Libraries, Scholarly Publishing

GSU and university presses

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One of the most disheartening things about the ongoing lawsuit against Georgia State University by three large publishers is the support the plaintiffs are getting from the university press community.  Presses, of course, rely on fair use all the time, and smaller presses need it even more, since neither they nor their authors can usually afford lots of permission fees.  So supporting this lawsuit seems to be contrary to the interests of smaller academic presses.

As I have said before, if the CCC and these three large presses (including the two that have the word “university” in their names) succeed in forcing libraries to spend more of their budgets on licensing fees (that are unnecessary under the current state of the law), it is presses themselves that will suffer.  That money will come out of most libraries’ collection funds, so there will be less money available to buy new monographs.  That undoubted fact will disproportionately harm university presses, many of which depend on publishing specialized monographs, which will be the first things cut (as they usually are).  Unfortunately, this is an area, often the only one, where libraries have some flexibility to adjust expenditures, and cutting highly-specialized monographs results in much less wide-spread complaints from campus communities.

It may well be that large operations like Oxford and Cambridge University Presses can rest assured that the net gain from forcing more permission fees will offset any losses in sales for new works.  But I doubt that Small State University Press can be as sanguine.  The fee income they will gain will be much smaller, and the sales losses will have a much greater impact.  One way to look at this case is as a side-long attempt by some big players in academic publishing to force smaller competitors out of business.  Yet many academic presses (but almost certainly not all) are cheering Oxford and Cambridge on from the sidelines, apparently out of the forlorn hope that someday SSUP might become as rich as they are.  Instead, they are being led off a cliff.

This all was brought home to me the other day, when a friend forwarded an e-mail to me that had been sent to the directors e-mail list of the American Association of University Presses.  In it, a university press director (I won’t say which one) encouraged colleagues who support the appeal in the case and disagree with the original decision to express that opinion by commenting on stories about the appeal in the higher ed press.  It is interesting that only those who support the appeal were asked to comment; I can’t say if there are no university press directors with a different opinion or if they were just being told to keep their thoughts to themselves.  But here is the line that first made me laugh, for obvious reasons, and then got me thinking:

So far it’s the Kevin Smiths and Paul Courants who have yelled the loudest from the library side, with a deafening silence from our side

It was rather unsettling to be identified in this way as a depersonalized representative of “the enemy”  whose voice needs to be countered.  I certainly do not object to having other people, with many different opinions, encouraged to join the debate.  But two things do trouble me about this quotation.

First, there is the clear assumption that university presses and university libraries are on opposite “sides.”  It did not have to be this way.  Most libraries are not engaged in large-scale infringement, just reasoned and reasonable fair use, in spite of the plaintiffs’ rhetoric in the heat of litigation.  And libraries did not institute this suit.  So how did we get here?

For me, part of the answer lies in the evocation of Paul Courant as the other representative of the “other side.”  Paul is in  rather a different position than I am; he is the former Provost of the University of Michigan, and now, as the University Librarian, he is the person to whom the University of Michigan Press reports.  When he is made into the archetype of the enemy by a university press director, it seems clear to me that some presses, at least, have drifted a long way from their fundamental anchor in the scholarly mission(s) of their parent institutions.

One aspect of this lawsuit, and perhaps a key factor that brought it about, is this disconnect we are seeing between some university presses and the academic values of their parent institutions.  Libraries are at the heart of the university mission, and the continuing recognition by academic administrators that a great library is a sine qua non for a great university is one reason why so many of them seem disappointed by the decision of publishers to sue libraries.  By electing to treat libraries as adversaries instead of allies, some presses demonstrate how far they have traveled from the core purpose of supporting the research and teaching mission of their universities.  Instead of dismissing or disputing the point of view of a provost or a university librarian, perhaps these presses should spend more time talking with those officials.  At many places those conversations are well underway and quite fruitful.  Where they are not, it may be time for the academic administrators to insist.

Copyright Issues and Legislation, Fair Use, Libraries, Scholarly Publishing

A not-very-appealing appeal

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To the surprise of no one, I think, the plaintiff publishers in the Georgia State litigation filed a notice of appeal on Monday.  There has already been considerable coverage of this decision, in, for example, Inside Higher Ed, the Chronicle of Higher Education, and Library Journal.

The actual Notice of Appeal is a very dull document; it merely lists the orders from the District Court with which the publishers take exception, and “respectfully give[s] notice” of the intent to appeal.  The real action yesterday was in the press releases, and there the publishers respect for the District Court was much less evident.  Indeed, there is a good deal of anger, and some crocodile tears, in these public statements.  The plaintiffs in this case have always shown more skill when crafting dramatic press releases than they have with persuasive legal arguments.  It is worth looking at some of the statements from the public statements to assess, primarily, the legal arguments the publishers plan to make, and also their motivations.

First, the Association of American Publishers’ statement asserts that, “There is no legal basis for according less copyright protection to printed books and articles when portions are made available in digital form rather than bound into hard-copy coursepacks.”  Of course, the District Court made no such differential treatment; it is their inability to see the distinction between the coursepack cases and the situation with library reserves that undermines much of the publishers’ thinking in this area.  At least two cases have found that coursepacks printed for colleges and universities by commercial copy shops do not get much scope for fair use.  But Judge Evans’ ruling that there is more scope for fair use when libraries or professors share digital excerpts has nothing to do with any difference in format; it is simply a recognition that the circumstances that the law tells us are relevant in a fair use determination are different in the two situations.  With Georgia State there was no commercial entity making the copies and no charge leveled for access to them.  None.  That is a huge difference between GSU and the coursepack cases; it is directly, massively relevant to the first fair use factor, which disfavored the copyshops but favors Georgia State.

In other words, Judge Evans did not draw an impermissible distinction, as the plaintiffs allege.  She simply did what the law tells her to do; she analyzed the specific circumstances around the challenged uses.  She did it meticulously and arrived at reasoned conclusions based on the facts before her and the factors outlined in the law.

The AAP goes on to claim that the District Court ignored a “lengthy pattern and practice of widespread infringement” and “ignored the forest for the trees” by conducting its inquiry into each challenged excerpt.  Again, this statement indicates a profound misapprehension of how fair use works.  It is precisely intended to be a careful examination of the circumstances around each challenged use.  And the results of that analysis disprove the claim of a lengthy and widespread pattern of infringement.  Judge Evans found only occasional and scattered instances of infringement.

It is difficult to know how the plaintiff publishers think the Court should have proceeded differently.  How do you discover a pattern of infringement if you don’t examine each specified use to see if it really is infringing?  How do you locate a forest without knowing what a tree look like?  To extend the metaphor, the publishers and the Court do not disagree about whether or not there is a forest, they disagree about what kind of trees make it up; where the publishers see infringing yew trees (a symbol of mourning and loss), the Judge saw, mostly, fair use oaks.

In the conference call with reporters that the plaintiff publishers held, reported in the Chronicle article above, there was a lot of talk about how unhappy the publishers are to have to continue their lawsuit against academic libraries.  They professed an allegiance to the principle of fair use that I find extremely disingenuous — whatever they could mean by fair use in that statement, it is not recognizably the right created by section 107 of the U.S. copyright law — and they once again asserted that the District Court ruling would cripple them financially.  The President of Oxford University Press is quoted as saying that the decision would “cut us off at the knees” because of their “razor thin budgets.”  There are many public facts that disprove this statement, not least of which is the 25% increase in profits OUP reported in 2011 or the 116 million pound “surplus” it reported in 2012.  More importantly, Judge Evans had access to specific sales and profit numbers, and found very clearly that permission income was almost never a significant factor for these publications.  These factual findings of a District Court are reviewed on appeal under the standard that “clear error” must be found to overturn them, so this argument is a loser in court, I am convinced, even while it remains popular in press releases.

In short, what we saw on Monday was more of a tantrum than a legal argument.  The Copyright Clearance Center has made it clear that they will continue to help fund this case on appeal (an appeal is a lot less expensive than the initial trial), so more money from libraries will be used to sue libraries.  All the professions of regret and concern for authors still ring hollow; it is interesting that Sage claims to have consulted “textbook authors” about continuing the suit, yet no textbooks per se were involved in the case and it is not clear that the judge would apply the same analysis to textbooks as she did to the works at issue.  If the publishers had spoken to the authors on my campus who write the books and articles they publish, I am confident they would have heard a different story.  For ordinary academic authors, permission royalties are trivial and not an expected part of the publishing “deal” (which is no deal at all for them).  This is not about protecting authors; it is, as it always has been, a marketing ploy, especially for the CCC, that aims to compel libraries to give an even larger share of their budgets to these publishers, and the groups that are financing them, without getting any new scholarship for that money.

Copyright Issues and Legislation, Libraries

Examining an “essential” copyright

The article has been all over the news media, which is unusual for something about copyright. In my RSS feed from a Google search for copyright issues it has appeared at least a dozen times, based on different newspapers that have run it.

What “it” is, is an article from the Associated Press about copyright and the film preservation efforts at the Library of Congress.  Here, for example, is the article on the website of the San Francisco Chronicle, and here it is again from the Seattle Post-Intelligencer.  The article alternates between talking about the LoC’s film preservation project and about copyright protection for film.  The latter is involved, ostensibly, because Congress added motion pictures to the list of protected subject matter in August of 1912, so the article ran on roughly the 100th anniversary of that legislation.

Here is a key sentence from the article, which contains the quote from which the word “essential” in the headline is taken and also some of the confusion of two issues that concerns me:

“Copyright was essential from the very beginning of the industry,” said Patrick Loughney, chief of the Packard campus, a former Federal Reserve bunker… that has been converted into a state-of-the-art archive.  It is a dual safe-haven, intended to protect both the film’s creators and establish a collection that outlasts a film’s box-office haul.

What strikes me as curious is how these sentences are related.  What, specifically, is intended to be this safe-haven that is referred to — copyright protection, or the underground preservation vault?  It is that apparent confusion (toward the end of the article a little bit of light dawns on the issue) that got me thinking about what role copyright plays in the preservation of film.

As a preliminary matter, it is worth noting two points.

First, although the headline says that copyright protection for film is turning 100, that is the anniversary of the legislation; copyright protection itself does not normally last that long, and many of the films being discussed, or that are stored in the vault, are likely to be out of copyright protection and in the public domain.

Second, the role of copyright, and the 1912 addition of motion pictures to the statute, in the earliest development of the film industry is much more ambiguous than this article suggests.  For one thing, the earliest films were registered for copyright well before Congress acted; they were simply registered as sets of photographs.  Thomas Edison was the first to register a film (of a man sneezing) in this way, in 1894.  Filmmakers were thus able to get copyright protection, if they wanted it, eighteen years before Congress acted.  The Third Circuit Court of Appeals upheld the validity of this type of registration in a lawsuit, brought by Edison, in 1903.

But if copyright protection was available prior to the 1912 legislation, its impact may not have been as great as the quote above suggests.  In his book Hollywood’s Copyright Wars, from which the facts in the previous paragraph are taken, Peter Decherney makes the case that the earliest film executives, who began by suing each other over patents and copyright, usually ending by forming associations and arriving at agreements that were much more important to progress than legal enforcement measures were.  This turn toward forms of self-regulation often was the real move that proved vital to innovation and growth; statutory rights and judicial decisions merely set the boundaries that the industry payers then renegotiated.

Now we come to the central issue — what is the role of copyright protection in preservation?  Toward the end of the article we finally get an indication of why the two things have been tied together this way, when Mr. Loughney is quoted saying that copyright “has a practical function.  The physical depositing … of material creates a national archive that can live on for future generations.”  So copyright supports preservation because of its mandate that registered works be deposited with the Library of Congress; it is not the exclusive rights themselves but this “add on” requirement that seems to be the key.  This may indeed be true, but the registration requirement has never been strictly enforced, and under our current regime of automatic protection, registration and deposit rates are minuscule compared to all that is created.

And, of course, actually preserving the materials that are deposited might well have been easier were it not for copyright protections.  The article notes that many early films have been lost, and specifically mentions that nitrate films were not preserved because the medium was so flammable.  One solution to that problem, of course, would be to make copies of those films to a different, less volatile medium.  But to do that might infringe the exclusive rights of the copyright holder.  This is a dilemma that librarians and archivists encounter all the time; copyright creates uncertainty and risk around reformatting, and thus hinders many preservation efforts.  Old films are lost, even today, not just because they were made on materials that deteriorate, but also because excessive copyright enforcement is too risky to make the needed investment in reformatting.

Copyright has certainly been important to the developing film industry, but in a very ambiguous way, as Decherney shows.  It is quite possible that many films were made that would not have been started but for the assurance of copyright protection.  And the deposit requirement has allowed the LoC to amass an important collection.  But it is also true that many early filmmakers were able to get started in business because they could “dupe” other people’s films (just as the early publishing industry in the US often depended on piracy of British works).  And it is true that the collection the LoC holds might be even more valuable if copyright protections had not, and did not even today, prevent or deter reformatting for preservation.

 

 

Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing

Wormwood gets a job

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In his classic book The Screwtape Letters, C.S. Lewis imagined the correspondence between Wormwood, a young apprentice demon, and his uncle, an older and more experienced tempter named Screwtape.  Uncle Screwtape advises Wormwood on how best to corrupt human kind, and the book has become beloved as a kind of reverse moral theology.  One can learn a lot about human foibles and weaknesses by reading how Screwtape and Wormwood conspire to exploit those weaknesses and lead humans ever deeper into corruption.

But what if Wormwood took a job?  As an academic publisher?  What would Screwtape advise him to do?  How best could he sow fear, uncertainty and doubt?  How best to exploit the weaknesses and vanities of academic authors and the hand-wringing timidity of librarians?  In this vision of the correspondence between Uncle Screwtape and the newly-employed Wormwood, Amherst College Librarian Bryn Geffert imagines that they would hit upon pretty much exactly the practices we actually see today.  His reworking of The Screwtape Letters was published as an essay in Inside Higher Education, and I link to it here because it really is too good to miss — deadly accurate and very funny.

Interesting, I think, to compare the correspondence between Wormwood and Screwtape with this actual dialogue about academic publishing going on The Economist website about whether and to what degree academic publishers add value to the work they sell.  I wonder if we will see similar arguments on both sites, the fictional parady and the serious debate.

Thanks to my friend Gary Draught for pointing out Geffert’s essay on his blog about Open Access called Alpha Omega.

Copyright Issues and Legislation, Fair Use, Scholarly Publishing

The prevailing party

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Since the ruling in the Georgia State case in May that decided, at the trial court level, the substantive issues of the claimed copyright infringement, I have been telling people to wait for a while before deciding to take any strong action based on that ruling .The case, I keep saying, is far from over.  There is likely to be an appeal, for one thing.  But even prior to an appeal, I wanted to encourage people to wait for Judge Evans’ ruling on the remedy — the steps she would order to fix the handful of actual infringements that she found (five) out of the large number of claims that were submitted to her (ninety-nine, at trial).  The remedy would tell us, I have been saying, how the Judge sees her own ruling.  After all, in their filings since May the two sides have claimed to find radically different things in the Judge’s decision; her ruling about a remedy is her chance to tell us what she thinks the impact of her findings of fact and conclusions of law really should be.

On Friday the Judge filed her order on declarative and injunctive relief, and she clearly told us who she thinks won the case.  The prevailing party is Georgia State University.

Judge Evans addressed both declaratory and injunctive relief in her ruling.  In her declaratory ruling, she announced three principles intended to clarify points in her earlier order that the plaintiff publishers.  They are helpful for understanding her ruling, but not startling, I don’t think:

  1. The holding that excerpts must be “decidedly small” in order for the third fair use factor to favor the use applies to all excerpts assigned from a book for a particular course in the aggregate.  This merely tells us that “an excerpt” means the total amount assigned from a single book; it presumably rules out the possibility of putting one chapter on reserve for a while, then replacing it with a second chapter later on and asserting that only one chapter ( at a time) is being used.  I doubt that many universities would be willing to resort to this trick, but the Judge has explicitly disapproved of it.
  2. The analysis of fair use by Judge Evans does not apply to books that are intended solely for classroom instruction.  The Judge seems to be telling us that there is a more restrictive standard for fair use of textbooks than the one she applied in this case, but she also uses a pretty narrow definition of a textbook.  None of the works that were at issue in this case fall into that category, she says.
  3. Fair use in the context of e-reserves and course management systems is conditioned, she tells us, on strict controls over who can access the excerpts — only students registered for a class — and on notice telling those students that they may not further distribute the excerpts.  I hope this is already our practice in higher ed.

Interestingly, the Judge also adds a “cautionary note” that is outside of her declaratory findings because, presumably, it goes beyond that matter strictly before her.  She notes that where digital licenses were not available from publishers, the fourth factor favored fair use and, in such cases, allowed excerpts longer than her strict definition of “decidedly small.”  How long, we might ask, and the Judge tells us that the longest excerpt she allowed, at 18.5 %, is near the limit of fair use.  So much beyond that point, in her opinion, fair use will not apply even when the other factors seem to support it.  It is helpful for the Judge to tell us this, although other courts might find that this approach puts too much weight on a single factor.  Certainly such a limit has been rejected by higher authorities in cases where the use was found to be transformative.

When she turns to the matter of an injunction, the Judge rejects the very broad, “highly regimented” injunction sought by the plaintiffs. She feels such restrictive rules, with record-keeping requirements and monitoring, are unnecessary, given that GSU policy was a genuine attempt to comply with the copyright law and that its application resulted in so few actual infringements.  Instead, she limits her injunction to an order that GSU maintain policies consistent with the May 11 ruling and the one from Friday, and that they disseminate those policies to faculty and staff.  To the best of my knowledge, GSU is already doing those things.

The stunner in this order comes at the end, when the Judge must rule on the requests from each side to have the other pay for the costs and attorney’s fees of both.  The Judge must first decide who was the prevailing party.  She recognizes that both sides won on some points, but overall she holds that GSU was the prevailing party.  Even so she does not have to order the publishers to pay GSU’s costs and attorney’s fees, but that is exactly what she does.  She reminds us that of the 99 excerpts over which claims were made at trial, 25 were withdrawn by the publishers and for another 26 the publishers were not able to clearly prove that they owned the copyright.  Also, there were 33 excerpts for which permission for digital excerpts was not available even if it had been sought.  Because of all these situations where the infringement claims were implausible from the beginning, the Judge holds that the plaintiffs “significantly increased the cost of defending the suit.”  And on that basis she orders that the publishers pay the reasonable costs and attorney’s fees incurred by Georgia State.

Early on in the case I wrote that the Copyright Clearance Center, which financed half of the plaintiffs’ costs, was using litigation as a marketing strategy.  Now I hope that the CCC and the others behind this case would learn that that strategy was both counterproductive and much too costly.  Unfortunately, I expect that rather than learn that lesson, they will “double down” on an appeal and, in the process, throw more money that should be spent on supporting new publishing away on the ill-advised project of trying by force to increase permission fees for works that have already been published and sold.

Uncategorized

Now we see through a glass, darkly

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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.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use

Redefining research

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The last month has seen extraordinary changes in the copyright law of Canada, including two Supreme Court decisions that I wish we could import south of the border to the U.S.

At the end of June a comprehensive reform of the Canadian copyright law known as bill C-11 received its final approval in the Canadian Senate and “royal assent.”  It seems that this means C-11 is now formally the law in Canada, although according to University of Ottawa law professor Michael Geist the reforms do not actually take effect until after there is an “order in council” process that creates the new regulations around the bill.

This new copyright reform contains some very good news for education in Canada.  I have not studied the bill thoroughly, but will note the handful of reforms that seem most important.

First, the exception to the exclusive rights of copyright in Canada that is known as “fair dealing” was expanded by the addition of three additional purposes to the two — research and private study — already mentioned in the provision.  Those new purposes are education, parody and satire.  The way fair dealing works, in order for a finding that an activity that implicated one or more of the exclusive rights was not an infringement because it was fair dealing, a court must first decide if the activity fit into one of the enumerated purposes, and then do an analysis to decide if that activity within one of the purposes was fair.  The Supreme Court of Canada enunciated six factors that are used in this second step of the process, which really look a lot like US fair use.  But the absence of education from the list of dealings that were eligible for a finding that they were fair (the first step in the analysis) was a significant problem for universities and schools.  Bill C-11 remedied that problem, and it has really changed, I would imagine, the debate over the license for universities that has been offered by the collective rights group know as Access Copyright (which recently jumped in price from $3.75 per student to $26).

Another major benefit for universities in the bill, and another reason the Access Copyright license seems less worth the major increase, is that there is now explicit permission for instructors to show films and other works that can be performed to an audience of students on the premises of the institution.  This, of course, sounds a lot like the US provision for face-to-face teaching found in section 110(1) of our copyright law.  There are also new provisions in C-11 that explicitly authorize reproduction by institutions and their employees for the purpose of instruction and that address the rights of distanced students to receive lessons via “telecommunications.”  There is a helpful summary of the impact of C-11 on education here, from the British Columbia Library Association.

Less that two weeks after the royal assent to bill C-11, the Supreme Court of Canada ruled on five copyright cases that had been before it.  Two of those cases had major implications for the definition of “research” in the fair dealing provision which is outlined above.  Collective rights organizations had challenged two practices — Access Copyright had asserted that teachers making copies for students was outside the scope of fair dealing, and a misic licensing organization called SOCAN had made the same assertion about short preview clips of songs that consumers could listen to before buying the complete piece.  Both organizations were seeking additional licensing fees for the challenged practices, and both lost.

In her opinion, Justice Rosalie Abella significantly expanded the definition of research, following a 2004 Supreme Court decision that had stated that the word should be read expansively.  She ruled that those short music clips should be encompassed as research, recognizing that the term can encompass casual information seeking in addition to formal academic study.  And she held that the private research of students does not require that they actually make the copies; that research and researchers can be guided by a teacher without giving up their rights under fair dealing:

With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.

Another important part of these decision about instructional copying is that Justice Abella found little or no harm to the market for published work caused by this copying.  The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales.  This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance  and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses.  I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional  revenue stream for publishers is.

The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case.  The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not.  By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us.  In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study.  In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience.  Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.

US courts are often quite reluctant to be seen to be influenced by international law.  But at the very least, this ruling from the Supreme Court of Canada shows the plausibility of the analogy that sees traditional, allowable educational activities simply being transferred to an online environment.  The change in technology should not entitle rights holders to additional fees any more than, in Canada, the human inter-mediation of a teacher does.

Libraries, Scholarly Publishing, Technologies

Dissertations for sale, or, scaring the children, part 2

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When The Chronicle of Higher Education published its “Cautionary Tale” about a dissertation discovered, by its author, to be available for sale on Amazon.com without his knowledge, it was bound to stir up another round of anxiety over how dissertations are distributed in a digital world.

In the particular case, the problem was that ProQuest, which creates the dissertation database once known as Dissertation Abstracts, now offers electronic copies of dissertations through outlets like Amazon.  Authors have the option of preventing this (it is the default) when they submit their dissertations.  To the article’s author, this was an unwelcome discovery.  But two comments should be made about this cautionary tale.  First, ProQuest, and its predecessor UMI, have always sold copies of dissertations; all that has changed is the format and the ease with which they can be found.  Second, the most basic instruction for any author, whether of a dissertation or a best-selling novel, is to read the contract for distribution before you agree to it.

The bigger question is whether or not these sales, and more especially the online distribution of dissertations in open access repositories, which is becoming the norm at many institutions, actually prevent authors from getting their first book published.  The author of the Chronicle piece seems to assume that it will, but such assumptions, without facts, seem to be the real problem.  There are many expressions of fear on this front, and even a few stories of actual rejection which seem to be circulated endlessly.  Fears, of course, are not facts, and students often repeat these fears and demand that universities cater to them  based only on the anxiety of others.  As for the handful of anecdotes, it is hard to know whether the rejection of a book in these stories really was caused by online availability of the dissertation, or by some factor internal to the work itself. To a large degree we are again dealing with FUD – fear, uncertainty and doubt – intended to frighten people.

It is not surprising that publishers would sometimes raise this specter even if they know it is seldom an important issue in actual editorial decisions.  The simple truth is that the academic publishing industry has a vested interest in discouraging any online distribution of scholarship that it does not control.  But it is useful to look at some of the sources behind the anxiety to see what they really say.

First is this statement from the American Historical Association, which actually is quite moderate.  Here is the key paragraph:

While there is no conclusive evidence that electronic publication can make it more difficult to publish a revised version of a dissertation, the division feels that students and their advisers should be aware of the possibility. Editors who had spoken about the topic at a 2011 annual meeting session and had subsequently been interviewed for an article in the Chronicle of Higher Education were divided on whether electronic publication differs significantly from older methods of making theses and dissertations available through interlibrary loan or on microfilm. Some editors stated that they would be more likely to publish a dissertation that had attracted interest online.

This is hardly terrifying stuff; the Professional Division of the AHA goes on to recommend that universities have policies regarding embargoes for online dissertations, and that authors and advisers know what those policies are.  Perfectly sensible, even though it seems to ignore the first clause  in the quoted paragraph: “there is no conclusive evidence that electronic publication can make it more difficult to publish a revised version of a dissertation.”  Two phrases are key in that clause, I think: “more difficult” and “revised version.”

It is difficult to publish a scholarly monograph these days, and the market for books based on dissertations is shrinking all the time.  Is this because of online, open access dissertations?  I don’t think so.  I think it is because library budgets are shrinking, more of the money must go each year simply to maintain journal subscriptions, and dissertation-based books tend to be very specialized and very expensive.  I have never heard a librarian say that she would not buy a book because the dissertation version was in a repository somewhere; cost and the availability of funds are a fully sufficient explanation for the contracting market for revised dissertations.

Yet according to this survey done by some leaders in the field of online dissertations, some publishers do express a greater reluctance to accept a manuscript if there is an online dissertation.  Here I think the issue of revision is key.  Note that many more publishers in the survey say that it is the degree of revision that makes a difference for them, and I believe that the small percentage that said an ETD could be a large factor were answering the question based on a scenario where they were presented with an unrevised, or lightly revised, manuscript.  A much larger percentage, over 40%, either cited the difference between the two documents as a factor or indicated a case-by-case analysis; they recognized that the key factor was revision.

Revision of a dissertation before submission for publication is virtually a sine qua non today, and much more important than online availability (or suppression) of the original dissertation.  Because of the market described above, an unrevised dissertation, which is always directed to the interests of a very narrow group of specialized readers, stands little chance of being accepted, regardless of whether it is also online.  More importantly, there is no evidence, in my opinion, that a publisher would reject a well-revised dissertation that was otherwise marketable simply because an earlier dissertation by the same author and on the same topic was online.  Availability as an ETD is an excuse, or a boogeyman, far more often than it is a real reason for turning away a marketable monograph.

So what is a dissertation author to do?  First, relax, but plan to revise.  Second, take the advice of the AHA and know the policies that will apply to you at your degree-granting institution and that prevail within your discipline.  Third, use embargoes on your work when they really will help, both in ProQuest and at your local campus.  Finally, read what you sign before you sign it.  This last point is a life lesson that all scholarly authors should learn, not just those at the dissertation stage of their careers.

Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Lions and tiger and bears, OA, or, scaring the children, part 1

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Earlier this week I had the delicate task of replying to a researcher who had applied for funding for open access publication fees and telling her that our COPE fund could not be used to support her article.  The reason was that it was to be published in a journal that did not meet two of our basic criteria.  In order to ensure that our limited funds are well-spent, we will only fund article processing fees for journals that are listed in the Directory of Open Access Journals and published by members of the Open Access Scholarly Publishers Association.  These criteria may be imperfect surrogates for quality, but they have served us well in striving to be sure that we support high-quality, sustainable OA publishing efforts.

Because we have these criteria, there was an objective reason for our decision to deny this particular application, since the journal did not meet either of the requirements I just mentioned.  But I felt obligated to say more, so I forwarded the researcher a link to a discussion of whether or not the publisher in question was a “predatory” OA operation.  The concerns were real, although the article did not ultimately decide whether the problems it listed were the result of an awkward start up or intentional deception.  I told the researcher that she might consider a different venue, and I worried about her reply because I had been rather pushy, I thought.

The reply I received was both a relief and a surprise.  The researcher thanked me for my concern, said that she understood the decision about funding, and clearly indicated her intention to proceed with the publication as planned.  Her response got me thinking about the whole notion of predatory open access publishing.  How, I wondered, should libraries especially, when they administer OA funds, think about the predatory problem?

First, I think libraries are right to raise the issue.  We have always had a role in helping students and even faculty evaluate the quality of various publications, and doing so is an obligation when we are making purchase or other funding decisions, since we are obligated to spend carefully the funds our institutions entrust to us.  I really like the warning, couched in a modest and restrained tone, found in this blog post the University of Buffalo Libraries.  We should not be condemning all open access publishing, or otherwise shouting about the predators all around us, but we do need to answer inquiries honestly and spend our monies wisely.

Which brings me to a second reflection.  “Predatory” publishing is not exclusively an open access problem, and the problems included in that over-used phrase actually run the gamut from genuine attempts to defraud people to simple mismanagement.  Before there were OA journals there were journals published in traditional fashion that were merely shills for certain industries or which otherwise had unacknowledged selection criteria that conflicted with scholarly quality.  The victims of these types of journals were unwary libraries, who purchased subscriptions that ultimately ill-served their patrons and wasted scarce resources.

In an online age, criteria that are well-established in libraries for avoiding these predatory toll-access journals now must be shared more widely because researchers may unwittingly spend research funds on equally low-quality OA journals.  But to call this an open access problem is to blind ourselves to its full scope and is, I fear, often motivated more by the desire to bring OA itself into disrepute, to “scare the children,” as I like to call it, than it is by a desire to protect the entire system of scholarly communications.  We should not allow FUD (fear, uncertainty & doubt), which is often spread by institutions that are trying to preserve the problem to which they see themselves as the solution (to paraphrase Clay Shirky), to narrow our vision of a sustainable system of scholarly publishing.  The problem we  should be addressing is predatory publications, OA and subscription-based, and publishing ethics across the board.

One reason I think this point is so important is because of the danger inherent in a wide-spread panic over predatory OA journals.  The first source that alerted me to the potential problems with the publisher I was investigating earlier this week was a version of Jeffrey Beall’s list of predatory Open Access publishers.  In the particular case the concerns expressed there were, I think, fully justified.  But the version of the list I stumbled across (and which I cannot now locate) was, in my opinion, over-inclusive.  It included, for example, the publisher Hindawi.  I note that none of the versions I can find this morning do include that publisher; I hope they have been removed from all such lists.  My own opinion is that Hindawi is a perfectly legitimate publishing operation and it is one with which our researchers publish often and sometimes repeatedly.

As long as Hindawi meets our criteria for COPE funding, and it currently does, I will defer to the judgment of our authors when they choose to publish in those journals.  And I will continued to be afraid that the hue and cry over predatory OA publishing will tar perfectly legitimate operations.  The reason given  for concern over Hindawi on the list I saw was that they publish “too many” journals.  This is a highly subjective criteria, and it is really a legacy from older, print-based publishing.  So I repeat, we  should make our decisions about quality on the basis of neutral criteria that can be applied to any business model and not allow the legitimate concern over predatory practices to become a weapon used against only a single publishing option.

Finally, I think that there is a role here for deference to researchers, who are likely to know best what form of publishing suits their needs.  It is perfectly possible that the advantages of open access publishing or any other particular publishing venue will, in the minds of individual researchers, simply outweigh some of the concerns we might express about a publisher, especially when those concerns are subjective or in dispute.  The speed of research dissemination and the impact advantage that authors get from open access may make it a lot easier to overlook purely administrative problems, which probably plague any publishing enterprise in its first few years.  The authors themselves, who know their disciplines best, of course, and also have the responsibility to manage their own careers, should ultimately decide where they want to publish, as the researcher I conversed with this week did.  We need objective criteria and frank communication about real problems and concerns when we are expending the limit funds of our institutions.  But that is very different from telling researchers that the cannot publish somewhere, which we should never do, in my opinion.  It is also quite different from a panic or a witch-hunt or a FUD-fest, which will not serve anyone well.

Copyright Issues and Legislation, Libraries

Sorry she asked?

At the end of her massive ruling in the Georgia State University copyright case, Judge Orinda Evans directed the plaintiff publishers to file a proposed text and rationale for whatever injunction and declaratory relief they think is called for in light of the decision.  She also gave the defendants time to respond to whatever the publishers proposed.  All this is pretty standard for a case like this.

The publishers made their proposal a couple of weeks ago, and I wrote about it here.  Basically they suggested that enough infringement had been found to justify the extremely sweeping injunction they had originally suggested back in February, before the trial had been held.  Perhaps recognizing that this was quite a stretch, they proposed an alternative that they said was more narrowly tailored to the Judge’s actual ruling.  In fact, their “c0mpromise” position proposed to lump all of the different criteria that the Judge had considered in her careful balancing of the fair use criteria into one big pot and call them all requirements for any fair use.  In short, they took criteria that the Judge considered as either/or and asked that they be made both/and.

Now GSU has responded, and the response could not be more different.  Where the publishers suggest that their original, pretrial, “throw the book at them” injunction would still be appropriate, the defendants assert that no injunction at all is called for.  It is probably not unusual for the two sides to have such divergent views about the remedy even after a ruling, but one has to think that, given that she has now been presented with the full range of options that were before her in the first place, Judge Evans wonders if it was worthwhile even to ask the parties in the first place.

The filing by GSU begins, appropriately in my opinion, by pointing out that very little infringement was actually found by the Judge in her May 11 ruling.  The plaintiff publishers refer over and over again to “systematic and widespread” infringement; even their statements to the press contained this kind of language.  Yet the Judge only found five instances of infringement out of the 99 excerpts that were at issue at trial and the 74 excerpts that she ultimately analyzed (25 were voluntarily withdrawn by the plaintiffs after trial).  The defendants point out that not only is this not systematic and widespread infringement, it is not even the pattern of “ongoing and continuous violation of federal law” that is necessary to justify any injunction in this case.

Because Georgia State is a state institution, lawsuits against it in federal court are severely circumscribed.  The Federal Courts cannot award money damages to a plaintiff, for example, because that would give those courts too much power over state treasuries.  They can order injunctions, telling the state how to behave in the future, only when there is an “ongoing and continuous violation of federal law.”  The language comes from a Supreme Court case called Ex Parte Young, and Georgia State is asserting that that standard has not been met, not when so few infringements were found in such a large pool of excerpts examined.

GSU makes the point that this is a very small percentage, which represents the behavior of only 3 professors from amongst the 33 whose fair use decisions were challenged at trial.  And they remind the judge that no copyrights at all that are held by one of the plaintiffs, Cambridge University Press, were found to have been infringed.  For all these reasons, they argue that no injunction should be issued or, under the rules of Ex Parte Young, can be issued.

Instead, GSU essentially asks for a “declaratory judgement,” which is a binding statement from the court that establishes the rights of the parties without providing any enforcement mechanism.  The basis for this request is that GSU has already modified their copyright policy in accord with the May 11 ruling.  In these amendments they have addresses the two aspects of the 2009 policy that the Judge criticized in her decision.  First, the revised policy now limits the amount of a work that can be used for digital course readings to 10% or one chapter, whichever is less.  Second, they built in the idea that if a digital excerpt license for the work is readily available from the publisher or the Copyright Clearance Center, that availability weighs the fourth factor against fair use, and it tips the balance if more that 10%/one chapter is being used.

These changes track the Judge’s ruling quite closely.  So GSU is arguing that, having amended their policy (which the Judge admitted was a good faith attempt to obey the copyright law in the first place) to correct the flaws the Judge found, all that is needed is a declaratory judgment that the policy now correctly defines fair use for the GSU faculty.

In this exchange of proposed remedies, the tendency of the plaintiffs to over-reach the evidence and make sweeping statements without justification has again been obvious.  The proposal that the judge can bring the trial phase of the case to a close by simply acknowledging that the amended policy now conforms with her findings of fact and conclusions of law makes a great deal of sense.  It might seem anti-climatic, especially given the size of that May 11 set of findings, but it is the sensible and prudent course.  And, naturally, it will set up the next stage of the case — the inevitable, I believe, appeal by the publishers.

Discussions about the changing world of scholarly communications and copyright