What problem can open access solve? September 27, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 2commentsA recent conversation on an e-mail list for theological librarians (the branch of academic librarianship in which I began my own professional career) has lead me to reflect on exactly what problem it is that open access is designed to solve.
The exchange involved a journal called “Studies in Religion,” which is subscribed to primarily by seminaries and other small religious colleges and universities. The journal has just announced that it will move from being published by Wilfrid Laurier University Press to Sage Publications, and the cost of an institutional subscription will rise from $64 per year to $300, an increase of about 470%. For freestanding seminaries a “price break” will keep the increase down to a mere 350%.
The humanities have been largely insulated from the journal pricing increases that are the origin of the so-called crisis in scholarly communications, but they are fast catching up, unfortunately. In this case, the motive for moving to a new publisher is probably to have “Studies in Religion” included in a large package of online journals. The ironic result, of course, is that many schools with no interest in this title will be forced to subscribe to it while those institutions where it is most needed will likely have to cancel.
I have frequently argued that the solution to the continuing copyright battles in higher education is for scholars to stop transferring copyright to publishers and preserve their right to make their work available in open access. Widespread open access can indeed reduce the need for scholars to ask permission to use their own works and the risk of copyright litigation against colleges and universities. But it will not, by itself, solve the problem of journal prices.
We need to distinguish between the problem of skyrocketing journal costs and the access problem, of which costs are only part of the cause.
There was a time when publication in a prestigious journal, or even a second tier one, brought with it an assurance that all the people to whom a scholar’s work would be important would have a chance to see it. Times have changed dramatically, and that sense of assurance based on publication in a toll-access journal is simply no longer possible. Cost is certainly part of the problem; an increasing number of a scholar’s colleagues will be working at institutions that have had to cancel access to the journal or database in which her work has been published. But it is also the cases that fewer and fewer researchers begin their work by browsing journals, or even journal databases. Internet searches are the first recourse for many seeking information about a new topic or trying to stay current on a familiar one. Articles in toll-access journals may not be found by such searches, or when they are found, the links will not work if the toll has not been paid. Thus new technologies, and the research strategies they generate, are as much a cause of the access problem as prices are. And it is the greater “findability” that open access offers that make it primarily an opportunity for greater access and impact rather than a solution to the pricing crisis.
“Not really a settlement at all” September 18, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 1 comment so farThe hearings last week before the House Judiciary Committee about the proposed settlement in the copyright infringement lawsuit over the Google Books project once again showed the disparate opinions that the proposed settlement has generated. There is a NY Times report on the hearings here.
One of the most interesting features of the hearing was the statement by Marybeth Peters, the US Registrar of Copyrights. This was the first time the Copyright Office has really weighed in on the settlement, and I think many were surprised by the strong opposition Ms. Peters expressed. I had to nod in agreement when I read her statement that the Copyright Office had come to realize that “the settlement was not really a settlement at all” but was, in fact, a mechanism to create a new and exclusive business model for Google. A class-action settlement, as Peters points out, usually resolves claims over past acts and provides some remedy going forward. An example would be a suit brought by consumers over a flaw in a car design; the usual remedy would be a financial penalty and a commitment to repair the flaw. In the Google case, however, the alleged infringement will be allowed to continue, with the blessing and financial participation of some percentage (but not all by any means) of the rights holders whose rights have allegedly been infringed.
Perhaps the widely divergent interpretations of the settlement agreement are due to the fact that it does not so much settle past wrongs as project a new business model into the future. This begs people to evaluate the predicted consequences and to base their judgments on those predictions, rather than on a clear view of how past actions will be remedied. A recent blog post entitled “The Google Books Settlement — What Did You Choose? confirms this sense of an either/or choice to be made — either love it or hate it. Balancing Registrar Peters’ negative opinion, in this worldview, is this editorial from The Economist endorsing the settlement.
If you read the two contrasting opinions, it seems like they are talking about complete different projects. Is Google creating a universal library where the whole world can access the wisdom of the ages, or is it a massive power and money grab by an overly ambitious company willing to corrupt the US legal system to gain its ends? The interesting thing about this stark choice, however, is that both opinions may well be true.
It is important to remember that there are limits on the judge’s power in assessing this settlement. His role is to determine the fairness between the parties before him, not to decide if the settlement is good for society as a whole. And, of course, there will not be any party to the lawsuit who will oppose the settlement or appeal its approval, since a major effect of the deal is to align the economic interests of plaintiff and defendant. Only, I suspect, a negative report from the Department of Justice (on the anti-trust issue, which is possible) or a threat of Congressional intervention (which is apparently unlikely) might interfere with approval of the settlement, and then the question arises “what next?”
In her statement to the Judiciary Committee, Peters did go on to acknowledge some positive aspects of the settlement, specifically the creation of the books Rights Registry, access for people who are blind or print disabled, and the ability of libraries to offer “immediate, unfettered and risk-free” access to millions of copyrighted works. Those aspects, she said, “should be encouraged under separate circumstances.” But that, of course, is the $64,000 question. Under what circumstances, short of a compulsory license, would these advantages be possible? If a class action suit is not the way to create such a license (and I agree that it is not), how else could it be done? I find myself wondering if Registrar Peters was really asking the Congress to consider addressing the orphan works probably in a new way — through a compulsory licensing mechanism rather than a remission of damages. If we really want the benefits of the Google Books Settlement without the monopoly it would create, it would probably take such a legislative revolution to get it done.
UPDATE — shortly after this post was written, it was announced that the Justice Department has filed with the court recommending that the agreement NOT be approved as it stands. See a story on the filing here.
The joy of statistics September 15, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, international IP , 5commentsThe World Economic Forum recently published its 2009 Global Competitiveness Report, and I was struck by one particular statistic, as well as the conclusion drawn from it by the US Chamber of Commerce. One of the many statistical tables in the WEF report ranks the perceived strength of national protection for intellectual property. The United States ranks 19th on this chart, out of 133 countries rated. As this blog post from IP Watch reports, that ranking prompted The US Chamber of Commerce to call for stronger protection measures in the US.
As someone who believes that IP protection in the US is certainly strong enough and is often over-enforced, I was struck by several flaws in the reasoning of the Chamber of Commerce or, at least, differences about what I think the report could mean.
First, the Chamber of Commerce thinks that 19 out of 133 is a low ranking, a judgment that seems questionable at best.
Second, it is important to note that this chart reports “executive perceptions” about the strength of IP protection in a country. While that may make sense for a report about international competitiveness, it is too subjective a measure to cause Congress to hasten to strengthen our copyright laws.
Finally, I wonder how strength of IP protection actually correlates to economic growth. There is a pretty good correlation between perceived strength of protection and competitiveness in the WEF report, but of course, those books are cooked, since the results of the survey are part of the data on which conclusions are based. I decided to try an experiment, which even as a non-economist I recognize to be crude, albeit interesting. I started with this list of countries based on economic growth (the growth rate of the Gross Domestic Product) using data from the CIA World Fact Book. The US is 67th in GDP growth rate, and I made a list of ten countries from the G-20 group of nations with higher growth rates than that of the US and compared that list of ten countries to the rankings of perceived strength of IP protection. All ten of these countries, it turns out, are perceived to have weaker IP protection than the US. To choose an obvious example, China has the fastest economic growth rate of any of the G-20 economies, but is ranked far below the US — at 61st — on the list of strong IP protectors.
It is easy to lie with statistics, of course, but this simple comparison suggests that weaker IP protections might actually correlate with economic growth, or that in any case there is a median position where IP protection is correctly calibrated to encourage economic growth, and the US has passed that point. This search for the correct level of protection, I think, is something the World Intellectual Property Organization is struggling with as it considers its “development agenda” recommendations. At the very least, nations need to preserve flexibility in their IP laws and recognize that the what is best for Big Content is not necessarily good for a nation.
Maybe not so revolutionary after all September 7, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentWhen I wrote a few weeks ago suggesting broader latitude for fair use in the case of academic and scholarly works, I contrasted that position to the more “revolutionary” one proposed in the title of Steven Shavell’s recent article “Should Copyright of Academic Works be Abolished?” Shavell, who is professor of law and economics at Harvard, premises his argument on the same phenomenon that I stressed in my blog post — the lack of incentive provided by copyright for academic authors. He builds an elaborate economic model to demonstrate that authors would be as happy or happier to continue to create their works and society as a whole would be better off if academic copyright were eliminated, as long as, he suggests, publication costs were subsidized by universities or grantors. He writes, “if publication fees would be largely defrayed by universities and grantors, as I suggest would be to their advantage, then the elimination of copyright of academic works would be likely to be socially desirable.” Read in its entirety, however, this position is not as revolutionary as it might seem, and probably is less desirable from the perspective of academic authors than the suggestion I have made about broad fair use.
For one thing, a broad interpretation of fair use would help address one of the problems that Shavell is trying to solve with his proposal — the labor and permission costs associated with providing material for students in colleges and universities. But more important, Shavell’s proposal that academic copyright be abandoned addresses neither all the legitimate concerns of academic authors nor all of the problems with the publication system as it now exists.
When Shavell speaks of universities defraying the costs of publication, it is important to remember that efforts at open access on campuses are one way in which universities are already doing this. Shavell is well aware of this, and discusses open access movements at some length. He ultimately concludes that such movements will be too slow because of what he calls the individual versus social incentive problem. Each individual lacks sufficient incentive to make the change, even though the result would benefit society as a whole. The result is that Shavell decides that a change in the law is needed, removing academic works (which he is at pains to define) from the scope of copyright protection.
My biggest concern with this proposal is that it neglects one benefit which academic authors do gain from copyright, the ability to control the dissemination of their work and, especially, the preparation of derivative works. Of course, that control is of little use as things stand today, because copyright is so freely given away by academics who must then hope that the commercial publishers to whom they cede their rights exercise those rights for the best interests of the authors. That is happening less frequently, unfortunately. One of the reasons the Creative Commons license is such a benefit to academics is that it allows authors to both authorize broad reuse of their work and to assert control over that reuse, especially in regard to attribution, which American copyright law does not protect. In order to use a CC license, however, one must be a copyright holder; copyright is the “teeth” that enforce the license. So any analysis of the incentive structure for academic writing must factor in the potential loss of control when considering abolishing copyright in academic works. This is one reason I have suggested broadening fair use for academic work rather than eliminating copyright altogether.
To me, what this suggests is that the problem with academic publishing is not copyright per se, but the transfer of copyright to corporate entities whose goals and values are usually quite different than those of academic authors. Because he does not really consider open access a solution to the problem he outlines, Shavell assumes that the publishing structure would remain very much intact under the no-copyright regime he suggests, simply with a different mechanism for paying the bill. But at least one open access option — a prior license granted to the institution by faculty in their scholarly writings before they submit those works for publication — could restructure publishing in the right direction without losing those benefits that academics really do get from owning copyright.
Shavell does briefly mention such prior licenses, such as those adopted by Harvard and MIT, but does not treat them extensively and does not recognize that some of the difficulties he finds with open access movements would be mitigated by the prior license mechanism. He cites two major problems that would prevent open access from quickly solving the problem he finds with scholarly publishing — the fact that authors will not insist on open access if they have to pay for it and the alleged fact that open access journals lack prestige. Neither of these problem exist for the prior license scheme, which, when combined with a broad latitude for fair use of academic writing, offers, at the very least, a significant intermediate step toward resolving the dilemma of scholarly publishing.
It may be that copyright should be eliminated for academic works, but it would hardly be easy to accomplish. Nevertheless, Shavell’s analysis of the state of academic publishing, and its future, is complex and interesting. But while we wait for Congress to move in the direction he suggests (if it ever does) the adoption of institutional licenses for open access to faculty writings and a broad latitude for fair use of those writings, both of which could be implemented immediately, are intermediate steps that would return a great deal of control to the authors for whom that is the major incentive.
Fairness breeds complexity? September 2, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Fair Use, international IP , add a commentThe title of this post is an axiom I learned in law school, drilled into us by a professor of tax law but made into an interrogative here. Because the copyright law is often compared to the tax code these days, I have usually just accepted the complexity of the former, as with the latter, as a function of its attempt to be fair. Because different situations and needs have to be addressed differently in order to be fair, laws that seek fairness inevitably (?) grow complex. But a recent blog post by Canadian copyright law professor Michael Geist, nicely articulating four principles for a copyright law that is built to last, has made me ask myself if simplicity is a plausible goal for a comprehensive copyright law.
Geist’s four principles are hard to argue with. A copyright law that can last in today’s environment must, he says, be balanced, technologically neutral, simple & clear, and flexible. That last point, flexibility, is the real key, since designing a law that can be adapted to new uses and new technologies, many of which are literally unforeseeable, requires that the focus be on first principles rather than outcomes. This is different than the tax code, and it may provide the path to combining fairness with simplicity.
The principle of flexibility explains why fair use is an effective provision of US copyright law. As frustrated as some of us get trying to navigate the deep and dangerous waters of fair use, it has allowed US law to adapt to new situations and technologies without great stresses. In fact, Geist’s brief comment on fair dealing in Canadian law suggests (implicitly) that it should be more like US fair use; he argues that the catalog of fair dealing exceptions should be made “illustrative rather than exhaustive,” so courts would be free to build on it as technologies change.
In recent posts I have spoken of adapting fair use so that it gives more leeway to academic works than to other, more commercial intellectual properties. Even though Geist is explicit in his post that “Flexibility takes a general purpose law and ensures that it works for stakeholders across the spectrum, whether documentary filmmakers, musicians, teachers, researchers , businesses, or consumers,” I do not think there is any contradiction here with asking that academic works be treated differently in the fair use analysis then a recently released movie, for example, might be. Fair use would be applied in the same way to each, but because fair use appeals to the motivating principles of copyright law, it asks us to examine the circumstances of each type of material and each kind of use and measure them against those principles. This is precisely how flexibility is accomplished, and I argue that the result of this uniform application of principles will be different outcomes for different types of works.
Geist’s approach to digital locks — DRM systems — is quite similar, asking us to look at first principles that underpin copyright law when deciding how to treat any particular technology. Specifically, he suggests that forbidding or permitting the circumvention of such digital locks must be tied to the intended use for which the lock is “picked” if copyright balance is to be respected. An added advantage of this approach is that it is much simpler — another core principle — than the current approach in the US, where categorical rules are enacted and then a series of complex exceptions are articulated every three years. We will see shortly how that process will play out for the next three years, since the exceptions will be announce in a couple of months, but it is inevitable that the result will be unfair to some stakeholders and probably disappointing to all. Far better that we heed Geist’s call for an approach based on first principles. Perhaps Canada, as it considers a comprehensive overhaul of copyright law, can lead the way.
