E-textbooks: the state of play August 29, 2008
Posted by Kevin Smith in : Authors' Rights, Copyright Information Notes, Digital Rights Management, Open Access and Institutional Repositories, Scholarly Publishing, Technologies , 3commentsAs the new school year begins there has been lots of reporting about E-textbooks, and the welter of stories offers an opportunity to assess the overall state of play.
This story from Inside Higher Ed outlines some of the “next steps” for E-texts, as well as the “remaining obstacles,” which are substantial. The article focuses most of its attention on two initiatives – a highly speculative report that Amazon wants to introduce E-texts for its Kindle e-book reader, and a description of the progress being made by CourseSmart in partnering with higher education. It is worth looking at these two projects, along with some other business models for e-texts, in light of some recently articulated needs and concerns.
A recent study done by a coalition of student groups expresses some doubts about digital textbooks that are worth considering as we look at different possible business models. The report raises three potential problems with digital versions: their alleged failure to reduce costs, limitations on how much of an e-text a student is allowed to print, and the short duration of access provided by some licensing arrangements. These latter two concerns, obviously, support the contention that print textbooks are still serving student needs better than e-texts, especially if the digital versions are nor significantly less expensive. To these concerns we might add one more – students like to be able to highlight and annotate textbooks, and digital versions that do not support this activity will be disfavored.
So how do the different business models fare in addressing these concerns?
One model is simply the distribution of electronic versions of traditional textbooks by traditional publishers. This seems like the least promising of the models, since it likely solves none of the issues raised by the student groups. It is interesting that the representative of traditional publishers quoted in the Inside higher Ed story made no reference at all to cost concerns but stressed the potential for e-texts to shut down the market for used textbooks. Unsurprisingly, the focus here is on preventing competition and protecting income, not serving the needs of the student-consumers.
CourseSmart offers a business model that is very little different from that the traditional publishers might undertake themselves. There is some dispute about the issue of cost, however, with CourseSmart arguing not only that its digital versions of traditional textbooks are significantly cheaper, but that they remain so even when the income that students might usually expect by reselling their print texts is taken into account. It remains the case that that lower payment only purchases temporary access for the students and a restricted ability to print. Nevertheless, CourseSmart has been successful in arranging partnerships with San Diego State University and the state university system in Ohio, so it will be worth watching to see how those experiments develop, particularly in regard to student usage and satisfaction.
Amazon’s Kindle is yet another possibility for distributing e-texts. We know very little about how such texts would be priced or what features they would have, but we do know that the desire of students to be able to print would not be fulfilled. This is an important issue for students, apparently, since the student report on e-texts found that 60% of students surveyed would be willing to pay for a low-cost print copy of a textbook even if a free digital version was available to them.
This latter fact is precisely what Flat World Publishing is counting on with their plan to make free digital textbooks available and also sell print-on-demand copies to those who want a paper version. As I described this model a few weeks ago, Flat World is hoping to show that over the long-term, print on demand can prove a sustainable business model. Since this accords better with the expressed needs of student users than any of the above models, they might just be right.
The last model for distributing digital textbooks, one often overlooked in the debates (although endorsed by the student report mentioned above) but given some attention in this article from the LA Times, is open-access. Frustrated faculty members are increasingly considering creating digital textbooks that they will distribute for free. Supporting such work, with grants of up to $50,000, is another part of the initiative undertaken by the university system in Ohio. Ohio has long been a leader in supporting libraries in higher education, and this support for open access textbook offers a new avenue for leadership. The real “costs” we should be considering when we discuss e-texts ainclude reasonable support for the work of creating such resources, as well as credit for the scholarly product of that work when tenure reviews come around. So much of the expense of textbooks comes from the profit claimed by the “middlemen” who distribute them that real efforts to reduce the cost of education must focus on ways to encourage in-house creation of digital texts (which is little different from how textbooks have always been written) and to distribute them directly to students, as the Internet now makes possible.
The other side of the balance. August 26, 2008
Posted by Kevin Smith in : Authors' Rights, Fair Use, Technologies , add a commentWe are often told that copyright law is supposed to be a balance, offering, on the one hand, the financial incentive to creators that goes with monopoly rights and, on the other hand, sufficient exceptions to those monopoly rights to allow new creators to build on previous work. Without the latter half of this balance, creativity would effectively grind to a halt, and the incentive side would be useless. But most of the time, Congress and the courts seem to be serving the needs of those who want to profit from works already created at the expense of those who are trying to innovate and create new works. So it is especially pleasant to report on a couple of recent court decisions that can be seen as efforts to redress that imbalance and give some support to essential users’ rights.
First, there was the ruling in Jacobsen V. Katzer that essentially upheld the enforceability of an open source software license. Open source licenses are contracts (and that was part of the issue) that waive copyright, telling a downstream user that they are free to use the software in ways that would otherwise require permission, as long as they abide by certain conditions. In the Jacobsen case , such a license was challenged on several grounds — that it did not form an enforceable contract, that the terms of the license were not real conditions but merely “covenants” without legal teeth, and that the license was an attempt to enforce so-called “moral rights” which are largely not recognized in the US. The Federal Circuit Court of Appeals rejected these challenges and sent the case back to the District Court to be decided as a contract and copyright infringement case.
What this essentially means is that an open source license — and this likely includes the Creative Commons licenses often used in higher education as well as the more technical software license directly at issue — forms a contract between copyright holder and user that allows the user to use the work according to the terms of the license and lets the rights holder sue for infringement if those terms are breached. This is how these licenses are supposed to work, and it is nice to see a circuit court affirm their proper functionality. This ruling will make it easier for academics authors and other creators to share scholarly work without relinquishing total control.
One interesting part of this argument was the assertion about moral rights. It is quite true that the US protects moral rights, including the right of attribution, only for a small group of visual artists. But that fact does not show why an attribution license is invalid, it shows why such a license better serves the needs of many creators, especially in academia, then copyright law alone does. With an open access license an author can leverage their ownership of copyright to enforce the right of attribution when the law alone would not do so. And attribution, of course, is usually the most important reward an academic author gets from her work. That is why this recent decision upholding these types of licenses is so important well beyond the sphere of software development.
The other important development was a DMCA case that decided that, before sending a “takedown notice” alleging that some particular web posting infringes copyright, the rights holder must consider whether fair use would authorize the particular posting. This decision tracks the wording of the DMCA very closely, noting that the law permits takedown notices when the posting is not authorized by the rights holder or by law. Fair use, as the court correctly held, is a form of authorization by law (note my previous post here that noted that this has not been the case in previous DMCA practice). Therefore, a rights holder should not send a takedown notice in a case where a good faith consideration of fair use makes clear that the posting in question is not infringing.
The primary value of this second decision will be to limit the ability of rights holders to use the DMCA system to frighten people and to “chill” legitimate fair uses of commercial works. The particular case involved one of those transformative uses that are so highly favored in the fair use analysis — a 29 second homemade video of a baby dancing to the sounds of a Prince song. It should be obvious that such a video, even when available on YouTube, is not a commercial substitute for purchasing the song itself on CD or as an MP3. So the takedown notice sent to YouTube over this parent-posted video seemed abusive, designed more to intimidate than to protect legitimate commercial interests. Thus the court allowed the parents’ case against the rights-holder for misrepresentation under the DMCA to go forward, ruling that consideration of fair use is a prerequisite to the proper use of the DMCA takedown notice. This, too, is a victory for user’s rights and, even more important, for free speech in the digital world.
“Fixing” Fair Use? August 22, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use, Technologies , add a commentWhenever I hear suggestions that fair use should be “fixed,” I am reminded that there are two very different usages of that term. When you get your car fixed, it is returned to the state where it performs as it was meant to do. When you get your dog “fixed,” however, that is not the result. So I approach all suggestions for fixing fair use from the perspective that we do not want to render that important exception to copyright sterile and, thereby, unusable. We may want to fix fair use like you fix a car, but we must be careful not to fix it like you fix a dog.
From this admittedly cynical perspective, I was pleased by what I read in Mark Glaser’s “e-mail roundtable” on the question “Should copyright law change in the digital age.”
Glaser asks two lawyers — Peter Jaszi and Anthony Falzone — and two experts in new media — JD Lasica and Owen Gallagher — how fair use might be changed to better accommodate new uses like remixes that are made possible by digital technology. Interestingly, none of the four suggest actually tinkering with the language of section 107 itself, and both lawyers point out that the vagueness of fair use, while it can be maddening, is actually a strength. Only a flexible and dynamic (to use Jaszi’s words) doctrine can truly be technologically neutral and create the space necessary to experiment with new media and new uses that were unimaginable to the drafters of the law. What makes fair use frustrating and uncertain also makes it adaptable and supportive of creativity. “Fixing” fair use by removing its vague reliance on factors that can be applied in any situation would indeed be like fixing the dog.
Instead, these four experts discuss what might be added to our law to make certain uses that have become prevalent in the digital age less risky. By creating “safe harbors,” for example, that essentially immunize certain acts, at least when done for non-commercial purposes, the fear of using fair use, and the cost of adjudicating it, can be reduced. Lasica goes further and suggests some additional positive rights that could be incorporated into the copyright law, such as the right to make personal back-up copies, to time-shift and to change formats. Both of these suggestions would leave the fundamental structure of fair use, vague and flexible as it is, intact; they would simply take some common digital uses outside of its purview. Fair use would still allow for new technologies and creative uses not yet conceived, but the cost of reliance on fair use would be reduced by specific exceptions for activities that are now well-known and clearly of benefit to consumers. These proposals exemplify the right way to “fix” fair use.
A template for authors’ rights, and a modest proposal August 19, 2008
Posted by Kevin Smith in : Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farThe Association of Research Libraries has just released an article written by Ben Grillot, a librarian and law student working as an intern for ARL, that is advertised as a summary of the policies of twelve publishers toward deposit of NIH-funded research articles into PubMed Central. In fact, Grillot’s article has a value well beyond the modest comparisions announced by its title.
I won’t attempt to summarize Grillot’s analysis or conclusions here; he writes so clearly and concisely that any summary would seem awkward and wordy in comparison. Suffice it to say that Grillot does a superb job of limning the ambiguities that need to be resolved as publishers come to terms with the new NIH public access mandate, as well as the competitive advantage that will be gained by those who resolve those unclear points quickly and fairly. The easier deposit in PubMed Central is made, the more a publisher will stand out from the crowd. But beyond its comparative analysis, Grillot’s article provides a kind of template that authors should consider whenever they are confronted with the choice of publisher for their research and with a publication agreement. His lucid explanation of the various provisions in the selected agreements, which themselves are usually far from lucid, offers a model for what questions a scholarly author should ask of the agreements she sees and how she should think about the way those questions are, or are not, answered.
Two quick points struck me as I read Grillot’s article beyond those conclusions that he reaches. First, I think many authors would be very surprised at just how limited their rights to make their own work available to others are when they sign publication agreements. We are often told that “most” publishers now support open access. But most also impose an embargo on such access, and during that embargo an author is often not able to place her own work on her personal website (about half the journals do not allow this, at least for the final author’s version), and is very unlikely to be able to post the work to a disciplinary website or institutional repository (7 or 8 of the 12 journals examined by Grillot do not allow this). The very limited set of open access rights retained by authors under these standard publication agreements argues forcefully for the approach taken recent by the Harvard Arts and Sciences faculty to grant Harvard a license for use in an institutional repository prior to any transfer of copyright to a publisher.
The second thing that caught my attention is the brief notation, in a footnote to table 2, that Oxford University Press charges authors more for participation in their “author pays” open access program if the author is affiliated with an institution that does not subscribe to Oxford’s journals. Authors’ rights are thus directly and explicitly tied to institution’s expenditure of monies with that publisher. No doubt this linkage between authors’ rights and institutional subscription makes business sense to Oxford, and far from criticizing it, I suggest that institutions emulate it. Whenever we negotiate a new contract for a journal database, whether a new acquisition or a renewal, we should insist that the rights that authors at our institutions who publish with that publisher retain are spelled out. For some of us it has seemed inopportune to tie the rights of individual scholarly authors to our enterprise-wide subscriptions, but it is starting to seem more and more logical. The decision by Oxford to link its grant of authors’ rights to the institutional purchase of its products convinces me that it is now time for our library acquisitions departments to start insisting that that linkage become a two-way street.
Updates on NIH Public Access August 12, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentIt seems like a good time to collect some of the interesting news items coming out lately about the NIH Public Access Policy, which has now been mandatory for just over 4 months. Most of these items come from Peter Suber’s Open Access News blog, to whom we direct a sweeping tip of the hat.
First is the important clarification that NIH issued about how author submission occurs. In greatly simplified language, the NIH outlined four methods by which submission can happen — publication in a journal that has an agreement to put all of its contents in PMC, arrangements with the publisher for deposit of a specific article, self-deposit of the article, or completion of the deposit process when the publisher has sent the final peer-reviewed manuscript to PMC. For more details, see the NIH policy home page.
Next came this report in Library Journal that submissions to PubMed Central have more than doubled in the six months since the mandatory policy was passed by Congress.
Then last week Oxford University Press announced that it would begin depositing articles that are funded by NIH for authors. In effect, this means that Oxford authors will be selecting the fourth of the methods NIH has identified, which is much easier for Oxford authors than the self-deposit on which they had to rely up till now.
Finally there is this note from Library Journal Academic Newswire, which both reports on the OUP decision and notes that NIH is confirming the fact that most journals which handle deposit for the authors are selecting a twelve month embargo on the articles, the longest embargo currently permitted by law.
Taken together, I think these reports indicate two things. First, the Public Access Policy is working, by which I mean that public access to bio-medical research is increasing dramatically without creating any real danger to the publishing industry. The announcement by OUP that they would cooperate in depositing articles indicates that publishers are coming to terms with the requirement and accepting it. Even the news that most publishers elect the 12 month embargo is a sign of growing accommodation; that overly-long embargo provides even the most skittish publishers enough security to adapt to the growing open access movement. Shorter embargoes are undoubtedly sufficient to protect publisher revenues, but the move to those shorter delays will have to take place gradually, as more and more publishers realize that, whatever the threats to their traditional business models are, NIH Public Access is not one of them.
Second, I hope that we are seeing an awakening realization on the part of scholarly authors that they have genuine choices as they consider how to disseminate their work. The soaring PMC submission rate, and the decisions by major publishers not to resist it, suggest that making submission easier for authors is rapidly becoming a competitive advantage. As authors realize that they have control over their work for as long as they retain copyright ownership, publishers might have to take on a service role they have never really played before, competing for the best scholarship by help authors meet the requirements of the funders who underwrite the research.
