Update on Public Access to Research June 29, 2007
Posted by Pat Thibodeau in : Scholarly Publishing , add a commentSeveral new developments are happening in terms of supporting public access to research within the United States. One comes from a granting agency (HHMI) and the other is new language in current legislation before Congress.
The Howard Hughes Medical Institute (HHMI) just announced that it will require its scientists to publish their original research articles in scientific journals that allow the articles and supplementary materials to be made freely accessible in a public repository within six months of publication. This policy expands upon the current policy requiring HHMI investigators to share published research materials, databases, and software in a timely and useful manner.The new policy applies to all manuscripts submitted on or after January 1, 2008 where an HHMI investigator is the major author. What’s a major author? If the HHMI scientist is listed first or last on a paper, or is designated the corresponding author, than the HHMI investigator is considered the major author. However, HHMI strongly encourages all its investigators and collaborators, whether or not the major author, to comply with the public access policy.For those in the biomedical sciences, PubMedCentral (PMC) developed by NIH and the National Library of Medicine (NLM) is the designated free digital archive. If the article is in a journal outside biological sciences, then deposit must be made in a comparable repository within 6 months.To help authors with this process, HHMI has entered an agreement with Wiley Publishers for uploading manuscripts to PubMedCentral, paying Wiley a fee for each upload. This goes into effect as of October 1. In addition, the American Society of Hematology, publisher of Blood, has extended its open access option to HHMI authors as of October 1, 2007.
NIH Policy may become Mandatory
The other big development is the inclusion of language in the House and Senate bills for the 2008 NIH appropriations that would require the submission of research articles funded by NIH to PubMedCentral within 12 months after their appear in a journal. This would make the current NIH policy mandatory and sets the submission deadline of no later than 12 months after publication. Publishers have already started experimenting with NIH on submitting author manuscripts directly to PubMedCentral on behalf of researchers.
This has been a long awaited change to the NIH Public Access Policy. The Public Access Working Group and the NLM Board of Regents recommended mandatory submission over a year ago, and numerous library and consumer groups have been advocating for this language to be include in the NIH 2007 appropriations and reauthorization bills.
Watch this blog for more information when the final bill is passed and NIH issues its new policies and procedures.
New speak v. old speak June 28, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentIt seems to be a monthly occurrence; an editorial appears in a major news outlet advocating stricter copyright legislation and enforcement. This week it was the San Francisco Chronicle, which published on Monday an opinion piece from two attorneys who have just launched a class action lawsuit against Google over videos posted in YouTube. The acquisition of YouTube by deep-pocketed Google has clearly made it a tempting target, and class actions are notoriously lucrative, especially for the attorneys, if they can get past the formidable obstacle of class certification. Authors Louis Solomon and William Hart claim to represent the interests of “large and small copyright holders whose creative works have been posted and reposted [to YouTube] without authorization.”
Solomon and Hart make a number of conclusory statements in their editorial that deserve closer scrutiny. For one thing, they repeatedly assert that YouTube’s “very business model depend[s] on the unauthorized exploitation of copyrighted material.” They say there is “no legitimate constituency” for that business model and ask, rhetorically, what Google thought was the main source of value when they bought YouTube if not “the copyrighted works of others.” All of this ignores the large number of user-created works that are posted to YouTube with explicit permission granted by the creator/user who uploads the video. Of course YouTube depends on copyrighted works created by others, but many of those creators want to have their work available in this forum; these creators are not being exploited, they are being offered an outlet for their creativity that would not otherwise be available.
By ignoring the legitimate users of YouTube, Solomon and Hart reveal that the fundamental purpose of this lawsuit, like that filed earlier this year by Viacom against YouTube, is to undermine some settled legal principles. This kind of attack on new techonologies dates back into the 1970s, when some movies studios sued to prevent the distribution of consumer video recorders. The Supreme Court ruled that a technology could not be suppressed if it had a “substantial non-infringing use.” YouTube obviously has such uses, but the various plaintiffs are clearly hoping that our now more business-friendly federal courts will reverse or revise that standard to give content producers stricter control over technological innovation.
Another target of the lawsuit is the “safe-harbor” provision inserted into the Copyright Act in 2000 by the DMCA to protect online service providers from liability for the actions of their consumers. The content industry is hoping that the 2005 Supreme Court decision in MGM v. Grokster offers an opportunity to reverse in the courts what Congress did by legislation and force online hosts, who are easier and wealthier targets than individuals are, to assume the risks and costs for user behavior.
Finally, Solomon and Hart assert in response to an anticipated defense that “no one has a First Amendment right to infringe” copyright. This is true as far as it goes, but it overlooks the fact that some apparent infringements are immunized by law precisely because of the danger that copyright could be used to suppress legitimate and socially desirable speech. Sections 107-122 of the Copyright Act all enact “limitations on exclusive rights” designed to allow conduct that would otherwise be infringing but which Congress believed should be protected. The Supreme Court has said that “the Framers intended copyright itself to be the engine of free expression” (Harper and Row v. Nation Magazine, 471 U.S. 599 (1985), and YouTube can legitimately argue that the opportunity it offers for such expression gives it a social value that tips the copyright balance in its favor.
Educating the Educators June 21, 2007
Posted by Aisha Harvey in : Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing , add a commentAt this point in time it is accurate to call the emphasis that educational organizations are placing on Scholarly Communications a movement. The Scholarly Communications Movement like many social and political movements can be characterized by its detractors, supporters and strategies. One such strategy, which I call “Educating the Educators” is the art of communicating with faculty and librarians about the roles that they play as creators, owners, buyers and disseminators of scholarly publications in the scholarly resource enterprise.
Many groups are doing their part to get the word out, emphasizing the need for institutional repositories, retaining author rights and understanding the difference between copy right infringement and fair use. But the work of “Educating the Educators” is never done and I predict that this movement is still in its infancy. It was in this spirit that Kevin Smith, Pat Thibodeau and I led a Scholarly Communications brown bag lunch for the Duke University Library staff this past spring.
Kevin’s presentation, “Authors’ Copyrights: Helping Duke Authors Manage their Rights” was an overview of Duke’s Author Advisory Service that provides information and advice for Duke faculty authors. Kevin’s presentation emphasized that informed authors can “add value by increasing the usability of their work.”
Pat’s presentation, “Faculty / Author Advocacy: Power and Influence on Scholarly Publishing” outlined methods of encouraging faculty to become Scholarly Communication Advocates and to consider publishing in Open Science (Access) sources. This advocacy is mutually beneficial for faculty members and libraries. Faculty can increase the “visibility of their work” and “immediately communicate with peers” and libraries will be in a stronger position to provide access to affordable content.
My presentation, “Institutional Repositories + Libraries” presented the findings of an Association of Research Libraries’ study of the growth and use of Institutional Repositories (IR’s) in libraries. I also gave an overview of the four IR’s at Duke University:
UT Offers Help Seeking Permissions June 12, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Scholarly Publishing , 2commentsA while back we wrote about the new database from Stanford University that helps one search copyright renewal records for that period of US copyright history during which un-renewed works would pass into the public domain. Now the Harry Ransom Humanities Research Center at the University of Texas, Austin has announced two databases that will help make searching for information about “orphan works” a little easier.
The Ransom Center has offered the WATCH database, which stands for “Writers, Artists and their Copyright Holders,” for some time. This database helps those seeking permission to use a copyrighted work find out who owns or administers the rights and can give the necessary permission. For example, if one searches “Rawlings” in the WATCH database one discovers the name and address of the literary trust that holds rights in Marjorie Rawlings work.
On May 29 the Center announced a companion database – FOB, for “Firms out of Business.” Here one can find publishing firms that no longer exist, have changed hands or are part of a larger company. Searching “Vintage,” for example, turns up the information that it is an imprint of Random House and that the parent was sold in 2006 to a German company called Bertelsmann AG. Tracking the subdivisions and mergers in publishing is a huge and complex task, so it is impossible for a database like FOB to be entirely complete and up-to-date, but the ability to find “successors in interest” for a defunct publisher will go a long way to reducing the burden of seeking permission.
Both these databases are valuable tools for finding rights holders. The real problem is when rights holders can not be found; when the databases come up empty. That is the real orphan works problem – works that are lost to our cultural heritage as long as they are locked up by copyright with no one to turn the key by giving permission. For that problem we need to see the orphan works legislation that was proposed last year reintroduced in Congress and passed without delay. But in the meantime the Ransom Center deserves a hat tip for the hard work it has done to make the work of all who seek copyright permissions a little easier.
“Policy Laundering” June 10, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation , 2commentsSpeaking of international issues, at the recent copyright conference at the University of Maryland University College Center for Intellectual Property, Gigi Sohn of Public Knowledge used the above phrase to describe a disturbing trend in copyright legislation. “Policy laundering” refers to the practice of negotiating bilateral trade treaties with other countries that include rules about intellectual property that are more strict than US law, then presenting the agreements to Congress as evidence that the US must change its law in order to “enable” the treaties. This use of trade agreements to force legislation without regard to whether it serves the original purpose expressed by the Constitution in its authorization of copyright and patent laws – “to promote the progress of science and useful arts” – represents an end run around the Constitution.
Concern about this practice is not merely abstract. David Nimmer, whose name represents the highest authority on US copyright, writes about the TRIPS (Trade Related Intellectual Property Rights) agreement as a similar, and successful, attempt to use trade negotiations to circumvent constitutional strictures in his book Copyright: Sacred Text, Technology, and the DMCA.
