How do you know?

It is hardly a surprise that my last few posts, dealing as they do with the economics of distributing scholarship and the potential impact of taking the issue of sustainability seriously across the board, would generate a good deal of criticism.  My usual response to critical comments is to simply approve them for posting and let the criticism stand so that readers can make up their own minds.  But there is one comment I do wish to respond to.  Interestingly, it was not one that was posted to my blog at all, although it was dealing with my post reporting success on the White House petition for public access to taxpayer-funded research and criticizing the report from the Association of Learned, Professional and Society Publishers about the alleged impact of such policies.

The discussion in question was forwarded to me by a colleague, and was taking place on an e-mail list to which I do not subscribe (so I cannot post a link here).  The specific challenge to which I want to respond related to my assertion that public access to scholarly articles is not the reason why libraries cancel journal subscriptions.  A former publishing executive, in a longer e-mail, asked how I knew this and accused me of making an unsupported assertion.  It is a fair question, and I am happy to report on how I know that public or open access is not the principal, or even a significant, driver of journal cancellations; doing so gives me the opportunity to link to a couple of valuable resources.

I know that public access is seldom, if ever, considered by librarians when dealing with subscription cancellations, first, because I have been a librarian for over twenty years and have been involved in or aware of a large number (larger than I would like) of cancellation processes.  Never once have I heard a librarian say “we can cancel that one because all the contents are available on various websites.”  First, that would almost never be true.  Second, deciding on that basis would not be serving our patrons’ needs, which is what we strive to do even when our budgets contract.

The second reason I know that public access is not a big factor in journal cancellations is because I recently read the report prepared by Elliot Maxwell for the Committee for Economic Development on The Future of Taxpayer-Funded Research: Who Will Control Access to the Results?  In that report, Maxwell takes a sustained and carefully documented look at many of the claims about the disasters that would befall for-profit publishing based on the National Institutes of Health public access mandate.  His overall conclusions are, first, that there is no evidence that such policies have adversely impacted the STM publishers who complained so vociferously about them and have twice tried to push legislation to have them reversed. Maxwell makes two salient points.  First, it is increasing prices, coupled with flat library budgets, that account for any rising rate of cancellations (which is the same point I made in my blog post).  And second, that at the same time they were predicting disaster to policy makers, for-profit STM publishers were painting a more glowing picture of the future to financial analysts about the prospect of a return to 4-5% growth rates as we move past the economic downturn.  As Maxwell says, “the last four years [he is referring to 2007 – 2011, a period which actually includes the worst of the downturn] have been marked by an increase in both the number and subscription prices of STM journals.” (p. 15)  While this may not be good news for libraries, it certainly casts doubt on the gloom and doom being forecast if public access mandates grow.  And it is further evidence that such mandates do not lead, contrary to the ALPSP report, directly to library cancellations.

Finally, the best evidence of the real reasons behind journal subscription cancellations is a more detailed survey commissioned by the publishing industry itself.  One of the problems with the ALPSP report is, as I said, that the question it asked was too vague and lacked context.  As it turns out, the Publishers Communication Group did a larger survey of cancellations between 2007 and 2011 that asked librarians about actual decisions they had made, rather than posing a hypothetical question.  When asked why they made a particular decision to cancel a specific journal, the thousands of librarians queried listed four principal reasons — budget cuts, low usage, faculty recommendations and the desire to end subscriptions to the same content in different formats (cancelling print to focus on electronic access).  These four reasons where cited for over 60% of the cancellations, while free public access was mentioned less than 5% of the time.

So this is why I think I know that public access does not directly lead to library journal cancellations.  But this is really a side-issue.  As I said in the original post, even if public access reaches a scale in which it does imperil journal subscriptions, that does not mean we should not pursue it.  The evidence for the value of open access is becoming overwhelming, and the claims that it will harm scientific research (as opposed to for-profit publishing) or prove unsustainable are increasingly easy to refute.  If I had my way (and I seldom do), the conversations about scholarly communications would move forward based on three broad principles:

  1. Open access is beneficial for researchers, for scholarship and for society.  We should be looking for ways to move toward more openness, not resisting those movements at every turn.
  2. Sustainability is a valid question for all methods of distributing the results of research.  It is unfair to complain that digital or open access models are not sustainable, but to ignore evidence of the same problem (such as the financial difficulties that led to the decision to close the University of Missouri Press) in regard to traditional publishing models.
  3. Libraries are not (necessarily) seeking the end of publishing as we have known it, but they are seeking better ways to use their budgets to support teaching and research.  The ideal situation would be a genuine effort amongst all the stakeholders to find the most efficient and sustainable ways to disseminate scholarship, and the partnerships between researchers, institutions, scholarly societies, publishers and libraries that will best move that goal forward.

How to say goodbye to a University Press

Ever since the University of Missouri announced on May 24 that it would end its subsidy of the University of Missouri Press, which seems to indicate its imminent closure, it has been interesting to listen to the reactions.  As Jennifer Howard says in her piece for the Chronicle of Higher Education, the response to this decision has been rather quiet, compared to howls of protests heard about earlier, similar decisions.  But there are three types of comments in reaction to the announced closure that I have heard, and each, I think, misses the point to some degree.

First, nearly all of those who have criticized the decision do so on the basis of the fine books that the University of Missouri Press has published over its 50 plus years in business.  The Press has published the collected works of Langston Hughes, Harry Truman and Mark Twain, for example.  This is a distinguished history of which the University should be proud.  But these books will continue to exist even after the Press ceases operations, and accomplishments in the past are not the point.  The question is whether or not the Press is capable of matching those accomplishments in the future.  The University seems to have determined that it is not.  There will surely be high-quality books in the future, but they will have to find other publishers and, perhaps, different platforms.

Second, some of the critics of the decision have suggested that it is foolish to close the Press to save such a small amount of money — the $400,000 per year that the University has been giving the Press for some time to cover its operating deficit.  But the question should not be how much money, but what value is returned on the money spent.  For its $400,000, the University sees about 30 books published each year, which means each title is subsidized at a cost of over $13,000.  These are expensive books from the University’s point of view, I imagine, and if this option is contrasted , for example, with the possibility of supporting three new tenured positions in literature, the value proposition looks quite different.

One rhetorical move that is very common in these debates is to contrast the small amount of press subsides with the high salaries of football coaches on the same campus.  While it has emotional appeal, this is a dangerous strategy because it highlights the value issue.  For better or worse, universities are mostly convinced that they see a significant return on investment from athletics; some even argue in many cases that these programs are self-supporting and return revenue to the institutions.  Demanding that universities take money from athletic programs to support presses may seem to have a certain high-brow appeal, but it emphasizes that some university presses cannot support themselves and do not provide, apparently, sufficient support to the universities’ missions either.  [A great deal more data about university sports subsidies and their relationship to library budgets can be found in this Inside Higher Ed essay by John V. Lombardi.]

In her book Planned Obsolescence: Publishing, Technology and the Future of the Academy, Kathleen Fitzpatrick documents how university presses began their lives as places to publish the work done at their parent universities.  Only after a period of time did they begin to demand autonomy to broaden their lists and retain their profits (see pp. 175-187).  If they now are asking once again to be supported by those parent universities, presumably they must once again show how they support the specific mission of the parent.  If they do not do that, the return on investment is inevitably going to seem insufficient.

Finally, there is one other reaction to the Missouri announcement that misses the point, I think.  In his Chronicle blog post on The Consequences of Closing University Presses, Frank Donoghue moves very quickly from mourning the lose to asserting that digital publishing is not the solution for university presses.  Donoghue cites a ten-year old quote from Jenefer Crewe of Columbia University Press about how publishing costs are mostly due to human labor, so that digitally published books would probably lose as much money as printed ones do.  This is hardly a comforting thought, and does little to make the case that universities should continue to support the traditional model, whether the books are published digitally or on paper.  Indeed, it reminds me of the much older quote from Chester Kerr, long-time Director of Yale University Press, who said this back in the Sixties about university presses:

We publish the smallest editions at the greatest cost, and on these we place the highest prices, and then try to market them to people who can least afford them.  This is madness.

So it seems that we have known for years that the business of publishing small editions of beautiful academic books was unsustainable.  Even if digital publishing cannot reduce labor costs, surely it can reduce some of the expense of printing a book.  I wish some one would tell us what percentage of the costs really are printing, shipping, marketing and storage, so that universities could begin to develop new models based on solid numbers.  And Crewe’s speculation includes costs for infrastructure that are surely lower today then they were ten years ago, as well as for “selling subscriptions to libraries,” which might not be necessary if we think more broadly about the dissemination of scholarship.

The overall lesson here, I think, is that we need a broader conversation about how to distribute scholarship.  Neither the traditional press model nor an entirely open access digital solution is likely to be THE answer, although each will almost certainly be part of the answer.  Not all traditional academic publishers will survive, which is a reality both sad and necessary.  Nor will all digital publishing experiments survive.  But in both cases, some will, and as we move forward the best alternative is to be very transparent about costs, quality, service and value, and to be open to having diverse options striving, and sometimes thriving, side-by-side.

Saying the right things, then doing them

It is a sign of how behind I am in my reading that over lunch last week I finally got around to reading the speech/blog post by Kathleen Fitzpatrick about “Giving it Away: Sharing and the Future of Scholarly Communications.”  It is an  eloquent statement about how open access and the sharing of scholarship is really simply an extension of the core values of academia.  In the process of making that point, however, Fitzpatrick, who is Director of Scholarly Communications for the Modern Language Association, covers a lot of very practical ground, and the speech brims with passages that elegantly express what many of us wish we had said.

There are three points I want to pull out from Fitzpatrick’s talk, because they are relevant to what else I want to talk about:

First, she very neatly expresses the key point about dissemination of scholarship in a digital age when she writes that “Open access … is the cornerstone of the scholarly project: scholarship is written to be read and to influence more new writing.”  She goes on to quote the Budapest Open Access Initiative to the effect that the very old tradition of scholars sharing the fruits of their research without payment has now converged with a new technology, the Internet, to permit much greater impact at lower cost.  Access barriers that were necessary in the age of printed works simply are not needed any longer, and it is now more possible than ever to “share the learning of the rich with the poor and the poor with the rich.”

Second, Fitzpatrick makes a powerful argument that open access is not a threat to the humanities, but may be their best hope.  She directly addresses the fear of a public who are often scornful of much of humanistic scholarship, which sometimes leads scholars to think about their audience as only a select group of fellow specialists.  To this reaction she replies,

 Closing our work away from non-scholarly readers, and keeping our conversations private, might protect us from public criticism, but it can’t protect us from public apathy, a condition that is, in the current economy, far more dangerous.

Improved access and impact, in short, are  good things for both individual scholars and, ultimately, their disciplines.

Finally, Fitzpatrick also addresses the complaint that open access business models are not sustainable.  She returns, by way of a response, to the argument Larry Lessig made some time ago that in the digital age it is not content that will be marketable as such, but services created around content that will be freely available.  Since Lessig outlined this “freemium” model, its success has been underscored many times, by companies like Red Hat, Dropbox and WordPress.

This last point in particular was in my mind when I heard, shortly after reading the speech, that the MLA was planning to change its publication agreement with authors in order to allow them to retain their copyright and to self-archive their final manuscripts in open access repositories.  It is great to see the largest of scholarly societies not only say the right things, but to put the values they espouse, which are, as Fitzpatrick reminds us, the basic values of the scholarly endeavor, into practice.  According to this article about the announcement in Inside Higher Ed, the immediate response to this change from literary scholars has been very positive.  And my favorite quote from that article reinforces Fitzpatrick’s discussion of providing services rather than trying to monopolize content.  In response to fears that self-archiving would undermine journal subscriptions, the MLA’s Executive Director said this:

We believe the value of PMLA is not just the individual article, but the curation of the issue. PMLA regularly includes thematic issues or issues where articles relate to one another. While there will be value in reading individual articles, that does not replace the journal. Further, the individual articles posted elsewhere could attract interest to the journal.

The MLA’s announcement, I think, poses important propositions that the scholarly world should consider.  Time will tell how the move plays out, and, as a lawyer, I would like to see the text of the new agreement.  But at least we can consider these three positive statements, rather than their negative counterparts that we so often hear, as the foundation of conversation going forward:

  1. Open access is not only possible, but is even vitally important, in the humanities.
  2. Open access, especially in its “green” form of author self-archiving, is not a threat to scholarly societies.
  3. The value of organized publishing efforts is in the services they provide around the content, not in the content itself (which, of course, the publishers do not create).

In regard to the scholarly content created by academics, Fitzpatrick’s speech is a reminder that closed-access publishing actually diminishes the value of such works, because that value depends on more readers and greater impact.  Scholarship no one can read has no value at all, obviously.  With their new publication agreement, the MLA is launching an experiment in increasing the value of literary scholarship by returning control over it to the authors.  They, after all, are in the best position to make decisions about what forms of dissemination best serve their own interests and those of humanistic studies in general.

A success, and a long road ahead

Last night the We the People petition to encourage public access to the results of taxpayer-funded research reached and exceeded its goal of 25,000 signatures, so we should expect a response from the White House.  Thank you all who signed the petition!  It is impressive to reach the goal in only half the allotted time.

If you have not signed, please do so anyway.  The more signatures on the petition the clearer it will be that this is an issue the White House should embrace during this election year.  And an ever-growing list of signatures will also help shape the response; we want substantive action here, not simply assurances of further study.

It is probably simply coincidence that on Friday the UK Publishers Association released a report purporting to show that public access to research articles after a six-month embargo, which is a move being considered by the seven Research Councils UK would result in large-scale subscription cancellations,  A press release linking to the report is here.  The timing of the report is clearly intended to influence the RCUK; indeed, a short comment on the Publisher’s Association website takes an extremely Chicken Little approach to the report, assuring policy makers that a six-month embargo from the RCUK would “cause publisher collapse.”

Public access advocates have been asserting for a while that the harm predicted by publishers if taxpayers could read the results of research they funded was overblown.  So now the Publishers Association has offered us evidence of a sort.  But there are a couple of problems with the report that should prevent policy makers and the public from accepting its assertions too readily.  And even after acknowledging that the report probably claims to prove too much, we might still ask, “so what.”

One problem with the report is that it is based on an excessively simple survey.  A single question was sent to 950 librarians, with 210 replies.  The question was just this: “If the (majority of) content of research journals was freely available within 6 months of publication, would you continue to subscribe?”  The problem, of course, is that there is insufficient context for librarians to make a reasoned response to this broad question.  What is a “majority?”  How available, and searchable, would these articles be?  And continue to subscribe to what?

This last question is particularly important, because the Publishers Association lumped together those responses that said they would cancel everything, which is a very small number, with those who said they would cancel some journals.  The two percentages are simple combined in the press release that announces impending disaster.  But surely the publishers realize that some cancellations are going to happen regardless of public access, due to their own pricing policies.  Libraries simply cannot continue to subscribe to everything when the prices of packages continue to rise at around 6% while library budgets shrink or remain flat.  Whether those cancellations are selective or devastating really has more to do with how publishers manage their bundling.  But public access is not the primary driver of cancellations, it is excessive price increases.

It is instructive that the report acknowledges that “more than one” librarian objected to the simplicity of the question and tried to provide a more nuanced reply.  In those cases we are told that the responses were “carefully assessed” in order to decide which broad category to put them in.  In other words, attempts to introduce nuance, and no doubt especially to discuss bundling and price increases, were dismissed in order to jam the replies into predetermined categories constructed to point to impending doom.

So it appears that the question was too broad, attempts by respondents to be more specific were brushed aside, and then different answers (some, inevitable, cancellations v. sweeping cancellations) were combined to create a picture of disaster with which to frighten policy makers.  But even if we acknowledge the flaws in this study, it is also useful to ask whether the result it predicts would really be a disaster.

The place to begin is with the recognition that neither libraries nor policy makers have an obligation to preserve a particular business model just because it has existed for a while, if it is not able to support itself in the face of rapid technological change.  To say that scholarship will dry up if some publishers go out of business is simply not true; scholarship will continue and it will find new ways, and likely more efficient ones, to reach those who want or need to read and use it.  This is already happening, which is why the publishers are so frightened in the first place.  Transformational change is coming, and if publishers cannot find a way to adapt, we should not worry over much, at least not to the point of failing to experiment with new options.  Certainly we should not let the prospect of traditional publishing becoming a smaller segment of the overall picture of scholarly communications dissuade us from adopting policies that will ultimately benefit researchers, students and the public.

The Publishers Association links this study to an argument that the only form of open access that should be encouraged is “Gold” OA, in which (sometimes) a fee is paid by the author in order for the work to be free for access for all readers.  Certainly fully open access journals, which is the real meaning of gold OA, have an important role to play in the future.  But note that only some of them are supported by author-side fees.  The new journal eLife, which hopes to rival Science and Nature, is supported by research funders and will not change publication fees.  And these kinds of fully OA journals are quite different, one suspects, from what the Publishers Association means by Gold OA.  They are most likely referring to open access to individual articles for which a special fee has been paid, while the other contents of the journal as a whole remain behind a subscription barrier.

In short, in their “embrace” of gold open access the Publishers Association is asking the public to pour more money into the inefficient system they have created, not less.  Gold OA will be part of the short term future, I believe, which is the only future we can dare to predict.  Green OA, including the kind of public access that both the White House and the RCUK are considering, will also be a part of the future, and is likely to prove the more sustainable option.  But the hybrid OA model on which the publishers want to pin their futures must be only a transitional step toward full gold OA; it is not a sustainable approach for even the short-term long haul.

Publishers file response to GSU ruling

Yesterday the three plaintiff publishers in the copyright infringement case against Georgia State filed their proposed injunction, as the Judge required that they do, and a memorandum of law in support of that proposal.  So now we have a chance to examine their first legal response (as opposed to press releases) to the ruling Judge Evans handed down three weeks ago.

First a couple of comments about the memorandum of law.  There is a statement in it which asserts that the May 11 order found enough infringement to justify imposing the original injunction the publishers suggested back before the trial.  This is wishful thinking indeed, considering how many points the Judge has found in favor of GSU since that sweeping proposed injunction was offered.  And remember, the Court found only 5 instances of infringement out of the 75 excerpts examined or 5 out of 95 if we count the ones consider at trial and subsequently withdrawn by the plaintiffs.   But this hardly seems like a serious hope on the part of the three publishers, and the rest of the memorandum is spent explaining and defending the alternate proposal they offer, which is, they say, more narrowly tailor to track the Court’s fair use analysis.

One other comment in the memorandum caught my eye — the assertion that the GSU policy “did nothing” to limit GSU’s copying for electronic reserves to “decidedly small” excerpts.  This is technically a true statement but seems to misrepresent the Judge’s exact words and their implication (in fairness, the plaintiffs do quote those exact words later on).  What the Judge did say was the the GSU policy did cause the infringement “in that it did not limit copying in those instances [the five infringements] to decidedly small excerpts as required by this order.” She does not say that the policy did nothing to limit the copying, only that it did not conform to an arbitrary standard which was not available to GSU when the policy was implemented.  Hardly a culpable lapse, and the Judge does go on to say that the policy was a good faith attempt to comply with the law.

The phrase “in those instances” may be very important as this case proceeds, because much will turn on whether or not the Judge thinks the instances of infringement that she found rise to the level of “ongoing and continuous” violation of federal law.  The publishers assert that it does, and use those words over and over.  They need to make this argument in order to get an injunction that broadly proscribes future behavior by GSU. The exception to sovereign immunity on which this case is founded allows a court to issue an injunction only to prevent such “ongoing and continuous” violation.  So it is possible that the Judge could decline to issue an injunction at all by ruling that the few infringements she found amongst the many excerpts she examined do not suggest a pattern of ongoing and continuous violation.  Or she could simply order small tweaks to the GSU policy.

In their (alternate) proposed injunction, the publishers ask for much more.  They want GSU to be enjoined from ever using any excerpts from Sage, Oxford or Cambridge works without permission unless a strict set of conditions is met.  Those conditions include meeting all of the fair use factors (it would no longer be a balancing test), as they have been defined by the Judge, although the injunction combines factors three and four into a single set of requirements.  The proposal says that, to be used by GSU without payment, any excerpt from these three publishers must be “strictly without charge for nonprofit educational purposes” AND be “narrowly tailored” to “fulfill a legitimate purpose in the course curriculum” AND not be the heart of the work AND not be more than 10% or a single chapter, whichever is less.  Alternatively, if a digital license is not available from either the CCC or directly from the publisher (they want GSU to pursue both options), the excerpt must still be sufficiently small “as not to cause actual or potential market harm to the work.”

These requirements are taken very closely from the analysis Judge Evans used, but they are shaped into a less flexible test than the Judge actually employed.  For example, in the one case where the use of the “heart” of a work led to a finding of infringement by Judge Evans, that excerpt also exceeded her standard in terms of length (it was two chapters and 12.5%).  Because the third factor did not favor fair use, the factors were tied, and the Judge looked at the issue of the centrality of the excerpt to break the tie.  Thus she never actually asserted, as the proposed injunction would have her do (it connects length and centrality with a conjunction, not a disjunction), that an excerpted could be infringing if it was the heart of the work even if it was sufficiently short to meet her basic third-prong test.

The proposed injunction goes on to impose additional requirements on GSU, which look very like what was suggested in the publishers’ first proposal.  GSU would have to rewrite its policy to conform with the publishers’ reading of Judge Evans’ ruling, and state explicitly that the fair use checklist had been superseded.  They would have to document extensively, including evidence of an inquiry about a license made to both the CCC and the publisher for every excerpt.  Faculty would be required to see the entire proposed order every time they tried to upload anything, and to be threatened with sanctions if they disobey it in any particular.  The Provost would have to certify compliance to the Court each semester for the next three years.  And perhaps most objectionably, GSU would be required to provide the publishers with access to its course management system so that they could verify compliance.

The proposed order is clearly intended to humiliate GSU and to make fair use as difficult as possible for them.  It reads to me like a party who actually won very little at the trial still trying to spike the ball in the other parties’ face.  I hope the Judge will see it as yet another attempt to overreach the evidence on the part of the publishers.

One thing I can say with confidence.  If the publishers are given the right to poke around in GSU’s course management system, faculty will be outraged, at GSU and elsewhere.  That outrage might lead some to look for “underground” methods for sharing academic readings, which would be unfortunate.  It might also lead to difficulties in finding faculty authors who will be willing to continue to provide free content and free labor to these three publishers.

GSU now has 15 days to respond to this proposal, and then the Judge will decide what she will order.  It is likely her order will not be exactly what either side wants, and that the case will then move to the Eleventh Circuit Court of Appeals.

Almost there

As I write this, the White House’s “We the People” petition on requiring online public access to scientific journal articles that arise from tax-payer funded research is nearing 21,000 signatures after only 10 days.  This is great news; since the threshold to bring this to the formal attention of White House policy makers and require a official response is 25,000 signatures in 30 days, we are really getting close. But we still need slightly more than 4,000 people to sign for this to happen; I encourage you to consider signing the petition, if you haven’t yet, and to bring it to the attention to acquaintances who might be interested.  For those who care about scientific progress, innovation, teaching and simply getting a reasonable return for the tax monies that are spent to support research, signing this petition should be an obvious step.

Public access to the results of federally-funded research is an especially appropriate issue for the White House to address in an election year, and we hope that this petition will lead to a robust discussion and concrete action.  Offering a greater return on their investment in science to taxpayers ought to play well, of course.  But so should the benefits of broadening and accelerating the audience for science, since those benefits include more innovation and jobs.

There is a nice short article about the reasons they support the petition on Wikimedia’s “News and Notes.”

To sign the petition you must create an account, which ensures fair play.  All you need is your name and an e-mail address.  Only you first name and last initial display on the petition, so there is no threat to privacy here.  This is your chance to put a very worthwhile cause over the top.

Lobby the White House!

Admit it.  You seldom get a chance to lobby the White House, do you?  Even if you write lots of letters on topics of public interest, most of them go to newspapers or to your local representatives.  How often do you really get to bend Barak’s ear?  Here is your chance.

The White House has a petition program.  Anyone can begin a petition, and it becomes visible and searchable on the WH site if 150 people sign it.  If 25,000 people sign a petition in 30 days, the White House pledges that that petition will be circulated to appropriate officials (no, I cannot really guarantee that the President will read it) and an official response made public.  Although 25,000 signatures does not sound too hard, most petitions do not come close.

On May 21 a petition went public that asks the White House to act to make the articles that arise from Federally-funded research — that is research you and I pay for — publicly accessible.   Here is the text of the petition:

We believe in the power of the Internet to foster innovation, research, and education. Requiring the published results of taxpayer-funded research to be posted on the Internet in human and machine readable form would provide access to patients and caregivers, students and their teachers, researchers, entrepreneurs, and other taxpayers who paid for the research. Expanding access would speed the research process and increase the return on our investment in scientific research.

The highly successful Public Access Policy of the National Institutes of Health proves that this can be done without disrupting the research process, and we urge President Obama to act now to implement open access policies for all federal agencies that fund scientific research.

As many will recall, the White House Office of Science and Technology Policy did a public request for information on this topic, its second and more detailed such request, at the end of 2011.  A report based on the responses to the RFI has been prepared and is circulating within the White House.  This petition is designed to ask the White house to act on that report, which we believe is favorable to the idea of public access.  In only two and a half days the petition has collected half of the necessary signatures, but it is important to keep the momentum going; it will be the 24,999th signature that will be hardest to get.

The technology blog Slashdot has this to say in support of the petition:

“You paid for it, you should be able to read the results of publicly funded research. The National Institutes of Health have had a very successful open access mandate requiring that the results of federally funded biomedical research be published in open access journals. Now there is a White House petition to broaden this mandate. This is a jobs issue. Startups and midsize business need access to federally funded technology research. It is a health care issue, patients and community health providers need access, not a few scientists in well funded research institutes, and even wealthy institutions like Harvard are finding the prices of proprietary journals unsustainable.”

Note that this quotation links to the Harvard Library Faculty Advisory Council’s memo to the faculty about journal pricing and suggests that the petition is one way to address the unsustainability of the current journal system.  I cannot help noting, however, that the Harvard group did not say, in that memo, that Harvard could not afford the journals; they said something more fundamental.  They said they were not getting sufficient value for the money they were spending under the current system and that their (substantial) resources could be better spent elsewhere.  This petition, like the Harvard statement, is about increasing the value, the return on investment, that the public gets from its support of scientific research.

For an entertaining argument in favor of public access, here is a fun video from Access2Research.

If you are a librarian and believe that the current system of disseminating research and scholarship is unsustainable, I hope you will read this blog post from the ACRL and consider signing this petition.

If you are a researcher and want faster, better scientific information and collaboration, I hope you will consider signing this petition.

If you signed the “Cost of Knowledge” Elsevier boycott, I hope you will consider signing this petition.

If you are a student and want to keep the costs of your education from rising even faster, I hope you will consider signing this petition.

If you are a businessman or entrepreneur and want to encourage innovation and job growth, I hope you will consider signing this petition.

If you are a taxpayer and believe you should get what you paid for, I hope you will consider signing this petition.

More on GSU and the publisher response

Now that I am back from vacation and have read the GSU ruling and some of the commentary more thoroughly, I wanted to add a few additional comments.  In many cases these may be repetitive of things others have already said; I have not read all the commentary, of course, and some of this writing is for my own sake as much as yours.  If it is redundant, I apologize.

I do hope most folks either have read or will read Brandon Butler’s “Issue Brief” for the Association of Research Libraries, which does a great job of analyzing the ruling.

The main thing that struck me as I read the fair use discussions for the individual excerpts that were in question in the case is that Judge Evans really did understand that fair use is a balancing test.  Although some parts of her reasoning are more mechanical than I would like, she does not take a bright-line view of any of the factors.  It seems worth a look, to me, at the way she relates the four factors in her discussion.

First, she finds that the first two factors — the purpose and character of the use and the nature of the original — always favor fair use in regard to the specific use and the specific works before her.  This is true even though she declines to hold that the provision of short course readings is transformative, which is the key determinant in most fair use rulings over the past few decades.  Instead, she sees this activity as at the heart of what fair use is intended to be, according to its own express terms.  On the nature of the original, she holds that the works in question were all published and factual in nature.

This point about the second factor is likely to be the focus of some disagreement from the publishers.  They wanted the court to hold that factor two did not favor fair use, apparently because of the effort involved in writing and publishing academic works.  No one is more respectful of the labor of scholarship than I am, but hard work by itself does not get one a copyright or insulate one’s copyright from fair use.  The Judge observed that educational works are exactly the works that fair use is focused on, with its favored purposes of research, scholarship and teaching.  She also noted that permission fees make up no part of the incentive for academic authors to write their works (p. 81ff).  This, to my mind, is the key reason for finding that factor two favors fair use in this case (although the Judge called it an “additional consideration”).

On the other side of the analysis, Judge Evans presumed, at least as an initial matter, that factor four, the impact of the use on the market for or value of the original, always favored the plaintiffs, which is to say it counted against fair use.

Which brings us to the third factor, the amount used.  This was the “swing vote” in most of the individual analyses, and the Judge applied a clear but quite narrow rule.  Ten percent of a work was acceptable as fair use if the book had fewer than 10 chapters, and a single chapter was considered fair use for books that contained 10 or more chapters.  This rule, which was applied quite strictly to decide if a “decidedly small” portion of the work had been used (that was the standard Judge Evans applied for this particular type of use), had some odd results; as little as 3% of a work was considered too much for fair use in a situation where the work was long and had many chapters.

But notice something important.  When the third factor disfavored fair use, the factor analysis stood at two in favor (one and two) and two against (three and four).  In those cases the Judge went on to do additional analysis, asking several further questions.  Was the heart of the work used? (she declined to assume that all e-reserve uses involved the heart of a work)  Was there a “readily available” license for reproduction of the excerpt in digital form? Were licensing fees an important part of the value of the original work in question? (Judge Evans held that they usually were not, so this was an important question).

The results of this additional analysis were what finally determined whether or not a use was fair if the third factor threshold the Judge had set was exceeded.  When the amount used was within her guideline of 10% or one chapter, the availability of a license for digital distribution did not sway the analysis against fair use.  And when a license for a digital excerpt was not available, the amount used was less important (although the leeway here is small, for Judge Evans).

If this rule about amount seems unduly restrictive, libraries would do well to remember three other findings from the ruling that impact how we might view this guideline.  First, she held that percentages should be calculated based on the total number of pages in the book, which makes for a much easier and quicker determination of amount than the method of counting the plaintiffs sought.  Second, she held that individual chapters by different authors in an edited volume should by counted by the same method and not as if each were an individual work, which also simplified the process of decision-making.  Third, she rejected the idea that a use that was fair use in one semester must be paid for in a subsequent semester.

All three publisher plaintiffs, along with the two organizations (the Copyright Clearance Center and the Association of American Publishers) that bankrolled them, have now issued initial responses to the verdict.  Overall their objections are quite vague.  Several of the responses refer to legal or factual “errors” in the ruling, but they do not specify what they are.  The AAP does disagree with the Judge’s finding that the loss of permission revenues because of fair use imperils their business; they repeat this absurd claim even after the Judge pointed out, based on figures supplied by the plaintiffs themselves, that these publishers made less than one quarter of one percent of their 2009 revenues from academic book and journal permissions.

All of the publishers assert that there is error in the judge failing to consider what the AAP calls the “full context” of the activities at GSU.  Sage and Oxford (who issued identical statements) suggest a “pattern and practice” of infringement , while Cambridge refers to “systematic and industrial-scale unauthorized reproduction.”  It is hard to know what to make of these assertions, other than that they arise out of sheer frustration.  Since the Judge has just found that only five of the excerpts before her were infringing, “systematic” and “pattern” seem like inappropriate words.  The Judge had to decide the case based on the specific allegations and evidence before her, and the plaintiffs were the ones who produced those allegations.  So if only five out of 99 (or 75, depending on where you start counting) were infringing, no pattern of systematic infringement has been proved.

The Cambridge statement has the strongest hint of an appeal, saying that they look forward to working with their “partners” to “resolve this issue.”  It also has the chutzpah to evoke “our authors” as victims of the ruling.  How many times can we repeat what publishers hate to admit in public, that the vast majority of academic authors are not paid for their scholarly writings (by publishers, at least) and do not consider permission fees when deciding whether, what or where to publish?

So where do we go from here?  We need to remember that this is only a District Court ruling, which is not binding on any university other than GSU, that no remedy has yet been ordered, and that it is likely to be appealed.  Nevertheless, it is a carefully reasoned ruling with lots of specifics for libraries and universities to consider.  Some institutions may decide that the Judge has defined a safe harbor and that they want to anchor there; in that case it is worth noting that some of the analysis she applies would be difficult to replicate without detailed financial information from publishers.  More likely, schools will look at this ruling and tinker with their own policies a bit.  Given both its substance and the still-early stage of the proceedings (really, even after 4 years and 350 pages this is not the final word), this decision is not, in my opinion anyway, a cause for large-sale or precipitous changes at most institutions, a fact that even the publisher statements seem to admit.

The GSU decision — not an easy road for anyone

Overall there is good news for libraries in the decision issued late yesterday in the Georgia State University e-reserves copyright case.  Most of the extreme positions advocated by the plaintiff publishers were rejected, and Judge Evans found copyright infringement in only five excerpts from among the 99 specific reading that had been challenged in the case.

That means she found fair use, or, occasionally, some other justification, in 94 instances, or 95% of the time.

But that does not make this an easy decision for libraries to deal with.  Indeed, it poses a difficult challenge for everyone involved, it seems.  For the Judge, it was a monumental labor that took almost a year to complete.  She wrote 350 pages, working through a raft of legal arguments first and then painstakingly applying them to each of the challenged readings.  And for me, with a week’s vacation pending, I am trying to make sense of this tome before I leave, which is why I am writing this at four in the morning on a Saturday (please excuse typos!).

For the publishers who brought the suit – Oxford, Cambridge and Sage – there are some bitter disappointments.  Judge Evans explicitly rejects the Guidelines for Classroom Copying as the standard to be applied.  She also found the two major cases on which plaintiffs relied, American Geophysical Union v. Texaco and Princeton University Press v. Michigan Document Services, to be inappropriate analogies for the situation before her.

One holding that is certain to generate much discussion is Judge Evans’ rejection of the so-called “subsequent semester” rule, which had evolved from the Classroom Copying guidelines and led many institutions to assert that a liberal interpretation of fair use was permissible once but that permission had to be sought for subsequent uses of the same text.  Judge Evans found this restrictive approach to be “an impractical, unnecessary limitation” (p. 71).

Perhaps most distressing for publishers is the Judge’s statement that permission fees are “not a significant percentage of Plaintiff’s overall revenues” and that their loss through the assertion of fair use does not threaten the publishers’ business.  She calls this latter argument “glib” (p. 84).

In spite of all this, there are significant aspects of this ruling that will prove very difficult for libraries as well.  Two aspects seem especially likely to stir up consternation.

First, the Judge applies a strict standard for the amount of a work that is permissible under fair use in this situation.  The percentage she selects is 10%, or a single chapter.  In putting this percentage into practice, she bases the calculation on the total page count of a book (this was an issue at trial, with publishers arguing that only the actual text of the work should be counted), and rejects any distinction for books that are edited, in which each chapter has a different author (p. 88).  This is a less flexible standard than many libraries would like, I think, and it seems too rigid to be a good fit with the overall structure of fair use.

Second, the Judge bases many of her analyses of the fourth fair use factor on the percentage of the overall revenue that publishers realize for a particular title that comes from permission fees.  She criticizes the GSU policy for not providing sufficient guidance for making a determination about this kind of market impact, but immediately acknowledges that the standard she is applying “would likely be futile for prospective determinations (in advance of litigation)” (p. 337).  This is simply an unhelpful approach, since libraries and faculty members must make such prospective determinations without knowing all the information that publishers provided, under court order, to the judge.  Recognizing this, Judge Evans says that “the only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available) (p. 338).

Hard as it may be to be told to make this assumption, even though the judge has found it not to be the case in most of the instances before her, we should pay attention to her qualification of it.  The permissions we should look for are those available for digital excerpts.  In another place she asserts that she will consider the permissions market in the fourth factor analysis only when a license is “readily available” at a “reasonable” price for a “convenient” format (p. 89). She explains that the license must, to qualify as convenient, allow digital excerpts.  This standard is actually hard for some publishers to meet in their current licensing postures.  No infringements of Cambridge works were found, for example, probably in part because Cambridge allows only very limited licensing through the CCC.  If publishers do not license in a way that facilitates reasonable educational use in the digital environment, the fourth factor will, she seems to be saying, cease to favor them.

Two more quick points, and then I will try to summarize the fair use analysis the Judge is recommending.

First, it is very important that the Judge finds that GSU’s copyright policy was a good faith effort to comply with the copyright law by interpreting fair use (p. 338). She criticizes the policy on two points – its failure to define the strict percentage limit she says is necessary and for not providing guidance about market harm, which she admits would be impossible.  But she does not believe the policy was a sham or merely “cover” for doing whatever the faculty wanted, as publishers asserted.  This would be a significant finding if money damages were at issue, due to the waiver of statutory damages in the law for educational institutions that make good faith fair use decisions.

The second point I think is interesting is the fact that Judge Evan considered hit counts when making determinations about some of the disputed excerpts.  In some cases she cuts short the fair use analysis because hit counts suggest that no students actually read the material.  In those cases she calls the copying “de minimis” and ends her analysis (see p. 96, i.e.).  This means that it will be hard to dispute about specific readings without knowing whether or not they were actually read (we know, sadly, that many such assignments are not).  Putting infringing material in a system, apparently, is not enough to establish liability; plaintiffs will have to show it has been used.

So here is the bottom line on the fair use analysis Judge Evans has outlined (pp. 87 – 89 of the opinion).  The first factor – purpose and character of the use – heavily favors fair use because it is for non-profit teaching and research.  She mentions the section 107 reference to “multiple copies for classroom use” and she does not employ a “transformational” approach.  She finds that the second factor also favors fair use, since all of the works at issue were non-fiction and educational in nature.  The third factor can go either way, depending on whether or not the excerpt is less than 10% or a single chapter.  The fourth factor is where the difficulty lies; Judge Evans finds that it “heavily favors” the plaintiffs IF a license for the appropriate format is readily available at a reasonable price.  There is lots of room to debate this part of the analysis, and lots of uncertainty, I think, about how it can be applied.

The Judge has deferred any action on crafting a remedy for the few infringements that she found.  She has asked the plaintiff to suggest an injunction, which will be difficult to craft to fit this ruling and will have to look very different from the one they suggested 18 months ago.  GSU will have a chance to object to any draft injunction, so the remedies phase of the case will go on for a while.

In general I expect librarians to be happy about the outcome of this case.  It suggests that suing libraries is an unprofitable adventure, when 95% of the challenged uses were upheld.  But there will also be a good deal of hand-wringing about the uncertainties that the Judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage.  We will spend considerable time, I think, debating whether and how to implement Judge Evans’ rules into our own copyright policies.  In the meanwhile, of course, the ruling is nearly certain to be appealed.

(Note that the opinion is not yet up on the free sites that I usually link to, but three different comments to  my previous post have provided links to PDF copies)

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.

Discussions about the changing world of scholarly communications and copyright