Open access for hardware? October 24, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Technologies , 1 comment so farJon Kuniholm may not have been an obvious choice for an Open Access Week speaker at Duke, but as the final participant in a panel on global access to health information yesterday, he made a profound impression. The panel, called “Open Access, Local Action,” was all very interesting to the 30 or so staff, students and parents who gathered to listen (it was also listed as an event for Parents’ Weekend), but I want to focus on Jon’s presentation for this post because what he had to say was mostly new to me.
Jon is a Ph.D. candidate in Biomedical Engineering at Duke and a U.S. Marine Captain (Ret.). He is also an amputee, having lost his right arm in Iraq four years ago, and is thus a researcher with a personal interest in prosthetics. He talked to us about why the money the government spends on R&D for prosthetic research does not produce the kinds of progress that it ought — the lack of coordination and such a small market that there is little incentive to move from workbench to marketplace once the research money is spent. Jon offered potential solutions for this lack of progress that addressed both his very specific research and the broader problem of intellectual property restrictions.
In the very specific area of his own work on arm prosthetics, Jon envisions a remarkable collaboration, made possible by open hardware. He would like to make the hardware being developed to improve neural control of prosthetic arms open and offer it to researchers in the video game industry. His hope is that work undertaken to create new video game controllers (an area with a much larger market and much more money to spend) will also speed the development of better artificial arms, which has been largely stalled for quite a few years.
This is a remarkable vision, I think, of a win-win collaboration that would be founded on open sharing of technological development. Openness, as some have been pointing out for quite a while, can breathe new vitality into innovation, in spite of claims from some industries that free access can only stifle and discourage it. More information about the video controller project can be found at http://openprosthetics.wikispot.org/Open_Myoelectric_Signal_Processor
Jon Kuniholm does not stop with this vision of collaboration, however. He has a concrete and well-informed notion of the mechanisms needed to bring it about. I spoke with him briefly before the event about the intellectual property issues involved with this idea. He pointed out that hardware can be shared openly from its inception because patent protection, unlike copyright, is not automatic and is, in fact, quite costly to obtain. Where copyright does cover a work, regarding plans and specifications, for example, Jon advocates using the open source GPL, or General Public License. The problem with open hardware, however, would come if another party saw profit in the hardware and filed its own patent application Since patent restricts the use of an idea, this would halt all other development based on the same hardware unless license fees were paid. Since patents in the US law are granted to the first to invent (rather than the first to file a patent application), it would be possible, but very expensive, to fight such following-on patents. Jon’s suggestion here is that the open hardware movement create mechanisms to publish what is called “prior art” — the science that leads up to new developments –in ways that will be very obvious to patent examiners. The hope is that the ready availability of prior art will prevent patents from being issued that could shut down the kind of collaborative work based on open hardware that Jon and many others both need and foster.
Falling down before the finish October 7, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 3commentsThis article from the Guardian UK about how “Google Books deal forces us to deal with copyright” had me nodding in agreement, right up until its last few paragraphs. Like author Nick Harkaway, I am cautiously relieved by the intervention from the Department of Justice that has forced a postponement of the hearing on the settlement in the Google Books copyright infringement case. Harkaway expresses my feelings very succinctly when he writes that “it wasn’t the idea I objected to, but the method.” As I sometimes put the same sentiment, bad law in the service of a worthwhile end can still create unfortunate consequences. So I am hopeful that the extra time and renewed negotiations will lead to a more thoughtful implementation of the books project, perhaps less sweeping but also less monopolistic.
Harkaway also has my agreement when he expands his discussion to the problem of orphan works, and suggests that the Google Books deal gives added incentive to a broader, more generalizable solution for the millions of works still protected by copyright yet for which no rights holder can be found. Harkaway embraces a familiar solution to this problem when he endorses renewed recourse to a renewal system. Under this plan, rights holders would have to renew their copyright claim periodically in order to prevent the work from dropping into the public domain. Thus orphan works would become free for use once a renewal period passed without action by the rights holder. There are other ways to approach the orphan works problem, but it clearly needs to be addressed, and the renewal suggestion would be one very effective approach.
Unfortunately, I stopped agreeing with Harkaway right at the end of his article, when he suggested that data-mining and other new uses for copyrighted works should be sources of new income for rights holders. This is an old mistake based on thinking that whenever new technologies enable new uses, a new right is created. But copyright does not work that way, and there has never been a “use right.” Copyright holders do not get the right to control every use of their work, and thinking about how such a right might work should tell us why — it raises a huge problem of censorship; imagine, for example a book author or film producer who could use copyright to prevent negative reviews. Instead, rights holders get the exclusive right to control copying, distribution, public performance and public display, as well as the creation of derivative works. This is a lot of control, but these rights do not impinge on using a lawfully obtained copy, at least for private purposes like research. Everytime a new technology comes along, however, some rights holders are seduced into thinking that they should gain from it, even if it does not implicate any of these exclusive rights.
If digital copies of the world’s books are legally created, through a Google settlement or in some other way, use of those copies for data-mining and other research uses will be, and should remain, free for all users. It may sound plausible when Harkaway complains that Google will be improving its search algorithm using his work and making money from that improvement. But where does a use right stop? Should the heirs on John Updike be reimbursed if digital copies of his work are used to create a Updike concordance? Should an academic who wants to study a certain grammatical construction across a huge range of published literature, a use contemplated by the Google settlement, have to pay the copyright owner of every book in the corpus for that opportunity? It quickly becomes clear why a separate use right within the copyright bundle would be a very bad idea. I can follow Harkaway through most of his article, but when he gets to those last three paragraphs, it is clear he has gone astray.
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.
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.
