Category Archives: Technologies

Reflections on the Future of the Research Library

Since September, the Duke University Libraries have been engaging in a set of conversations we are calling a seminar on the future of the research library.  Our University Librarian initiated this discussion with the deliberate intent that, in spite of the large size of our staff, we engage in the core activity of a seminar – a gathering of individuals who come together for intensive study and the active exchange of ideas.  Such a process has intrinsic value, of course, in the continuing professional development and mutual understanding it fosters in the Libraries’ staff.  It also is timed to help us be best prepared to welcome a new Provost in 2014, since Duke’s Provost over the past fifteen years – the only Provost many of us have known at Duke – will be retiring from that role.

Last week our seminar hosted a talk by Professor Ian Baucom, a Professor in Duke’s English department and Director of the John Hope Franklin Humanities Institute.  His talk, and the discussion that followed it, really helped me focus my thoughts about the future role of academic libraries, academic librarians and scholarly communications.  So I want to use this space, in hopes that readers will indulge this end of the year philosophizing, to share some of those thoughts.  These reflections grow out of Ian’s discuss of several constellations of issues that are important to universities today and how those “hot” issues might impact the place of libraries in a research university.

Given his role as the Director of an intentionally interdisciplinary center, it is not surprising that that was the first constellation of issues Ian discussed.  He pointed out the evolution of the idea of interdisciplinarity over the past few decades, from conversations between disciplines, especially between the Humanities and the Social Sciences, to a more deeply transformative methodological commitment, which has been partly driven by advances in technology and the opportunities they have created.  In this environment, Ian talked about the special tools and skills that librarians could bring to teams pursuing interdisciplinary research.  Those tools could be technological; they could reflect expertise in the management of data; or they could involve helping to describe the product of a research project, make it findable and usable, and preserve it.  The changing role for librarians that this invitation suggests is toward serving as consultants and collaborators in the production of research results.

Ian challenged the Libraries to think about whether our fundamental commitment is to information or to knowledge.  This immediately struck me, as I think it was intended to, as a false dichotomy.  Libraries are not mere storage facilities for information, nor are they, by themselves, producers of knowledge.  Rather, they serve as the bridge that helps students and researchers use information to produce knowledge.  That role, if we will embrace it, implies a much more active and engaged role in the process of knowledge than has traditionally been accorded to (or embraced by) librarians.

Some of the most exciting ideas for me that Ian discussed were around the notion of civic engagement, which is, of course, another important topic on our campuses these days, especially when the Governors of several states (including our own) have challenged the value of higher education.  Ian pointed out that library is often one of the most public-facing parts of a university, and suggested three ways in which this outward-looking aspect of the research library could help the university enhance its civic role.  The first — he called it the centrifugal aspect of this role — was to help the university find a public language for the expert knowledge that it produces.   As an example of this, I thought of the recent effort here at the Duke Libraries to get copies of articles that will be the subject of press releases or other news stories into our repository so that the public announcements can link to an accessible version of each article.  This is one way we help “translate” that expert knowledge for a wider public.

The second role for libraries in assisting the civic engagement of their parent universities that Ian cited, the centripetal aspect, was to pull the issues that are important to the communities around a university into the campus.  This we can do in a variety of ways: everything from exhibits in our spaces to seminars and events that we sponsor.  The role here is what Ian called “instigator,” being the focal point on campus where civic issues become part of the academic discourse, having an impact on and being impacted by that expert knowledge that is our fundamental goal and creation.

Finally, the third aspect of civic engagement for academic libraries returns us to the idea of collaboration.  In many instances, it is the library that is the point of first contact, or the most logical partner, for collaboration with civic organizations, NGOs, local advocacy groups and public institutions.

Three roles for librarians that move well beyond traditional thinking emerged for me from Ian Baucom’s talk — the librarian as consultant has long been on my mind, and the librarian as collaborator is a natural outgrowth of that.  But librarians as translators and as instigators were new to me, and helped to flesh out a vision of what the research library might aspire to in the age of global, digital scholarly communications.  In my second post on this event I will turn to issues of globalization and, especially, publishing.

An odd anouncement

I did not initially pay much attention when publisher John Wiley announced early in September that they would impose download limits on users of their database “effective immediately.”  My first thought was “if they are going to disable the database, I wonder how much the price will decrease.”  Then I smiled to myself, because this was a pure flight of fantasy.  Like other publishers before it, Wiley, out of fear and confusion about the Internet, will reduce the functionality of its database in order to stop “piracy,” but the changes will likely do nothing to actually address the piracy problem and will simply make the product less useful to legitimate customers.  But it is foolish to imagine that, by way of apology for this act, Wiley will reduce the price of the database.  As contracts for the database come up for renewal, in fact, I will bet that the usual 6-9% price increase will be demanded, in fact, and maybe even more.

As the discussion of this plan unfolded, I got more interested, mostly because Wiley was doing such a bad job of explaining it to customers.  More about that in a moment.  But first it is worth asking the serious question of whether or not the plan — a hard limit on downloads of 100 articles within a “rolling” 24 hour period — will actually impact researchers.  I suspect that it will, at least at institutions like mine with a significant number of doctoral students.  Students who do intensive research, including those writing doctoral dissertations as well as students or post-docs working in research labs, sometimes choose to “binge” on research, dedicating a day or more to gathering all of the relevant literature on a topic.  Sometimes this material will be download so that it can be reviewed for relevance to the project at hand, and a significant amount of it will be discarded after that review.  Nothing in this practice is a threat to Wiley’s “weaken[ed]” business, nor is it outside of the bounds of the expected use of research databases.  But Wiley has decided, unilaterally, to make such intensive research more difficult.  In my opinion, this is a significant loss of functionality in their product — it becomes less useful for our legitimate users — which is why I wondered about a decrease in the price.

The text of the announcement was strangely written, in my opinion.  For one thing, I immediately distrust something that begins “As you are aware,” since it usually means that someone is about to assert categorically something that is highly dubious, and they do not wish to have to defend that assertion.  So it is here, where we are told that we are aware of the growing threat to Wiley’s intellectual property by people seeking free access.  I am very much aware that Duke pays a lot for the access that our researchers have to the Wiley databases, so this growing threat is purely notional to me.  As is so common for the legacy content industries, their “solutions” to piracy are often directed at the wrong target.  So it is with this one.  As a commenter on the LibLicense list pointed out, Wiley should be addressing automated downloads done by bots, not the varied and quite human research techniques of its registered users.

Another oddity was the second paragraph of the original announcement, which seems to apologize for taking this action “on our own,” without support form the “industry groups” in which Wiley is, they say, a “key player.”  As a customer, I am not sure why I should care about whether the resource I have purchased is broken in concert with other vendors or just by one “key player.”  But the fact that Wiley thought it needed to add this apology may indicate that it is aware that it is following a practice that has been largely shown throughout the content industry to be ineffective against piracy and alienating to genuine customers.  Perhaps, to look on the bright side, it means that other academic article vendors will not follow Wiley’s lead on this.

Things got even stranger when Wiley issued a “clarification” that finally addressed, after a 10 day delay, a question posed almost as soon as the first announcement was made, which was about exactly who would be affected by the limitation.  That delay, in fact, made me wonder if Wiley had not actually fully decided on the nature of the limitation at the time of the first announcement, and waited until a decision was made, belatedly, to answer the question.  In any case, the answer was that the limitation would only be imposed on “registered users.”  That clarification said users who accessed the database through IP recognition or via a proxy would not be affected, and that these non-registered users made up over 95% of the database usage.  So as Wiley asserts that this change will make little difference, they also raise the question of why do it at all.  It seems counter-intuitive that registered users would raise the biggest threat of piracy, and no evidence of that is offered.  And I wonder (I really do not know) why some users register while most, apparently, do not.  If Wiley offers registration as an option, they must think it is beneficial.  But by the structure of this new limitation, they create a strong incentive for users not to register.  But then Wiley adds a threat — they will continue to look for other, presumably more potent, ways to prevent “systematic downloads.”  So our most intensive researchers are not out 0f the woods yet; Wiley may take further action to make the database even less usable.

All of this made me doubt that this change had really been carefully thought out.  And it also reminded me that the best weapon against unilateral decisions that harm scholarship and research is to stop giving away the IP created by our faculty members to vendors who deal with it in costly and irresponsible ways.  One of the most disturbing things about the original announcement is Wiley’s reference to “publishers’ IP.”  Wiley, of course, created almost none of the content they sell; they own that IP only because it has been transferred to them.  If we could put an end to that uneven and unnecessary giveaway, this constant game of paying more for less would have to stop. So I decided to write a message back to Wiley, modeled on their announcement and expressive of the sentiment behind the growing number of open access policies at colleges and universities.  Here is how it will begin:

As you are aware, the products of scholarship, created on our campuses and at our expense, are threatened by a growing number of deliberate attempts to restrict access only to those who pay exorbitant rates.  These actors weaken our ability to support the scholarly enterprise by insisting copyright be transferred to them so that they can lock up this valuable resource for their own profit, without returning any of that profit to the creators.  This takes place every day, in all parts of the world.

University-based scholarship is a key player in the push for economic growth and human progress.  While we strive to remain friendly to all channels for disseminating research, we have to take appropriate actions on our own to insure that our IP assets have the greatest possible impact.  Therefore, effective immediately, we will limit the rights that we are willing to transfer to you in the scholarly products produced on our campuses.





Are we done with copyright?

There has been lots of talk about copyright reform in Washington over the past few months, as evidenced by the announcement from the Chair of the House Judiciary Committee that that panel would undertake a comprehensive review of the copyright law.  The first hearing for that review was held back in May.  As Mike Masnick from TechDirt noted, the Registrar of Copyrights is supportive of the effort but “still focused on bad ideas.”  More recently, the Department of Commerce Task Force on Internet policy issued a “Green Paper” last month that helps us see what is right and what is wrong with the current attention in D.C. on copyright reform.

The Task Force recommended three broad categories of reform: updating the balance of rights and exceptions, better enforcement of rights on the Internet, and improving the Internet as a marketplace for IP through licensing.  These last two are straight out of the legacy entertainment industries’ wish list, of course, and they would do nothing at all to better realize the fundamental purpose of copyright to promote creativity and innovation.  As for the first, it all depends, of course, on where one thinks the balance has gone wrong.  The Task Force includes as a priority the reform of the library exception in section 108, which is a favorite goal of the Copyright Office right now, but it is not at all likely that anything the Office cooks up would be better than leaving the current 108 alone.  The Green Paper also seeks “input” about digital first sale and remixes; note that input is a much weaker commitment than the task Force is willing to make to such things as online enforcement, reform of 108, or — another industry favorite — the extension of the public performance right for sound recordings.

Most of this is just patching the current law around the edges, and addressing only those problems that the industry lobbyists would like to see fixed.  But it provides a context for asking a much more searching question about the utility of copyright in a digital age.  Does copyright actually serve its purpose, or any socially desirable purpose, in the current economic and technological environment?  What would it look like if we reformed the law in a way that paid close attention to that environment, rather than just listening to lobbyists for industries that are failing to adapt and want the law to protect them?

Let’s start with this report from The Atlantic about research into the effect of copyright protection on the availability of books.  This should be the “sweet spot” for copyright; if it does anything right, it should encourage the creation and distribution of books.  But the research reported in the article suggests just the opposite, that copyright protection, especially protection that lasts as long as it now does, actually depresses availability, so that more books are available from the decades just outside of copyright than from the most recent years.  Here is the conclusion of the researcher, a professor at the University of Illinois:

Copyright correlates significantly with the disappearance of works rather than with their availability. Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.

This is not really that surprising if we think about what happens in modern book publishing.  A title is published and sold for 3-5 years, at most.  Then other titles come along and push the “older” ones “off the shelf.”  The initial publisher no longer is interested in marketing the vast majority of these books that are 10 or 20 years old, and, because of copyright, no one else can do so.  So a vast black hole swallows up most of the works of our culture that are less than 95 years old.  Only as they reach the century mark do these works begin to reappear as reprints, because other publishers, and even members of the general public, can now reproduce and distribute them.

By the way, one of the ironies of this article, which helps to define and quantify what is widely known as the “orphan works problem,” is that many of the books that are unavailable actually may be in the public domain.  Because for much of the 20th century copyright had to be renewed after 28 years and most rights were not renewed (due to the same lack of interest by their publishers that sent them to the remainder table) many of these books could be reprinted, but the Byzantine tangle of rules and Copyright Office record makes it too risky for anyone to undertake the task.

As I say, this situation is not a surprise.  Back in 1970, then Harvard Law professor and now Associate Justice of the Supreme Court Stephen Breyer wrote about “The Uneasy Case for Copyright” (the link is to the article in JSTOR) in which he argued that copyright was not fulfilling its purpose very well and probably should not be dramatically expanded in the then-nearly-completed copyright revision process.  Unfortunately Breyer’s article had little impact on that process, which resulted in the 1976 Copyright Act, but the past forty years have proven that he was largely correct and the Atlantic article discussed above is just one of many pieces of evidence. But “the real force of Breyer’s article is in arguing that copyright must be justified in a particular economic context and that technological changes may modify economic conditions.”

This quote about Breyer’s “Uneasy Case” comes from a 2011 article by another law professor, Niva Elkin-Koren of the University of Haifa, called “The Changing Nature of Books and the Uneasy Case for Copyright.”  In her article, Professor Elkin-Koren carefully examines the technological changes and lays out the subsequent economic analysis, just as Breyer did back in 1970, for the eBook age.  If in Breyer’s day the case for copyright was “uneasy,” then in the digital age it is downright painful.  Were I to summarize Elkin-Koren’s conclusions in a single sentence, it would be this — what we need most in the digital environment is competition, and copyright in its current form suppresses competition.  The digital environment is fundamentally different than print, largely due to the lower barriers to entry into the publication market.  In this context, competition can be vital and beneficial, but the copyright monopoly threatens to help established players gain an even tighter stranglehold on the marketplace than was possible in the print era (and that grip was already too tight, as we have seen).  Placing Elkin-Koren’s work next to Breyer’s, it is plain to see that the harmful economic and cultural effects of our current copyright regime are more visible and more harmful than ever.

If copyright reform were undertaken in the context of this awareness, what would it look like?  Suppose we were willing to do more than simply rearrange the deck chairs, where might we end up?  Elkin-Koren suggests a possibility:

[A] legal right to control copies may no longer be useful in a digital environment.  One reason for the weakening strength of copyright is that the legal right against unauthorized copying is no longer effective in digital markets… In order to secure the rights of authors to a share in the commercial revenues extracted from their books it may suffice to simply define a legal right to receive compensation: a fixed share from any commercial use.

It is breathtaking to consider the consequences of this kind of lightweight approach to copyright, as opposed to the steady process of adding more and more restrictions and penalties that has characterized nearly all previous copyright legislation.  Harkening back to the first U.S. copyright law, perhaps a “right to vend” is all that we really need in the Internet era. Certainly this would bring competition into the digital marketplace for copyrighted goods, which would scare the entertainment industry to death!  It is a fantasy, I know, but I would love to see copyright reform discussions in Washington start from that simple baseline, and then have an open discussion (one not dominated by those lobbyists best known to legislators and bureaucrats) about the consequences, problems and additions, if any, that would be needed to make that simple proposal work.

More on the AHA, ETDs and Libraries

I wanted to be done with the American Historical Association and their muddle-headed statement about embargoing theses and dissertations for up to six years from open access in order to protect publishing opportunities.  I had hoped that the statement would receive the scorn that it deserves and we could all move on to discussing more serious matters.  And it has received a good deal of that well-deserved incredulity and disparagement, but there is still a bit of a debate going on — evidenced by this story in the New York Times — so I want to make a couple of additional points.

First, there is an article in Inside Higher Ed about the debate that does a pretty good job of summarizing the discussion, although it still treats the AHA’s statement with more seriousness than it deserves, in my opinion.  But one really telling tidbit from that article is the comment by the director of the Association of American University Presses that its members, whose wishes are supposedly being catered to by the AHA, were surprised by the statement.  Apparently he called over a dozen press directors after the statement was issued and found that none of them shared the concern that the AHA is so afraid of.  So one wonders, as I did in my last post, where the evidence is for the claim the AHA is making that ETDs imperil publication.

The AHA attempts to address this very question in an FAQ that was released shortly after the statement.  There, AHA Vice-President Jacqueline Jones directly pooses the issue of evidence, and answers like this:

This statement is based on direct communications between some AHA members and the acquisitions editors of several presses. In those communications, certain editors expressed the strong conviction that junior scholars placed their chances for a publishing contract at risk if their dissertations had been posted online for any length of time.

“Several presses” and “certain editors.”  This reliance on vague rumors seem to contradict what the AAUP director says that he found by calling his colleagues.  How are we to decide who is right with such unsupported statements?  Does this reflect the standard of evidence that is acceptable to historians? Even worse is the fact that in the same answer, Ms. Jones disputes the much more quantified study recently published in College and Research Libraries, which also contradicts the AHA, by asserting that only a small number of presses said revised dissertations were “always welcome” while a much larger number said that such submissions were evaluated on a case-by-case basis.  Ms. Jones suggests that the article authors take too much comfort in this portion of the responses they received to their survey.  But this misunderstands what is being said; all publishers evaluate all submissions on a case-by-case basis.  This is good news; it means your work will be considered (and, therefore, that the ETD was not a problem).  What, after all, is the alternative?  Even “always welcome” does not mean that all submitted dissertations will be guaranteed publication.  Does the AHA hope to return to a dimly-remembered time when all dissertations from elite universities, at least, were published without question and without revision?  If so, their rose-tinted nostalgia has lapsed into delusion, and the result is bad advice for graduate students.  If, based on this commitment to a past that never existed, a student decides to avoid an online presence for her work for five or six years, her career will be destroyed in this age where if you cannot be found online you might as well not exist.

Throughout this debate, lots of folks are making assertions about libraries that display a lack of awareness of how those institutions work.  Over and over again we hear that this fear of an online presence is because libraries will not buy monographs that are based on a revised dissertation if the unrevised version is available online.  And no matter how often librarians remind folks that this is not true, it keeps resurfacing.  Let me try again.  In 25 years as an academic librarian, I have never met a librarian who looks for an online version of a dissertation before buying the published, and presumably heavily revised, monograph based on that dissertation.  That is just not part of the process; most acquisitions librarians do not even know if there is an online version of the dissertation when they decide about purchasing the monograph; I certainly did not when I made these sorts of decisions. Libraries look for well-reviewed items that fit the curricular needs of their campus.  They may ask if the book is over-priced and/or too narrowly focused, and those questions may rule out many revised dissertations these days.  But they simply do not, based on my experience and discussions with many of my colleagues (more anecdotal evidence!), look to see if they can get an unrevised version for free.  Perhaps librarians trust publishers to have guided the revision process well, creating thereby a better book, while the AHA does not seem to value that process.

Occasionally in this discussion we have seen publishers assert the same fiction about library acquisitions, sometimes dressed in more sophisticated form.  They say that it is true that individual librarians do not make decisions based on OA ETDs, but that vendors like Yankee Book Peddler allow approval plan profiles to be designed so that revised dissertations are never considered.  This is true, but it does not prove what it is asserted to prove.  Many academic libraries, especially at smaller institutions that do not have a mandate to build a research collection, will exclude books based on revised dissertations from their approval plan because such books are likely to be very expensive and very narrowly focused.  Many libraries simply cannot put their limited funds toward highly-specialized monographs that will not broadly support a teaching-focused mission.  To try to use this situation to frighten people about open access is disingenuous and distracts us from the real economic tensions that are undermining the scholarly communications systems.

Finally, we should remember that dissertations have been available in pre-publication formats for a very long time.  The AHA statement talks about bound volumes and inter-library loan, but that is either extreme nostalgia or willful ignorance.  UMI/ProQuest  has offered dissertations for sale since the 1970s, and has sold those works in online form for years before ETDs began to pick up momentum.  And ETDs are not so new; early adopters began making electronic dissertations available a decade ago.  Duke’s own ETD program began in 2006, and we worked from the example of several predecessors. So why did the AHA wait until 2013 to issue its warning? Perhaps they took their own bad advice and nurtured their opinion until it suffered the same fate they are now urging on graduate students — irrelevance.

Meet me at the intersection

In March the ACRL published a new White Paper on Intersections of Scholarly Communication and Information Literacy: Creating Strategic Collaborations for a Changing Academic Environment which looks at the ways in which the dramatic changes taking place in the environment for scholarly communication have necessary consequences for nearly all librarians, and especially those who teach information literacy to graduate and undergraduate students.  As the current Chair of the ACRL’s Committee on Research and the Scholarly Environment, I had a small role in preparing the White Paper (most of the heavy lifting was done by Barbara DeFelice of Dartmouth, who chaired an ad hoc working group), and so was asked to take part in a program about the document and the issue at the ACRL Conference earlier this month.  On the morning of that program, I found in my email a link that led me into a fascinating story about exactly why this intersection can be so tricky to navigate, which I decided I would share here as well as at the panel discussion.

Coincidentally, the story involves a Duke professor, Dr. Mark Goodacre of Duke Divinity School, who is an active and engaging blogger on the general topic of the New Testament and early Christian literature.  Several years ago, Mark wrote a blog post outlining a possible approach to a long-standing problem in the interpretation of one of the non-canonical gospels, the Gospel of Peter.  By Mark’s own admission it was a casual piece of writing, as many academic blogs are (he calls it “random jottings,” but that is probably excessively modest).  Recently, however, an entirely non-casual peer-reviewed article critiquing Mark’s blog post has been published in a highly-regarded journal in the field.

Mark tells his own story, and links to the relevant documents, in this later blog post.  He also raises some interesting questions about the etiquette of the situation, which are discussed at length in the comments to the post.  The entire discussion is worth reading, but I want to make a specific comment about how it relates to those intersections of scholarly communications and information literacy.

One of the things that information literacy librarians spend a lot of time teaching about is the set of “signals” by which the scholarly authority of a particular work is measured.  Everything from the presence of footnotes to a notation that the article has been peer-reviewed can help students determine where on the continuum of authority a particular work they discover belongs.  Also, students learn from librarians and others how to “backtrack” from one article to find those conversation partners whose combined contributions help form a complete and coherent view of any particular issue.

Both of these basic skills are undermined, to some extent, by situations such as the one Mark recounts.  For one thing, it is perfectly possible that he could remove or revise his original blog post.  Now Mark is a scholar and a very astute blogger, so I would expect him to acknowledge and explain any subsequent changes he might make to that post.  But the possibility certainly exists, for this set of writings or for others, that the scholarly works under discussion could change or even disappear.  That possibility presents those who teach about research skills a new challenge — to explain and help students account for the potential impermanence of the scholarly record.  And even if they remain intact and unchanged, the challenge of helping students understand that a peer-reviewed work might be based on one that was never peer-reviewed, and consider what impact that possibility would have on their judgments about authority, persists.

I offer this anecdote as concrete evidence that the changing system of scholarly communications compels all librarians, and especially those who teach information literacy, to remain aware of what we might call the “socioeconomic” structure of information.  That is, the conditions — social, economic, legal and technological — under which different forms and types of information are created and disseminated.  We are witnessing, I believe, a radical disaggregation of scholarship, as new formats, new business models and diverse levels of accessibility become the norm for some disciplines and for many scholars.  Even in a humanities field like Early Christian Literature, which still preserves many of its traditional modes of communication, this splintering of once solid lines has its effect.  And for our students, whose entire information-seeking lives will be lived in an environment where technology, copyright and licenses control what they can find and what they can do with what they find, education on these matters is no longer optional.

It is precisely these changes, and the ever-more-pressing need to take them into account, that the ACRL White Paper is intended to document and encourage.  It deserves attention from the library community precisely because we cannot ignore the revolution in scholarly communications itself.

The O in MOOC

I am generally a poor speller, but even I understand that there are two Os in MOOC.  So for added clarity, let me state up front that this post will focus on the first O — the one that stands for “open.”  But I want to get to the discussion about that O in a slightly round about (pun intended) way.

Let’s start with an insightful article from the recent issue of Nature that contained several pieces about open access.  The one that caught my attention is “Open Access: The true cost of science publishing.”  The author, Richard Van Noorden, provides a wealth of detail, and a very even-handed analysis, about the varying cost of publishing an academic article. He is hampered, unfortunately, by on-going secrecy on the topic. Neither Nature, which is publishing the article, nor PLoS would not talk with him about actual costs.  Nevertheless, there is a great deal of information here, and it all points to the conclusion that logic alone would have suggested — open access publishing, especially by non-profit entities, is much the more efficient way to disseminate scholarship.

One thing Van Noorden is able to show very clearly is that almost all open access publication charges are lower than the average per-article revenue that traditional publishers earn.  The difference can be as much as between a $300 cost per OA article and the average $5000 revenue per toll-access one.  The difference can be accounted for in one of two ways –large corporate profit margins or inefficient publishing methods.  Whichever is the case, however, it is clear the open access is the better option.  These lower costs are among the many reasons that open access provides a much greater benefit to academia than the traditional, pre-Internet system can.

Inspite of this documented good news about OA, however, the article ends on a discouraging note, or perhaps it is better to say a note of frustration.  Open access is obviously growing every year, but it is not growing as quickly, except where it is mandated, as it’s obvious superiority would suggest.  So at the end, the article leaves us to speculate on the incentives faculty authors have for choosing, or not choosing, OA.

And that brings me back to the “open” in Massively Open Online Courses.  The growing popularity of MOOCs, and their potential, parallel to that of open access itself, to revolutionize higher education, is a new and powerful incentive for scholarly authors to rethink access to their publications.

The fundamental driver behind the growth of MOOCs is the desire to expand the scope of our educational mission and to reach a global community of students we could not otherwise serve.  Seen in that light, the “open” in MOOC is key.  Part of our commitment as institutions participating in MOOCs is to try very hard not to erect financial barriers to participation in these courses.  We resist the normal urge to require textbook purchase, for example.  Our instructors are encourage to recommend but not require books for purchase (with the result, BTW, that sales for the merely-recommended books nearly always skyrocket). But this commitment to keeping the courses open for students also means that we look for an increasing amount of open content for teaching.

When our instructors want to provide readings for students taking a MOOC, we generally pursue one of two options.  Either we negotiate with publishers, who are slowly figuring out the marketing advantage they gain by allowing small excerpts of books and textbooks to be made available freely, or we look for OA content.  Unfortunately, the negotiation option is slow and labor-intensive; often we must explain the purpose and the conditions over and over again, to ever-shifting groups of officials, before we can get a decision.  So open access is ever more important, because more efficient, for our MOOC instructors and their students.

One story will illustrate this growing interest in open access.  A faculty member who was recently preparing to teach his first MOOC wanted his students to be able to read several of his own articles.  When we asked his publisher for permission on his behalf, it was denied.  A rude awakening for our professor, but also an opportunity to talk about open access.  As it turned out, all of the articles were published in journals that allowed the author to deposit his final manuscripts, and this author had them all.  So we uploaded those post-prints, and he had persistent, no-cost links to provide to the 80,000 students who were registered for his course.  An eye-opener for the author, a missed opportunity for the publisher, and a small triumph for our OA repository.  Enough of a triumph that this professor has begun asking colleagues if they could deposit post-prints of their own articles in the repositories at their institutions so that he can use those for his MOOC students as well.

So when we are counting up incentives for open access publishing, whether Gold or Green, lets remember that the massive opportunity that is represented by MOOCs is also a new reason to embrace open access.

We’re not done with First Sale

In the Supreme Court’s Kirtsaeng v. John Wiley decision, libraries caught a big break.  But it was really no more than an affirmation of the status quo — libraries can still lend materials manufactured in other countries, students can still resell their textbooks regardless of where they were printed, and consumers and stores can sell second-hand books, CDs and DVDs.  The “break” for libraries is in the danger we avoided, but the legal result is that the doctrine of first sale was NOT radically reordered to suit the demands of publishers for a “super property” right.  Nevertheless, the effort by the content industries to secure ever-greater control over secondary markets is continuing, and last week a decision about first sale as it applies — or, more accurately, does not apply — in the digital environment has supported that unprecedented level of control.

The case involves the digital music re-sale service ReDigi, through which subscribers can sell their digital music files through a complex process that is designed to ensure that the original owner absolutely cannot keep or access a copy of the music file once it has transferred to another subscriber who has purchased it.  From the trial court’s description of the process, it is very clear that ReDigi was trying to comply with a reasonable interpretation of the doctrine of first sale for the digital age.  Most of their system was intended to enforce a “forward and delete” version of first sale that would seem to embody the spirit of what that doctrine is trying to accomplish.  Unfortunately, Judge Richard Sullivan of the Southern District of New York found that ReDigi had moved too far beyond an obsessively close reading of the letter of the law.

Judge Sullivan’s order is a close analysis of the wording of the doctrine of first sale, found in section 109 of the Copyright Act (Title 17 of the U.S. Code) and a very “physical” understanding of the digital world.  The question he is addressing is “whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine.”  The judge answers that question with a resounding no.  His decision is based first, on the conclusion that the reproduction right in copyright is implicated whenever the copyrighted work is embodied in a new “material object” and that each movement of a digital file from one server location to another is a new material object.  “It is simply impossible,” Judge Sullivan writes, “that the same ‘material object’ can be transferred over the Internet.”  Since each movement from server to server, or from one segment of a server to another, is a reproduction, the Judge holds that the files sold over ReDigi are unlawful reproductions.  First sale, furthermore, cannot apply to such copies.  He is very explicit about this: “it is therefore impossible for the user to sell her ‘particular’ phonorecord on ReDigi… the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce.”  There is no first sale — none at all — on the Internet, even without licensing restrictions on transfers.

The Judge does address very briefly the argument that this attempt to impose the analysis from the analog world onto the digital environment would have damaging implications for all kinds of consumer digital products, since reproductions are made all the time in ordinary computer maintenance activities and when content is moved from one device to another.  But he dismisses that concern as a “red herring” because “other doctrines or defenses” protect such activities “almost certainly.”  But he does not say which doctrines or defenses, and the fact that he has to resort to this vague reliance on the idea that the obvious negative outcomes from his decision will not come to pass shows that the decision is problematic from a policy perspective.

Indeed, it seems to me that Judge Sullivan is legally correct in his analysis, and thereby demonstrates that legal accuracy is not sufficient for this rapidly changing technological environment.  I think even he recognizes that the ruling he is obligated to make is not satisfactory; in regard to the policy implications of what he is doing, he falls back on that old judicial claim that he is not allowed to legislate from the bench, and that Congress must fix the problem he is creating.

Congress should take up Judge Sullivan’s invitation.  It seems clear, in light of Kirtsaeng, that Congress will be asked to modify first sale this term.  They should resist the publisher’s pressure to “fix” the Supreme Court’s sensible decision to leave consumers in no worse position than they have been in since 1908, but they can still readjust first sale to make it work for consumer sales of digital materials on the Internet.  They should consider Justice Kagan’s suggestion, in her concurrence in Kirtsaeng, that Congress fix the result from the Quality King case that read first sale as a limitation on the importation restrictions in section 602 of the Copyright Act. And they should recognize that the principle of “you bought it, you own it” is foundational to commerce, and in the absence of a negotiated agreement to the contrary, it should apply to the digital world.  So Congress has a chance to look at the very reasonable business model that ReDigi put in place and find ways to authorize it under a modified doctrine of first sale.  Unfortunately such reform, if it were to happen, would come too late for ReDigi and its customers.

The collision of copyright and e-science

Last week I was attending a meeting on campus that had nothing to do with e-science (which today refers to virtually all science, I suppose) when a very fortuitous event occurred.  Professor Jerome Reichman of the Duke Law School handed me a copy of the April 2012 issue of the Minnesota Law Review (vol. 96, no. 4).  That entire issue is an article written by Reichman and Professor Ruth Okediji of the University of Minnesota Law school called “When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods in a Global State.”  It is a long article at 118 pages, although, because of the structure and conventions of law review articles in general, it is a quicker read than one might expect.  More importantly, however, it is a very rewarding excursion into the ways that copyright law around the world have developed and become an obstacle to scientific research, an even more “immediate and pervasive threat”, the authors suggest, than the more attention-grabbing problem of patent thickets.

The purpose of this post is to summarize the article and commend it to those who want more.  The growing interest in e-science on campuses makes this a timely topic; we need to understand the potential difficulties that copyright law can create for digital research and scientific communications. And I have to begin by saying how grateful I am to Jerry Reichman for making the effort to keep me current with the work he and Ruth Okediji are doing.  They are superb scholars whose work could and should have a direct impact on how universities support research and advocate for laws that facilitate, or at least do not impede, that research. Their joint work has tackled scientific issues and IP before, so I am delighted they are turning their considerable intellects to copyright and science.  Jerry is also a good friend and, as I now know thanks to my young cousin who had him as her Contract Law professor a couple of years ago, a fine teacher.

Reichman and Okediji begin their article with an historical examination of the “growing divide between copyright law and scientific research” that encompasses both the unique conditions in the U.S. and international obstacles to science that arise out of the complex of treaties and directives that are now in place.  They demonstrate convincingly that the traditional balance that has facilitated scientific research for years has been subverted recently by a variety of factors.  Among these unhappy developments are the trend toward ever more protectionist approaches to copyright, database protection rules in the EU and judge-made protection for facts and data in the U.S.,  the use of technological protection measures to lock up data that would otherwise be free for scientific reuse, and an overemphasis on the so-called three-step test from the Berne Convention, which is too often applied without any normative guidance.

In the course of this discussion, Reichman and Okediji make an interesting observation about limitations and exceptions to copyright in general, and fair use in particular.  They note that the traditional European approach to exceptions focuses on specific, narrow exceptions that lack flexibility.  There is little surprise in their conclusion that the EU needs the flexibility of fair use.  But they are also critical of the “all or nothing” approach that fair use fosters, where a use is either forbidden as infringing, or, if found to be fair use, does not allow for any compensation of the rights holder.  In some situations, they suggest, especially when the path to scientific progress leads through commercial users, a “take and pay” rule, similar to what is found in the EU three-step test, might be welcome.

The overall situation that Reichman and Okediji outline is most unpromising, as they suggest that the rights of scientific users are shrinking even in the area of print media, and have been virtually eliminated for science conducted in the online environment.  Again, the growing trend toward copyright or copyright-like protection over data is a large part of the problem.

In the area of e-science, Reichman and Okediji offer scientific research a Hobson’s choice between ignoring laws that have become unmanageable and unreasonable, or foregoing research opportunities.  The two paragraphs in which they lay out these unavoidable options are worth quoting in full:

If the relevant intellectual property laws were strictly enforced, and the scientific community continued to respect them, scarce public resources earmarked for basic research would be siphoned off to intermediaries from scientists seeking access to and use of their own published research result.  In that event, the public pays twice for the same output, plus a surcharge for mushrooming transaction costs … Less innovation, not more, is the predictable result over time.

Conversely, if intellectual property laws are ignored by researchers determined to carry on with their work irrespective of unreasonable legal constraints, automated knowledge discovery tools will become transformed into engines of massive infringement.  It is hard to see how systematic disregard of intellectual property laws, coupled with growing contempt for the legislative process that fosters them, will benefit authors, artists and other creators in the long run, especially when those condemned to outlaw status are not free-riders on costly musical and cinematic productions, but publicly-funded scientific researchers in pursuit of greater knowledge and applications that benefit humanity as a whole.

This is a situation that cries out for reform, and it is clear from the above that reform must begin by distinguishing scientific and academic research from commercial productions.  One-size fits all copyright laws are failing the scholarly community, and legislators and judges need to begin to treat scholarly works differently.  Fortunately, Reichman and Okediji provide us with a detailed set of recommendations about what kind of reforms are needed.

One reform they suggest that judges could accomplish would be the aforementioned “take and pay” approach to some uses that might otherwise be defended, probably unsuccessfully, as fair use.  The authors point out that Justice Souter suggested just such a possibility in a footnote to the Supreme Court’s decision in Campbell v. Acuff-Rose Music (the “Pretty Woman” case) but no judges have, up till now, taken the hint.  The discussion from Reichman and Okediji on this point alone justifies a close look at the article.

Many of the other reforms they suggest are grouped under the heading “What E-Science Really Needs from Any Legislative Reform.”  In that astonishing collection of suggestions, Reichman and Okediji include a tailor-made exemption for scientific research, rules allowing the breaking of technological locks more freely for research purposes, and limitations on the ability to override copyrights limitations and exceptions by using terms of use and other contractual arrangements.  And one other that we should mention that is particularly relevant in the international context is an alignment between database protection rules and copyright exceptions.  Not only should copyright exceptions be used to adjust database protection laws, say the authors, but these exceptions, both as the apply to copyright per se and to sui generis data protections, must be “preemptory, mandatory and immune from both contractual overrides and TPMs” (citing a report from the Max Plank Institute).

There is so much to digest in this article that I feel a little abashed trying to summarize it.  But one thing is certain, I think.  The attention that Reichman and Okediji shine on the conflict between copyright laws and scientific progress is simultaneously profoundly welcome and deeply troubling.  Welcome because we must look at the problem squarely and honestly, and troubling because we have such a long way to go to solve it.

Is the Web just a faster horse?

On Monday the Duke Libraries celebrated Open Access week with a talk by Jason Priem that was ostensibly about alternative metrics for measuring scholarly impact – so-called AltMetrics.  Jason is a Ph.D. student at the University of North Carolina School of Library and Information Science, a co-author of the well-regarded AltMetrics Manifesto, and one of the founders of the Web tool called ImpactStory.  In addition to his public talk, Jason gave a workshop for a small group of people interested in how ImpactStory works; you can read about the launch of that tool in this article.

So Jason is as qualified as anyone to talk about AltMetrics, and he did so very well.  But his talk was much broader than that subject implies; he really gave a superb summary of the current state of scholarly communications and a compelling vision of where we could go.  For me the most memorable quote was when he said, toward the end of his talk, that the Web had been created to be a tool for scholarly communications, yet while it had dramatically changed many industries, from bookselling to pornography, it had not yet revolutionized scholarly publishing as it should.  The problem is that publishers, and, to some extent, authors, are treating the Web as simply “a faster horse” and not truly exploiting the possibilities it offers to change the way scholarship is done.

Jason began with some history, pointing out the the earliest forms of scholarly communications were simply direct conversations, carried out through letters.  The first scholarly journals, in fact, were simply compilations of these sorts of letters, and you can still see that venerable tradition reflected in some modern journal titles, like “Physical Review Letters.”  But the modern journal, with its submission process, peer review, and extremely delayed publication schedules, was a revolution and a dramatic re-visioning of how scholars communicated with one another.  Certainly there were significant gains in that new technology for communication, but things were lost as well.  The sense of conversation was lost, as was immediacy.  Now, according to Jason, we have the ability to recapture some of those values from the older model.

Another dramatic change in scholarly communications was the movement called “bibliometrics,” which led to the creation, in the early 1960s, of the citation index and the journal impact factor.  Like the journal itself, the impact factor is so ingrained in our current thinking that it is hard to remember that it too was once a new technology.  And it is a system with significant problems.  As Jason said, the impact factor can track only one kind of person, doing one kind of research by making one kind of use.  The impact factor cannot track non-scholarly uses of scholarly works, or even scholarly uses that are not reflected in another journal article.  Also, true social impact , the kind of policy-changing impact that many scholars would see as an important goal, is seldom reflected in an impact factor.  The problem we face, Jason argued, is that we have confused the kind of use we can track with use itself.  In the process we often miss the real heart of scholarship, the conversation.

In the digital age, however, we can begin to track that conversation, because much of it is taking place online. AltMetrics, by which we teach computers how to look for a variety of article-level citations and discussions, offers the chance to analyze the scholarly environment much more thoroughly, and give individual scholars a much clearer and more comprehensive story of their real impact.

One connection that was hard for me in Jason’s talk, but ultimately persuasive, was his discussion of why Twitter is important.  I admit to being a reluctant and unenthusiastic Twitter user.  This blog post will be distributed via Twitter, and most of my readers seem to find what I write that way.  But still I was startled when Jason compared Twitter to that earliest form of scholarly communications, the conversation.  What was new to me was to think of Twitter as an opportunity to have a preselected jury suggest what is important to read.  If I follow people whose work is interesting and important to me, and they are all reading a particular article, isn’t it extremely likely that that article will be interesting and important to me as well?  And isn’t that peer review?  We sometimes hear that peer review is professional evaluation while Twitter is merely a popularity contest.  But Jason challenged that distinction, pointing out that if we follow the right users, the people whose work we know and respect, Twitter is a scholarly tool in which popularity becomes indistinguishable from professional evaluation.  Since many scholars already use Twitter, as well as blogs an e-mail lists, in this way, it is fair to say that new forms of peer-review have already arrived.  The AltMetrics movement aims to track those other forms of scholarly impact.

Jason ended his talk with a proposal to “decouple” the scholarly journal, to recognize that journals have traditionally performed several different functions — often identified as registration, certification, dissemination and archiving.  Some of those functions are now trivial; why pay anyone for dissemination in an age when an article can be distributed to millions with the click of a mouse?  Other functions, especially certification (peer-review) are changing dramatically.  Jason suggested that peer-review should be a service which could be offered independently of how an article was to be disseminated.  Scholarly societies especially are in a good possession to provide peer-review as a service for which scholars and their institutions could pay when it was felt to be necessary.  but in an age when so much peer-review is already happening outside the structure of journal publication, it is clear that not all scholarship will require that formal service.  So in place of the rigid structure that we have now, Jason suggests, illustrates, and enables a more flexible, layered system of scholarly networks and services.

As should be obvious by now, I found Jason’s talk for Open Access Week provocative and thought -provoking.  I hope I have represented what he said fairly. I have tried to indicate where I am paraphrasing Jason directly, and he should not be blamed for the conclusions I draw from his comments.  But for those who would like to hear from Jason directly, and I highly recommend it, he and several other leaders in the area of AltMetrics will take part in a webinar sponsored by NISO on November 14, which you can read about and register for here.  You can also finds slides and a video from a presentation similar to the one he gave at Duke here.

Coming clean on technological neutrality

It is not a case that draws much attention from higher education circles, but the case of WNET et al. v Aereo has drawn an amicus brief that should worry anyone who is interested in how copyright law serves or inhibits innovation and competition.  What is most disturbing is that the gross misunderstanding of how copyright law is supposed to work has come from former U.S. Registrar of Copyright Ralph Oman, now a “Professional Lecturer” in IP at the George Washington law school.

The case is brought by television broadcasters against a service that offers to take broadcast TV off the air and stream what it receives to its online subscribers.  I have no opinion on the merits of the case, although it is interesting to note, as this outraged post about Oman’s brief does, that the service was carefully structured to try to remain within the boundaries of the law as the courts have interpreted it.  And, as someone who has long wanted to “cut the cable,” I might be interested in the Aereo service if it is upheld.  But it is not the arguments or the merits that should concern us, it is the approach that former Registrar Oman takes in his brief on behalf of the plaintiffs.  Here is the central quotation that is so troubling:

Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.

This is an extraordinary statement, suggesting that the Copyright Act was intended to force all innovators to go to Congress before beginning any service that might threaten some established form of exploiting the rights of copyright holders.  It is a recipe for economic suicide in a digital world, apparently willing to sacrifice the gains we can make through rapid innovation, new markets, and online opportunities to the goal of protecting the legacy industries from any need to adjust their business models.

More to the point, the law is not silent or ambiguous on how new technologies and business that are built on them should proceed.  Registrar Oman starts his brief by stating that,

There can be no serious dispute as to whether rights under the Copyright Act are broad, subject only to specific, narrow limitations enacted by Congress and that new developments in technology are not supposed to be able to truncate those rights.

To make this statement, Registrar Oman conveniently forgets fair use, which is not mentioned once in his brief.  Now I do not know if a serious fair use defense was raised on behalf of Aereo (they are apparently in the Appeals Court over the refusal of the District Court judge to grant a preliminary injunction).  But fair use is in our law, even if Registrar Oman (who helped draft the 1976 Act) apparently does not like it.  In fact, it is the first of the exceptions to the exclusive rights that is listed in the Act, and it is not specific and narrow.  It is deliberately open-ended and flexible, giving our law space to accommodate new technologies (like the VCR) and even new business models (like Google).  Apparently Registrar Oman wants to ignore fair use, and would prefer to force each of those new technologies and businesses to go to Congress for explicit permission before offering their products and services.  How much economic growth and how many new jobs would be lost if Congress and our courts took this approach?

The real problem with this brief, or perhaps the place where it is most honest, is that it seems to completely jettison the argument that copyright law should be technologically neutral.  It is ironic because the content industries often use that assertion to suggest that precedents from the print environment should be applied, when they are favorable to those industries, directly to digital activities.  For example, the plaintiffs in the Georgia State case used the claim that copyright is supposed to be technologically neutral to support its analogy between what GSU was doing with electronic reserves and the earlier cases about printed coursepacks.  In fact, the plaintiffs in that case even complained that the judge had applied a different standard to digital copies, which was nonsense.  At that point, technological neutrality was a battle cry.  But now, when such neutrality would seem to favor Aereo, Registrar Oman argues on behalf of the rights holders that every new technology should be treated differently, presumed to be illegal, and subjected to legislative scrutiny before being allowed.  What has happened?

The most obvious difference is that in the GSU case, the rights holders thought that the argument about technological neutrality would help them.  They hoped the Judge would ignore the distinction between the coursepack cases, in which a commercial intermediary was involved, and the entirely non-profit, educational situation at GSU.  By asserting that “the same law” applied in print and in the digital realm, they were hoping to obscure a substantive difference behind a rhetorical smoke screen.  As I have noted before, talk of technological neutrality is often more of a rhetorical strategy than an actual commitment.  In the Aereo case, the law as it stands looks more favorable to Aereo’s business model, so this brief on behalf of the rights holders takes a new and shocking tack by asserting that every new technology should be presumed to be infringing until proven otherwise.  Registrar Oman seems to be saying that we should not even try to apply the current law to new situations, but to presume that new technologies are always bad things and make their proponents argue their case to Congress before any new innovation is allowed.

The problem, of course, is that the GSU plaintiffs were right; the law really is supposed to be technologically neutral.  The same law is supposed to apply in both the print and the digital realm.  Where the GSU plaintiffs were wrong was in the application, not in the principle they stated.  And where Registrar Oman is wrong is in suggesting that we cannot even try to apply the law to new technologies.  The presences of fair use in our statute is testimony to the intention to give US copyright law the flexibility to adapt to new technologies, so it is no surprise that the former Registrar can only make his argument by ignoring its existence.

Technological neutrality is something that copyright laws need to strive for, because it is what avoids the need to make large-scale changes in the law every time a new technology — the player-piano, the radio, or the video recorder — comes along.  But it is a goal from which the law often falls short.  As Tomas Lipinski argues in this article, the control that the content owners want to assert over digital uses has had the effect of undermining the principle of technological neutrality.  It is a compelling, and distressing, argument; if one needs additional evidence for it, one need look no farther than the radical proposal made by former Registrar Oman to treat each new technology with suspicion and presumptive condemnation.  Presumable Oman’s brief is just another strategy, made to assist a particular plaintiff and with no thought about the consequences his argument would have as policy.  Because those consequences would be disastrous.