

The first point I would make about this dispute is that it involves a specific piece of contract language that is probably unusual.  For that reason I think some of the comments about how this case might determine the future for lots of other society journals are exaggerated.  My guess is that this case will eventually be resolved through an interpretation of that specific language and thus, even if there is a court decision instead of a settlement, it will not have too much of a ripple effect.

Most of the comments I have seen (from librarians and academics) have assumed that Duke University Press is the bad guy here, trying to wrest control of a scholarly journal out of the hands of scholars.  While I do not intend to mount a defense of DUP here, I do want to suggest that there is more to this case than a good v. evil argument about academic freedom.  This is a business disagreement, and regardless of which side wins, in my opinion, it will probably not be a good outcome for scholarship.

To understand a lawsuit, it is always a good practice to ask why the plaintiff decided to file the litigation in the first place.  A commenter on the Chronicle story linked above suggests that it is hard to understand in this case, since he believes the results could not justify the costs.  But surely the SSHA thought it was worthwhile, and a little deeper reflection suggests why.  In their statement, the SSHA explains that they wanted to “assess the open market” to find out what Social Science History is “worth.”  That should tell us pretty clearly that the SSHA wants to shop the journal around to the big commercial publishers in order to get a big payout to the Association.  Other societies have done it before, and it seems clear that the SSHA wants to cash in on its journal.  So the reason the lawsuit is worth the expense is that the SSHA has expectations of perhaps hundreds of thousands of dollars in profit if they can sell their “brand name” journal to Wiley or Sage.

By the way, this is why the society would not be satisfied to simply walk away and start up a new journal to compete with a continuing Social Science History published by DUP, as that same commentator suggests.  As I said, this is a business dispute, and the key asset at issue is the brand of the journal, its “goodwill” as it is called in economic valuations.  Presumably no large commercial press would be willing to pay big money for a new start-up that the SSHA might launch if it lost control over Social Science History.  The marketing and the value for a new purchaser depends on that well-established title being on the auction block.

So what will be the result if the SSHA wins this lawsuit or gets control over the title in a settlement?  I think the inevitable result will be a sale to a large commercial publisher and subsequently much higher subscription rates for libraries and other subscribers.  In previous cases where a society has sold its journal or journals to a big publishers, we have seen prices increase by as much as three or four hundred percent, especially if the journal has had a fairly moderate price to begin with (I have no idea about the current subscription price for Social Science History).  Nor do I think that a win by the SSHA would necessarily be a win for academic freedom or for keeping scholarship in the hands of scholars.  If the journal is sold to a large publisher, experience suggests that the scholars who make up the society will have less control over it than they did before and that the quality of the journal will decline.  But lots of money will potentially flow into the SSHA coffers.

What happens if, on the other hand, Duke University Press wins the case or otherwise retains control over the journal?  In my opinion, DUP has taken the stand that it has in large part to defend the value of its journal list against the loss of one of its premier titles.  So if they win, at least their journal package will not lose value.  But this is still probably not a good outcome, since the journal will be divorced from its roots and from the scholarly community that has made it a valuable brand in the first place.  As several people have suggested, DUP might have a hard time finding top scholars in the field who would be willing to edit the journal or review for it if it is severed from its connection to their scholarly society.  So while its value for DUP would be preserved initially, I think a decline in quality and in value over time is inevitable.

This is why I find it impossible to root for either side in this dispute (even though I usually root for Duke teams).  To me, this case is an object lesson in why scholarship should not be treated as a commodity around which commercial value, and the disputes that accompany such value, accrues.  The radical distinction between the “gift economy” in which individual scholars work, giving away their most precious intellectual assets to publishers without remuneration for the sake of the scholarly mission, and the commercial economy in which publishers work, and to which some societies aspire, was never more clear.  Whoever wins this case, the scholars who donate their labor as authors, editors and reviewers for this journal will be the long-term losers.  And the only way to change that situation is to radically rethink they way scholarship is supported and disseminated.  We need new business models, focused on open access and better ways to support the scholarly mission, while all this dispute offers us is a fight over the way the same old traditional pie of subscription money is sliced.

Walking the talk

All of the presentations at the SPARC Open Access meeting this week were excellent.  But there was one that was really special; an early career researcher named Erin McKiernan who brought everyone in the room to their feet to applaud her commitment to open access.  We are sometimes told that only established scholars who enjoy the security of tenure can “afford” to embrace more open ways to disseminate their work.  But Dr. McKiernan explained to us both the “why” and the “how” of a deep commitment to OA on the part of a younger scholar who is not willing to embrace traditional, toll-access publishing or to surrender her goals of advancing scholarship and having an academic career.

Erin McKiernan is a Ph.D from the University of Arizona who is now working as a scientist and teacher in Latin America.  Her unique experience informs her perspective on why young scholars should embrace open access.  Dr. McKiernan is a researcher in medical science at the National Institute of Public Health in Mexico and teaches (or has taught) at a couple of institutions in Latin America.  For her, the issue is that open access is fundamental to her ability to do her job; she told us that the research library available to her and her colleagues has subscriptions to only 139 journals, far fewer that most U.S. researchers expect to be able to consult.  Twenty-two of that number are only available in print format, because electronic access is too expensive.  This group includes key titles like Nature and Cell.  A number of other titles that U.S. researchers take for granted as core to their work — she mentioned Nature Medicine and PNAS — are entirely unavailable because of cost.  So in an age when digital communications ought to, at the very least, facilitate access to information needed to improve health and treat patients, the cost of these journals is, in Dr. McKiernan’s words, “impeding my colleagues’ ability to save lives.”  She made clear that some of these journals are so expensive that the choice is often between a couple of added subscriptions or the salary of a researcher.

This situation ought to be intolerable, and for Dr. McKiernan it is.  She outlined for us a personal pledge that ought to sound quite familiar.  First, she will not write, edit or review for a closed-access journal. Second, she will blog about her scientific research and post preprints of her articles so that her work is both transparent and accessible.  Finally, she told us that if a colleague chose to publish a paper on which she was a joint author in a closed-access journal, she would remove her name from that work.  This is a comprehensive and passionately-felt commitment to do science in the open and to make it accessible to everyone who could benefit from it — clinicians, patients and the general public as well as other scholars.

Listening to Dr. McKiernan, I was reminded of a former colleague who liked to say that he “would rather do my job than keep my job.”  But, realistically, Dr. McKiernan wants to have a career as a teacher and research scientist.  So she directly addressed the concerns we often hear that this kind of commitment to open access is a threat to promotion and tenure in the world of academia.  We know, of course, that some parts of this assertion are based on false impressions and bad information, such as the claim that open access journals are not peer-reviewed or that such peer-review is necessarily less rigorous than in traditional subscription journals.  This is patently false and really makes little sense — why should good peer-review be tied to a particular business model?  Dr. McKiernan pointed out that peer-review is a problem, but not just for open access journals.  We have all seen the stories about growing retraction rates and gibberish articles.  But these negative perceptions about OA persist, and Dr. McKiernan offered concrete suggestions for early-career researchers who want to work in the open and also get appropriate credit for their work.  Her list of ideas was as follows (with some annotations that I have added):

1. Make a list of open access publication options in your particular field.  Chances are you will be surprised by the range of possibilities.

2.  Discuss access issues with your collaborators up front, before the research is done and the articles written.

3. Write funds for article processing charges for Gold open access journals into all of your grant applications.

4. Document your altmetrics.

5. Blog about your science, and in language that is comprehensible to non-scientists.  Doing this can ultimately increase the impact of your work and can even lead sometimes to press coverage and to better press coverage.

6. Be active on social media.  This is the way academic reputations are built today, so ignoring the opportunities presented is unwise.

7. If for some reason you do publish a closed-access article, remember that you still have Green open access options available; you can self-archive a copy of your article in a disciplinary or institutional repository.  Dr. McKiernan mentioned that she uses FigShare for her publications.

The most exciting thing about Erin McKiernan’s presentation was that it demolished, for many of us, the perception of open access as a risky choice for younger academics.  After listening to her expression of such a heartfelt commitment — and particularly the pictures of the people for whom she does her work, which puts a more human face on the cost of placing subscription barriers on scholarship — I began to realize that, in reality, OA is the only choice.

 

 

 

 

Please propose to us

Later this year, the first in a new series of Scholarly Communication Institutes will be held here in the Research Triangle and we are looking for proposals from diverse and creative teams of people who are interested in projects that have the potential to reshape scholarly communications.

Last year the Andrew W. Mellon Foundation funded a three-year project to continue the long-running Scholarly Communications Institute which has previously been held at the University of Virginia.  Starting in November, the new SCI will be hosted by Duke in close collaborations with UNC Chapel Hill, NC State University, North Carolina Central University and the Triangle Research Libraries Network.  This new iteration of the SCI will benefit, we believe, from the extraordinary depth and diversity of resources related to innovation in scholarly communications here in the Triangle, and it will also take on a new format, in which participants will have a major role in setting the agenda each year.

Starting this year — starting right now! — the SCI invites applications from working groups of 3 – 8 people that are organized around a project or problem that concerns scholarly communications.  These working groups can and should be diverse, consisting of scholars, librarians, publishers, technologists and folks from outside academia (journalist? museums? non-profits?).  We hope that proposals will be very creative about connections, and include people that would like to work together even if they have not previously been able to do so.

The SCI Advisory panel will select 3 to 5 of these working group proposals and cover the costs for those teams to travel to the Triangle and spend four days together  in Chapel Hill in a setting that is part retreat, part seminar, part development sprint and part un-conference.  We want these groups to work together and to interact.  The groups will, we hope, jump-start their own projects and “cross-pollinate” ideas that will advance and challenge each others projects and discussions.

The theme for the 2014 SCI is Scholarship and the Crowd.  It will be held November 9-13 at the Rizzo Center in Chapel Hill, NC.  Proposals are due by March 24.

The goal of the SCI is not to schedule breakthroughs but create conditions that favor them.  The Working Groups selected will set the agenda and define the deliverables.  The Institute will offer the space , the environment and the network of peers to foster creative thinking, with the hope of both advancing the specific projects and also developing ideas and perspectives that can give those projects a broader potential to influence the landscape of publishing, digital humanities and other topics related to scholarly communications.

If you or someone you know might be interested in developing a proposal for this first Triangle-based SCI, you will find the call for proposals and an FAQ at trianglesci.org.

 

So what about self-archiving?

There is a persistent problem with polemics.  When writing to address someone else’s position with which one disagrees, it is easy to lose sight of the proverbial forest for the trees.

In my previous two posts, I was addressing a misunderstand that I am afraid might lead authors to be less attentive and assertive about their publication contracts than they should be.  The specific issue was whether or not it is feasible to maintain that a copyright is transferred only in a final version of a scholarly article, leaving copyright in earlier versions in the hands of the author.  I argued that this was not the case, that the distinction between versions is a construct used by publishers that has little legal meaning, and that author rights that do persist in earlier versions, as they often do, are created by the specific terms of a copyright transfer agreement (i.e., they are creatures of a license).  These points, which I believe are correct, prompted a number of people to get in touch with me, concerned about how these specific “trees” might impact the overall forest of self-archiving policies and practices.

So now I want to make several points that all address one conclusion; this argument about the nature of a copyright transfer does not necessarily have any significant impact on what we do to enhance and encourage self-archiving on our campuses.  Most of the practices I am aware of already take account of the argument I have been making, even if they are not explicit about it.

On the LibLicense list today, Professor Steven Harnad, who is a pioneer in the movement to self-archive scholarly papers, posted a 10-point strategy for accomplishing Green open access.  Essentially, he points out that a significant number of publishers (his number is 60%) allow authors to self-archive their final submitted versions of their articles, and that those who have retained this right should exercise it.  Elsevier is one such publisher, about which more later.  Harnad argues that there are other strategies available for authors whose copyright transfer agreements do not allow self-archiving of even the final manuscript.  One option is to deposit the manuscript in a repository but embargo access to it.  At least that accomplishes preservation and access to the article metadata, and it facilitates fulfillment of individual requests for a copy.  Another option is to deposit a pre-print (the version of the article before peer-review) in a pre-print repository, which is a solution that has long worked well in specific disciplines like physics and computer science.

All of these strategies are completely consistent with the point I have been making about copyright transfer agreements.  Harnad’s model recognizes that copyright is transferred (perhaps improvidently) to publishers, and is based on authors taking full advantage of the rights that are licensed back to them in that transaction.  This makes perfect sense to me and nothing I have written in my previous two posts diminishes from this strategy.

One of the questions I have received a couple of times involves campus open access policies and how they affect, or are affected by, copyright transfers.  These policies often assert a license in scholarly articles, so the question is essentially whether that license survives a transfer of copyright.

It is a basic principle of law, and common sense, that one cannot sell, or give away, more than one owns.  So if an author has granted a license to her institution before she transfers her rights to a publisher, it seems clear that the license should survive, or, to put it another way, that the rights that are transferred to the publisher are still subject to this prior license.  There was an excellent article written in 2012 by law professor Eric Priest about this situation, and his conclusion is “that permission mandates can create legally enforceable, durable nonexclusive licenses.”  The article provides an extensive analysis of the legal effect of this “Harvard-style” license, and is well worth being read in its entirety by all who are interested in the legal status of Green open access.

An additional wrinkle to the status of a prior license is provided by section 205(e) of the copyright law, which actually addresses the issue of “priority between conflicting transfer of ownership and nonexclusive license.”  This provision basically affirms what I have said above, that a license granted prior to a transfer of copyright survives the transfer and prevails over the rights now held by the transferee, IF it is evidenced by a written instrument.  Because of this provision, some schools that have a license that is created by an open access policy also get a document from the author at the time of OA deposit that affirms the existence of that license.  Such documentation helps ensure the survival of a policy-based license even after the copyright is later trnsferred to a publisher.

Even when we decide that a license for Green open access exists and has survived a copyright transfer, however, we still have a policy decision to make about how aggressively to assert that license.  Many institutional practices look to the terms of the copyright transfer and try to abide by the provisions found therein, usually relating to the version that can be used and when it can be made openly accessible.  They do this, I think, to avoid creating an uncomfortable situation for the authors.  Even if legally that license they granted would survive the transfer of rights, if a conflict with the publisher developed, the authors (whom we are, after all, trying to serve) would be in a difficult place.  So my personal preference is to conform our practice to reasonable publisher policies about self-archiving and to work with authors to get unreasonable policies changed, rather than to provoke a dispute.  But this is a policy matter for specific institutions.

Finally, I want to say a couple of things specifically about Elsevier, since it was Elsevier’s take down notices directed against author self-archiving that began this series of discussions.

Elsevier’s policies permit authors to self-archive the final manuscript version of an article but not the published version, and, as far as I know, all of its take down notices were directed against final published versions on institutional or commercial websites.  So it is true that in my opinion, based on the analysis I have presented over the past week, that Elsevier is legally justified in this take down campaign.  It may well be a stupid and self-defeating strategy — I think it is — but they have the legal right to pursue it.  Authors, however, also have the legal right, based on Elsevier’s policies that are incorporated into their copyright transfer agreements, to post an earlier version of the articles — the final author’s manuscript(s) — in place of these final published versions.  So I hope that every time a take down notice from Elsevier that is directed against the author of the work in question is received, the article that is taken down is replaced by a  final manuscript version of the same content.

As many know, Elsevier also has an foolish and offensive provision in its current copyright transfer agreement that says that authors are allowed to self-archive a final manuscript version of their article UNLESS there is an institutional mandate to do so.  As I have said before, this “you may if you don’t have to but not if you must” approach is an unjustifiable interference with academic freedom, since it is an attempt to tie faculty rights to specific policies that the faculty themselves adopt to further their own institutional and academic missions.  Elsevier should be ashamed to take this stance, and our institutions that value academic freedom should protest.  But based on what has been said above, we can also see how futile this approach really is.  If the institution has a policy-created license, that license probably survives the copyright transfer, as Eric Priest argues.  In that case, the denial of a self-archiving right only in cases where a license exists is meaningless precisely because that license does exist; authors could self-archive based on the license and do not need the grant of rights that Elsevier is petulantly withholding.  I said above that institutions should consider whether or not they want to provoke disputes by relying on the prior existence of a license to self-archive.  Elsevier, however, seems to have decided to provoke exactly that dispute with this provision, and they are even more unwise to do so since it is likely to be a losing proposition for them.

 

Setting the record straight about Elsevier

There has been a lot of attention given to the moves by publishing giant Elsevier to enforce its policy regarding authors’ rights to post his or her article on a personal website or in an institutional repository.  Since Elsevier began sending take down notices last fall, first to Academia.edu and then to individual universities, it has become well-known that authors are allowed, under their contracts with Elsevier, to post their “final submitted version,” which refers to the last version of the article, after peer-review, that is sent to the journal, but not the final published version with whatever copy-editing and formatting that the publisher has added.

This is a difficult distinction for faculty authors to understand.  My colleagues and I talk about it all the time with our faculty authors, but they persistently do not see much difference between the two versions, so they sometimes believe that there is little reason to observe the distinction.  Publishers think (or at least say publicly) that they add a lot of value to submitted manuscripts, but a great many authors do not see it that way.

Unfortunately, some of the attention that this new strategy from Elsevier has garnered has made the difficulty of explaining what is going on to faculty authors a little more difficult.  This article from The Economist Called “No Peeking…” is a case in point.  The article correctly suggests that this is going to prove a self-defeating tactic for Elsevier, whose desperation to stem the movement toward open access often leads it into foolish decisions.  The Economist, however,  misstates the copyright law in its article in a way that will unfortunately reenforce a common misconception on campuses.

Here are three sentences from The Economist article that embody the misconception I am concerned about:

Like journalists writing for a newspaper, academics submitting an article to a journal usually sign contracts which transfer copyright to the publisher…. As the University of California, Irvine, which was on the receiving end of some of the takedown notices, points out in advice to its staff, it is usually only the final version of an article, as it appears in a journal, that is covered by publisher’s copyright. There is nothing to stop scientists making earlier versions available.

The problem with the first sentence is that academic authors are really not like journalists.  Many journalists are full-time employees of their newspapers, so that their articles are owned by the newspaper from the start, as works made for hire.  On the other hand, academic authors are not employees of publishers and their writings are not work for hire.  Their rights (as well as those of some free-lance journalist) are entirely governed by the contracts they sign.  The important implication of this is that academic authors have much more control over the rights they surrender and retain than do journalists; faculty members can simply refuse to transfer copyright (because they own it unless and until it is transferred in writing) or they can negotiate the exact terms of publication, transferring or licensing some rights and holding on to others.

The bigger issue in this article, however, is in the second and third sentences quoted above, about how the copyright that is transferred to publishers only “covers” the final version of the article.  This is a common misconception that is both wrong and dangerous.  It is the same misconception that leads some people to believe that if they re-draw an illustration, chart or table from a copyrighted publication, they do not implicate copyright.  But the truth is that a copyright includes any work that is derived from the copyrighted work and is “substantially similar.”  When someone wants to use a figure from a published work, they may well be able to do so under fair use, but redrawing the figure, unless it is redrawn into something quite different (which would undermine the purpose), does not alter the copyright situation.

When we turn to the issue of article versions, the situation is the same.  Each version is a revision of the original, and the copyright is the same for all these derivatives.  When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer.  Authors are not allowed to use their post-prints because the rights in that version are not covered in the transfer; they are allowed to use post-prints only because the right to do so, in specified situations, is licensed back to them as part of the publication agreement.

Once a copyright transfer has been signed, all of the rights that the author may still have are because of specific contractual terms, which are usually contained in the transfer document itself.  In short, these agreements usually give all of the rights under copyright to the publisher and then license back very small, carefully defined slivers of those rights back to the author.  One of those slivers is often, but not always, the right to use a submitted version, or post-print, in carefully limited ways.  For example, many publishers allow posting of the submitted version only on defined websites, usually a personal site or institutional repository.  Often the contracts also allow posting of the submitted version only after some lapse of time.  These restrictions would not make sense or be enforceable IF the author retained some kind of copyright in earlier versions, as The Economist implies.  But they do not; they have only, and exactly, what the contract gives back to them.

One important lesson to be gained from this correction of the language of The Economist article is that publication contracts are extremely important.  They entirely determine what an author can do with his or her own work in the future.  For many academics, signing such agreements is a very bad idea; they should be negotiated, either to make them licenses to publish, which allows the author to retain her copyright, or to be certain that the rights that are licensed back are broad enough and flexible enough to permit the future uses the author wants.  Before the transfer, the author has a good deal of leverage to negotiate these agreements, but afterward she has very little.  So it is vital to pay attention to the agreement itself and not rely on a false sense of security based on a misconception of how copyright works.

Another point to learn from this situation is that the whole idea of article “versions” is artificial.  It has been developed primarily by publishers in order to make a claim that they add substantial value to the final published version, which may or may not be true, depending on the article and the publisher.  Another marketing advantage that publishers get from this fabricated distinction is the ability to claim that they support author rights and reuse of articles to promote better access, while still retaining the ability to slap down authors who use their own articles in ways the publishers have not pre-approved.  As my colleague Will Cross has put it, “This versioning is a creation of publishers to reenforce the sense that they are following the academic “gentleman’s agreement” that Elsevier has been breaking here.”

[Hat tip to Will Cross and to Lisa Macklin of Emory, who discussed the implications of this particular mistake with me by e-mail and provided some ideas incorporated herein. Will qualified his statement quoted above by acknowledging that pre-prints, especially, have a longer history, but the use of these distinctions as contractual dividing lines is related to recent pressures on publishing.]

Half-lives, policies and embargoes

Over the holidays I was contacted by a writer for Library Journal asking me what I thought about a study by Phil Davis, which was commissioned and released by the Association of American Publishers, that analyzed the “article half-life” for journals in a variety of disciplines and reported on the wide variation in that metric.  The main finding is that this idea of half-life — the point at which an article has received half of its lifetime downloads — varies a great deal from discipline to discipline. The writer asked me what I thought about the study, and about a blog post on the Scholarly Kitchen in which David Crotty argues that this study shows that the experience of the NIH with article embargoes — that public access after a one-year embargo does not harm journal subscription — cannot be generalized because the different disciplines vary so much.  I sent some comments, and the article in LJ came out early last week.

Since this exchange I have learned that the Davis study is being presented to legislators to prove the point Crotty makes — that public access policies should have long embargoes on them to protect journal subscriptions.  It is worth noting that Davis does not actually make that claim, but his study is being used to support that argument in the on-going debate over implementing the White House public access directive.  That makes it more important, in my opinion, to be clear about what this study really does tell us and to recognize a bad argument when we see it.

Here is my original reply to the LJ writer, which is based on the fact that this metric, “article half-life,” is entirely new to me and its relevance is completely unproved.  It certainly does not, in my opinion, support the much different claim that short embargoes on public access will lead to journal subscription cancellations:

I have to preface my comments by saying that I was only vaguely aware of Davis’ study before you pointed it out.  So my comments are based on only a very short acquaintance.

I have no reason to question Davis’ data or his results.  My question is about why the particular focus on the half-life of article downloads was chosen in the first place, and my issue is with the attempt to connect that unusual metric with the policy debate about public access policies and embargoes.

As far as I can tell, article half-life tells us something about usage, but not too much about the question of embargoes.  The discussion of how long an embargo should be imposed on public access is supposed to focus on preventing subscription cancellations.  What I do not see is any connection between this notion of article usage half-life and journal cancellation.  It is a big leap from saying that a journal retains some level of usefulness for X number of years to saying that an embargo shorter than X will lead to cancelled subscriptions, yet I think that is the argument that is being made.

Here are two paragraphs from Crotty’s Scholarly Kitchen post:

[snip]”As I understand it, the OSTP set a 12-month embargo as the default, based on the experience seen with the NIH and PubMed Central. The NIH has long had a public access policy with a 12-month embargo, and to date, no publisher has presented concrete evidence that this has resulted in lost subscriptions. With this singular piece of evidence, it made sense for the OSTP to start with a known quantity and work from there.

The new study, however, suggests that the NIH experience may have been a poor choice for a starting point. Clearly the evidence shows that by far, Health Science journals have the shortest article half-lives. The material being deposited in PubMed Central is, therefore, an outlier population, and many (sic) not set an appropriate standard for other fields.”[end quotation]

What immediately strikes me is the unacknowledged transition between the two paragraphs.  In the first he is talking about lost subscriptions, which makes sense.  But in the second he is talking about this notion of download half-life.  What neither Davis nor Crotty give us, however, is the connection between these half-life numbers and lost subscriptions.  In other words, why should policy decisions about embargoes be made based on this half-life number?  At best the connection between so-called article half-life and cancelled subscriptions is based on a highly speculative argument that has yet even to be made, much less proved.  At worst, this metric is irrelevant  to the debate.

My overall impression is that the publishing industry is unable to show evidence of lost subscriptions based on the NIH public access policy (which Crotty acknowledges), so they are trying to introduce this new concept to cloud the discussion and make it look like there is a threat to their businesses that still cannot be documented.  I think it is just not the right data point on which to base the discussion about public access embargoes.

A second point, of course, is that even if it were proved that there would be some economic loss to publishers with 6 or 12 month embargoes, that does not complete the policy discussion.  The government does not support scientific research in order to prop up private business models.  And the public is entitled to make a decision about return on its investment that considers the impact on these private corporate stakeholders but is not dictated by their interests.  It may still be good policy to insist on 6 month embargoes even if we had evidence that this would have a negative economic impact on [some] publishers.  Government agencies that fund research simply are not obligated to protect the existing monopoly on the dissemination of scholarship at the expense of the public interest.

By the way, Crotty is wrong, in the passage quoted above, to say that there is no evidence that short embargoes do not impact subscriptions other than the NIH experience.  The European Commission did a five-year pilot study testing embargoes across disciplines and concluded that maximum periods of six months in the life sciences and 12 months for other disciplines were the correct embargoes.

In addition to what I said in the long quote above, I want to make two additional points.

First, it bears repeating that Davis’ study was commissioned by the publishing industry and released without any apparent peer-review.  Such review might have pointed out that the actual relevance of this article half-life number is never explained or defended.  But the publishing industry is getting to be in the habit of attacking open access using “data” that is not subject to the very process that they tell us is at the core of the value that they, the publishers, add to scholarship.

The second point is that I have never heard of any librarian who used article half-life to make collecting or cancellation decisions.  Indeed, I had never even heard of the idea until the Davis study was released, and neither had the colleagues I asked.  We would not have known how to determine this number even if we had wanted to.  It is not among the metrics, as far as I can determine, that publishers offer to us when we buy their packages and platforms.  So it appears to be a data point cooked up because of what the publishing industry hoped it would show, which is now being presented to policy-makers, quite erroneously, as if it was relevant to the discuss of public access and embargoes.  Crotty says in his post that rational policy should be evidence-based, and that is true.  But we should not accept anything that is presented as evidence just because it looks like data; some connection to the topic at hand must be proved or our decision-making has not been improved one bit.

We cannot say it too often — library support for public access policies is rooted in our commitment to serve the best interests of scholarship and to see to it that all the folks who need or could use the fruits of scholarly research, especially taxpayer-funded research, are able to access it.  We are not supporting these policies in order to cancel library subscriptions, and the many efforts in the publishing industry to distract from the access issue and to claim, on the basis of no evidence or irrelevant data, that their business models are imperiled are just so many red-herrings.

NB — After this was written I discovered the post on the same topic by Peter Suber from Harvard, which comes to many of the same conclusions and elaborates on the data uncovered by the European Commission and the UK Research Councils that are much more directly relevant to this issue.  You can read his comments here.

Copyright roundup

I had thought that my two most recent posts reflecting on the future of research libraries would end the year for this blog.  But I find two issues have arisen that I want to comment on.  Since they both involve copyright — one is merely my observations and the other involves reporting on a recent court decision — I consider this post a year-end copyright roundup.  Yee Haw!

I have commented before about the campaign that Elsevier has undertaken to send take down notices regarding PDFs of articles they have published that are posted on Academia.edu.  At that time, I expressed the hope that the American Association of University Professors would get involved.  The AAUP has been very diligent in defending the copyright interests of faculty, correctly perceiving that rights ownership can be an issue of academic freedom.  Unfortunately, up till now, at least, this concern of the AAUP has had a huge blind spot — the threat to academic freedom that is posed when copyright is transferred to large commercial interests like Elsevier, usually gratis and on terms dictated by the assignee rather than the author, which do not share the values regarding scholarship that are held by most faculty authors and by the AAUP itself.

Now we have begun to see that this take down campaign from Elsevier has expanded, as we hear that notices to remove posted PDFs are also being sent in large numbers to universities, presumably directed at copies of articles that are posted on the individual profile or research sites of the faculty authors.  These authors clearly believe that they have the right to post these articles — probably because they correctly consider the distinction between their final submitted manuscript and the published PDF to be meaningless — and Elsevier and Elsevier’s insistence that those articles be removed is a direct attack on research sharing, the advance of scholarship and, therefore, academic freedom.  Why does the AAUP remain silent?  In the past they have implied that they did not want to interfere with authors’ decisions about where to publish.  But now we have clear evidence that many authors do not understand the rights situation and their ability to continue their research projects when they assign copyright to Elsevier.  On individual campuses we work to educate them, but we desperately need the voice, and the gravitas, of the AAUP to step in and help faculty authors understand the consequences of these publication decisions.  Thoughtless assignment of copyright is a grave threat to academic freedom, as Elseivier is working hard to demonstrate, and it is an issue that the AAUP cannot ignore without seeming to condone.

As for campus responses to these take down notices, I want to make one point.  These are not ordinary DMCA take down notices; the DMCA, and section 512 of the copyright act that it amended, pretty clearly imagine that take down notices will be sent from the rights holder to remove material posted by some third-party user of an Internet service.  They do not contemplate a situation where the actual ownership of the rights might be disputable.  But that is the case here, where the “user” who posts the PDF is the original rights holder, the author.  Elsevier is sending these notices as a putative assignee.  But we know from long experience that publishers are not good at actually completing copyright transfers, faced with publication deadlines and author disregard of the final paperwork.  So in this unique situation, we cannot be sure that Elsevier actually does hold the rights on the basis of which they are demanding takedown, and that the authors who posted the work are therefore not entitled to do so.  In this situation, simple compliance with the law demands that universities, through their DMCA agents, insist on receiving evidence of a completed copyright assignment — the law requires a written and signed instrument — before they comply with Elsevier’s take down notices.

The case I want to comment on also involves the relationship between universities and authors who hold copyright, in this case the authors of dissertations. In Andrew Diversey v. The University of New Mexico, which was before the Tenth Circuit Court of Appeals and decided on December 23, we had a direct conflict between a dissertation author and his university.  Briefly, Diversey alleged that he had a terrible time with his dissertation committee, finally sent a draft of his thesis to the Dissertation Coordinator for proofreading, and had it “confiscated” by the Graduate Studies Dean.  Subsequently, Diversey discovered that copies of his draft had been sent to ProQuest and to two UNM libraries.  The story strikes me as bizarre, especially since there is no indication that Diversey received a degree or that his dissertation won formal approval.  So it is odd that it was apparently treated as a finished product; there may be more to the story that we do not know.  But ultimately, Diversey sued the University of New Mexico for copyright infringement for copying and distributing his dissertation without authorization.  His claim was dismissed by the trial court because that court said it was filed after the statute of limitations had run out. But the Court of Appeals reinstated part of the claim, for unauthorized distribution, and sent the case back to the District Court.

The crux of the case is whether the University infringed Diversey’s by making copies and putting them in their libraries.  The Court of Appeals finds that it is at least plausible that it did.  The Court recognizes Diversey’s copyright in his dissertation, of course, and suggests that any copying or distribution without his permission, even by the University at which he was a student, is infringing.  Copies were made, according to the Court, but Diversey had notice of those copies far enough in the past that the statute of limitations had run out on his claim for unauthorized reproduction by the time it was filed.  But the Court found that Diversey only became aware of the distribution, by which it means placing copies of the dissertation in the libraries and listing them in a catalog, within the three-year limitations period, so his claim on that alleged infringement should go forward.  The Court also found that a fair use defense would not protect UNM in this set of circumstances.

To me this case is a warning to universities and schools that want to retrospectively digitize Doctoral or Masters’ theses and dissertations, and decide to skip the step of seeking permission from the authors.  It is perfectly true that libraries can distribute “lawfully made” copies under the doctrine of first sale.  But if the copies themselves were unauthorized, so too is the distribution of those copies.  In other words, if the only copy that UNM placed in its library was the one Diversey originally submitted, they could have a first-sale defense. But the University clearly made more copies, since they sent one to ProQuest and had at least two copies in their libraries.  It is the distribution of these unauthorized copies that the Court of Appeals thinks is possibly infringing.  And that situation is very similar, it seems to me, to the making of digital copies of older dissertations and placing them in an institutional repository without permission from the author.  I understand that some institutions decide that it is easier to ask forgiveness in this instance instead of permission.  But to me that attitude is disrespectful of the authors of these works.  And now we have a case that reminds us that that approach can also be expensive.

If an author discovers her dissertation in an institutional repository and is very unhappy about it, she will have three years from the time she either knew or should have known about the unauthorized copy to bring suit.  The fact that the institution might remove the copy from distribution once it learns of the objection will not protect them from such a lawsuit if the author is determined.  The expense of defending that lawsuit would be very high regardless of the outcome, and even higher if the institution loses or has to settle (which is now very likely for UNM in this case).  For these reasons, this case reinforces my long-held belief that systematic digitization of older dissertations or theses is a situation where permission is the better course, since forgiveness might be doubtful and, without it, the cost could be much too high.

Connecting the Dots

The American Association of University Professors is an important organization, and its emphasis on protection the intellectual property rights of academics is admirable.  It is precisely because their work is so important, and because they often seem to be right on the verge of connecting all of the dots related to copyright, publishing and academic freedom, that their statements sometimes frustrate me.

In November the AAUP issued a report on “Academic Freedom and Electronic Communications” that has been widely and justly praised for addressing the revolution in scholarly communications in the digital age in a comprehensive way and keeping the issue of academic freedom firmly at the center of the discussion.  As this article in Inside Higher Ed puts it, the AAUP is updating long-standing commitments in light of a “whole new world.”  For example, the AAUP has recently reaffirmed its position that the copyright in online courseware should remain in the hands of the faculty creators of those courses, a position that was also endorsed by the Duke Academic Council last week.

It is because the AAUP sees that copyright ownership is an integral part of academic freedom that I find its new report just one dot short of a complete picture.  The juxtaposition of two quotes in the Inside Higher Ed article underscores just how close the AAUP gets to seeing the core of the problem:

“While the expanding digital world has promised to make information freely accessible to a global community, commercial forces have locked up most research behind paywalls and ever-more-restrictive licensing agreements,” the report reads. “Any consideration of open access” must conform with the organization’s 1999 “Statement on Copyright,” which concluded that “”it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes.”

The AAUP wants faculty members to own their own copyrights, with which I agree.  And they recognize that commercial interests are locking up research, which is undeniable.  But two facts go unacknowledged in the report — the fact that commercial interests can lock up research only because faculty do not retain their copyrights but give them up for free to those interests and the fact that this surrender of copyright to commercial publishers is a huge threat to academic freedom.
If we needed additional evidence for this second assertion, we got it last week as the news came out (see stories here and here) that publisher Elsevier was sending “take down notices” to the Academia.edu website demanding the removal of article PDFs that the authors have posted to that site in an effort to share their research and facilitate scholarly conversation.  The move is sure to generate bad publicity for Elsevier; one commentator called it an “unforced error.”  The publishing giant just seems unable to comprehend that they depend on academic authors to give them for free the content that they then sell at a huge profit.  But don’t get me wrong; Elsevier is within its rights to do this; as the copyright owner in these articles it can allow or forbid whatever covered uses it wants, and its general copyright transfer agreement with authors does not allow those authors to post the final PDF of articles they have written.
This is precisely my point, of course — because authors have given their rights away to Elsevier, it is Elsevier and not the faculty authors who can determine the scope and depth of any subsequent scholarly discussion about the article.  Faculty options for pursuing their own work are limited by the ownership of copyright by Elsevier and other publishers.  Academic freedom suffers from this common practice of copyright transfer.
The AAUP focuses, in my opinion, on only a part of the problem, and the lesser part of it at that.  They are concerned to protect authors from claims over their work by the universities that employ them, which is a real but infrequent threat.  In the process, however, they ignore the much greater threat posed to academic freedom by the commercial interests that routinely are the recipients of uncompensated copyright transfers.  If the AAUP is really serious about a discussion of copyright ownership and its relationship to academic freedom, they need to be willing to discuss this “third rail” of that conversation, this practice of giving copyright away.  In short, open access, or, more accurately, leaving the decision about access in the hands of faculty authors, is not an optional part of the discussion.
So let’s have a discussion of open access that conforms to the AAUP’s 1999 Statement on Copyright.  But let’s be honest about “prevailing academic practice,” which has been to treat faculty members as the owners of copyright for only a very short time, after which control of the dissemination and use of scholarship has routinely been surrendered to organizations with little or no accountability to faculty members or their representatives.  Perhaps in the print age that surrender did not matter and did not impede academic freedom.  But in a digital age, when faculty have so many more opportunities to share their work and advance their own scholarship, ceding control over copyright is a big problem, with big implications for academic freedom, as the Elsevier attack on Academia.edu proves.  This is the elephant in the AAUP’s living room, and they need to address it by encouraging faculty members to retain their rights beyond initial publication.
For a moment, let’s try a thought experiment.  Suppose a new university is being founded, Innovative University.  At IU the “start from scratch” copyright policy does exactly what the AAUP fears and asserts that all faculty scholarship is work made for hire.  If, at that point, faculty authors had to go to IU to ask permission for ever use they wanted to make of their own works, that would be essentially the same situation that is in place now, once the authors have transferred copyright to the publishers.  If the university did not want a paper to be posted to Academia.edu, they could demand that the article be removed, exactly as Elsevier has been doing.  Both these scenarios are, it seems to me, equal impositions on academic freedom and both, I believe, should be the focus of attention from the AAUP.
But we can carry our thought experiment a bit further and imagine that IU would not want the burden of granting permission for every publication or re-posting.  To avoid that, they give a license to all faculty authors which allows them to post and publish their works wherever they wish and to retain the profits from those publications, if any.  The only restriction on this license is that no copyright transfer or perpetual exclusive license may be granted by the faculty member to a third party without permission.  In that imaginary situation, it seems to me that faculty authors would actually be better off than there are in the current reality, in which copyright is transferred as a whole to commercial interests.  They would have greater certainty and greater flexibility regarding use their own works than they do under the current system, and a much easier channel through which to seek any permission that would be necessary in extraordinary situations.  The University and the public would certainly be better off.  The copyright would not be held by the author, as it is not currently in nearly all cases, but it would be in the hands of an institution whose goals and values are much more aligned with scholars and scholarship than is currently the case.  In short, one can easily image a situation where the worst fears of the AAUP are realized, yet the threat to academic freedom is still less than it is when, as now, commercial interests hold copyright in academic works.
In spite of my thought experiment, I agree with the AAUP that the best alternative is for faculty to retain their copyrights in most cases, as long as they really retain them, so that they, the authors, maintain control over the future of scholarship.  That, after all, is what we mean by academic freedom, isn’t it? Instead of focusing on only one aspect of the copyright issue, a discussion led by the AAUP about IP rights and academic freedom should focus on the potential to more fully exploit copyright ownership to the benefit of its faculty owners.  That means talking about authors’ rights, publication negotiations, promotion and tenure evaluations, and even open access.

Fair use, Georgia State, and the rest of the world.

UPDATE —  Since I wrote this post, Professor Niva Elkin-Koren of Haifa University has kindly informed me that an English translation of the settlement agreement discussed below is now available on the Israeli A2K in Higher Education website. The direct link to the translated settlement is here.

Ever since the Georgia State copyright lawsuit over e-reserves began, people have suggested an analogy to the ill-fated and now renounced litigation campaign by the recording industry against customers who downloaded music files.  It took years, but it finally dawned on the recording industry that suing your own customers was a bad strategy, pursued only by a desperate industry that cannot figure out how to retool their businesses to offer services that people really need and want.  But as I tell folks, the publishers suing Georgia State have made an even more foolish decision, since they are suing people who are not just their customers, but also their suppliers.  The very academics that are vilified as thieves in this lawsuit are the ones who produce the content that Oxford, Cambridge and Sage take, usually for free, to resell at a high profit.  This is one reason why the publishers cannot win this case, even if the 11th Circuit follows the ill-logic they displayed at oral arguments and gives the publishers some kind of Phyrrhic victory.  The attention they are bringing to their own greed and mismanagement will drive more of the authors they depend on to stop giving these publishers free content to sell, and the current economics of higher education guarantees that they will not be able to offset their losses through the increased permission fees they dream about.

All of this is old news.  But as these three publishers continue to pursue a suicide mission in the U.S., we can see that other, more sensible segments of the same industry, are taking a more sensible approach.  As this blog post from University of Toronto law professor Ariel Katz describes, publishers and academic groups in Israel have come to an agreement about fair use that shows just how grasping and ill-conceived the GSU case is.

Israel adopted a fair use provision nearly identical in language to the U.S. provision in the 2007 revision of its (Israel’s) copyright law.  And, just as in the U.S., a couple of Israeli publishers brought a lawsuit against Hebrew University alleging copyright infringing, a case clearly designed to test and define the limits of the new fair use provision.  But in Israel the case has settled, with an agreement announced last week that defines fair use in a very sensible way that indicates a real commitment to scholarship and education on the part of these Israeli publishers, something wholly lacking from the U.S. plaintiffs.

According to Katz, the settlement in the Israeli case recognizes that both e-reserves and course packs are fair uses of copyrighted material, with full journal articles and excerpts of up to 20% of books falling within the fair use definition.  Note that this agreement allows unauthorized excerpts that are twice as long as the ones tolerated by Judge Evans in the GSU trial decision, which the U.S. publishers are disputing.  This, like a great deal of other evidence, shows us that the U.S. plaintiffs are not simply trying to protect their businesses, as they claim; they are asking the courts to grant them windfall profits they have not earned and do not deserve.  Apparently these smaller Israeli publishers think they can live with this agreement, while some of the richest academic publishers in the world are crying poverty to the U.S. 11th Circuit.

There are some additional qualifications on this Israeli settlement that are worth noting.  The e-reserve systems must be accessible only to students registered for a specific class in order to be fair use, something that is almost always true in the U.S. as well.  Course packs must be produced only on demand and sold only to students registered in a class and at cost.  These limitations are, I believe, things that U.S. higher education would be happy to abide by as well, but the publishers appear to be unwilling to show the same spirit of compromise that their Israeli colleagues have.  Finally, Hebrew University has agreed to pay legal costs for the publishers– less than $100,000 — without admitting any culpability for copyright infringement.  Overall, this is a sensible compromise between sensible parties, something foreclosed in the U.S. by the irrational greed of the GSU plaintiffs.

As Katz points out, this agreement in Israel is not a license being granted to universities by publishers; it is a definition of fair use within a specified context.  And, interestingly, it includes a mutual recognition of the Code of Best Practices for Use of Works in Research and Teaching that has been developed in Israel to interpret fair use.  This Code of Best Practices is similar in some ways to the Code from the Association of Research Libraries; it is certainly not more conservative than the ARL Code.  The Israeli Code explicitly recognizes that the amount used should be considered in relationship to the purpose, and that a loss of income to the publisher does not automatically foreclose fair use.  In thinking about the nature of the original, a topic that confused the 11th Circuit judges so badly, the Israeli Code does not waste time debating factual versus fictional and instead recognizes the greater accessibility required for works “of an academic character.”  It also adopts the same fourth factor criteria favoring fair use that Judge Evans used in the GSU trial, the unavailability of licenses specifically for electronic use. Finally, the Israeli Code treats transformative fair use properly, recognizing that transformation is an important but not required element of the first factor analysis, and that transformation can occur either through actual alterations to the original or when there is a “use of a work in a different manner or for a different purpose or function than that of the original work.”

The Israeli Code of Best Practices is very much worth reading, and there is an interesting article about the Israeli experience with fair use for higher education by four academics available here.

All of this, as well as discussions about fair use in Canada, Great Britain and Japan, suggest that the rest of the world is getting the hang of fair use.  They are realizing that fair use is absolutely essential for a copyright law in the digital age, lest the exclusive rights become an economic and technological drag on a nation.  What Judge Evans decided in the GSU case was squarely in the mainstream of fair use thinking; it was even rather conservative when viewed through the lens of developing international thinking about fair use in a digital age.  If the silly misunderstandings of the 11th Circuit panel of judges lead them in another direction, it will be one more obstacle that will eventually have to be overcome to prevent cultural and economic stagnation.  But internationally, the trend is to ensure that fair use serves education and eases the transition to digital teaching and learning, a goal that at least some publishers seem to support.