The Chronicle of Higher Education reports that “Judge Denny Chin on Thursday denied the company’s requests to dismiss professional associations as plaintiffs, and granted a motion to accord members of the Authors Guild status as a class in the lawsuit brought by three of its members.”
The University of California, San Francisco (UCSF), faculty senate voted unanimously for an open access policy that requires articles published by its researchers in scholarly journals to be made publicly available in electronic form. UCSF thus joins Harvard, Duke, Kansas and a number of other institutions in mandating such access. See the article by Michael Kelley in Library Journal and the May 23rd statement from UCSF.
As reported in the UCSF statement: “Our primary motivation is to make our research available to anyone who is interested in it, whether they are members of the general public or scientists without costly subscriptions to journals,” said Richard A. Schneider, PhD, chair of the UCSF Academic Senate Committee on Library and Scholarly Communication, who spearheaded the initiative at UCSF. “The decision is a huge step forward in eliminating barriers to scientific research,” he said. “By opening the currently closed system, this policy will fuel innovation and discovery, and give the taxpaying public free access to oversee their investments in research.”
The Association of American University Presses has issued a statement critical of the ruling in the Georgia State case and some of its interpretations, especially by librarians.
“We believe it is premature and unwise for anyone to declare victory or defeat. The ruling is 347 pages long and not easy to understand, its interpretation of the law is controversial and unprecedented in several important respects, and it appears to make a number of assertions of fact that are not supported by the trial record.”
Brandon Butler, Director of Public Policy Initiatives at the Association of Research Libraries has written an eight page Issue Brief discussing the recent ruling in the Georgia State case in some detail. The Executive Summary appears below:
The case concerns the use at Georgia State University (GSU) of electronic course reserves and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. The named plaintiffs in the case are three academic publishers (Oxford University Press, Cambridge University Press, and Sage), but an early filing in the case confirmed that the lawsuit was in fact being funded 50% by the Copyright Clearance Center (CCC) and 50% by the Association of American Publishers (AAP). The plaintiffs argued that the unlicensed posting of digital excerpts for student access almost always exceeded fair use and should require a license.
Although the decision is certainly not perfect (the use of bright line rules for appropriate amount under factor 3 is particularly troubling), Judge Evans has written a thorough and thoughtful analysis of the issues, and her opinion represents an overwhelming victory for Georgia State individually, a major defeat for the plaintiff publishers and for the AAP and CCC, and overall a positive development for libraries generally. The substance of the opinion is not ideal, but it is far more generous than the publishers have sought, it establishes a very comfortable safe harbor for fair use of books on e-reserve, and libraries remain free to take more progressive steps.
The long-awaited ruling in the suit against Georgia State brought by the academic publishers came down Friday and seems to largely favor the University. Jennifer Howard writes in the Chronicle of Higher Education :
A federal judge in Atlanta has handed down a long-awaited ruling in a lawsuit brought by three scholarly publishers against Georgia State University over its use of copyrighted material in electronic reserves. The ruling, delivered on Friday, looks mostly like a victory for the university, finding that only five of 99 alleged copyright infringements did in fact violate the plaintiffs’ copyrights.
See additional coverage in Inside Higher Ed:
At the same time, however, the judge imposed a strict limit of 10 percent on the volume of a book that may be covered by fair use (a proportion that would cover much, but by no means all, of what was in e-reserves at Georgia State, and probably at many other colleges). And the judge ruled that publishers may have more claims against college and university e-reserves if the publishers offer convenient, reasonably priced systems for getting permission (at a price) to use book excerpts online. The lack of such systems today favored Georgia State, but librarians who were anxiously going through the decision were speculating that some publishers might be prompted now to create such systems, and to charge as much as the courts would permit.
For further analysis of the decision see http://laboratorium.net/archive/2012/05/13/inside_the_georgia_state_opinion by James Grimmelmann and http://blogs.library.duke.edu/scholcomm/2012/05/12/the-gsu-decision-not-an-easy-road-for-anyone/ by Kevin Smith.
University of Iowa Provost Barry Butler and ten other University Provosts from Big Ten institutions have issued a public statement opposing the Research Works Act and supporting taxpayer access to federally funded research results, such as that mandated by NIH.
“Because of our strong belief in open sharing of information, we were disturbed to see that recently introduced legislation (The Research Works Act, H.R. 3699) called for a rollback of the progress being made toward opening communication channels for sharing publicly funded research findings with the American people. Were this bill to pass, it would reverse a 2008 administrative mandate by the National Institutes of Health that grantees deposit the results of their funded research in a publicly accessible archive, and prohibit other agencies from issuing similar mandates going forward. We believe that this legislation would significantly undermine access to the new ideas that result from government-funded research, access that we encourage to the public at-large, to a worldwide network of leading scholars, and to future generations of scholars who are today’s undergraduate and graduate students. In our view, ratification of the proposed legislation would represent a step backward in the ongoing enlightenment of society through research and education”
The Provosts’ call for a “local agenda” on their respective campuses is especially encouraging for those long engaged with these issues:
“In addition to our concern about the impact external entities have in shaping the research and communication agenda of our universities, we are cognizant that senior campus administrators and faculty leaders could be working more effectively to ensure that their own campus policies are aligned with professed campus norms. Some examples of how we might do more to influence campus behaviors include:
- Encouraging faculty members to retain enough rights in their published intellectual property that they can share it with colleagues and students, deposit it in open access repositories, and repurpose it for future research.
- Ensuring that promotion and tenure review are flexible enough to recognize and reward new modes of communicating research outcomes.
- Ensuring that our own university presses and scholarly societies are creating models of scholarly publishing that unequivocally serve the research and educational goals of our universities, and/or the social goals of our communities.
- Encouraging libraries and faculty to work together to assess the value of purchased or licensed content, and the appropriate terms governing its use.”
Read more: http://www.insidehighered.com/views/2012/02/23/essay-open-access-scholarship#ixzz1nDbenvbl
Inside Higher Ed
A brief story in the Chronicle reports on the response of defendants to the Authors Guild suit against Hathi Trust and several universities for copyright infringement. See http://chronicle.com/blogs/ticker/hathitrust-defendants-respond-to-authors-guild-lawsuit/38805?sid=wc&utm_source=wc&utm_medium=en for more.
Steve Kolowich, writing for Inside Higher Ed, reports on the Stop Online Piracy Act (H.R. 3261), or SOPA, due to be taken up next week by the House Judiciary Committee. The Library Copyright Alliance, a group made up of the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries, has written to committee members expressing concern that the measure would leave university libraries open to prosecution for current practices considered legal under the fair use provisions of the U.S. Copyright Law.
To read the complete article, see: http://www.insidehighered.com/news/2011/11/09/library-associations-say-legislation-could-expose-them-copyright-prosecution.
Interesting post by Rich Anderson on the balance between authors’ rights as creators and readers’ rights to make use of their creations. Additional comments on ebooks, the Authors’ Guild suit against Hathi Trust, and other matters.