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.

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.

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.

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.

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.

In developing this point, Choudhury talked about the traditional research article as a “snapshot” of research.  Those snapshots are increasingly far-removed from the actual research process and have less and less relevance to it.  Indeed, the traditional journal article seems more like a nostalgia item every day, reflecting the state of research on a particular topic as it was at some time in the past but beyond which science will have moved long before the formal article is published, thanks, in part, to the many informal ways of circulating research results long before the publication process is completed.

Choudhury called on libraries to move past a vision of themselves as merely a collection of these snapshots and become more active participants in the research process.  He recounted a conversation he had with one researcher who, in focusing on the real need he felt in his own work, told Sayeed that he did not care if the library ever licensed another e-journal again, but he did need their expertise to help preserve and curate his research data.  The challenge for libraries is to radically rethink how we spend our money and allocate the expertise of our staffs in ways that actually address felt needs on our campuses and do not leave us merely pasting more snapshots into a giant photo album that fewer people every day will look at.

Recently I have seen a lot of fuss over an article that appeared in the Times Higher Education supplement that posed the question “Do academic journals pose a threat to the advancement of science?”  The threat that the article focuses on is the concentration of power in a very few corporate hands that control the major scientific journals.  But read in the context of the radical changes that Choudhury, Van de Sompel and others are describing, it is clear that the threat being discussed is not a threat to the advancement of science but to the advancement of scientists.  Scholars and researchers have already found a way around the outmoded system of scholarly communications that is represented by the scientific journal.  The range of informal, digital options for disseminating research results will not merely ensure but improve the advancement of science.  All that is left for the traditional publication system to impede is the promotion and tenure process of the scientists doing that research.

This, of course, is the rub, especially for libraries.  Traditional scientific journals are increasingly irrelevant for the progress of science, but they remain the principal vehicle by which the productivity of scholars is measured.  One researcher told Choudhury very frankly that the only reason he still cared about publishing in journals was for the sake of his annual review.  Sooner or later, one hopes that universities will wake up to the tremendous inefficiency of this system, especially since the peer-reviewing on which such evaluations depend is already done in-house, by scholars paid by universities but volunteering their time to review articles for a publication process with diminishing scholarly relevance.  Nevertheless, the promotion and tenure system still relies, for the time being, on these journals, which presumably cannot survive if libraries begin canceling subscriptions at an even faster rate.  The economy may force such rapid cancellations, but even if it does not, pressure to move to a more active and relevant role in the research process will.  The question librarians must ask themselves is whether supporting an out-dated system of evaluating scholars is a sufficient justification for the millions of dollars they spend on journal subscriptions.  Even more urgently, universities need to ask if there isn’t a better, more efficient, way to evaluate the quality of the scholars and researchers they employ.

The SAA released a revised version of their Statement of Best Practices on Orphan Works on June 17.  In the statement about the purpose of the report, the SAA makes specific reference to the two bills that were considered by Congress in 2008 as attempts to solve the orphan works problem (I blogged about those bills here and here).  The revised statement of best practices is an explicit attempt to define a term that was used in those bills — a “reasonably diligent search” for a copyright holder.  It would be only after such a search that a remission of the damages for a user of an orphan work would be available under these bills, and the SAA is trying to suggests standards and practices that define what is reasonable and diligent in the real world of archival materials.

It is important to realize that there are two different approaches to using orphan works.  The bills proposed in Congress take a remedies-based approach, offering a substantial reduction of the possible penalties for users of orphan works if they first undertake a reasonably diligent search and, subsequently, a rights holder surfaces and demands compensation.  The SAA statement of best practices is directly related to this approach and undertakes to define the steps necessary if such a search requirement is enacted.  But the statement of best practices also recognizes another option, reliance on fair use.  The statement says “Fair use may be a better rationale for creating a copy or publishing a copy of a document,” but it does not make an explicit connection between fair use and the best practices outlined in the remainder of the statement.

Fair use is an exception to copyright’s monopoly that already exists and is currently available to potential users of orphan works.  The value of the “reasonably diligent search” in the fair use context is that it would have, I believe, a profound effect on the fourth fair use factor, the impact on potential markets for the work.  If a search such as is suggested in the SAA statement is carried out and no rights holder can be located, that would go a long way toward showing that no market is being harmed by the use (especially if the use itself is educational and non-profit).  In this situation, it is hard to imagine a court actually rejecting a fair use defense, and even if such a defense did fail, archivists and other employees of non-profit institutions could still fall back on the partial remission of damages that is provided in section 504(c)(2) of the Copyright Act.  As the SAA notes, a reasonable belief in fair use, even when a court disagrees in the end, “is sufficient to protect the archivist from statutory damages.”  Such protection is not as complete as would be provided by an orphan works bill, but it is is nonetheless substantial.  In the end, it really might make more sense for educational users to rely on fair use when contemplating a use of an orphan work, after employing some or all of the strategies in the SAA statement of best practices to try and find a rights holder.  Waiting for Congressional action may be both impractical and unnecessary.

Whether orphan works legislation proves useful or not will depend in large part on the details of any final bill.  There were strong hints last time that in order to gain approval, a bill would become so burdensome and expensive that the library and archives community would be better off without new legislation, simply relying on fair use.  No doubt that debate will be revived if any orphan works bills are re-introduced.  But the SAA has made an important contribution from either perspective that one takes.  In regard to potential legislation, they have offered a standard that legislators should consider as they draft a bill, as well as one that those concerned about the burden created by legislation can look at to measure the depth of the problem.  In regard to those who would rely on fair use, the statement of best practices provides a set of guidelines that can help give users confidence that they are truly making a good faith fair use effort.

The news story, from the Chronicle of Higher Education, reports on an unusual tenure process at the College of New Jersey.  The Dean and faculty panel recommended against granting tenure to Professor Nagesh Rao, but the Provost and Board of Trustee disregarded that recommendation and granted tenure, after considerable internal and external protest.  My interest in the story is focused on one small comment, where Professor Rao is describing the reasons he thinks the faculty panel recommended against tenure.  In addition to mentioning that his subfield may be subject to some bias, he says that one of the principal places where he is published, an open access online journal called  “Postcolonial Text,” may have been “arbitrarily devalued” due to its business model.

For the record, “Postcolonial Text” is a peer-reviewed journal published on the Open  Journal Systems (OJS) platform.  I recently published (shameless plug alert) an article on open access for theological studies in an OJS journal, and can testify that the peer-review process — which is determined by the editors, not by the publication medium — was as rigorous as any traditional publication I have experienced.  We have reached the point, I think, where the notion that online or open access is somehow not as scholarly as print, toll-access publication is no longer a reflection on open access itself, but is an indication that some academics have simply failed to pay attention to radical changes in the environment for scholarship.  If what Professor Rao says is true, it is shows an embarrassing ignorance on the part of the panel that evaluated him.

So what are the “elements” of open access I want everyone who is responsible for evaluating scholarship to be able to recite, even when awakened in the dead of the night?  They are as follows:

1. Online open access journals are as likely to be peer-reviewed as are traditional print publications.  The medium cannot be used as a surrogate for investigation into the editorial practices and personnel of a given forum.
2. Open access based on an author fee is not a form of vanity publishing, and these arrangements, which are usually traditional journals with an open access option added on, are peer-reviewed in precisely the same way as traditional publications in the same journal.  They should be weight in an evaluation process in exactly the same way.
3. Many, perhaps most, works which an author self-archives in an institutional or other repository are also published in peer-reviewed forums.  P&T committees should not dismiss works just because they can be found in an open access repository, and authors should be responsible for ensuring that sufficient metadata accompanies the article to tell anyone who finds it about its peer-review and publication history.

One of the major arguments in favor of this legislation is that it would increase government accountability for the way it spends tax dollars, and the Alliance for Taxpayer Access is a major supporter of the bill.  They have a nice summary of the provisions and purpose of FRPAA here.

One advantage that now exists for those who support federal access to taxpayer funded research is that we have over a year’s experience now behind us with the National Institute of Health’s public access mandate for NIH funded research.  Although there have been some efforts to undo that mandate (the ironically named “Fair Copyright in Research Works Act” is the most prominent), by and large most people seem to acknowledge the success of the mandate, and it is easier now to imagine extending its reach that it was a year or so ago.  In fact, Sen. John Cronyn, in introducing FRPAA (he is a sponsor along with Sen. Joe Lieberman) specifically referred to the success of the NIH policy when he introduced FRPAA on the Senate floor.  This is particularly interesting because it is generally thought that much of the hostility toward the NIH mandate comes from a turf war between the Appropriations Committees and the Judiciary Committees over who has jurisdiction over such mandates; since Sen. Cornyn is a member of the Senate Judiciary Committee, that turf war ought not to derail FRPAA.  And this list of Higher Education leaders who have supported FRPAA in the past (including my Provost) is testimony to the sense in the research community that better access to these funded works will advance research and teaching.

For supporters of open access, another tool was unveiled in the same week that FRPAA was reintroduced –  OASIS (the Open Access Sourcebook) — that should make their tasks much easier.  OASIS is a website developed by Alma Swan and Leslie Chan to serve as a portal for educational materials.  A quick look through it suggests it will be tremendously helpful for those who want to understand the complexities of open access and to explain its meaning and various manifestations to others.  The resources are divided to make it easier to finding material relevant to different sets of stakeholders — students, researchers, administrators, publishers, librarians and the public.  One particularly valuable contribution made by OASIS, in my opinion, is the set of “briefing papers,” which are documents intended to convey essential information on selected topics in the space of two sides of a sheet of paper.  Four briefing papers are available as of now, and there is the promise of more to come.  Overall, this site will be a wonderful resource for all of us as we explain and advocate for open access; it will become hugely helpful when the time comes to explain the FRPAA mandate, after it is passed by Congress.

As far as the copyright issue is concerned, it seems pretty clear that the professor does not really have a claim here, at least not if all he did was to pose a problem for his students to solve.  Ideas, we must recall, are not protected by copyright, only expression is.  Computer code is protected by copyright from the moment it is fixed; the Copyright Office considers software a “literary work.”  That protection is vested in the author, and no interest is owned by a person who merely set the parameters of the work or suggested ideas which might be used.  Patents, which are also available for software, do protect ideas, and perhaps the SJSU professor is confusing the two very different kinds of protection (although there is no indication that anyone has sought a patent).  Unlike a patent, there is no need to apply for copyright protection.  That protection is owned by the author of the expression.

Which brings me to the most important reminder to be taken from this case.  It is that students own the copyrights in the works they create at our institutions.  As the digital age offers new opportunities to disseminate scholarship, including student scholarship, we need to remember that students own their copyrights (just as professors own theirs) and formulate appropriate policy to respect those rights and facilitate use and sharing as needed.

On the plagiarism charge, I think it is clear that SJSU was correct to affirm the ability of students to share their work.  If open access sharing is thought to be a problem because of the mere potential for plagiarism, all publication would pose a similar threat.  And especially in the area of computer science, where open source code is a common norm, it is important for students to learn the value of sharing in terms of the ability of a community to review and improve a scholar’s work, and to develop judgment about when a particular work is ready to be shared.

There are many reasons to share scholarship, and very few reasons to keep it secret.  Scholarship that is not shared has very little value, and the default position for scholars at all levels ought to be as much openness as is possible.  There are a few situations in which it is appropriate to withhold scholarship from public view, but they should be carefully defined and circumscribed.  After all, the point of our institutions is to increase public knowledge and to put learning at the service of society.  And there are several ways in which scholars benefit personally by sharing their work widely.  The SJSU student hoped that potential employers would see his work and be impressed; how can a university object to that hope?  Indeed, it reflects the professional ambitions of most scholars, and they, like our student, benefit in that ambition if they share their work as openly as possible.  Openness should be the default for academic work, and closed access only an alternative when there are clear and coherent reasons that justify it.  In this case, the student has something important to teach the professor about the important values of academia.

An approprate way to close this reflection is to point to the web site for the Open Student organization, where students are working constantly to remind the academy that openness and public access are key elements to embodying our educational mission.