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.
From the New York Times, April 2, 2010
By March Aronson
Speaking as an author and editor of illustrated nonfiction, I agree that important change is afoot, but not in the way most people see it. In order for electronic books to live up to their billing, we have to fix a system that is broken: getting permission to use copyrighted material in new work. Either we change the way we deal with copyrights — or works of nonfiction in a multimedia world will become ever more dull and disappointing.
The hope of nonfiction is to connect readers to something outside the book: the past, a discovery, a social issue. To do this, authors need to draw on pre-existing words and images.
The full article is at: http://www.nytimes.com/2010/04/03/opinion/03aronson.html?emc=eta1
Lawrence Lessig published “For the Love of Culture: Google, Copyright, and Our Future” in The New Republic (Jan 26, 2010).
There is much to praise in this settlement [Google Books Settlement]. Lawsuits are expensive and uncertain. They take years to resolve. The deal Google struck guaranteed the public more free access to free content than “fair use” would have done. Twenty percent is better than snippets, and a system that channels money to authors is going to be liked much more than a system that does not. (Not to mention that the deal is elegant and clever in ways that a contracts professor can only envy.)
Yet a wide range of companies, and a band of good souls, have now joined together to attack the Google settlement. Some charge antitrust violations. Some fear that Google will collect information about who reads what—violating reader privacy. And some just love the chance to battle this decade’s digital giant (including last decade’s digital giant, Microsoft). The main thrust in almost all of these attacks, however, misses the real reason to be concerned about the future that this settlement will build. For the problem here is not just antitrust; it is not just privacy; it is not even the power that this (enormously burdensome) free library will give this already dominant Internet company. Indeed, the problem with the Google settlement is not the settlement. It is the environment for culture that the settlement will cement.
Michael Mandiberg, How to Negotiate a Creative Commons License: Ten Steps, January 12, 2009. (Thanks to Creative Commons.)
… [T]he focus of this post is on how we were able to negotiate the Creative Commons license [for our book] from [publisher] New Riders, which is owned by Peachpit, which is owned by Pearson (a big big corporate big thing.) …
Publishers know things are going to change, but they don’t know what that change is going to be. Know that your publisher is willing to experiment. …
Use case studies to argue with facts. It also helps for them to see that other reputable publishers have licensed books Creative Commons. …
Gavin Baker, How to negotiate a Creative Commons license in a work contract, A Journal of Insignificant Inquiry, January 14, 2009.
… Even friendly organizations tend to use legal boilerplate in their contracts — which typically treats your intellectual production as a work for hire, assigning exclusive copyright to your client or employer. This should be problematic for anyone: not only do you lose the right to apply a CClicense to your work, you lose the right to use your work for any purpose without getting your (former) employer’s permission.
Without getting into a discussion about the work-for-hire doctrine, there’s an easy way around this. You can assign copyright to your employer, but you get a non-exclusive license, too. This is similar to the logic of the author addenda of the scholarly publishing world. They can do anything they want with the content you produced — but you can, too. …
[Thanks to Open Access News]
From The New York Times, Nov. 9, 2008
Late last month, American authors and publishers reached an agreement with Google to settle lawsuits over Google’s Book Search program, which scans millions of books and makes their contents available on the Internet. The deal lets Google sell electronic versions of copyrighted works that have gone out ofprint.
“Almost overnight, not only has the largest publishing deal been struck, but the largest bookshop in the world has been built, even if it is not quite open for business yet,” wrote Neill Denny, editor of The Bookseller, a trade publication based in London, on his blog.
The settlement remains subject to court approval, and the bookshop would operate only in the United States for now. But the agreement is only one of many initiatives under which books are making what may be the biggest technological leap since Gutenberg invented moveable type.
From LJ Academic Newswire, One for All? As Google Deal Is Evaluated, Critics Question Single Library Terminal, Nov. 11, 2008:
While the Google Book Search settlement has prompted much debate, commentators have only begun to question how it might affect library service. One of the big questions: the deal’s allowance for free access at a designated terminal within public libraries. On one hand, getting every library a free access terminal for patrons to use the full Google Book Search database is a win for libraries—certainly neither Google nor publishers were obligated to consider libraries needs in their deal. On the other hand, critics note, mandating a “single terminal” is a counterintuitive restriction in the digital age, and unfairly lumps all libraries, large and small, well-funded or not, into a single, geographic point of access.
“I strongly object to at least one aspect of the proposed Google Book Search settlement, which lets libraries offer just one terminal per library building for access to various books,” blogged Teleread’s David Rothman. “How backwards—not just the one terminal limit, but also the whole notion of linking access to your presence inside a library!”
Digital Library Federation president Peter Brantley called the restriction “irksome” and hinted that a one-size-fits-all provision was inadequate in the face of a lingering digital divide. “I do not know where program management at Google wakes up every morning; I do not know what pretty suburbs publishing executives wake up in every morning,”Brantley blogged. “But in Richmond, CA, [Brantley’s home city] and in many cities around the country, it is heinous to suppose that one public terminal given free reign to the corpus of the world’s literature is an adequate set aside against the promise of the opportunity that Google, publishers, and authors have made possible.”
From The Chronicle of Higher Education, Harvard Says No Thanks to Google Deal for Scanning In-Copyright Works, Oct. 30, 2008
Harvard University has examined Google’s recent legal settlement with publishers and authors, and found it wanting. The Harvard Crimson reported today that the university would not allow its in-copyright holdings to be scanned by Google Book Search because of concerns over the terms of the $125-million settlement, which was announced on Tuesday.
The deal, touted as a watershed moment in mass access to books, promises to make millions more titles available online. Scanned books could be previewed at designated public-library terminals or at institutions that bought a subscription from Google. Users would have to pay to purchase copies of the books, with Google, the publishers, and the authors sharing the proceeds. The settlement awaits final approval by a judge.
Harvard’s concerns center on access to the scanned texts — how widely available access would be and how much it might cost. “As we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher-education community and by patrons of public libraries,” Harvard’s university-library director, Robert C. Darnton, wrote in a letter to the library staff.
More Commentary on the Google settlement:
Kevin Smith’s Looking for the devil in the details
This Washington Post article on Google’s New Monopoly (requires free membership).
PC World’s article on how business considerations have trumped ideals in this negotiation.
By John Timmer | Published: September 16, 2008, Ars Technica News Desk
Backlash against open access
In recent years, scientific publishing has changed profoundly as the Internet simplified access to the scientific journals that once required a trip to a university library. That ease of access has caused many to question why commercial publishers are able to dictate the terms by which publicly funded research is made available to the public that paid for it.
Open access proponents won a big victory when Congress voted to compel the National Institutes of Health to set a policy of hosting copies of the text of all publications produced by research it funds, a policy that has taken effect this year. Now, it appears that the publishing industry may be trying to get Congress to introduce legislation that will reverse its earlier decision under the guise of strengthening copyright protections.
Under existing law, the products of federally funded research belong to the scientists that perform it and institutions that host them. Academic journals have traditionally had researchers transfer the copyright of publications resulting from this research to the journals. The current NIH policy requires that authors they fund reserve the right to place the text and images of their publication in an NIH database hosted at PubMed Central (PMC).
To protect commercial publishers, papers submitted to PMC are not made accessible until a year after publication, and are not required to include the formatting and integration of images performed by the publisher. This one-year limit is longer than that required by other governments and private funding bodies such as the Howard Hughes Medical Institute and the Wellcome Trust. Many publishers have embraced this policy, and allow the fully formatted paper to be made available, sometimes after a shorter embargo.
Open Access meets resistance
Not all publishers have embraced it, however, and some have tried to exact exorbitant fees for allowing manuscripts to be transferred to PMC. Others have engaged in aggressive lobbying against open access efforts.
SHERPA, a consortium of UK libraries, investigates issues in the future of scholarly communication. It is developing open-access institutional repositories in universities to facilitate the rapid and efficient worldwide dissemination of research.
SHERPA has several resources for authors to use:
RoMEO: Use this site to find a summary of permissions that are normally given as part of each publisher’s copyright transfer agreement. Additionally, you will find many sample publication agreements on this site.
Publishers allowing the deposition of their published version/PDF in Institutional Repositories. There is often a question about the use of the publishers own PDF version of research articles and whether these can be archived. It is often believed that all publishers prohibit the use of their own PDF: in fact the situation is very different. Use this site to find out what you can do with your article post-publication.
Publishers’ paid open access options often allow authors to immediately deposit their articles in open access repositories upon payment of a fee. The same publishers may also allow authors to deposit after an embargo period without payment of a fee. Use this site to find out if a publisher has an OA option, and the cost.