Category Archives: Uncategorized

A week of copyright principles

Starting today, the Electronic Frontier Foundation is sponsoring Copyright Week, which will last for six days.  Each day is dedicated to one of six principles that, EFF asserts, should guide copyright policy and practice.  They are, in my opinion, excellent principles, that really connect back to the original purpose of copyright as an engine for cultural growth and development.

Copyright Week begins today, and the first principle is “Transparency.”  Transparency is always an important element of public policy, and recently it has been especially threatened by bilateral and multilaterial trade negotiations, which take copyright discussions out of the (relatively) public arena of lawmaking and move them to the often quite secret space where a few bureaucrats work out agreements with little regard for the overall public interest and little awareness of consequences of their agreements outside of their limited vision.  That kind of negotiation and back room dealing brought us SOPA two years ago, and it is no coincidence that Copyright Week, which will end on the second anniversary of the “great SOPA blackout,” kicks off with the newest SOPA-like threat, the “Trans-Pacific Partnership Agreement” or TPP.

Partners in the Copyright Week program include the American Library Association and the Association of Research Libraries.  To get the ARL’s take on TPP, please read this blog post.

The overall schedule for Copyright Week can be found here, where each day a set of links about the theme for that day will offer readers perspective on the principle for that day.  You can also follow the ARL’s Policy Notes blog for the principles and links. It promises to be an interesting and informative six days; a chance for all of us to learn something and to gain a more comprehensive view of the copyright debates that are going on around us.

The Future of Research Libraries, part 2

To finish my thoughts about the Duke University Libraries Seminar on the Future of Researc h Libraries and the presentation made by Professor Ian Baucom, I want to turn to the final two issues we discussed – globalization and publishing.  And I want to be very clear that although I refer to Ian’s remarks a lot, these posts are based on my memories of, and conclusions from, what he said; I am solely responsible for anything that seems over-simplified or poorly-reasoned; Ian is much too smart to be blamed for such failings.

Support for the increasingly global mission of universities, including Duke, is a difficult problem for academic libraries.  We are accustomed to thinking in terms of collections tied to a physical location, of course.  In the digital age, we also are beginning to think of a global digital library; lots of the efforts toward public access and open access are directed toward the goal of a global library of digital resources that is accessible to all.  But Ian reminded us that it is wrong to think of this as a clean disjunction.  In between these two options, the physical domestic collection and the entirely digital global one, are the satellite campuses that many schools, including NYU (in Singapore) and Duke (in Kunshan), are beginning to operate.  As Ian told us, the global university really has three foci — the “original” domestic campus, overseas campuses in diverse parts of the world, and the online campus that is truly global.  Universities are stretching out in all of these directions, and libraries will continue to be challenged to provide support for the full spectrum of global education.

One thing I especially liked in Ian’s discussion of global education was his approach to MOOCs.  Throughout his talk, Ian emphasized the difference between offering a bunch of courses and teaching a curriculum; in a sense this is a version of the distinction between information and knowledge.  MOOCs, at this point, are largely collections of classes that individuals can take for personal enrichment and, sometimes, for specific, “one-off” types of credit.  But we have yet to see a workable curriculum based on such open online courses, although that may come eventually.  Until then, the importance of all three parts of the vision Ian outlined for global education remain important; as we expand globally, we cannot leapfrog over those physical centers for education, because they offer what purely online education as yet does not — a way to pursue an organized and intellectually coherent course of study.

The issue of publication arose in the conversation partly from Ian’s emphasis on interdisciplinary study and partly from the discussion of global learning.  I specifically asked Ian about the impact of increasingly interdisciplinary research on the publication of scholarship.  He responded by talking about his own work in environmental humanities.  When he began that collaborative work with climate scientists, he said, there was no obvious outlet for scholarship in this area.  Because it defied the traditional niches of scholarship and because it was developing so quickly, traditional publication outlets were unavailable or inappropriate.  Over time, outlets for this area of scholarship have developed, but, Ian told us, they are mostly directly online and openly accessible.  In short, the needs of rapidly developing interdisciplinary scholarship have caused it to leap over traditional publishing and move directly online.  The journals and online centers for this area of scholarship that have developed are very high quality, Ian said, but he reminded us that libraries have an important role to play in this evolution of publication venues that do not participate in the traditional imprimatur process of impact factor and journal branding.

In regard to the global focus of education, Ian made an interesting point about the “flow” of scholarship.  As we begin the process of of expanding our reach globally, we often think about how to make English-language scholarship more broadly accessible abroad.  But scholarly work is already happening in all of the nations to which we wish to expand; our potential partners are also producing work, and familiarity with that scholarship is likely to be as necessary for successful partnership as their familiarity with American work.  So Ian suggested that there was a huge opportunity for libraries to work on “reversing the flow” and beginning to organize to translate major works of contemporary scholarship from other nations into English.  Presumably this would require very targeted efforts and extensive collaboration.  Indeed, perhaps the best lesson from this suggestion, and from Ian’s entire talk, was that libraries need to have large, even outrageous, ambitions, but also to accept that none of us can realize those ambitions alone — we will need lots of collaborators — and that we must accept small-scale projects as the gateway to large-scale change. As the old union organizing song tells us, many stones can form an arch, but singly none.

Finally, I want to share a reflection I had about how we measure the value of libraries in this age of change and the de-emphasis on physical collections.  For years the ARL focused its metrics of quality on the size of those physical collections of books and journals.  Some years ago, it moved to looking at expenditures, as a way to account for all the resources that libraries were buying that were not physical and thus not amenable to enumeration.  But today, when new and high-quality resources are springing up online that do not offer either a way to be physically counted or a cost that can be tabulated, and especially as libraries themselves begin to “publish” such resources, even expenditures seems an inappropriate metric.  What we really need is a way to count readers, to tabulate the differences we have made in the scholarly lives of faculty, staff and the broader public, whether that impact was accomplished through books that were checked out, journal packages that were purchased, open access resources that we have hosted or digital collections that we scan and curate.  If librarians want to compete to feel good about our continuing role in the fast-changing world of scholarly communications, we should look at the lives we touch, rather than becoming too attached to the formats and costs of the resources through which we touch them.

Protecting IP?

The American Association of University Professors recently issued a draft report, seeking comment, on the topic “Defending the Freedom to Innovate: Faculty Intellectual Property (IP) Rights After Stanford v. Roche.”  The report is very interesting; a strongly-worded warning that universities might be trying to assert more ownership over the IP rights in works created by faculty as the potential monetary value of that IP continues to rise.  I want to make one comment about the report itself, and then use one of its significant themes to make some further observations.

By way of background, Stanford v. Roche was a patent dispute that was decided by the Supreme Court in 2011.  At issue was a diagnostic test for the HIV virus that was developed by a Stanford faculty member who worked both in a Federal-funded lab at Stanford and for a private biotech company.  Part of the problem was conflicting language in the two employment agreements — when he joined the Stanford faculty, Professor Holodniy agreed that he would assign the rights and title in his inventions to Stanford, but when he was employed by Cetus, his agreement “hereby” assigned those rights in anything he invented to Cetus.  The Supreme Court held that the immediate assignment in the Cetus contract overrode a promised assignment in the Stanford contract.  Along the way they rejected Stanford’s proposed interpretation of the Bayh-Dole act claiming that that Federal law required that Universities receiving Federal funds own the patents in inventions that came out of those labs.  Instead, the Court affirmed that eligibility for patent rights (they are not automatic) vests initially in the inventor and are then subject to assignments made by employment contracts.  Universities are allowed to own and exploit patents to inventions that arise from work done by their faculty under federal grants, according to Bayh-Dole, but they do not automatically own those rights under the legislation.  Since the Roche assignment was immediately effective, it trumped a promise to assign made in the Stanford contract.

The AAUP report focuses on the declaration that faculty own those inchoate patent rights, at least in the absence of a direct and immediate assignment to the university.  But it is important to recognize that Stanford v. Roche involved compete assignments of those rights, both of which were made as conditions of employment.

That is why I am troubled by the easy analogy that the AAUP report makes between patent rights and copyright.  It suggests in several places that ownership of copyrighted materials could be treated as employer-owned, just as Stanford was allegedly suggesting patent rights should be.  But the report doesn’t really offer much substance behind this threat, citing only a conflict of interest policy at the University of Pennsylvania, which has no bearing on copyright ownership, and an academic article written by some university attorneys.  Yet copyrights are really quite different.  Unlike patents, they arise automatically as soon as original expression is fixed in a tangible medium of expression.  Patent rights, on the other hand, require an application process that is long, costly and requires the specialized services of a patent lawyer.  It is odd to me that in the section of the report defining the different types of IP rights, this difference is not mentioned.

The reason this seems significant to me is because it provides a possible rationale for a university to make a claim over patents developed on campus, and that reason does not apply equally to copyrights.  When an invention developed on campus is patented, often the university invests significantly in obtaining those rights; unlike copyrights they do not simply arise directly as fruits of the research.  While copyrights really are just spontaneous developments from the direct tasks faculty are hired to do, patent rights are not, even if the inventions themselves are.  Patent rights cost money — often something over $20,000  — well beyond the investments made in the research itself.  So even if we accept the AAUP’s argument that the investment a university makes in supporting the research that leads to an invention should not automatically give that institution a right to share in any profits, the investment in actually obtaining the rights over that invention also needs to be considered.  And the fact that no similar costs are associated with copyrights provides a sound reason, in my opinion, for the normal differentiation, which is that institutions make no or limited claims over copyrights (as “work made for hire”) but assert a greater interest in patent rights, if they can be secured.

What really struck me about the report, however, and it is an emphasis I fully agree with, is its argument that both the universities and faculty research share an obligation to put scholarship in the service of society:

Patents are regularly used in industry to exclude others from using inventions.  But faculty members should often be focused instead on creating conditions that give the public access to inventions… Commercial development of university knowledge to stimulate economic growth is unquestionably good.  But some administrative practices associated with patenting and licensing operations may negatively affect economic growth as well as scholarship.

This is exactly right.  In both the patent and the copyright arenas, concern for social welfare and the maximum impact of scholarship on economic and cultural development should have pride of place in IP practices.  But in the copyright arena, we need to acknowledge that it is not usually institutional policies that undermine public access and economic development, it is the ingrained practice of giving copyrights away for free to commercial interest so that they can be exploited for private gain.  It is unfortunate that the AAUP does not take the next step in its logic and remind its members that making provision for open access is a vital part of the commitment that the Association encourages.

“[F]aculty members should often be focused instead on creating conditions that give the public access.”  To do this, faculty authors must move beyond the practice, tied as it is to centuries-old technology, of surrendering copyright without remuneration AND without any guarantee that the fruits of their research will actually reach those who could benefit most from them.

During this Open Access Week, I hope the AAUP will look at this obvious extension of the appeal it is making in its draft report.  University exploitation of patents may well be a threat to academic freedom and to public benefit, but so are the commercial companies that exploit the copyrighted products of academic labor for huge profits and lock up access to scholarship in order to defend those profits.  Universities are harmed by this system, scholars are harmed by it, and society is harmed by it.  The threats against which faculty IP rights need to be defended come from several directions, and the AAUP needs to recognize that.

Many people probably saw this story about a scientist who inquired about payment after she was asked to blog on a prominent scientific web site and was called a “whore” for declining to provide her writings for free.  There are troubling gender and racial dynamics behind this outlandish reply, of course, but it also strikes me as very telling about the attitude toward scholarship and the value of copyrighted work.  The expectation that scholars will give away their work for free is so ingrained that any suggested departure is treated quite rudely, to say the least.  The result is that faculty scholarship makes money for lots of people, but not for the authors (at least, not directly) and certainly not for their universities, who have to pay millions to buy back the work they supported in the first place.

If we stop and think about it, this is an offensive situation.  The remark of that blog editor has the salutary effect of illustrating just how offensive the routine expectations of publishers really are.  Scholars need to defend their IP rights, as the AAUP report calls on them to do, and that defense should start with a refusal to transfer their copyrights without much stronger assurances that their work will be available to provide the social, economic and scholarly impact for which it was written for in the first place.  Perhaps the AAUP could begin to organize that kind of response, in order to make good their commitment to public access and economic growth.

 

 

Repeating myself about the WIPO treaty

I do not usually link and re-post my own work on this site, but this situation is a little different.  I have written two columns for Library Journal’s Peer-to-Peer column about the WIPO’s successful negotiations to arrive at a treaty dealing with copyright limitations for the blind and visually impaired.  It seems odd  not to address those negotiations and the treaty that came out of them at all in this space, but there is also no reason to reiterate what is available on the Library Journal site.

So in the interests of appropriate inclusion and efficiency, here is the link to the column I wrote before a treaty had been agreed on, and here is the column released today that addresses the result of the negotiation process.  There are lots of other sources of information about the treaty, but I hope readers find these comments useful.

 

 

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.

International First Sale is upheld

The decision in the Kirtsaeng v. Wiley case was released this morning, and the outcome is wonderful for libraries.  I have not had the chance to read the whole opinion yet, but the upshot is that the Second Circuit rule that said that First Sale applied only to materials manufactured in the United States was reversed.  The Supreme Court majority appears to have ruled that First Sale applies to all non-pirated goods — that is, all works that are originally manufacture under authority of the rights holder in a way that would entitle them to protection under U.S. law.  In other words, if the work can be protected by copyright in the U.S., it is also subject to the rule in the U.S. that allows library lending and second-hand sales.

The opinion is here.

It appears that the Court took very seriously that “parade of horribles” that were suggested if they upheld the Second Circuit — libraries would be unable to lend some materials without a license from publishers., student could be prevented from buying or selling second-hand textbooks, etc.  According to the Court, these were too distressing, and too likely to occur.  Furthermore, the Court held that a “non-geographical” reading of the language of First Sale in section 109 of the Copyright Act is a more sensible construal of the words that are actually used.

It seems that libraries have really ducked a bullet here.  Business as usual is the way forward, for which we must be grateful to the Supreme Court.  We probably should also be prepared to see this issue come before Congress, so we will likely again be called upon to defend the value of what we do and the need to have the law, at least, not step in the way of that very important work.

Another view on GSU and anti-trust

I seldom write a post that is just a link to someone else’s work, but I am afraid that non-specialists, especially in the U.S., may not regularly read the blog of Canadian law professor Ariel Katz.  And this post about the GSU case deserves widespread attention.  Katz does a wonderful job of pointing us to the real motive in the lawsuit — to force colleges and universities to purchase licenses with the Copyright Clearance Center.  This, he suggests, is an alternative to each publisher raising its own prices even further than they already have, and he sees in such an attempt a form of collusion amongst publishers to forcibly fix prices at a level higher than the competitive market, left to its own devices without judicial intervention, would bear. Katz’s conclusion is that the Department of Justice, which suggested that it might intervene in the case on the side of the publishers, should really intervene on the side of the defendant in order to prevent what Katz argues is an illegal attempt to fix prices.  He neatly compares the CCC to the so-called “patent pools” which were dismantled years ago using anti-trust laws, and  to the DoJ’s own recent efforts to prevent price-fixing in the eBook market.  For consistency, he argues, the DoJ should pursue the same path against the efforts that publishers are making in the GSU lawsuit.

It seems simple, really

I have to start by saying that I am not an economist, and I know just enough to understand that economic analysis is never simple or straightforward.  And yet, when these two different news items came to my attention in a short time frame, the link between the two of them still seemed pretty obvious.

Yesterday, Reuters news service ran an article about a rating of eleven countries based on their enforcement of intellectual property rights.  The index was prepared at the behest of the U.S. Chamber of Commerce by a group called The Global Intellectual Property Center, and it ranks the U.S. at the top of the list in terms of strong IP protection (23.73 points on a scale from 0 – 25).  But what is interesting is who scored lowest (out of the eleven countries that were ranked).  The four “worst” countries for providing the strong IP protection important to the Chamber of Commerce were the four countries known as BRIC — Brazil, India, Russia and China.

So what else do we know about these four nations?  In fact, why were they originally grouped together under the acronym BRIC?  The answer is that the term was coined because these four countries were the fastest growing emerging economies, showing growth rates between 5 and 9 percent in their gross domestic products (compared with US growth averaging 3.2 over the past 65 years).  The source of these averages for the BRIC nations is this report from PriceWaterhouseCoopers, dated February 2012, which contains this conclusion: “We expect the BRIC economies to continue to drive world economic growth in 2012.”

So the four countries driving economic growth are also the four countries with the weakest IP protection regimes, amongst those 11 rated by the Chamber of Commerce report.  Doesn’t the conclusion seem simple, that weaker IP enforcement is part of the picture for economic growth?  We need to acknowledge that the growth of the BRIC countries is slowing, as reflected in this news report about the conclusions of the Goldman Sachs Group, which originally coined the acronym.  But the very fact that the news report refers to the “BRIC decade” is significant; over an extended period all four BRIC economies have grown very fast, and all of them have done so without strong protection over intellectual property.

Correlations can be tricky things, but I think some modest conclusions are justified.  First, obviously, ratcheting up IP protection is no guarantee of economic prosperity.  As we will discuss further in a moment, it is very possible for nations, industries and even individual creators to thrive without relying on a strong government-created monopoly over the products of the human intellect.  Second, I think it is also clear that there is a point where IP protections can be too rigorously enforced, to the extent that they impede economic progress.  Indeed, it seems likely that the US, with its high score on the survey described above, has reached that point; at a recent forum sponsored by Federal Trade Commission, Professor Collen Chien of Santa Clara University pointed out that for the first time in 2012, a majority of patent lawsuits were brought by so-called “patent trolls” — companies that do not invent or create anything but exist simply to buy up patents and then demand licensing fees from companies that are trying to create and invent.  These licensing fees can reach the point where they are nothing more than a government-enforced tax on innovation. The situation developing in the US with patent “thickets” and patent trolling is a painful example of how broad grants and strict enforcement of IP rights can inhibit economic development.

If we move from the level of national economies to that of industries and creators, these two conclusions seem to hold up.

Consider the example of the Nigerian film industry, often referred to at Nollywood.  The Nigerian film industry has boomed over the past two decades, largely by becoming one of the world’s leading producers of digital video films.  And they have done this in a environment that “has not historically had robust intellectual property enforcement.”  As this research paper from the University of California, Irvine Law School suggests, IP protection is, at least a double edged sword.  Piracy can reduce revenues, but it also helps to create distribution channels and grow markets.  So creative industries seeking to grow in the digital economy need to do more than try, futilely, to eradicate piracy, they need to seek ways to shape their markets and their marketing to exploit the audiences that it can create.

Indeed, a recent book from Oxford University Press, called “The Knockoff Economy,” describes how several major industries, including fashion and food, can not only thrive in the absence of IP protection but can turn the shadow industries that develop around “knockoffs” into part of an overall economic strategy.  And the story of the US film industry, as told in Hollywood’s Copyright Wars, actually confirms the role of unauthorized copying in the growth of new industries and suggests a model for internal negotiations to control and benefit from such “piracy” that are more effective than rigorously enforced IP laws.

Finally, if we want a very current, individual example, we need look no further than the Korean pop star Psy, whose “Gangnam Style” video is now the most watched YouTube video in history and who stands to make $8.1 million dollars from the fame that he has gained by not enforcing his copyright.  Very few of us had probably heard of Psy before the Gangnam Style video became the subject of the many parodies and remakes that flooded YouTube, blogs, college campuses, etc.  He took no action to prevent those “knock offs,” as many artists and production companies would have done.  Instead, his fame grew to the point where he could license his song and his image for commercial uses at levels he could only have dreamed off if he enforced his copyright rigorously.  In short, he found a way to monetize “piracy.”

So, slippery as such conclusions can be, I feel comfortable with these two assertions.  First, creative people and creative industries can thrive without strong IP protections.  In fact, if you are continually looking to the government to increase IP enforcement on your behalf, your industry is probably already in bad trouble.  Second, it is perfectly possible to over-enforce IP rights to the point where creativity and economic growth are stifled.  There is good evidence that the US has passed that point, and the example of the BRIC nations should suggest to us that we need to reverse our course.

Now we see through a glass, darkly

When U.S. News and World Reports runs a major article on academic journal publishing and the open access movement, it should be pretty clear that there are big changes afoot.  And the past couple of weeks have seen major developments in the movement toward public access for taxpayer-funded research, both here in the U.S. and in Europe.

In the U.S., the two groups most vigorously supporting public access, the Scholarly Publishing and Academic Research Coalition (SPARC) and the Alliance for Taxpayer Access, recently sent a letter to the White House, urging it to act on the “We the People” petition that many of you signed two months ago supporting taxpayer access and accountability.  We are still waiting for a response, which the White House promises whenever a petition can gather 25,000 signatures in 30 days (it only took 2 weeks in the case of public access).  We can hope, of course, that the White House’s delay is caused by the effort needed to develop a comprehensive policy, but I personally wish we knew one way or another.

Much of the letter from SPARC and ATA details the recent developments in the UK and EU, especially the announcements last week from both the Research Councils UK and the European Commission of plans to move rapidly toward public access for all funded research articles.  Both groups will allow a six month embargo on scientific articles and a twelve month embargo for those in the humanities and social sciences.  The reason for bringing these details to the attention of the White House is that public access is an important issue of competitiveness and economic growth.  If the U.S. does not want to continue to fall behind the rest of the world in terms of scientific research and innovation, this is a vital step to take.  As the SPARC/ATA letter says,

This approach [public access after short embargoes] is rapidly becoming the default mode for countries that want to retain a competitive advantage in R&D, in science, and in the translation of ideas into new products and services.

So the challenge for the Obama administration is to decide if such competitiveness is important to the U.S., or if protecting legacy industries will take precedence.

In the U.K this same debate has been in the foreground since the release of the “Finch Report,” named for Dame Janet Finch who chaired the task force that wrote it.  That report comes down pretty firmly on the side of protecting legacy industries by stating that the only appropriate path to open access is that of paying article processing fees to traditional publishers so that articles can move from behind subscription barriers but publisher revenue streams are protected.

Not surprisingly, the STM publishers immediately endorsed the Finch report; if they have to have open access, they naturally want to ensure that they are the ones who get paid to provide it.  But the report’s myopic focus on only one form of open access has not gone unchallenged.  This detailed response from SPARC Europe points out many of the gaps in logic and evidence that plague the Finch report (referred to as “a thumbs up for open access but an expensive way to get there”), and suggests a more balanced approach that recognizes that many different business models are underway and that we should not put all of our eggs in one basket.  The RCUK took that message to heart, it seems, since their announcement, made only shortly after the release of the Finch report, clearly rejects the latter’s one-sided approach.  Instead, RCUK will give its researchers an opportunity to select the business model for publishing that works best for them – either publication in an open access (for which article processing fees may be charged but are by no means inevitable) or by self-archiving in a publicly accessible database (so-called Green Open Access, which should not be called, as the U.S. News article does “quasi-open access”).

In this debate we see why some of the issues raised in the U.S. News article are so important.  The largest message I got from reading that article was that we need a lot more transparency about the costs of publishing a single academic journal article. At one point the Executive Director of the American Physiological Society is quoted as saying that the per-article cost at his journal is between $2,500 and $3,000, a figure he uses to ridicule the idea that upfront money from academics could replace subscription income.  But why does it cost that much?

The author-side article processing fees for many Gold open access journals are substantially lower; at Duke, where we have a fund to help reimburse some of these costs for our faculty, the average fee we support is around $1200.  Before any government commits to paying article processing fees to traditional publishers, we need much more clarity and transparency about what costs those fees support.  The U.S. News article makes the point that many of the costs cited by publishers seem rather mysterious.  Content in academic journals is not paid for, of course, and peer-review is almost entirely also done by volunteer labor (supported by university budgets!).  The author of the piece goes on to list other costs like editing and formatting, but points out that these are borne by non-academic publishers as well, who also manage to pay their writers.

It is worth noting that on the few occasions when we get solid numbers about the costs and profits of academic publishing, the numbers do not seem to add up.  A industry financial analyst for Deutsche Bank pointed out some time ago that if publishing academic articles costs as much as legacy publishers say that it does, the 30 – 40% profit margins they enjoy would not be possible (see the quote associated with footnote 19 in the linked article).  And in the Georgia State lawsuit, where the judge was able to compel the plaintiff publishers to produce some real numbers, she rejected entirely the claim that profit margins were so slim that permissions income was a make-or-break proposition for academic publishing.

So the big question for governments and funders as they consider how best to support the transition to public access is why some traditional publications cost so much (and would pass those alleged costs on to taxpayers) while Gold OA journals and Green self-archiving seem to be more cost-effective alternatives.  A lot of additional transparency would be required before recommendations such as those in the Finch report could be taken seriously.  Fortunately, the RCUK and the EC seem to be moving in a more sensible and sustainable direction.

Breaking news

I have just learned that Judge Evans issued her ruling in the Georgia State case this afternoon.  I have not seen it yet, but am told it is quite long and that only a handful of infringements were found among the 99 instrances of copying that were challenged.  I will post about the judge’s analysis as soon as possible.