Temperence is a virtue April 21, 2008
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , add a commentI am not much of a drinker, but I guess I can be intemperate in other ways. The Chronicle of Higher Education called my last blog post, about the lawsuit filed against Georgia State University, “fighting words.” I think that is journalistic hyperbole, but I do want to take the opportunity to make a couple of clarifying points and direct readers to some of the healthy debate that is going on.
First, about the free-rider problem. Sandy Thatcher, who is Director of the Penn State University Press, explains the issue as publishers see it in this reply to the quote from my post in the Chronicle. I want to be clear that I am not necessarily defending the practices at Georgia State; I cannot do so because I only know one side of the argument. One of the advantages a plaintiff gets in a lawsuit is a fairly long period to make their case publicly while the defendant is constrained from replying. But even if “free-riding” applies to the practices at GSU, it is important to note that our law tolerates and even encourages some degree of free-riding on intellectual property as a necessary condition to further creativity. That is the logic behind a long list of exceptions and restraints on the exclusive rights conferred by both copyright and patents, including fair use. My point about free-riding, however, is that it occurs at several places in the system of academic publishing. If GSU free-rides on the publishers, the publishers have likewise taken a unpaid ride on the labor of the University and its faculty when it acquired content from them without payment. Because this free-riding occurs at the very base-point of scholarly publishing, it really cuts off any argument against whatever is happening at GSU based on the incentive system copyright is supposed to create. The incentive for creation that copyright is supposed to offer simply does not exist because publishers absorb all the profits without passing them on to authors.
An exchange in the comments on my own post discusses this point in some depth. Monica McCormick argues that there is still an incentive system for authors, based on two points. One is the small amount of money that is usually paid to academic authors who publish monographs, and the other is the “stability” of the publishing system which advantages authors through promotion and tenure. Regarding the first point, there are some interesting replies from Prof. Kathleen Wallace, whose article “Marketing Ideas” addresses the issues of the scholarly communication system from the perspective of neither librarian nor publisher, but faculty author — the very person about whom we are arguing. So I leave that part of the incentive argument to Prof. Wallace and hope her article will generate some helpful discussion. As for the “stability” of the publishing system, I would note first that this advantage, insofar as it exists, does not seem to be a necessary creation of the copyright system as it is currently put into practice. It is certainly possible to image an equally serviceable system that does not rely on the uncompensated relinquishment of rights. Also, what stability there is in the system — based on effective evaluation and strong reputations — is partially itself the result of uncompensated labor done by faculty members working as reviewers and editors.
Finally, stability in scholarly publishing is currently very much in doubt, largely because of the astronomical prices changed by commercial publishers for academic journals. As more and more of a university’s budget goes for journal content, which often must be purchased repeatedly in different formats, less money is available to serve as incentive in other parts of the system. It is harder and harder to publish a scholarly monograph because sales have dropped so low; a decline that is directly attributable to funds being drawn away from monograph acquisitions by journal prices. McCormick’s point that we should distinguish between large commercial publishers and smaller academic ones, as well as between monograph and journals publishers, is exactly right. The problem is that the actions of the large commercial publishers — and we have to include Oxford and Cambridge Press, who are plaintiffs in the GSU suit, in this category even though the maintain a nominal affiliation with universities — are destabilizing the remainder of the system. It is simply not the case that all would be well of academics would just stop “pirating” their own works from victimized publishers.
Lastly, I want to comment on how all this should play out in the GSU lawsuit. If that case every reaches the stage of arguing the fair use defense, I hope the court will look very hard at the second fair use factor — the nature of the copyrighted work. Previously, the action on this factor has been minimal and has largely focused on published versus unpublished works and how much originality is necessary for “thick” or “thin” protection. But the economics of a particular segment of publishing, especially one as dysfunctional as scholarly publishing, ought to be considered when analyzing fair use, and factor two is a good place to do that. If the system is structured in a way that undermines the whole incentive purpose of copyright, as I have argued the scholarly publishing is, factor two, which really focuses on the expectations of creators of different types of works, should strongly favor an expansive application of fair use. After all, it is, uniquely, the creators themselves who are being sued here and who are asking for a space to make fair use of their own works. The court must determine what that space will look like, but it should be reminded that scholarly publishing simply does not function the way other systems of intellectual property creation do.
A model for academic publishing April 14, 2008
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , add a commentLast week BioOne unveiled its new “Model Publication Agreement,” with an announcement that ought to generate more attention than it has. BioOne is “ a collaboration between scientific societies, libraries, academe and the private sector [that] brings to the Web a uniquely valuable aggregation of the full-texts of high-impact bioscience research journals.” The decision to create a model publication agreement grew out of the perceived need to help some of its publishers, especially the scholarly societies, deal with the legal complexities of publishing in the digital age. The model agreement was drafted for BioOne by an attorney for an intellectual property firm in
The core of the model agreement is a double license; the author grants to the publisher both a time-limited exclusive right of first publication and a perpetual, non-exclusive license to publish, distribute and sublicense. Subject to these two licenses, copyright is retained by the author. The model agreement contains a number of options or “fill-in-the-blank” points where publishers can customize the license to fit specific conditions. As an attempt to lower the transaction costs associated with publishing, and as an equitable balancing of needs that do not have to be in permanent competition, this is an excellent model to be followed in academic publishing.
It is unfortunate but predictable that one of the most immediate responses from the publishing community was a very revealing demur to the BioOne model agreement project. A university press director posted his objections within two days of the announcement; his position that the agreement is inappropriate even for academic publishers exposes the growing gap between academic publishing and the values of the academy that supports it.
One complaint is that, without an exclusive right in the published works, the publisher will have no standing to sue putative pirates who want to steal academic work. First, we should note that there will still be a rights holder under the model agreement who can enforce the copyright – the author. The problem is that the author’s interests not only do not coincide with the publisher in some cases, they sometimes conflict. The objecting press director notes that the author may actually benefit from wider distribution by a “pirate,” so one wonders why authors should continue to sign away copyrights to organizations who want to wield them as litigation weapons contrary to the authors’ interests. Copyright is supposed to be an author’s right; its genesis as a publisher’s right (associated with their role in censoring unpopular content) is centuries out of date.
And this brings us to the second revealing question about this objection – who are the pirates we are supposed to fear enough to give up copyright entirely to publishers? In fact, the only “pirates” against whom publishers tend to threaten litigation are the authors themselves and their institutions. The “theft” these publishers want to control is faculty authors passing out copies of their work to their own students or to others on campus, to their colleagues at other institutions, and via their websites. No one seriously expects large-scale republication of scholarly content for profit; all that is being defended by these grabs for exclusive copyright transfer is the traditional, and increasingly expensive, subscription model of access. If there is real danger that subscriptions will be canceled because authors retain their own copyrights, and this has never been shown to be the case, all it would illustrate is that this traditional business model has runs its course and no longer serves the interests of those it was created by and for.
NIH public access mandate becomes law December 27, 2007
Posted by Kevin Smith in : Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing , 3commentsOn the day after Christmas, President Bush signed the Omnibus Appropriations bill for fiscal year 2008, ending a long struggle with Congress over earmarks, appropriate funding levels for various government agencies and continued funding for the war in Iraq. Buried deep in this huge and complex document (section 218, to be specific, although not all the sections seem to be numbered) is language that turns the voluntary program of open access deposit for research articles that are the result of National Institute of Health funding into a mandate.
Beginning immediately, apparently, when an NIH funded researcher has a article about her research accepted for peer-reviewed publication, she is required to deposit a copy of the final version of the article into the open access PubMed Central database within 12 months of publication.
Librarians, and many others in higher education, have lobbied for several years to get this requirement, and others like it for research funded by other taxpayer supported agencies, enacted. Now the issues of implementation become both real and urgent. How can we help faculty researchers understand the new mandate? What publishers can we recommend, and can we help faculty review their publication contracts to be sure compliance (or even earlier public access to the article) is allowed? Some publishers, like Elsevier, already promise to deposit copies of articles they publish for researchers. Publishing with such a publisher is an easy way to comply with the mandate, but it will almost certainly result in the full 1 year delay before open access. For many researchers, there will still be significant advantage in accomplishing open access much sooner than this. So the task of assisting faculty with understanding their alternatives, negotiating their publication contracts and navigating the mechanics of open access deposit are even more urgent services that academic libraries can and should provide.
To Assign or Not To Assign? November 6, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories , add a commentThe International Association of Scientific, technical and Medical Publishers issued a statement last month on the benefits to authors of assigning copyright to publishers. The thrust of the statement is that publishers are better placed than authors to defend against plagiarism and copyright infringement, to ensure broad dissemination of the articles in question, and to manage issues like requests to reprint and migration to new formats. Each of these points is very debatable, and Peter Suber provides both excerpts of the document (which is itself very short) and a comment that refutes the assertions list above in a very concise and competent way. Not surprisingly, his conclusion is that publishers primary concern is to protect their own interests and that a concern for authors’ rights is, at best, secondary.
One point on which Suber and the STM publishers agree is that a complete assignment of copyright need not preclude authors from making their work available in open access through a personal webpage, institutional repository or disciplinary archive. Even when faced with a demand to assign the copyright, authors may negotiate to retain the right to deposit their work in the ways suggested, as well as to retain other rights. There seems to be little doubt, and the STM publishers do not even argue the point, that open access deposit is a benefit to scholarly authors. But authors will have to decide for themselves if assigning copyright while retaining that right really serves their best interests or whether they should negotiate to keep their copyrights and give the publisher a more limited permission to publish.
NIH public access and copyright October 31, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farLast Tuesday the Senate passed a FY 2008 appropriations bill that included language making it mandatory for investigators funded by the National Institute of Health to place the published versions of their results in the open access PubMed Central database within one year of publication. There is a new release about the policy, which was passed by the House in July, here from the Alliance for Taxpayer Access.
A consultant for publishing groups recently posted several questions about how the policy relates to authors’ copyrights on a library listserv, intended to convince academic authors that the policy is some kind of threat to them. By responding to those questions below, I hope to clarify the real relation between this new mandate and author’s rights.
The first question was whether supporters of the NIH mandate believe authors should own their copyrights, including the right to charge for their work. In my opinion, an author should have ownership rights in their own work. I also recognize that the unique nature of intellectual property means that those rights have to be subject to limitations and exceptions in the public interest. Every copyright law in the world, and all of the international treaties, recognize and allow for such limitations and exceptions, so this is not a radical proposition. In any case, the NIH policy is not a threat or challenge to copyright ownership. In fact, the explicit language of the provision passed last week requires that the mandate be implemented in a way consistent with an author’s ownership of copyright.
All that the NIH mandate requires is that authors give to the NIH a non-exclusive right to distribute their work no later than one year after it is published. This demand is a much more modest limitation on authorial rights than is the complete transfer of copyright still demanded by many publishers as a precondition of publication. There is no evidence that this delayed and non-exclusive license would harm an author’s ability to charge for her work, although that part of the copyright has little application in the world of academic authorship. On the other hand, there is evidence that public access as soon as possible will benefit an author’s reputation, which is the real value academic authors are able to extract from their copyright ownership.
The second question was whether supporters of NIH deposit believe that authors should have the right to transfer their rights by contract. Again, I support that right very strongly; I spend a good deal of my time advising academic authors about how to accomplish these transfers in a thoughtful manner that benefits them, not just the other party to the transfer. Again, the NIH policy will not impair the ability to do this, it will simply make such contracts subject to the non-exclusive license described above. Governments often put restrictions and requirements on the contents of contracts; it would be absurd to claim that the Uniform Commercial code has seriously impeded a manufacturer’s ability to sell his goods, even though contracts for sale are much more heavily regulated than a publication contract is, even after the NIH mandate.
One must remember that deposit in PubMed Central will not be required until one year after publication, so there is lots of room to negotiate the exact terms by which that non-exclusive license will be implemented. I will certainly advise authors to negotiate for earlier deposit, since it will be to their benefit to do so.
Finally, supporters were challenged about whether they believe academic work is “work for hire” that is owned by their employing universities, and whether they also felt other faculty work,like inventions, should belong to the school. It seems to me that academic work should not be work for hire, although I recognize the strong legal basis on which some universities claim that it is. My preference is for clear policies that leave academic ownership of copyright in the authors’ hands. But again, the NIH policy has nothing to do with work for hire; it certainly does not involve any claim that funding of research makes a work a work made for hire. Such a claim would be insupportable under our current definition of work for hire.
When something is a work for hire, the ownership of the copyrights vests immediately with the employer. In contrast, the NIH is only requiring, again, a non-exclusive license to distribute which will not have to come into being until well more than a year after the copyright vests in the author.
As for other types of intellectual property, I would note that many academics are not uncomfortable with a work for hire claim over patentable inventions because they recognize that university resources are much more involved in such creations and that the assistance of the university is needed to pursue the complex and expensive process of obtaining a patent. Copyright protection is very different in its origination and its terms, so it is quite rightly treated differently.
Responding to these challenges helped me clarify for myself that the real threat to authors’ copyrights is not the NIH public access policy, but an outdated approach to publishing that tries to build an exclusive market around a non-competitive good (which means a good that can be distributed widely without diminishing its supply or value to the creator).
