Getting off the copyright merry-go-round May 17, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentCongress has been talking a lot recently about the farm bill and war spending. But amidst all that rhetoric and wrangling, some copyright work has also been done in the past two weeks. For one thing, the House passed the so-called PRO-IP bill last week, fortunately without its most troubling provision. One of the major provisions of that bill as proposed was an amendment to the copyright law that would have allowed much larger damage awards for infringement. As I wrote some while ago, this was a huge grab at more money for the recording industry especially, but that provision was dropped in the House-approved version. Now what PRO-IP would largely do is further bloat the federal bureaucracy (in a way opposed by the Justice Department) for IP enforcement.
Perhaps balancing out this sop to special interests, Congress has also been working on the Orphan Works bills, discussed earlier here. The Senate version, called the Shawn Bentley Orphan Works Act, was unanimously reported out of the Judiciary Committee on May 15, although it is clear that negotiation about some of its provisions is still going on. The House version, which includes the objectionable “dark archives” provision, is still being marked up in the House Judiciary Committee; whether that provision will remain is something I just don’t know right now. But I do know that several issues remain in controversy in both houses, specifically the language addressing state sovereign immunity and the role of Copyright Office certified statements of “best practices” in defining the scope of a “qualifying search” that would afford a user the shelter of the orphan works reduction in liability.
Amidst all this give and take about copyright, the question ought to be asked whether any of these incremental changes will really make much difference. From the perspective of higher education, at least, there is a sense of tinkering around the edges of a severely broken system. PRO IP simply creates more bureaucracy and further trumpets the “sky is falling” approach to copyright of the entertainment industry. Orphan works is an area in which real reform is sorely needed, but one can legitimately ask if the bills being considered would actually work; the bills may be so laden with expensive and unnecessary hoops to be cleared that they will not make truly beneficial uses of orphan works any more possible or likely. Another example of this futility may be found in the recently concluded work of the Section 108 Study Group: although the Study Group’s report raises some interesting and key issues, it was only able to reach agreement to actually recommend minor changes that will not make much real difference. Instead of waiting for reforms that never come in any helpful way, it may be more fruitful in higher education to ask ourselves how we might simply get off the copyright merry-go-round.
The answer, of course, is in open access to scholarship, and there may be some recent developments that point a direction for encouraging open access as an alternative to the current system of copyright protection for commercial monopolies. An article in this month’s College & Research Libraries News by David Lewis, Dean of the Library at IUPUI, forcefully asserts that it is time for libraries to stop putting more and more money into the bloated and dysfunctional journal publishing system and to move funds to support open access infrastructure and venues. His article proposes specific steps that libraries can take to move off the endless cycle of higher journal prices that leads to less money for monographs and overall reduced access. He is suggesting an important step to get us off the copyright merry-go-round.
A major obstacle to open access, however, has always been resistance from faculty, for whom the system usually seems to work just fine. Tenure and promotion have been built around the core of commercial publishing, and it is very hard to communicate the reasons for moving away from that core. Until now. With the lawsuit filed against Georgia State by three major publishers, a real opportunity has arisen to show faculty members that giving copyright away to publishers primarily interested in share holder profit, not dissemination of knowledge, is no longer in their own best interests. At its root, this lawsuit challenges what faculty members, who provide the content for scholarly publications, want to be able to do with their own work and the work of their colleagues – communicate it to students. If the copyright system determines that they cannot do that without paying yet more money on top of the exorbitant prices charged to buy the works back initially, perhaps there will be a general recognition that they should not freely give that content away in the first place. A return to first principles would remind faculty that these works belong to them unless and until they choose to give them away, and that they are free to negotiate the terms of any transfer of copyright. Ironically, this lawsuit’s frontal attack on a core value in higher education may prove to be the best weapon yet to move scholarship off the increasingly dangerous and unstable copyright merry-go-round.
Access to legal scholarship May 5, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farI have written several times before about scholarship in the field of law (here, for example, and here). For a variety of reasons, legal scholarship is an excellent laboratory for experiments in changing the traditional structures and economics of scholarship. Both open access and informal forms of scholarship have been more readily adopted and more quickly influential in law than in other fields. The unusual structure of most legal scholarship is a partial explanation for these facts, but many of the experiences and observations made in the legal arena offer substantive lessons for scholarship in other fields.
Nowhere are these experiences and observations better synthesized than in a recent article by Richard Danner, Ruffy Research Professor of Law and Associate Dean for Information Services at
One of Danner’s observations particularly struck me when I read this article, and that impression was confirmed by a conversation I had this week with several librarians. Contrary to the oft-repeated claim that open access will inevitably lead to loss of subscription income for publishers, Danner documents the experience of
Overall, Danner’s article is a masterful analysis of the structure of publishing in a particular field and how the “access principle,” a concept taken from John Willinsky’s book of the same name, could transform a field of scholarship. In spite of the oddities of legal scholarship, Danner is very successful at offering both an analysis and a call to action that deserve to be translated and applied in other fields.
How bad are the proposed Orphan Works bills? April 28, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 2commentsTwo proposals on Orphan Works were introduced in Congress last week, one in the House of Representatives and a slightly different one in the Senate. Both bills are more complex than the version introduced and then largely ignored by the 109th Congress, but the core principle is the same – a remission of most of the available remedies for infringement if a user makes use of an orphan work (a work whose copyright owner can not be found) after a reasonable diligent search. The bills are designed to greatly reduce the risk for libraries and many others who want to make digitized versions of older, but still copyright protected, works available to the public. In some sense it is an attempt to balance the outlandishly long term of copyright with the reality that a huge percentage of works are not economically exploited at all after their first few years of existence.
The big question is whether either bill actually succeeds, with success defined as a reasonable likelihood that a thousand flowers will bloom from the soil of orphaned works that otherwise would not have been seen for many more years. Opinion in the blogosphere is mixed; Public Knowledge, which was deeply involved in helping to draft the bills, is guardedly hopeful. Georgia Harper, on the other hand, writes this deeply pessimistic blog post that declares the bills “DOA. Too late even for last rites.” The issue, as I will discuss it, revolves around how burdensome it would be for libraries to actually rely on the procedure outlined in the bills to support digitization projects. Three issues seem to need discussion.
First, there is the requirement in the House bill that users of orphan works file a “Notice of Use” with the Copyright Office that would be maintained in a “Notice of Use Archive.” The notice would have to contain a description of the search for an owner that was made by the user, as well as lots of identifying information and a certification of good faith. This requirement is only in the House version, and it renders the Senate version much more appealing. A database of uses raises the specter of copyright owners fishing for defendants in a stocked pool, for one thing. But, realistically, this seems pretty unlikely. First, access to the database would be restricted by unspecified regulation of the Copyright Office. More importantly, if a diligent search really has been made (and libraries almost certainly would be doing so) most copyright owners who would be on the lookout for infringement would have been found. More problematic is the burden of fulfilling this requirement, a burden that would be hard to measure until (and if) a version of the bill with this requirement is in place and being used.
I certainly would rather this not be included in a final bill. But I also know that librarians are investing a lot of time, labor and money in digital collections as things stand now. I doubt that even a burdensome reporting requirement will discourage the commitment to greater access that drives these projects, especially when the content is something that could genuinely benefit scholarship and that has been previously unusable.
A second potential problem is the instruction to the Copyright Office to develop “best practices” for different kinds of content that would have to be followed for a search to qualify as reasonably diligent. Georgia Harper thinks this is a guarantee that the content industries will write the rules, and she may be right. Unlike the case of proposed file-sharing legislation, however, such a role for industry is not actually specified in the bills. In any case, I think most librarians working on digital projects would welcome the guidance of best practices, even if the door to using orphan works were opened only a little bit. So much of our collections are unavailable for use as things now stand, and we have such high certainty that many of those works genuinely have no one to care about how they are used, that even restrictive rules for a qualifying search would advance the cause of digital access. Again, I think many libraries will take the necessary trouble when the content and the opportunity seem worthwhile. Restrictive rules will help only small digitization projects, of course, which may be the point, but even so the digital environment could be greatly enriched.
Finally there are the added rules for pictorial, graphic and sculptural works. These are the categories whose owners have most vocally opposed orphan works reform because they fear that it will be too easy to call these works orphans. The problem is that most such works carry no obvious notice of the copyright owner. The proposed bills specify that this lack by itself does not make the work an orphan, and it directs the Copyright Office to certify a database “to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection.” Such a database would actually probably be welcomed by libraries, since it would both facilitate use of orphan works and provide a source for needed metadata. The big problem is that such a source does not seem to exist right now, and creation of it would delay implementation of the orphan works exception for as much as 5 years. Since images and graphical works are a large part of the collections libraries would like to digitize, this kind of delay would be a huge blow to the effort to give the public access to much of our unexploited cultural heritage.
Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.
Freeconomics March 6, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farWhat a delightful word to describe the increasing need to talk about the economics of free stuff. As strange as that idea sounds, it is the subject of a recent article in Wired magazine called “Free! Why $0.00 is the Future of Business.” Besides coining the word “freeconomics” (as far as I know), author Chris Anderson describes the forces that drive prices in the digital world down toward nothing. He identifies two important trends that tend to make the Web “the land of the free.”
First, there is the phenomenon of “cross-subsidies,” where a product or service is given away for nothing in order to create an income stream somewhere else. Anderson uses the example of King Gillette, who gave away his safety razors in order to get men hooked on using them and to make money selling the disposable blades. As Anderson points out, the Internet provides greater freedom for businesses to make money from one set of customers while giving things away to another. Advertising supported Web business are only one of many examples.
The other trend Anderson identifies is “simply that anything that touches digital networks quickly feels the effect of falling costs.” He provides a nice discussion of why the cost of Internet communication is approaching or has reached the point where it is close enough to free so that we can “round down to zero.”
Anderson’s article ends with a “taxonomy of free” that describes five business models built around a base price of zero.
What has this to do with scholarly communications? We are already seeing the pressure towards free for all kinds of intellectual property on the Web. Music, of course, was the first IP commodity to head to zero, and it did so before distributors could catch on and move to a zero-based business model. Now the music companies are scrambling to find ways to add value to music in order to move customers back from the lure of $0.00. That is a very difficulty task, needless to say.
As the same pressures are exerted on digital scholarship, those who make that scholarship available, whether traditional publishers, libraries or individual scholars, need to plan ahead for how they will at least recover basic costs as the price of access falls. If we sit on our hands and deny that this is happening, we may well witness “the end times for tradition journal publishing,” as was recently predicted in Inside Higher Ed.
The issue is going to be how to add value to what could be obtained for free, in order to recover costs. To guide us, here is one more article about “freeconomics” — In “Better than Free, Edge columnist Kevin Kelly suggests eight “generatives” that can move a product past free to a point where consumers will pay something, not for the product necessarily, but for the value that comes with it. Kelly’s discussion of these “generatives” — immediacy, personalization, interpretation, authenticity, accessibility, embodiment, patronage and findability — should be required reading for those who advocate, consider or foresee that move toward free access to scholarship. Even if we fear it, we are likely to have to deal with it. The ability to add value along the lines that Kelly suggests may keep us and the scholarly apparatus we have grown familiar with over the years afloat in the age of freeconomics.
Suddenly, Open Access is all the rage. February 14, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentIn December the National Institute of Health made public access to research articles that grow out of NIH funded research mandatory; research are now required to place their final version of articles accepted for publication after April 7 into the PubMed Central database at NIH within one year of publication.
This was a victory for many library and higher ed. advocates of public access, but there is a certain element of “be careful what you wish for” here. Many campus are now scrambling to figure out the legal, practical and financial implications of complying with this mandate. Three issues must be addressed in a relatively short time frame.
1. How will authors manage their copyrights to comply with the mandate? It has long been important for authors to think about and negotiate for an appropriate copyright arrangement with publishers. Insofar as this mandate forces them to do what they ought to have been doing for years, its impact is salutary. But it will still come as a shock to many researchers and will increase the need for sound copyright guidance and policies on campuses.
2. How will campuses deal with the mechanics of deposit? Since lack of compliance could imperil future research funds, this is an issue which should not be left entirely to individual authors. Institutional repositories, where they exist, are in a good position to help with the mechanics of deposit, and library staffs will also need to be aware of the process and ready to assist. Although the process is not hard, and is easier to accomplish if the author is involved, it is clear that institutional guidance and assistance is called for.
3. Likewise, researchers will need assistance locating and tracking the PubMed reference numbers of their articles that are deposited with NIH. Starting with the May round of grant funding, NIH will require that these numbers be included as part of the investigators previous work with NIH when applying for renewals or new funding. Again, libraries are in the best position to help researchers locate and retrieve this information.
Hard on the heels of this public access mandate came news of the vote this week by the Harvard faculty to require deposit of all articles written by the Arts and Sciences faculty in Harvard’s own institutional repository. The faculty agreed unanimously to automatically grant to Harvard a non-exclusive license to their work to put those articles in the repository; authors retain copyright and are free to publisher their work anywhere they lack as long as the publisher will accept that copyright is subject to this prior license. The decision is a strong affirmation of the value of open access to academic research, both to the public and to the academy itself.
Lots of commentary on these two decisions is available. This comment by William Patry addresses both, and there is an excellent roundup of information and comment on the Harvard decision here on Open Access News and on Mike Carroll’s blog here. I have written about the NIH mandate here.
