Statements and observations continued through the end of last week and beyond arising from the Authors’ Guild suit against Hathi Trust. Much of the focus centered on the orphans listed by Michigan that turned out not to be. Stories in Inside Higher Education and the Chronicle provide summaries and links to the various statements. Worth noting is Kevin Smith’s open letter to one author of a work shown not to be an orphan arguing that the best chance for this book to find readers today would be exposure in digital form in HathiTrust.
From the September 13th Inside Higher Education:
“The Authors Guild on Monday sued the HathiTrust (a consortium of universities) as well as Cornell and Indiana Universities and the Universities of California, Michigan and Wisconsin, charging widespread copyright violations. The universities and the trust have worked with Google on its project to digitize books (a project now on hold) and on a recent effort to release to their campus communities digitized copies of “orphan works” ….”
Iowa had been poised to join Michigan and others in making available “orphan works” which we held in print form to the campus.
A decision by the Second Circuit Court of Appeals on the First Sale doctrine could affect the right of libraries to lend (and individuals to resell) some books. See the analysis of Duke Scholarly Communications Officer Kevin Smith at http://blogs.library.duke.edu/scholcomm/2011/08/24/getting-first-sale-wrong/ and
In another blog post on the Georgia State e-reserves case, Paul Courant, University Librarian (and former Provost) at the University of Michigan, argues that the plaintiffs (Cambridge & Oxford University Presses plus Sage, supported by the Copyright Clearance Center) have crossed the “boundary from adversary to enemy.” Two paragraphs quoted below–for the entire post, see http://paulcourant.net/2011/06/09/the-georgia-state-filing-a-declaration-of-war-on-the-faculty/
The plaintiff’s draft order applies formally only to Georgia State, but if the Court grants the plaintiffs what they seek, the result will be, in the words of Duke University’s Kevin Smith, “a nightmare scenario for higher education:” fair use would be destroyed, university faculty, students, and staff would be subjected to outrageously restrictive copyright policies, and every university would be required to hire a squad of copyright cops to ensure that faculty do the publishers’ bidding. And while it’s not an uncommon strategy to ask for far more than you expect to receive in a negotiation, which this proposed injunction surely is, your “highball” offer is certainly something that you wouldn’t mind having. What the plaintiffs are saying is that they are quite willing impose enormous costs on academic performance and academic freedom in exchange for higher profits. This is not the request of a friendly adversary; this is the attack of an enemy. (Yes, academic authors would also receive some financial benefit, but note that the typical split for incremental revenue is around 90-10 in favor of publishers, and that the additional revenue that publishers would receive under the plaintiffs’ draft order would be obtained NO additional cost incurred by the publishers beyond cashing checks and paying their lawyers.)
As a faculty member, I do not know that I could comply with the restrictions in the proposed injunction for using copyrighted material in my classroom; they are too onerous and much too expensive. As an author and an educator, I have a great respect for copyright law, and I believe in a balance between creating incentives for authors and promoting the ”progress of science and the useful arts.” The proposed injunction does not strike that balance; it unreasonably restricts access to copyrighted works, eliminates fair use, and will force professors to spend much of their time in an exercise of copyright self-censorship. Imagine that if every time you wanted to quote from a text, show an image, or distribute a handout to your students you had to seek the approval of the University Copyright Police; the consequences would be dramatic. (Lest you think I am exaggerating, check out the form that, were the publishers to have their way, faculty would have to fill out every time they put copyrighted works on electronic reserve.
Beginning immediately, Transitions, the University of Iowa’s occasional newsletter on scholarly communication issues, will appear as a blog, with postings at regular intervals as circumstances demand.
Our first posting is a link to the audio and slides of Lawence Lessig’s recent (April 18, 2011) presentation on science, copyright and open access to an audience at CERN. Lessig, Harvard professor and copyright guru, argues that the “architecture of access to scientific knowledge” is badly “messed up” and puts forth moral arguments for a move to open access publishing as the solution. Along the way he touches on YouTube mashups, copyright, politics, John Philip Sousa and much else.
Since the Federal Reseach Public Access Act has been recently come before the House of Representatives and the Senate, there has been a flurry of articles (for and against) the legistlation.
Federal Research Access Bill Making Progress in Congress, Library Journal.com, 4/22/2010
Baby steps toward legislation: the broad open access mandate known as The Federal Research Public Access Act (FRPAA) is now before the House of Representatives as well as the Senate, following its introduction by Rep. Mike Doyle (D-PA) last week. Both versions are substantially the same, and with the bill now before both legislative bodies, has at least the potential of becoming law.
During prepared remarks on a press conference call Wednesday morning hosted by the Alliance for Taxpayer Access, Doyle said, “I hope that we can move this bill through Congress before the end of the year.”
. . . FRPAA was re-introduced into the Senate last year. It would require every federal department and agency with an annual extramural research budget of $100 million or more to make their research available to the public within six months of publication. (A similar bill, introduced in the Senate in 2006, died in committee.)
The bill covers all unclassified research funded by agencies including the Departments of Agriculture, Commerce, Defense, Education, Health and Human Services, Homeland Security, Transportation, Environmental Protection, as well as the National Science Foundation and NASA.
The bill also would ostensibly trump the current 12-month embargo specified by the National Institutes of Health (NIH) mandate—on which FRPAA is directly modeled—by rolling the embargo period back to six months.
SPARC FAQ for University Administrators and Faculty – SPARC has put together a helpful FAQ to answer the most pressing questions about FRPAA.
- What does the legislation entail?
- Who will be affected?
- What does the legislation mean for investigators?
- What does it mean for higher education institutions?
- Why is this legislation needed?
- Couldn’t agencies do this without legislative action?
- Is the legislation a threat to journals and the peer review they perform?
- Will the availability of multiple versions of an article create problems?
- Will this legislation take funding away from research?
- Does this legislation affect copyright or patent laws?
- How can I support the bill and where can I get more information about it?
Provosts and Presidents of 27 Major Research Institutions Support FRPAA – In “The Open Letter to the Higher Education Community” issued by the Harvard University Provost, the provosts (including UI’s Wallace Loh) and presidents of 27 major research institutions have indicated their strong support for the Federal Research Public Access Act.
The United States Congress will have the opportunity to consider the Federal Research Public Access Act (FRPAA). FRPAA would require Federal agencies whose extramural research budgets exceed $100 million to develop policies ensuring open, public access to the research supported by their grants or conducted by their employees. This Bill embodies core ideals shared by higher education, research institutions and their partners everywhere. The Bill builds upon the success of the first U.S. policy for public access to publicly funded research – implemented in 2008 through the National Institutes of Health – and mirrors the intent of campus-based policies for research access that are being adopted by a growing number of public and private institutions across the nation.
We believe that this legislation represents a watershed and provides an opportunity for the entire U.S. higher education and research community to draw upon their traditional partnerships and collaboratively realize the unquestionably good intentions of the Bill’s framers – broadening access to publicly funded research in order to accelerate the advancement of knowledge and maximize the related public good. By ensuring broad and diverse access to taxpayer-funded research the Bill also supports the intuitive and democratic principle that, with reasonable exceptions for issues of national security, the public ought to have access to the results of activities it funds.
The broad dissemination of the results of scholarly inquiry and discourse is essential for higher education to fulfill its long-standing commitment to the advancement and conveyance of knowledge. Indeed, it is mission critical. For the land-grant and publicly funded institutions among us, it addresses the complementary commitment to public service and public access that is included in our charters. In keeping with this mission, we agree with FRPAA’s basic premise that enabling the broadest possible access to new ideas resulting from government-funded research promotes progress, economic growth, and public welfare. Furthermore, we know that, when combined with public policy such as FRPAA proposes, the Internet and digital technology are powerful tools for removing access barriers and enabling new and creative uses of the results of research.
Letter Opposing FRPPA – The Association of American Publishers and the DC Principles Coalition released their April 29 letter to the House Committee on Oversight & Government Reform, opposing FRPAA.
On behalf of many publisher members of the Professional and Scholarly Publishing division of the Association of American Publishers, the DC Principles Coalition, and other leading publishers, we are writing to express our strong opposition to the Federal Research Public Access Act, H.R. 5037. This bill would require that final manuscripts of peer-reviewed, private-sector journal articles reporting on federally-funded research be made freely available on government-run websites no later than six months after publication. This unnecessary legislation would undermine copyright and adversely impact the existing peer review system that ensures the high quality of scientific and other scholarly research in the United States. In addition, it would impose costly new mandates on federal agencies.
The diverse publishers whose concerns are shared by the undersigned are responsible for coordinating the publication of thousands of journals reporting on basic research and original scholarship, disseminating collectively tens of thousands of refereed research articles by U.S.-funded researchers annually. H.R. 5037 would diminish copyright protections for these private-sector scientific journal articles. The government mandate proposed by this legislation would result in the government distribution of copyrighted journal articles without compensation. Copyright is essential to protecting these works and to preserving incentives for the private sector to continue to invest in peer review, editing, publishing, and maintaining the electronic record of vetted scientific journal articles.
A Scholarly Kitchen Blog post, by Philip Davis, states:
While much is known about how researchers make use of the scientific literature, much less is known about the consumption of scientific literature by the general public. Other than anecdotal descriptions — say, of patients bringing medical literature they found online into the doctor’s office — little is known about how the lay public uses the primary literature (e.g., scholarly journal articles) compared to public-focused websites, blogs, and discussion lists.
What is known is that Americans are going online seeking health information.
Open Access to Scientific Publications: The good, the bad, and the ugly, Communications of the ACM , by Michel Beaudouin-Lafon:
In his July 2009 Communications editor’s letter “Open, Closed, or Clopen Access?”, editor-in-chief Moshe Vardi addressed the question of open access to this magazine and to ACM (Association for Computing Machinery) publications in general. Scientific publishing, like all areas of publishing, is undergoing major changes. One reason is the advent of the Internet, which fosters new types of publishing models. Another less-known factor is the exponential increase in the number of scientific publications (see the figure here), which has turned this area into a serious business. In this column, I take a look at commercial and Open Access publishing, and at the role that professional societies such as ACM can play in this evolving world.
Excerpt from the conclusion:
Open Access is a valuable goal, but the scientific community is overly naive about the whole business of scientific publishing. Societies and nonprofit organizations need to continue to lead the way to improve the dissemination of research results, but the scientific community at large must support them against the business-centric views of commercial publishers.
Nature News, 7 May 2010, by Declan Butler:
A scientist in Switzerland is seeking to patent a system for peer reviewing and publishing scientific papers online, Nature has learned.
Henry Markram, a neuroscientist and publishing entrepreneur who works at the Ecole Polytechnique Fédérale de Lausanne (EPFL) in Switzerland, last year filed internationally for a broad patent on systems for interactive online peer review and publishing open-access journals.
The application, says Markram, was filed mainly to protect a fleet of author-pays, open-access journals published by the Lausanne-based Frontiers Media, a company he created in 2008 with his wife Kamila Markram, another neuroscientist at the EPFL.
…The main innovative features of both the journals and the patent, says Markram, are real-time evaluation of papers and a high degree of automation. Software matches articles to potential reviewers, and authors and referees discuss comments and revisions in an online forum, for example.
The result is just like an Internet discussion group, with editors and authors able to follow comment threads in real time, says Robert Harvey, a molecular neuroscientist at the School of Pharmacy, University of London, who has experience of Frontiers journals as both an editor and an author.
Read about the financial results of two large commercial publishers. Even in a global financial crisis, they are doing quite well for themselves.
Elsevier (44% of adjusted operating profits)
- Revenue growth +4%, adjusted operating profit +9%, at constant currency
- Strong growth in electronic clinical reference, clinical decision support and nursing and health professional education; continued weakness in pharma promotion
- Solid science journal subscription renewals from 2008 supported 2009 revenue growth
Read more about it at “Robust Year for Reed Elsevier” (Booksellers.com)
The legal wing LexisNexis, which makes up 42% of adjusted operating profits for the group, saw sales grow 14%, and adjusted operating profit rise 13%, at constant currency. Reed said its core law firm markets were flat in US and marginally lower internationally reflecting a downturn in legal services industry.
The publishing arm of Reed Elsevier has had a “relatively robust year” in light of the economic downturn, thanks to good subscription renewal rates among its journals and strong e-book sales, the company has claimed.
The company saw revenue growth climb 14%, as did adjusted operating profit, and cashflow grew 11%. However reported operating profit declined 13%.
Elsevier, which contains the science publishing divisions and accounts for 44% of adjusted profits for the entire group, saw sales grow 4%, while profit increased 9%.
John Wiley & Sons, Inc. annouced it’s 2009 results (which are now no longer on Wiley’s website), but DigitalKoans sums it up well in his blog post, where he provides excerpts from a press release.
SCIENTIFIC, TECHNICAL, MEDICAL, AND SCHOLARLY (STMS)
- Full year revenue +9% and fourth quarter revenue +17% on currency neutral basis (a nonrecurring acquisition accounting adjustment reported in fiscal year 2008 contributed 2% to the full year growth rate)
- Full year contribution to profit +14% and fourth quarter contribution to profit +22% on a currency neutral basis
- New contracts in fiscal year 2009 to publish 32 society journals; renewed or extended contracts for 87 journals; did not renew agreements to publish 9 journals
Global STMS revenue for fiscal year 2009 declined 1% to $969 million due to unfavorable foreign exchange of $97 million. Revenue advanced 9% on a currency neutral basis and including a $17 million acquisition accounting adjustment, which reduced revenue in fiscal year 2008. Increased revenue from journal subscription renewals, new business, global rights, and STMS books was partially offset by lower sales of backfiles, reprints, and custom publishing.
Direct contribution to profit for the fiscal year grew 4% from prior year to $399 million. On a currency neutral basis, contribution to profit advanced 14%. The year-over-year increase reflects top-line results and a $17 million accounting adjustment related to the Blackwell acquisition that reduced revenue in the comparable prior year period, partially offset by higher editorial fees due to the addition of more society journals and performance-related compensation.
For the fourth quarter, global STMS revenue was down 2% with a negative foreign exchange effect of $54 million. On a currency neutral basis, revenue advanced 17% due to the resolution of the third quarter journal billing delays, which shifted some revenue into the fourth quarter. Revenue also advanced due to new business. Higher global rights income was offset by lower backfile sales and advertising revenue. Direct contribution to profit for the quarter increased 3%, or 22% excluding the unfavorable impact of foreign exchange, mainly due to top line results.
All regions exhibited journal sales growth, excluding unfavorable foreign exchange. The performance is mainly attributed to renewals, new business, and the acquisition accounting adjustment in fiscal year 2008. Subscription and pay-per-view revenue was up year-over-year, while backfile revenue fell due to the economic climate, particularly in the US. . . .
Journal licenses, which represent approximately 60% of our journal subscription revenue, provide academic, government, and corporate customers with online access to multiple journals. In the fourth quarter, agreements were signed or renewed with universities, library consortia, and government agencies in the US, Norway, Japan, China, Brazil, Canada, Greece, Chile, Denmark, and India.
STMS Books and References
Book sales and other related income, which account for approximately 17% of STMS revenue, were up 5% over fiscal year 2008 on a currency neutral basis. The total number of books published was up slightly. Online book sales rose approximately 20% to $10 million.
And Wiley’s 3rd quarter fiscal year 2010 results show that Wiley STM profit rates are up 18% to $89 million (for one quarter!), for a profit rate of 39%. Wiley is outsourcing – so these profits are accompanied by job losses in the U.S (from Heather Morrison).
“Global STMS revenue for the third quarter of fiscal year 2010 rose 13% to $228 million”
“Direct contribution to profit for the third quarter increased 18% to $89 million”