Getting into print the hard way

December 22, 2014 Kevin Smith, J.D. 3 Comments

I hope I will be forgiven some self-promotion if I point out that my first book (that’s a little like saying my “first” marriage – so far it is the only one, and no other is anticipated, but one should never say never) has just been published. It is a handbook of intellectual property designed specifically to address the needs and concerns of researchers and teachers, and it was published on December 10 by the Association of College and Research Libraries. It is available for purchase on the ALA Store site here. There is also a PDF made available under a Creative Commons Attribution/Non-commercial license on the ACRL site. I also expect to have a PDF in the DukeSpace institutional repository soon.

As a last piece of book promotion, I will note the blog post about the book on the Author’s Alliance web site, which was largely written by me.

All that aside, the real purpose of this post is to tell the story of publishing this book, because I think it is instructive for thinking about scholarly communication today. If I had to start with a moral for the whole story, it is that I should have started with the librarians, because they are a group — the ACRL was wonderful to work with — that can publish in the way most consistent with academic values and needs.

The story begins when I was contacted in 2009 by an editor for the University of Chicago Press, who suggested that I should write a handbook on IP for scholars. I was immediately interested, and, at the editor’s request, wrote first a proposal and then drafts of the first two chapters. Those chapters were sent out for review and we received both helpful suggestions and a recommendation to continue to develop the book from three reviewers. With that step complete, the U of C Press and I signed a contract in late 2010, and I set out on a long and difficult journey to finish and publish the book.

The writing process took me considerably longer than I expected; no surprise there, of course. When I apologized to my editor I was assured that it was OK; they would be interested in the project, they said, whenever it was complete. During this time, however, I got the first indications that this would not be a smooth relationship. I sent in chapters as I finished them, as the editor encouraged me to do, but did not get any of the promised feedback as I progressed. For a couple of years I was essentially writing in a vacuum.

I finished writing in March 2013 and, in May of that year, finally sent the Press the completed draft of the manuscript, which they sent out for review. The Press’ policy is that they must have two reviews of the full manuscript that recommend publication before they refer the book to their board for a final thumbs up. So I began to wait. After six months I checked in and was told that the Press had sent the manuscript to three reviewers. One had sent in a report with a recommendation to publish. One had reviewed just two chapters of the book, asserting that they were only qualified to comment on a portion of the subject matter. The editor had not yet heard from the third reviewer, and without two full review that recommended publication, they could not move ahead. The editor told me that the third reviewer would be reminded and that the Press would also look for an alternate reader.

Five months after this, having still heard nothing, I inquired again. My e-mail went unanswered. A second e-mail did elicit a response, which was that they were still waiting for that third reviewer. There was no sign they had ever sought that additional reader.

At this point I was pretty frustrated. Five people had read at least part of the manuscript, and all had recommended publication. All of them had also made really helpful suggestions for improving the text which I tried to adopt. But the U. of C. Press was still passively waiting for that one final reader so they could comply to the letter with their self-created rules. What bothered me most was the apparent lack of effort and commitment I was getting from the Press. After talking with several academic authors about my situation, I decided to withdraw the book from the U of C Press.

When I told my editor about this decision, the first reaction was to try to talk me out of it and ask me to have patience. The second reaction was to remind me of our contract and to suggest that I had no alternative but to wait it out with the U. of C. In response, I suggested two concessions from them that would make the waiting easier. First, I asked (for the first time, I am embarrassed to admit) for some form of open access to a version or a part of the book. Second, I asked to be paid half of the advance we had agreed on as a sign of the Press’ commitment to the project. I was told, however, that the first request was impossible because they needed to protect potential sales for the book, and that the second was contrary to their policy. In regard to the latter issue, I was pointed to specific language in my contract about when the advance would be paid. So I looked. It turns out that the contract language was actually different from what the editor told me it was. It stated pretty clearly that I would be paid the advance when I sent in the manuscript, not, as I had been told, only when and if the board approved final publication. I have no idea why the contract language was what it was, or if it was really different from what the editor thought it should be. I had not changed or negotiated that part of the agreement back when it was signed. Maybe the Press just figured that no one will read their contracts, so they could claim whatever they wanted about them.

Anyway, I brought this discrepancy to the attention of my editor. That was the last contact I ever had with that person. A few days later I got an e-mail from the Director of the Press, apologizing to me for the treatment I had received and confirming that the Press had breached our contract by not paying the advance in a timely fashion. I was told that I would be released from the contract AND that the Press would still pay the advance I was owed. Over the next few weeks, we signed a formal letter releasing me to publish the book elsewhere and I received a check for the long-delayed advance.

On the plus side of this relationship, I did get quite a lot of very helpful feedback for my manuscript from the readers (although, of course, I am solely responsible for whatever errors remain). Also, when faced with the clear evidence that they had not lived up to their side of the bargain, the Press did the right thing (maybe just to get rid of me!). But on the negative side, I got almost no help from the editor in actually developing the manuscript, the “management” of peer-review was lackadaisical, and I wasted over a year after the book was finished waiting for the Press to get its act together before I asserted my freedom to start looking for another publisher.

After this experience, I spoke to one other commercial publisher, and this time made the expectation of an open access copy a condition from the beginning. That led to a very short conversation. So finally I did what I should have done from the start — work with the ACRL. That experience was smooth, collaborative, and focused on the best way to make my work serve the needs of the audience it was intended for. The ACRL arranged for excellent and expeditious copy-editing and indexing. They agreed to immediate open access for the entire book. When there was a problem with the first print run of the book, the ACRL took immediate responsibility and re-printed the whole run. The process took less than six months from signing a contract to publication.

From this experience I take away three lessons, which I think are worth sharing. First, the claims about how much effort publishers put into a new book, and the help they provide to authors, are at least sometimes exaggerated. I was working with a prestigious university press on a book they had solicited in the first place, and yet did not get nearly the kind of assistance or interest that I sometimes hear promised. Second, it is extremely important to read, negotiate and save a copy of the publication contract. That my book is now in print is largely due, I believe, to the fact that I could go back to the actual language of our agreement in order to convince the U. of C. to release me to find another publisher. And finally, as I said at the beginning, libraries and library organizations, in my experience, understand the needs and goals of scholarly authors better than commercial presses. As the future of academic publishing unfolds, I strongly hope that more and more of it will be in the hands, or under the oversight, of libraries.

Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Cancelling Wiley?

December 16, 2014 Kevin Smith, J.D. 2 Comments

Because they were spaced almost a full year apart, I really did not connect the dots when two Canadian universities announced that they were cancelling their “Big Deals” with John Wiley & Sons publisher. The Times Higher Education reported on the decision at the University of Montreal back in January 2014, while the announcement made by Brock University came only a few weeks ago. I would not have considered this a trend worth commenting on had it not been for conversations I had last week at the Fall CNI Membership meeting. During that meeting, two different deans of large university libraries told me, unbidden and in separate conversations, they they were also considering ending their deal with Wiley. I was struck by the coincidence, which caused me to remember these two announcements from Canada and to begin to ponder the situation.

Two different questions occurred to me when I thought about these four significant cancellations or potential cancellations, all directed at a single publisher. First, why was Wiley the focus of this dissatisfaction? Second, what is the next step?

As for what the complaints are about Wiley, the answer is pretty much what it always is — money. The THE article and the Brock University report both tell us that exchange rates have made the annual “higher than the inflation rate” price increases for these packages even harder to bear than usual. They also point to another problem. Pricing is based on the large number of titles included in these package deals, but many of those titles are not very useful. The Brock post notes that the Wiley package has a significantly higher cost per use than does their Elsevier package, which presumably reflects the fact that many of the titles the University is paying for in the package simply do not get used. The same reality is probably behind the fact noted by THE that Montreal would subscribe to less than 25% of the titles that had been included in the package it was cancelling. It would be interesting to find out, a year on, how much those other titles have been missed.

In my conversations with the two library deans, much the same thing was said about Wiley — demanding a large price increase, being inflexible in negotiation, and selling “a lot of junk that I don’t need” in the package. Libraries are beginning to discover that they do not need to put up with those tactics. Publishers often tell us that they are publishing so many more articles, which justifies their price increases, and they tell us how selective their flagship journals are. But when we look at these big deals, it is clear that selectivity is not an across-the-board approach; many articles that are not very useful just slide down the hierarchy to get published in journals whose main purpose is to pad out a “big” deal.

To me the more important question is “what now?” Unfortunately, many times when a library makes this kind of decision there is actually little money saved, since the funds simply go into re-subscribing to a smaller, selected list of titles from the same publisher. But presumably some of these cancellations result in dollars saved. And when they don’t, I propose that libraries ought to reexamine their approach. When you have cancelled a dross-laden package, think twice before reinvesting all of that money in as many individual subscriptions from the same publisher as possible; make a careful decision about where the division between useful titles and unnecessary ones really lies. Because here is the thing — money that can be saved and reinvested in open access projects will give us a higher return on our investment, because those projects will provide greater access.

It seems clear that, over time, libraries will need to move more and more of their spending away from the consumption side of scholarly production and do much more to support the creation and dissemination of knowledge directly. Commercial publishers hope to capture those dollars as well, but one of the real benefits of supporting open access can and should be more freedom from businesses addicted to 30% profits. I would like to challenge libraries to consider, when they have to cancel, using the money to support non-profit or lower profit open access projects. Work with a society to provide subvention for a scholarly journal to become OA. Work with your university press to support OA monographs. Finally, even if not compelled by immediate budget realities, think about making some strategic cancellations in order to take these kinds of steps. We know that open access is our future, and it is vital that we take control of that future before others take it from us.

I don’t know if Wiley is the worst offender amongst the large commercial publishers, or whether there is a real trend toward cancelling Wiley packages. But I know the future of scholarship lies elsewhere than with these large legacy corporations. The process of weaning ourselves from them will be slow and drawn-out. But especially when the cancellations are going to happen anyway, we should have the idea of using the funds to advance the transition to open access foremost in our minds.

For a similar, but likely better informed, perspective on the idea of cutting subscriptions to support open access, please read Cameron Neylon’s post on “Letting it go — Cancelling subscriptions, funding transitions,”which ties the idea in his title to the discussion going on in the Netherlands about Elsevier’s big deal.

Digital Rights Management, Open Access and Institutional Repositories, Scholarly Publishing

Public access and protectionism

December 4, 2014 Kevin Smith, J.D. 1 Comment

By now many folks have commented on the announcement from Nature Publishing Group early this week about public access to all of its content and most have sussed out the fairly obvious fact that this is not open access, in spite of the rah-rah headline in the Chronicle of Higher Education, nor even public access as it is defined by many national or funder mandates. Just to review quickly the major points about why this announcement actually gives the scholarly community so much less than is implied by either of those terms, consider these limitations:

A putative reader can only get to an article if they are sent a link by a subscriber, or the link is present in a news article written by one of the 100 news organizations that NPG has chosen to “honor.”
Articles can only be read inside NPG’s proprietary reader
No printing or downloading is possible, so a non-subscriber hoping to use one of these articles to further her own research better have a darn good memory!
No machine processing will be possible; no text or data mining.

In short, all of the inconveniences of print journals are preserved; what NPG is facilitating here is essentially a replica of loaning a colleague your copy of the printed magazine. Or, at best, the old-fashioned system whereby authors were given paper “off-prints” to send to colleagues. Although, honestly, off-prints had more utility for furthering research than this “now you see it, now you don’t” system has.

If this is not open or public access, what is it? I like the term “beggar access,” which Ross Mounce applied to NPG’s scheme in a recent blog post, since it makes clear that any potential reader must ask for and receive the link from a subscriber. Some suggest that this is a small step forward, but I am not convinced. There is nothing public or open about this “ask a subscriber” model; all it really does is prevent scholars from downloading PDFs from their subscription access to NPG journals and emailing them to colleagues who lack a subscription. In short, it looks like another stage in the ongoing comedy of fear and incomprehension about the way digital scholarship works on the part of a major publisher. But Mounce’s post suggests that the move is more than that; he points out ways in which it may be designed to prop up digital business that Nature and its parent Macmillan have invested in — specifically ReadCube and AltMetric.com. The byzantine scheme announced by Nature will drive readers to ReadCube and will generate data for AltMetrics.com, helping ReadCube compete with, for example, Elsevier and their proprietary reading and sharing tool, Mendeley.

That is, this looks like another move in the efforts by the large commercial publishers to buy up and co-opt the potential of open access. On their lips, open access does not mean greater potential for research and the advancement of science; it means a new market to exploit. If administrators, researchers and librarians allow that to happen, they will have only themselves to blame.

My colleague Haley Walton, who recently attended OpenCon 2014, told me about a presentation made by Audrey Watters that included the idea of “openwashing,” which Watters defines like this:

Openwashing: n., having an appearance of open-source and open-licensing for marketing purposes, while continuing proprietary practices.

This is exactly what is happening in this announcement from NPG; old business models and awkward exploitation of new markets are being dressed up and presented as a commitment to access to scholarship, but the ruse is pretty transparent. It may quack like a duck, or be quacked about, but this plan is really a turkey.

If NPG really was committed to better access for scientific research, there is a simple step they could take — put an end to the six-month embargo they impose on author self-archiving. Much of their competition allows immediate self-archiving of an author’s final manuscript version of articles, but Nature does not. Instead, they require a six-month embargo on such distribution. So this new move does only very little to ameliorate the situation; the public still cannot see Nature-published research until it is old news.

Speaking of news, at Duke we have a relationship between the office of Scholarly Communications and that of News & Communications whereby we are notified of upcoming articles about research done at Duke. In many cases, we are able to work with authors to get a version of the article in question into our repository and provide an open link that can be included in the article when it is released, or added shortly after release. Our researchers find that putting such links in news stories leads to much better coverage of their discoveries and increased impact on their disciplines. We always do this in accordance with the specific journal policies — we do not want to place our authors in a difficult position — which means that we cannot include Nature-published articles in this program. To be frank, articles published in Nature remain highly valued by promotion and tenure committees, but relatively obscure in terms of their ability to advance science. NPG seems to understand this problem, which is why they have selected a small number of news outlets to be allowed to use these tightly-restricted, read-only links. They want to avoid increasing irrelevance, but they cannot quite bring themselves to take the necessary risk. The best way they could advance science would be to eliminate the six-month embargo.

It is interesting to consider what might happen if Nature embraced a more comprehensive opportunity to learn what researchers think about open access by tying their “get a link from a subscriber” offer with an announcement that they were lifting the six-month embargo on self-archiving. That would demonstrate a real commitment to better access for science, and it would set up a nice experiment. Is the “version of record” really as important to researchers as some claim? Important enough to tolerate the straightjacket created by NPG’s proprietary links? Or will researchers and authors prefer self-archiving, even though an earlier version of the article must be used? This is not an obvious choice, and NPG might actually win its point, if it were willing to try; they might discover that their scheme is more attractive to authors than self-archiving. NPG would have little to lose if they did this, and they would gain much more credit for facilitating real openness. But the only way to know what the real preference among academic authors is would be for Nature Publishing to drop its embargo requirement and let authors choose. When they make that announcement, I will believe that their commitment to finding new ways to promote research and learning is real.

Going all in on GSU

November 13, 2014 Kevin Smith, J.D. 2 Comments

On Friday the publishers who are suing Georgia State University for allegedly infringing copyright by scanning short excerpts from academic books to provide students with access through electronic reserves and learning management systems filed a petition for a rehearing by the entire Eleventh Circuit Court of Appeals. As most will recall, the panel of the Eleventh Circuit essentially did what the publishers wanted — reversal of the lower court judgment — but the appeals panel denied those plaintiffs most of the principles by which they hope to radically reshape copyright law. The publishers clearly understand that, whatever they can gain from additional lower court proceedings on remand, they will not get what they wanted when they brought the lawsuit. The panel ruled that the first fair use factor favors an educational, non-profit use even if the use is not transformative, that an item-by-item analysis is appropriate, and that it matters in the fair use analysis whether or not a license for digital excerpts is available. The publishers have decided they cannot live with these conclusions, so they have asked that those specific issues be reconsidered by the entire Eleventh Circuit court. Their “petition for en banc rehearing” lays out their arguments.

GSU also has filed a petition for rehearing. They are seeking some corrections to inaccurate statements about what list of alleged infringements was considered by the lower court, as well as a ruling that the risk of market harm from electronic reserves is a question of fact that the lower court should be instructed to consider. That risk, GSU argues, should be proved; it is not something the appeals panel should have presumed.

It is important to understand there is little chance that these petitions will be granted. When a case is appealed from the lower court to a Circuit Court of Appeals, we call that an “appeal as of right.” That is, that first appeal must be heard by an appellate panel. But thereafter, all subsequent appeals are discretionary; the court does not have to actually take the case, it has the option to deny the petition. Most people are familiar with the idea that the Supreme Court actually reviews only a tiny percentage of the cases for which it receives a petition for a hearing. Besides asking for Supreme Court review, the other option, after losing (or feeling like you lost) an appeal in front of a Circuit panel, is to ask that the entire group of judges in that Circuit reconsider the case. Like Supreme Court petitions, these petitions for en banc rehearing are rarely granted. In fact, the Federal Rules of Civil Procedure explicitly say that petitions for rehearing are “not favored and ordinarily will not be granted” (FRCP 35(a)). For more information about these post-appeal options, interested readers should see this article from the law firm Reed Smith.

So does the petition from the publishers stand a chance? There are two reasons a petition for rehearing might be granted: when there is a split within the courts of the Circuit or when a “question of extraordinary importance” is involved. In their petition, the publishers rely on the latter claim, but it is not very convincing. They try to drum up controversy by suggesting that the panel ruling contradicts some Supreme Court precedents, but, again, the effort is weak. The petition relies on the 1980’s decision in Harper and Row v. Nation Magazine, which the Supremes themselves have seriously modified in later rulings. So when the publishers object that the panel ignored Harper‘s emphasis on the importance of the fourth factor, they are deliberately ignoring language from the later Campbell v. Acuff-Rose case.

The other source that the publisher petition puts a lot of weight on is the “special concurrence” by Judge Roger Vinson. Essentially, Judge Vinson dissented on every major point in the majority opinion, but concurred in the result. Taken together, the two opinions indicate that a lot of negotiation took place in the 11 months it took to produce the ruling. It suggests, in fact, that the other two panel judges — Tjoflat and Marcus — were actually more sympathetic to fair use than is expressed in the majority opinion. But what is important about the heavy reliance on Judge Vinson in the petition for rehearing is the fact that Judge Vinson is not a regular member of the Eleventh Circuit. He is a senior judge at the District Court level (in Florida) who was on the Appeals Court panel to fill a vacant seat (called “sitting by designation”). That means that he presumably will have no role in deciding whether or not to grant the petition, or in any actual rehearing, in the unlikely event the petition is granted. So the publishers have found a friend in Judge Vinson, but he is not a friend who can help them all that much.

This petition for rehearing is thus a long shot, and it reveals the stark opposition of these three publishers to fair use as it has traditionally been interpreted throughout the long history of U.S. copyright law. Let’s look at the three principles the publishers say that they want and that the appeals panel got wrong.

The first point from the panel decision that the publishers say is wrong involves the idea of “media-neutrality.” This is a huge red-herring that the publishes have been waving around to distract the various courts from the weakness of their case, and they lead off with it in the rehearing petition. Judge Vinson was convinced by this argument that if courts do not treat electronic reserves the same way print course packs were treated in the “copyshop” cases from the 1990s, they are violating a principle of media-neutrality. The majority opinion, on the other hand, tried to define the limited role that media neutrality has in copyright law, a definition the new petition claims was an error. There are a couple of important points that are getting overlooked in this discussion.

For one thing, there are many ways in which copyright is not media neutral. Many exceptions, for example, refer to specific media and specific technologies. There is a provision just related to royalties on digital audio recording machines, for example. The TEACH Act refers to transmission over a digital network, and is inapplicable to other types of distance learning. Broadcast television is treated differently than cable, and terrestrial radio differently than Internet radio. Since the law is therefore often media-specific, it was not irrational for the panel majority to try to define what media neutrality does, and does not, mean. The publishers want it to mean something very specific in order to benefit their case, but the panel looked at a principle-based definition that took account of how the copyright law as a whole really works, and rejected the publishers’ ad hoc claim.

The reason for pushing this broad and self-serving definition of media-neutrality, of course, is to convince courts that the “course pack” cases are good analogies for electronic reserves. Since those cases found against fair use, the publishers’ argument goes, the principle of media neutrality demands that fair use also be rejected for electronic reserves. But, in fact, neither the lower court nor the appellate panel has rejected the course pack cases because of a perceived difference between electronic and print fair use. This is just sand being thrown in the face of the courts to confuse them (it worked with Judge Vinson). The course pack cases are distinguishable instead on first factor grounds that have nothing to do with the media involved; those cases involved a commercial intermediary making and selling the course packs, which is an entirely different situation than is reflected in the GSU case.

The second claim the publishers make in their petition attempts to undermine the first fair use factor more directly by asserting that it should not favor non-profit educational uses unless they are transformative. Although the publishers assert that this is the meaning of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, that is simply not true. Although that case laid great weight on transformation for many fair use decisions, it explicitly stated that not all fair use must be transformative, and cited “multiple copies for classroom use” as the paradigmatic case of a non-transformative use that is likely still fair. They get this phrase directly from section 107, of course. So the publishers are asking for a pretty radical reconfiguration of the copyright law here, that would directly defy the Supreme Court and the text of the law. It would be pretty audacious of the Eleventh Circuit to accept this argument, but the publishers are clearly going all in with their fight against fair use. It seems they are reasoning that if they can persuade the Eleventh Circuit into accepting this radical new view of copyright, they could at least get a shot at Supreme Court review by provoking a split in the circuits where none has previously existed.

Finally, the most troubling claim the publishers make is in their argument that the fourth fair use factor’s emphasis on market harm, including “potential” markets, gives them the right to decline to offer a license for digital excerpts without tipping the fourth factor toward favoring fair use. The appellate panel correctly noted that this argument would demolish fair use, since it would allow a rights holder to say “we could have licensed this use if we wanted to, so allowing fair use damages the potential market we have chosen not to enter.”

In one sense, I would like to see a discussion of this idea of potential markets. It should be seen as a gateway to consider the incentive purpose of copyright law. How would it create additional incentive for creation to permit publishers to refuse to license uses of academic works? These markets are not an end in themselves, but a vehicle to produce such incentives. Establishing a right to refuse to license does not serve this purpose at all. It is a selfish and antisocial argument put forward by the publishers to protect the artificial scarcity that they believe they must create in order to make money. In short, the publishers want the right to limit access to knowledge because they do not have the vision needed to run successful businesses in a changing environment.

What do we lose if that argument is accepted? Only our most cherished democratic value, the freedom of expression. Fair use has always been considered a “safety valve” for free expression that prevents a rights holder from suppressing speech he or she doesn’t like by asserting copyright. If we were to accept this potential market argument, a rights holder would be a step closer to preventing scholarly commentary by denying a license for the quotations used in, for example, a review (as Stephen James Joyce famously tried to do regarding his grandfather’s work). That might seem extremely unlikely on a larger scale, but we should remember that publishers often require their authors to obtain permission for the use of quotations beyond an artificially imposed word limit. Combined with this idea that denial of a license should not improve the fair use argument, the conditions for such suppression would be ideal.

The truly shocking thing about this petition is how openly Oxford University Press, Cambridge University Press and Sage Publishing are now attacking free speech and the dissemination of knowledge. These are not “academic” presses anymore; their profit motive and shorted-sighted focus on protecting old business models has led them to assume an anti-academic stance that the scholarly community should not tolerate. They are demanding nothing less than a right to suppress and inhibit the spread of knowledge, simply by refusing to offer a license, whenever the believe that doing so is to their commercial advantage. I have often been asked if I think scholars, libraries, and others should boycott these publishers because of the lawsuit, and I have always said that we should wait and see where the cases goes. To me, it has now gone in an intolerable direction, one that threatens core principles of academic discourse. Everyone must make their own decision, of course, but I am now willing to say that I will neither publish with these three plaintiff publishers nor buy their products. They have declared war on teaching and the dissemination of scholarship, and I will not help them buy the ammunition.

Free speech, fair use, and affirmative defenses

November 3, 2014 Kevin Smith, J.D. 2 Comments

On an e-mail list to which I do not subscribe, there was recently a long exchange about fair use and large-scale digitization. Part of the exchange was forwarded to me by a friend seeking comment about a specific issue that was raised, but in the course of looking back at the thread I discovered this comment:

Fair use doesn’t “allow” large scale digitization and didn’t “allow” digitization in the case of HathiTrust. The fair use provision does not allow anything up front- it has to be won through litigation. The fair use provision was used as an affirmative defense in litigation concerning the HathiTrust et al., and after much time and money spent in litigation, the court ruled, and the appeals court ruled, that HathiTrusts’s activity could be considered fair.

This comment repeats a mistake that is very common in discussions of fair use — while noting correctly that fair use is an “affirmative defense,” it concludes from that fact that fair use must be something unusual, a privilege that we rely on rarely because it is risky and difficult to prove. But, as I hope to show with the rest of this post, affirmative defenses are quite common; in fact, almost all positive rights have to be treated as affirmative defenses in litigation. We rely on things that are “allowed” by affirmative defenses all the time.

Basically, to call something an affirmative defense is to make a technical point about how it functions in a court case. We should not be frightened by the phrase or invest it with too much significance. Some of our most cherished rights would have to be called affirmative defenses in the technical sense that is the only proper usage of that phrase.

Consider the case of Cohen v. California (1971), one of our most important cases about the meaning of the First Amendment. Mr. Cohen entered the Sacramento court house wearing a piece of clothing on which he had written a profane anti-war message — “F**K the Draft” — and was arrested for disturbing the peace because that message was considered “offensive conduct.” The Supreme Court ultimately held that it was protected speech, in spite of the profanity, and that Cohen’s arrest was therefore improper. But let’s imagine for a moment how the trial over this issue must proceed. The state would provide evidence that Cohen did wear the jacket, had deliberately painted the words on it, and knew what was written on his jacket when he entered the court house. Cohen’s defense would then be to actually admit all of those points, but raise an additional fact — his words were political speech protected by the First Amendment to the U.S. Constitution. Free speech would thus function as an affirmative defense to vindicate Mr. Cohen’s right.

I hope this example illustrates two things. First, all an affirmative defense means is that the defendant must raise additional facts or legal principles in addition to what the plaintiff or prosecution has asserted. This is not uncommon; anytime a defendant does more than simply deny the truth of everything the plaintiff says, they are raising an affirmative defense. Second, all of our most cherished rights in America can function as affirmative defenses in court, but that does not mean they are unusual or unreliable.

In any court case, the plaintiff has to prove some facts in order to establish that a “cause of action” exists. A defendant then has two avenues — he can simply deny the truth of some or all of what the plaintiff has said (we call that arguing that the plaintiff failed to meet her “burden of proof”) or he can produce additional facts that show that what he is accused of doing is actually permissible (which is the defendant’s “burden of proof”). If we take the Georgia State copyright case as an example, we can see both strategies at work. For over 20 of the challenged excerpts, GSU successfully argued that the publishers had not met their burden of proof by showing that they owned a valid copyright in the works in question. Since the publishers could not produce valid transfers of copyright, there was no further need for a defense. For 40+ other excerpts, however, GSU successfully argued some additional facts and showed that their use was fair use (although the Appeals Court has now told the trial court to reanalyze this). Just like Mr. Cohen in the free speech case, GSU invoked a positive right that is precious to all Americans, but in the context of the lawsuit that right was presented as an affirmative defense.

I can’t say it often enough — when one is sued for doing something one believes is actually allowed by the law, that “right,” whether it is free speech or fair use, is always presented in the form of an affirmative defense. All that means is that it is something which the defendant must raise to justify herself (something for which she bears the burden of proof), but these things are not rare, disreputable or frightening; they are the very rights that define our citizenship.

Fair use is one such right, and the copyright law very clearly calls it a right (in section 108(f)(4) of Title 17). It is a key and indispensable component of our system of copyright, as the Supreme Court has reminded us many times (E.g., Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994) at 575). It is, especially, a “safety valve” that protects free speech from encroachment by copyright holders, and it is useful to think of those two rights — free speech and fair use — together.

So it is simply wrong to say that fair use does not “allow” anything because it is an affirmative defense, just as it would be wrong to say that about free speech. The First Amendment allows me to have campaign signs on my lawn during this election, even if my neighbors disagree strongly with me. It allows me carry a placard down a public sidewalk proclaiming that “The End is Near,” if I am so inclined. It would allow me even to wear a swastika tattoo, as offensive as that would be to many. In the same way, there are many activities that we can say with assurance are allowed by the right of fair use. When we use a quotation from a previous work in a new article we are writing, we do not stop to do a individualized analysis because we know, and pretty much everyone agrees, that this is a settled instance of fair use. Nor do we need to re-litigate the Sony v. Universal Pictures case every time we want to record a TV show to watch at a later time; the Supreme Court has confirmed for us that doing this is allowed by fair use. And in the HathiTrust case, the Second Circuit told us that fair use supports large-scale digitization for the purpose of indexing and access for persons with disabilities. It is possible that a rights holder could challenge such an activity again, just as some government entity could again try to outlaw profanity in political speech. Possible, but unwise and very unlikely.

When we say something is an affirmative defense, all we are doing is indicating how it would be raised in litigation. Many of our most cherished freedoms would be raised as affirmative defenses. So we must resist the urge to allow ourselves to be frightened by that phrase or to accept arguments intended to make fair use seem odd, unusual, or risky. Fair use is no more unusual or dangerous than free speech is.

Swimming in muddy waters

October 30, 2014 Kevin Smith, J.D. 1 Comment

Since the ruling from the Eleventh Circuit Court of Appeals in the Georgia State copyright case came out two weeks ago, most commentators have come to the same conclusions. It is a mostly negative ruling, in which publishers actually lost a lot of what they were fighting for. Georgia State also lost, in the sense that the case is not over for them and they are no longer assured of being reimbursed for their attorney’s fees and court costs, as Judge Evans had originally ordered. But apart from those parties to the case, has the library community lost by this decision, or gained? Once again, what we have gained is mostly negative — we know that we do not have to strictly observe the 1976 Classroom Copying Guidelines, we know that the cases involving commercially-produced course packs do not dictate the fair use result for e-reserves, we know that 10% or one chapter is not a bright line rule. But there is little benefit in knowing how NOT to make fair use decisions; it is easy to see why one commentator has pled for bright line rules.

One affirmative point we can take from the case is that we know we still can, and must, do item-by-item analyses to make fair use decisions. But what exactly should the process for those decisions look like?

As Brandon Butler from American University has pointed out, the decision-making processes will be different when we are assessing uses for teaching that are transformative versus those, like e-reserves, that are not. We still have a good deal of freedom when the use is transformative — when the original material becomes part of a new expression, a new meaning, or a new purpose. And this is important for a great deal of scholarship and teaching. We should not lose sight of this important application of fair use, or assume, incorrectly, that the 11th Circuit ruling creates new limits on transformative fair use.

But when we must make decisions about digital course readings, we need to apply the “old-fashioned” four factor test. What does it look like after the Appeals Court ruling? I am afraid it has gotten pretty muddy:

The first fair use factor — the purpose and character of the use — continues to favor fair use whenever that use is undertaken by a non-profit educational institution. If a commercial intermediary is involved, as was the situation in the course pack cases, this is no longer true. But where there is no profit being made and the user is the educational institution itself, the first factor supports a claim of fair use. And that is where the clarity ends.

The second factor — the nature of the original — can go either way, depending on the specifics of the work involved. Is it more factual or interpretive? This is a judgment call, and one which librarians may be hard-pressed to make when processing a number of e-reserve requests in a discipline they are unfamiliar with. The good news is that the Court said that this factor is relatively unimportant, so the safest course may be to consider this factor neutral; call it a draw — at least where the item is not clearly creative — and move on.

On the third factor we thought we had a rule, even if many of us didn’t like it — 10% or one chapter was the amount that Judge Evans said was “decidedly small” and therefore OK for fair use for digital course readings. The bad news is that we no longer have that rule. The good news is that we no longer have that rule. The 11th Circuit panel wanted a more nuanced approach, that balances amount with the other factors and especially looks at how appropriate the amount used is in relation to the educational purpose. When the other factors line up in favor of fair use, this approach could well allow more than 10%. If the other factors tend to disfavor fair use, only a much shorter portion might be permissible. It is just very hard, after this ruling, to have clear standards about the amount that is usable, and that makes things difficult for day-to-day decisions.

With the fourth factor — impact on the market for the original — the 11th Circuit made things even more unclear. The panel actually affirmed the lower court in its analysis of this factor, emphasizing that it is permissible to take into account the availability of a license for the specific use as part of evaluating this factor. So if a license for a digital excerpt is unavailable, does that mean this factor favors fair use, as Judge Evans said? Maybe, but the 11th Circuit added two complications. First, it said that the Judge should have included the importance of license income to the value of the work in her fourth factor reasoning, rather than treating it as an additional consideration for breaking “ties.” Second, they said that the fourth factor should have more weight in non-transformational settings. How are we to put these instructions into practice? Libraries do not have access to publishers’ accounts, as the judge did, so we cannot assess the importance of licensing income (nor can we trust publishers to give us straight answers about that importance). And what does more weight mean? If there is no digital license available, does more weight on this factor mean more room for fair use, perhaps of a larger excerpt? Again, maybe. But it also seems to mean that where such a license is available, even 10% or one chapter might be too much for fair use.

How does one swim in water that is this muddy? The answer, of course, is very carefully. We must keep on making those decisions, and we do have space to do so. The fair use checklist, by the way, received a relatively sympathetic description from the 11th Circuit, but not a definite embrace. At this point, my best advice is to keep on doing what we have been doing, thinking carefully about each situation and making a responsible decision. I would recommend a somewhat more conservative approach, perhaps, than I might have done three weeks ago, especially when a license for a digital excerpt is available. But the bottom line is that the situation is not much different than we have always known it to be, there is just a little more mud in the water.

GSU appeal ruling — the more I read, the better it seems

October 19, 2014 Kevin Smith, J.D. 2 Comments

Those of us who heard the oral arguments in the Eleventh Circuit Court of Appeals last November, in which the publishers appeal of the District Court ruling favoring fair use in their copyright infringement lawsuit against Georgia State was heard, mostly expected a discouraging result from the Appellate panel. An initial or cursory reading of the opinion issued by the panel of the 11th Circuit on Friday might even confirm those fears. After all, the fairly positive ruling from the District Court is reversed, the injection and the order for the publishers to pay GSU’s costs and attorney’s fees are both vacated, and the whole case is remanded back to the District Court to reconsider. But once one begins to read carefully, the panel opinion gets much better. All of the big points that the publishers were pushing, which consequently are the really bad potential rulings for higher education, go against the publishers. In many ways, they won a reversal but lost the possibility of achieving any of their most desired outcomes. Higher ed didn’t exactly win on Friday, but the plaintiff publishers lost a lot.

There is a thorough and smart analysis of the ruling from Nancy Sims of the University of Minnesota found here.

For those of us struggling to make responsible fair use decisions on a day-to-day basis, this Appeals Court ruling doesn’t actually change much. The message for us is that it could have been much worse, the case is far from over, and we must just keep on making the same kind of reasoned and reasonable fair use decisions we have been making for years.

What we got from the three-judge panel of the Eleventh Circuit on Friday is a mostly negative ruling that outlines where both Judge Evans of the District Court and the plaintiff publishers are wrong, as the panel thinks, about fair use. To be exact, two judges — Tjoflat and Marcus — tell us those things. The third judge, Vinson, concurs in the result — the reversal and remand of the case — but would have accepted virtual all of the publishers arguments and closed the door on fair use for even very small classroom readings. His concurrence suggests that getting an opinion together was probably a difficult process involving a lot of compromise (it took eleven months), and it also tells us how bad the opinion could have been for universities. Instead, what the panel majority issued is mostly bad for the publishers.

In my opinion, there were five major principles that publishers wanted to get from this lawsuit, and in the Appeals Court ruling they lost on all of them:

Publishers wanted the Appeals Court to hold that Judge Evans should have ruled based on the big picture — the large number of electronic reserve items made available to students without permission — rather than doing an item-by-item analysis for each reading. Instead, the Appeals Court affirmed that the item-by-item approach was the correct form the analysis should take. This, of course, is the key that allows universities to make individualized fair use decisions, and it rejects the attempt to force all schools to purchase a blanket license from the Copyright Clearance Center (which was, in my opinion, the fundamental goal for which the case was filed in the first place).
The plaintiffs wanted a ruling that non-profit educational use did not mean that the first fair use factor always favored fair use. They wanted the Appeals Court to hold that where the copying is non-transformative, and both Judge Evans and the Appeals Court felt that the copying at issue was non-transformative, the first fair use factor does not favor the defendants, even when they are non-profit educational institutions. But the Court of Appeals correctly applied Supreme Court precedent and held that the first fair use factor still favors fair use for such “verbatim” copying when it is done for an educational purpose without profit.
The Appeals Court held that the so-called “course pack” cases, which rejected fair use for course packs made for a fee by commercial copy shops, were not controlling precedent in the situation before it, where GSU was doing the copying itself and made no profit from it.
The publishers wanted a clear statement that the Classroom Copying Guidelines were a limit on fair use for multiple copies made for classroom use, defining a maximum amount for such copying of 1000 words. They lost there too; the panel held that the Guidelines were intended as a minimum safe harbor and did not define a limit on fair use. Therefore they do not control the decision for this type of copying. Instead, the panel rejected the 10% or one chapter rule applied by Judge Evans as too rigid and instructed her to use a more flexible approach that takes account the amount appropriate for the pedagogical purpose.
Finally, the publishers were hoping that the Appeals Court would reject the idea that the availability of a license for a digital excerpt was relevant to the fourth fair use factor; they wanted a rule that says that any unlicensed use is an economic loss for them, even if they have decided not to make the desired license available. They lost that too; the panel affirmed that the District Court was correct to consider the availability of a license for the specific use when evaluating market harm.

These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final. They are now binding precedent in the 11th Circuit, and persuasive throughout the country. The publishers could presumably appeal to the Supreme Court, but it seems unlikely the current Court would take the case because there is no split amongst the Circuit Courts, only a growing consensus about fair use.

So if the publishers lost on everything that really mattered to them, why was the case reversed?

First, as I have said, this is a big loss for the publisher plaintiffs, but it is not a win for GSU. With the reversal of the District Court ruling and the injunction and fee award vacated, their copyright policy is again up in the air. And, of course, they have lost the immediate prospect of collecting about $3.5 million in costs. But for now, they, like all libraries, should probably just carry on with their normal practices and wait to see what happens on remand.

When (if?) the case gets back to Judge Evans, who I very much doubt wanted it back, the fair use analysis will look somewhat different. The Appeals panel found specific errors in her analysis of the second and third fair use factors. On the second factor they have told her that she cannot presume that the works in question are all “informational.” She has been told to do a work-by-work evaluation, but also told that this factor is not very important. On the third factor, the amount used, the panel said that her bright-line rule of no more than 10% or one chapter was too rigid (as would have been the much lower bright-line rule the publishers wanted). Here too, the Appeals Court wants a more nuanced and fact-specific analysis, looking at both quantity and quality (the heart of the work). Significantly, they have told Judge Evans to look at the pedagogical appropriateness of the excerpt when determining how the amount factors into a fair use analysis. Since this corresponds with what many of us tell campus faculty — use only what you really need and no more — it is nice that the panel approved. Finally, Judge Evans has been told to give the fourth factor — market harm — more weight, rather than counting all the factors equally. This would probably, but not certainly, result in fewer findings of fair use. Instead of the split we got — 43 fair uses versus 5 infringements (plus 26 for which there was no prima facie showing of infringement)– there would probably be a different division. Maybe 30 excerpts would be fair use and 18 infringing; who knows? But I think we should consider whether or not getting to that point really benefits anyone.

Which brings me to considering what the various players should do now, in light of this ruling.

The publishers, as I say, have pretty much lost even as it looks like they were winning. There is no good that can come out of a remand for them. At best they will get that different division between fair use and infringement as a result, and will be able to use it to spread a little more fear amongst academic libraries about the uncertainty of fair use. But that is not their real goal, I hope. They were hoping to radically change the landscape, and they have failed spectacularly. If there is any common sense left in their board rooms and executive suites, they need to considering settling with Georgia State and then engaging in real, good-faith negotiations with higher education and library groups. Don’t open those negotiations with threats, as you did before. We now know how toothless your threats are. But it is still the case that libraries and faculties would like some standards they can follow that are realistic in light of what the courts have told us. There is no windfall for publishers in such negotiations, but there might be some stability, not to mention the savings they will realize if they stop wasting money on foolish and unavailing litigation.

As for academic libraries, this long, drawn-out case, although not over yet, appears to have been much ado about nothing. We still should be making careful, responsible and good-faith decisions about copyright and fair use, just as we have done for years. We need to educate ourselves, look at the array of precedents we have from the federal courts, and continue to do our best. There has been no revolution, and no dramatic alteration of the conditions under which we do our work. The bottom line is that, after this ruling, libraries should just keep calm and carry on.

A reversal for Georgia State

October 17, 2014 Kevin Smith, J.D. 1 Comment

The Eleventh Circuit Court of Appeals has issued its ruling in the publisher appeal of a district court decision that found most instances of electronic reserve copying at Georgia State to be fair use. The appellate court ruling is 129 pages long, and I will have much more to say after I read it carefully. But the hot news right now is that the Court of Appeals has reversed the District Court’s judgment and remanded the case back for proceedings consistent with the new opinion. The injunction issued by the District Court and the order awarding costs and attorney’s fees to GSU have been vacated.

Looking at its analysis of the four fair use factors suggests that applying the Court of Appeals’ ruling will be challenging. The panel has held that th=Judge Evans of the District Court was correct to find that the first factor favored fair use, even though, both courts say, the use is not transformative. The non-profit educational character of the use seems to carry the day on that factor. On the other hand, the Appeals Court finds error in the District Court’s sweeping finding that the second factor favored fair use. The panel also disagrees with the 10% or 1 chapter standard used by Judge Evans to decide about the third fair use factor, the amount used; they object to any mechanical standard and want a more nuanced, work-by-work analysis. The Court of Appeals also agrees with the District Court about the fourth factor — largely favoring plaintiffs when a digital license is available. But the 11th Circuit wants the factors to be balanced with a different touch; not treated as all equal.

What is interesting here is that it looks like a considerable victory for the publishers, but there is still a lot of work to do. Judge Evans will need to do her analysis over again, and the results will be different. But given the way the Appeals Court agrees with some parts of her initial analysis and corrects her on others, it is hard to predict, on first glance, what the final result will be.

A copy of the opinion can be found here. I am sure there will be lots more written about the, including by me, in the days to come.

Jury instructions go missing

October 9, 2014 Kevin Smith, J.D. 2 Comments

Jury instructions are one of those things that few people, not even most lawyers, think about very often. But if you are involved in a trial, they can be vitally important. The ways in which juries are instructed on particular points of law can determine the outcome of a case, so litigants and the lawyers must spend a lot of time arguing over which instruction should be given and how they should be worded. Many appeals revolve around the accuracy and appropriateness of the instructions that were given to a jury.

Because they are so important and potentially so contentious, most states develop model jury instructions, or “pattern” instructions, as they are called in North Carolina, for a great many legal doctrines and situations. Access to these pattern instructions is important for litigants. Although their use is not required in North Carolina, using a pattern instruction creates a presumption that the jury was properly instructed. Also, specific variations that a litigant wants a judge to make in an instruction are best proposed as amendments to the pattern.

I admit that I have never consulted the North Carolina Pattern Jury Instructions. Nevertheless, I was dismayed to receive this announcement from the North Carolina Bar Association telling me that the free access I had to the Pattern Instructions as a member of the Bar would soon be ending. The story it tells is interesting and instructive.

First, the Pattern Jury Instructions are developed by the North Carolina Conference of Superior Court Judges. That is, they are created by state officials as part of their official duties. But unlike documents created by Federal employees, there is a copyright in these instructions, and that copyright has been given to the University of North Carolina School of Government. The SOG, in turn, has given a vendor called CX Corp an exclusive license to distribute the instructions. For over a decade the Bar Association contracted with CX to provide access as a member benefit to NC lawyers, but that contract is expiring and efforts to renew it have failed. A familiar story to librarians, of course, and probably due to the same, familiar reason that most licensing renewals fail — a demand for more money than the licensee feels it can pay.

For many North Carolina lawyers, the impact of this new regime will be minimal. Medium and large firms will just factor in the cost and effort of getting an individual subscription to the Pattern Jury Instructions. Presumably the UNC School of Government will realize more revenue from this gifted copyright. But I worry about pro se litigants and those who are represented by solo practitioners or small firms. Those folks might well be at a disadvantage in a crucial phase of a trial, the debate about how the jury will be instructed. They will either have to scrape up the money to purchase a print or electronic version of the pattern instructions, find one of the relatively few public law libraries where they can consult them, or else risk advocating for instructions that will be more easily challenged and undermined.

From this unfortunate situation, I want to draw two points that I think are of general relevance to those of us who think about copyright matters.

First, it is an important reminder that we cannot assume that public documents intended for a public purpose are necessarily public domain. The familiar provision in U.S. copyright law that puts documents created by the federal government in the public domain is, obviously, only about federal documents. The states can and sometimes do claim copyright in official state documents. They are often used as revenue sources, especially if there is a target audience of professionals, like building contractors or lawyers, from whom payment can be readily expected.

The problem with this situation is that the different states take different approaches to what is and is not in the public domain, and also that a single state may be wildly inconsistent about its approach to different types of documents it creates. In most states, most official documents are public domain, at least in the practical sense that they are reasonably accessible without cost. But odd things, like building codes or jury instructions or even an electronic database of the state’s laws, many be exclusively behind a pay wall.

The other instructive point in this is the realization that copyrights, especially those held by state and local government, may be used to enact policy goals that have nothing to do with copyright. The purpose of copyright is, explicitly, to incentivize creation. Presumably the NC Conference of Superior Court Judges did not need the promise of royalties in order to compile the Pattern Jury Instructions; creating those instructions was simply a part of good judicial practice for the state. So here we had a copyright that wasn’t doing any work. What can we do with it; how can we use it to make some money? Here’s an idea, let’s give it to the UNC School of Government as an added revenue source! They can exploit it in a way that would be inappropriate for the judges, and the state’s flagship public university can reap the benefit.

This isn’t necessarily a bad idea; at least, the purpose is worthwhile. But it is a public policy that copyright was not intended to serve, and it is worth noting that this can happen, and that not all the policies that are supported this way will be equally laudable. In the ideal world, states would be more transparent about what they claim a copyright in and why. And elected representatives should be given the chance to approve, or not, those policy ends that are furthered by the exploitation of copyrights claimed in state documents. At least that way, there would be some accountability when copyright is used for purposes other than that for which it was instituted.

While I was preparing this post, I encountered a somewhat parallel story about another legal document — the Bluebook that is the required citation manual for law students, lawyers, and litigants in many U.S. courts. As the blog TechDirt reports, this is another case where access for impoverished litigants may be important, but copyright protection allows access restrictions that impose financial barriers. Of course, unlike the Pattern Jury Instructions, the Bluebook is a privately created document, so there is less confusion about the appropriateness of the initial copyright. Nevertheless, Carl Malamud and his Public Resource allies have mounted a campaign asking that the Bluebook be made more accessible and, as it turns out, finding grounds to challenge the continued existence of a copyright in the work. Fascinating reading.

Are fair use and open access incompatible?

September 25, 2014 Kevin Smith, J.D. 5 Comments

There has been a spirited discussion on a list to which I subscribe about the plight of this graduate student who is trying to publish an article that critiques a previously published work. I’ll go into details below, but I want to start by noting that during that discussion, my colleague Laura Quilter from the University of Massachusetts, Amherst captured the nub of the problem with this phrase: “the incompatibility of fair use with the policies of open content publishers.” Laura’s phrase is carefully worded; the problem we need to unpack here is about the policies of open content publishers, and the solution is to help them understand that fair use and open licensing are NOT incompatible.

Briefly, the situation is this. An author has written a paper that critiques previous work, specifically about the existence, or not, of “striped nanoparticles.” In order to assess and refute evidence cited in some earlier papers, the author wants to reproduce some figures from those earlier publications and compare them to imagery from his own research. He has encountered two obstacles that we should consider. First, his article was rejected by some traditional publications because it was not groundbreaking; it merely reinterpreted and critiqued previously published evidence. Then, when it was accepted by PLoS One, he encountered a copyright difficulty. PLoS requires permission for all material not created by the author(s) of papers they publish. One of the publishers of those previous papers — Wiley — was willing to give permission for reuse but not for publication under the Creative Commons Attribution (CC BY) license that PLoS One uses. Wiley apparently told the author that “We are happy to grant permission to reproduce our content in your article, but are unable to change its copyright status.”

It is easy to see the problem that PLoS faces here. Once the article is published under a CC license, it seems that there is little control over downstream uses. Even if the initial use of the Wiley content is fair use — and of course it probably is — how can we ensure that all the downstream uses are fair use, especially since the license permits more types of reuse than fair use does? Isn’t this why fair use and open licensing are incompatible?

But this may be an overly simplistic view of the situation. Indeed, I think this researcher is caught up in a net of simplified views of copyright and scholarly publication that creates an untenable and unnecessary dilemma. If we start by looking at where each player in this controversy has gone wrong, we may get to a potential solution.

Let’s start with Wiley. Are they in the wrong here in any way? I think they are. It is nice that they are willing to grant permission in a general way, but they are probably wrong, or disingenuous, to say that they are “unable” to change the copyright status of the material. Under normal agreements, Wiley now owns the copyright in the previously published figures, so they are perfectly able to permit their incorporation into a CC licensed article. They can “change the copyright status” (if that is really what is involved) if they want to; they simply do not want to. The author believes this is a deliberate move to stifle his criticism, although it is equally possible that it is just normal publishing myopia about copyright.

There is also some blame here for the system of scholarly publishing. The roadblock encountered with traditional publishers — that they do not want articles that are “derivative” from prior work — is common; most scientists have encountered it. In order to generate high impact factors, journals want new, exciting and sexy discoveries, not ongoing discussions that pick apart and evaluate previously announced discoveries. We have found striped nanoparticles! Don’t dispute the discovery, just move on to the next big announcement.

This attitude, of course, is antithetical to how science works. All knowledge, in fact, is incremental, building on what has gone before and subject to correction, addition and even rejection by later research. The standard of review applied by the big and famous scientific journals, which is based on commercial rather than scholarly needs, actually cuts against the progress of science. On the other hand, the review standard applied by PLoS One — which is focused on scientific validity rather than making a big splash, and under which the article in question was apparently accepted — better serves the scientific enterprise.

But this does not let PLoS off the hook in this particular situation. It is their policies, which draw a too-sharp line between copyright protection and open content, that have created a problem that need not exist.

First, we should recognize that the use the author wants to make of previously published figures is almost certainly fair use. He is drawing small excerpts from several published articles in order to compare and critique as part of his own scholarly argument. This is what fair use exists to allow. It is nice that Wiley and others will grant permission for the use, but their OK is not needed here.

Second, the claim that you cannot include material used as fair use in a CC-licensed article is bogus. In fact, it happens all the time. I simply do not believe that no one who publishes in PLoS journals ever quotes from the text of a prior publication; the ubiquitous academic quotation, of course, is the most common form of fair use, and I am sure PLoS publishes CC-licensed articles that rely on that form of fair use every day. The irony of this situation is that it points out that PLoS is applying a standard to imagery that it clearly does not apply to text. But that differential treatment is not called for by the law or by CC licenses; fair use is equally possible for figures, illustrations and text from prior work, and the CC licenses do not exclude reliance on such fair uses.

Next, we can look at the CC licenses themselves to see how downstream uses can be handled. If we read the text of the Creative Commons license “deed” carefully, we find these lines:

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.

Obviously, the CC licenses themselves expect that not everything that is part of a licensed work will be equally subject to the license; they realize that authors will — indeed must — rely on fair use as one of those exceptions and limitations to copyright. How should licensors mark such material? The most usual way is a footnote, of course. But a caption to the figure that indicates the source of the different pieces and even says that copyrights may be held by the respective publishers would work as well.

Finally, let’s acknowledge that there is nothing new or unusual in the procedure recommended above. Traditional publishers have done things this way for years. When Wiley publishes an article or a textbook that asserts that they, Wiley, own the copyright, they are not asserting that they own copyright over the text of every quotation or the images used by permission as illustrations. Such incorporated material remains in the hands of the original rights holder, even after it is included in the new work under fair use or a grant of permission. The copyright in the new work applies to what is new, and downstream users are expected to understand this. Likewise, the partial waiver of copyright accomplished by a CC license applies to what is new in the licensed work, not to material that is legally drawn from earlier works.

So I think there is a way forward here, which is for PLoS to agree to publish the article with all of the borrowings under fair use or by permission clearly marked, just as they would do if those borrowings were all in the form of textual quotations. And I think we can learn two lessons from this situation:

The standard of review applied by open content publishers is more supportive of the true values of science than that used by traditional publishers. Over reliance on impact factor hurts scholarship in many ways, but one of them is by pushing publishers to focus on the next big thing instead of the ongoing scientific conversation that is the core of scholarship. The movement toward open access has given us a chance to reverse that unfortunate emphasis.
Open content licenses should not be seen as all-or-nothing affairs, which must either apply to every word and image in a work or not be used at all. To take this stance is to introduce rigidity that has never been a part of our copyright system or of traditional publishing. It would be a shame if excessive enthusiasm for openness were allowed to actually undermine the value of research by making the scientific conversation, with all its reliance on what has gone before, more difficult.

Discussions about the changing world of scholarly communications and copyright