Calling for better policies November 25, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Scholarly Publishing , 1 comment so farUnfortunately, I had to leave the SPARC Digital Repositories conference to catch a plane before the closing keynote address by David Shulenberger, VP for Academic Affairs at NASULGC, but there is a nice write up about his remarks here in LibraryJournal.com. Shulenberger outlined seven steps to help academia weather difficult economic times and still “get to the next level” in scholarly communications. Given the context, it is no surprise that the emphasis was on creating digital repositories. I would note that his first step is for each university to be sure that a repository is available for their faculty, which is not quite the same thing as saying that every institution must have its own digital archive. The possibilities for collaboration and sharing are precisely what have burgeoned in the digital environment, and it is important to remember that we can share infrastructure as well as the scholarship that infrastructure is designed to support.
The point I want to emphasize, however, was Shulenberger’s third step, in which he called on faculties and administrations to discuss current intellectual property policies and practices. This is innocuous enough until Schulenberger delivers the punch line — “emulate Harvard.” The point, of course, is that faculty should not surrender their copyright without thought and negotiation when publishing their scholarly output. The time when that was a sensible or practical way of doing business is simply past, now that the digital environment offers so many new ways to disseminate research and scholarship. The earlier part of Schulenberger’s remarks included a “calling out” of university presses and some scholarly societies for their support of the lawsuit against Georgia State and of legislative attempts to reverse the NIH Public Access policy. The key to resisting these efforts to hamstring broader access to scholarship is precisely in this point — if faculty do not give away their copyrights, but rather give only licenses for publication, they will retain control and can use their work, and let others use it, without fear of being sued for infringing the copyright in works they or their colleagues produced in the first place.
The other appeal for better policies around copyright and intellectual property is this article in the ARL Research Bulletin by the President of NASULGC, Peter McPherson. McPherson makes the point that colleges and universities are at the heart of the purpose of copyright to “promote the progress of science and the useful arts.” To do that, he argues, we need to resist the trend toward every greater protection that has tilted the balance of the copyright bargain away from its core purpose. He recommends that higher education work in concert to develop a comprehensive set of policies and to create a structure to advance those policies with lawmakers. He argues quite correctly that our voice has been fragmented and unfocused, while those who believe, in opposition to the constitutional purpose of copyright, that they are entitled to squeeze every penny from each copyrighted work, speak in unison.
McPherson makes an excellent point, with which I want to close, when he notes that no single strategy will address all of the issues and all of the needs that arise around intellectual property within the academy. It is precisely this need for creativity and flexibility that so urgently requires that we cooperate to develop an appropriate set of strategies, rather than each pursuing our own favorite issue or solution. McPherson writes:
a “solution” to fully address some of the contemporary challenges we face in the intellectual property arena may be a combination of further legislation, public licenses, market-based allocation, or market-modification allocations.
I think this is exactly right, but would point out that the fundamental point made above, that IP rights can not simply be ceded away in exchange for traditional publication, is a prerequisite to any and all of these strategies. Higher education should welcome the leadership of NASULGC, exemplified in these two articles, on this issue.
Keeping up with the world November 20, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories , add a commentAt the SPARC Digital Repositories meeting earlier this week, I was particularly struck by the remarks about the policy environment for open access scholarship in Europe made by David Prosser of SPARC Europe. Without any apparent intent to be boastful, Prosser began his address by telling us that the policy argument in favor of open access has been won, and he proceeded to back up that assertion pretty effectively.
First, Prosser cited three separate studies of research policy in Europe that all concluded that open access was a necessary component of the ambitious European Community imperative to develop a highly competitive knowledge-driven economy. These reports all seemed to recognize that public access to scientific research is a prerequisite for increasing the pace of scientific and technical innovation.
Next, Prosser reminded us of the major funder mandates for open access. The private Wellcome Trust lead the way, but now six of the seven research councils in the UK have followed suit by requiring open access to funded research within six months of publication (not the one year embargo permitted by the US NIH mandate, which is currently subject to an attempt in Congress at reversal, even though that requirement is much more publisher-friendly). Most recently, the Irish Research Council for Science, Engineering and Technology has adopted a similar mandate for funded research. All these funders of research recognize that open access is not just a nice thing to do for the public who puts up the money, but is a fundamental step toward remaining competitive in today’s digital environment.
The same recognition surely underlies the decisions by nine European universities that have adopted self-archiving policies that ask or require faculty to deposit their published research in an institutional repository. This, too, is an important step toward a new level of scientific competitiveness for the European Community, and a failure to follow suit will be a threat to the US ability to maintain its pride of place in research and scholarship.
After Prosser’s talk, Syun Tutiya from Chiba University spoke about the open access policy environment in Japan. Although their successes are more modest than those detailed by Prosser, Professor Tutiya ended his remarks with a telling challenge to the US and our ability to compete in the global environment. Speaking about the need for international collaboration, Tutiya said that Japan was ready to collaborate, and Europe was ready, but you (the Americans who made up the majority at the meeting) are not ready. Until we take the importance of increasing access to fundamental scientific research more seriously and stop treating it as a political power struggle, we will not be ready to collaborate or, I am afraid, to compete with the rest of the world.
Creative Commons and credit November 12, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 3commentsThe November 2008 issue of College and Research Libraries News contains a lucid explanation of, and a convincing argument for using, the Creative Commons licensing system. The article, “The beauty of ‘Some Rights Reserved‘” by Molly Kleinman, is a concise and cogent explanation of the CC system of licensing materials to permit sharing of creative and scholar works, as well as that reuse of protected material that is so necessary to “promote the progress of science and the useful arts.” Kleinman describe efforts at the University of Michigan Library to teach faculty about the benefits to authors, teachers and scholars of using Creative Commons licenses, and her ability to explain the licenses so clearly must be a great boon to that effort.
I want to give the link to the “Get Creative” video that Kleinman references as an important part of their teaching of the CC licenses, since the link in the online article’s footnotes did not work for me — http://mirrors.creativecommons.org/getcreative/. This too is worth a look for anyone who wants to understand how Creative Commons licenses work and wants to be entertained in the process.
But I also want to add a suggestion about one more point that might help convince faculty that a Creative Commons license on their works will serve them well. In her section on the “benefits of Creative Commons in academic settings,” Kleinman emphases the large numbers of works available under CC licenses and the ease of reuse that those licenses make possible. I want to add that CC licenses actually serve the fundamental values of academia better than does our copyright law in its current state.
Almost alone amongst the copyright laws of the world, our US law does not enforce any right of attribution. Most countries recognize some “moral rights” that are often treated differently than the economic rights which are the sole subject of US law. Attribution — the right of the creator to have his or her name associated with the work — is the most basic of these moral rights. But that right is simply not protected in the United States except for a small group of visual artists who are entitled to attribution under a provision added to the copyright law in 1990.
Does this absence of an attribution right make any difference? It certainly can. There was a story in the higher education press about six months ago about a professor who found that his short book, published several years before and since out of print, had been incorporated whole into a larger work from the same publisher that carried the name of a different author. Because the professor had transferred his copyright to the publisher, and the US has no moral right of attribution, he had no recourse to continue to get credit for his own scholarship. For an academic author this is a dreadful fate, since scholarly publication is done more for reputation and standing in the discipline than it is for money (Samuel Johnson’s famous remark notwithstanding).
In an 2004 article on “The Right to Claim Authorship,” Professor Jane Ginsburg of Columbia describes the importance of an attribution right and discusses how other countries have structured that right for good or ill. On the need to protect attribution she quotes an unnamed federal judge to this effect:
To deprive a person of credit to which he was justly entitled is to do him a
great wrong. Not only does he lose the general benefit of being associated
with a successful production; he loses the chance of using that work to sell
his abilities.
At the end of the article, Prof. Ginsburg proposes what the contours of a US attribution right might look like. Her proposal makes a great deal of sense to me, but, and this is my point here, authors who use the Creative Commons licenses do not need a Congressionally recognized right of attribution because a CC license effectively leverages copyright ownership to ensure that the author gets proper credit. In essence, a CC license, with its attribution condition on reuse, is a private law arrangement to effectuate what our public law has failed to do.
Because reputation is the foundation of the academic reward system, and giving proper credit to authors and creators is the most basic tenant of academic ethics, the protection of attribution is a fundamental value of scholarship. And since the Creative Commons license protects attribution, and our copyright law by itself does not, the value of the former for those who live within the academic system and embrace its values is vastly increased.
Looking for the devil in the details November 7, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 2commentsThe more I read the Google Books settlement agreement, and the commentary it has spawned, the more I become convinced of two things. First, this beast of a document will keep many lawyers in business and give many librarians headaches. Second, it is the things we do not know that will be most troublesome. The following is an unsystematic list of issues that I have been thinking about regarding the agreement, with no particular order and few definite conclusions.
Advertising — Perhaps it should be obvious, but Google Books is about to take on a very different look, as it becomes populated with advertising. Up til now, Google has not sold advertising for these pages, probably to avoid undermining its fair use argument. At this point, the only commercial links one gets when doing a search in Google Books are those to sources from which one can buy the books. The settlement agreement explicitly authorizes advertisements on the Preview Use pages and anticipates ads on the results pages as well. The agreement provides for the standard 70/30 split for advertising revenues (the Registry that represents publishers and authors gets the larger percentage), so it is now in the interests of the rightsholders to permit and encourage advertising. This is not shocking, but it does further detract from the “social benefit” justification that Google has used for years and that has made it so appealing to librarians. Book searches on depression or Alzheimer’s being used to sell the latest fad pharmaceuticals to treat those conditions might cause libraries to rethink the place of even free access to the Google product in their overall mission.
Orphan works — Does this agreement really spell the end of legislative attempts to reduce the risk of digitizing books that are still in copyright protection but for which no rightsholder can be found? Larry Lessig certainly implied that it does in his initial post reacting to the deal. Consider that there will be much less incentive to adopt such a proposal if many of the works involved are available for viewing via institutional subscriptions to Google Books or even for individual purchase. By making allowance for unclaimed funds coming into the Registry that the settlement agreement will create, Google and the publishers clearly expect to make money off of orphan works. As I suggested earlier, pay-per-use may well replace legislative attempts to refine the balance between rights protection and socially valuable uses, and libraries that want to make obscure works available to a broader public will be the losers.
It is worth noting that the agreement itself makes some allowance for the adoption of orphan works legislation, providing that both Google and the Fully Participating Libraries can take advantage of such legislation if it ever becomes law. What we do not know is whether or not the Book Rights Registry would become available to users who wanted to use orphan works as part of their diligent search for rightsholders; it would be a tremendous resource but, at least initially, it is structured as a closed and private database. See Georgia Harper’s interesting post on this issue here. We also don’t know if the agreement will have such a pervasive effect that Congress will not bother to take up orphan works in the first place; they certainly have not been on fire to do so up to now.
Defining the public domain — I have complained before that Google has used a very narrow definition of the public domain, especially in regard to government publications. On this score, the agreement seems to move things in a positive direction, at least in regard to the contents of the Google Books product itself. Google has argued that it had to be careful about using government works because of the possibility that they would contain “inserts” (to use the term now adopted in the settlement agreement) for which there could be a continuing copyright interest. This agreement would seem to remedy that concern by allowing for uses of such works unless the owner of the rights in the insert objects. Even then, Google can appeal the objection using the dispute resolution procedure specified. The restrictions on other public domain works that are still commercially available seem sensible to me. If a PD work contains an insert to which a copyright interest still adheres (an introduction, for example), then all earlier editions of the PD work that contain that insert are treated as commercially available (and therefore “non-display”). Editions without such inserts will remain in the public portion of the Google database. On the other hand, out-of-print editions of a work that is still in copyright and is commercially available in another edition will all be treated as commercially available.
Future publications — One of the trickiest aspects of understanding this document is the definition of “books” that it uses. Careful reading indicates that that term encompasses only works that are in copyright protection and registered with the Copyright Office as of the settlement date. That means that this agreement deals only with works already published; it does not seem to tell us anything about how or if Google will deal with books (in the non-technical sense) published in the future. The obvious conclusion is that publishers will be able to opt-in to all or some of the “display use” (snippets, preview, sales of institutional subscriptions or individual titles). I wonder if such new publications will be subject to non-display uses (text minig, i.e.) when and if Google scans those works, or if those too will be opt-in only. I also wonder what will happen when works published after the settlement go out of print. Will publishers have to opt them out of display uses at that point, or will the original opt-in still control? Finally, how often will the database to which institutions can subscribe be updated, and how will the effect of new content have on the price for that product be determined?
Commentary that is worth reading about the settlement agreement includes:
Karen Coyle’s “pinball” comments here.
Open Content Alliance’s objections here.
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.
