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 Duke University Law School. In “Applying the Access Principle in Law: the Responsibilities of the Legal Scholar,” Danner does a superb job of explaining what is unusual about legal scholarship, what the experiences of changing the publication models have been and what needs and responsibilities for individual scholars remain.

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 Duke Law School when it moved all of its journals to open access web accessibility. As Danner tells the story, the school had concluded that the expected loss of subscription income would be offset by the values gained from greater exposure to its 6 print journals. But in fact, there was almost no such decline in print subscriptions, even after 10 years of free access. Only one journal showed an overall decline (of about 2%) over that time period, while four showed significant increases in subscriptions. The sixth journal experienced a small increase. Clearly better access leads to subscriptions from readers who otherwise would not have known about the journals, especially the specialized ones, which exhibited the largest increases. This week a librarian I was speaking with confirmed that she had also experienced this unusual form of marketing, when faculty have asked her to subscribe to journals they have discovered through open Web accessibility.

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.

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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.

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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.

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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.

Have we arrived at a “tipping point” for open access? At the very least, these developments are a great opportunity to begin or deepen a campus conversation about open access – what it is, all the different whys it can be accomplished and, most importantly, why it is so important, both in our own best interests in higher education and in the public interest.

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I have commented before on the growth of informal channels of scholarship, but have not written much about the relevant roles for different types of scholarly venues. These posts, and several others to which they link, do a nice job of starting that discussion. The linking itself is an important phenomenon; blogs provide a novel environment in which arguments and discussions can connect to and interpret each other. From that perspective, citing to a blog in a traditional article seems to defeat some of the principle advantages of blogging – the immediacy and interconnection.

It is also interesting to speculate on why legal scholarship seems to be the discipline in which this conversation is taking place. When I first read about it, I wondered if the unique aspects of legal scholarship, where most of the journals are edited by students rather than by full-time academics, might lead the professorate to feel less proprietary about their publications and thus more willing to experiment outside of the traditional confines of scholarship. Leiter suggests a somewhat different spin on this observation when he writes: “The problem is that reputational effects in the legal academy are mediate by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts… First, one of the major venues for legal scholarship remains the student-edited law reviews” (the second institutional problem is the “journalistic reception” of legal ideas). For Leiter, the problem to which this lack of expertise contributes is the “availability cascade” – “an opinion that appears to be informed gains credibility by virtue of being repeated and thus becoming current in discourse.” For its discussion of this phenomenon alone, Leiter’s piece is worth reading, even while recognizing that blogs are certainly here to stay and scholarship is going to have to find ways to deal with them.

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What I want to focus on is the unintended consequences of this steep increase in statutory damages on the problem of orphan works. For libraries and higher education institutions, the difficulty with using a so-called orphan work (a work whose rights holder either cannot be determined or cannot be found) is that high risk is associated with great uncertainty. One cannot predict if a rights holder might turn up sometime after your digital display or YouTube video becomes available, but you do know that, if that happens, the potential liability is very great. Thus works that are serving no useful purpose at all remain hidden because statutory damages are so high that they discourage schools from taking even a small risk. Raising those damages as dramatically as PRO IP proposes would magnify this chilling effect, and the result would be a pure social loss — works that are not generating any profit at all for the rights holders will still be locked away from potential users, readers and viewers because of fear.

The Orphan Works legislation introduced in the last Congress was intended to address this fear, so it seems like a good time to consider re-introducing that proposal. The orphan works bill would have made statutory damages unavailable if a user had made a reasonably diligent effort to locate the rights holder and was not able to do so. If a rights holder reappeared after an unauthorized use had been made, they would be entitle to the reasonable licensing fee they could have collected if they had been around to ask in the first place, but not the draconian statutory damages designed to discourage piracy, not scholarship. With a proposal to increase those statutory damages now on the table, it seems like a great time to really press for the reintroduction of orphan works legislation as well. Only if orphan works protection is considered in conjunction with PRO IP can this legislation, which hardly seems to be needed at all, be prevented from doing far more harm than whatever good it is supposed to achieve.

Orphan works is important legislation in its own right; far too much of our cultural past is unavailable because libraries and universities do not dare risk the expensive vagaries of copyright law. A bill to make socially productive uses of this material possible without inhibiting profits at all is worth reintroducing on its merits. But it is absolutely vital at this point, as a corrective to the excessive protectionism of PRO IP. Lets hope someone in Congress sees the obvious connection between these two pieces of legislation, and orphan works protection makes a comeback.

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At Duke we have been struggling to deal with a very similar situation. A great deal of effort went in to the creation of digital collections feature lots of wonderful material in our collections on the history of advertising. So our staff was understandably distressed to find out that an Internet entrepreneur had downloaded virtually the entire collection, which is mostly public domain images, and was selling the CDs through his own website and via eBay intermediaries. It is a well-established principle of copyright law, of course, that “sweat of the brow” does not give one rights in a collection of facts or public domain material. Nevertheless, we were unhappy because we made the collections available in order to facilitate scholarship and research without barriers of place or fees for access; selling the material undermines our vision of the research purposes of the collection.

We finally decided to send a letter asking the vendor to stop selling this collection. We based our request on three claims – a compilation copyright in the whole collection, which was copied in its entirety with our selection and arrangement (and some commentary) intact; a fear that, because the Duke name appears in a few places, there might be confusion about our relationship with the vendor (there is no such relationship, in fact); and our concern that some of the images may still be protected by copyrights held by the donor who gave us the material in the first place. Most galling to us is the fact that the vendor who has appropriate this material himself claims, on the site, to hold a compilation copyright in the material.

So far our letter has been ignored, and the material is still available for sale. We are unsure if we want to take further steps or what those steps might be. We have no desire to impede the flow of information to people who want or need it. But we do want to uphold the value of free access to the public domain, and also to protect and value the intellectual efforts of our fine curators. Perhaps the best thing I can do is to use this space to encourage readers to check out the free digital displays of this fascinating material on the Emergence of Advertising in America website. And remind all that when someone offers to sell this kind of material that looks like it came from a library special collection, let the buyer beware!

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Two aspects of this project make it significant beyond its own goals. First, it is only the initial such project that Mellon plans to finance; similar projects in Slavic studies and ethnomusicology are already in the works. Second, and most important, this project will help demonstrate that cooperation between academic presses is possible without surrendering the unique features of which many university presses are justly proud. Each of the publishers in this first project will be responsible for selecting its own titles and will continue to select in the specific area within the broad topic that is their own specialty.

It is no secret that publishers routinely have to reject quality manuscripts because the costs of production make them poor financial risks, however good the scholarship may be, and that many young scholars therefore can not get their work published. The hope for this experiment is that the value of collaboration, in terms of significant cost savings so that more worthy monographs will see print, can be realized without losing distinctive reputations or sacrificing quality.

A far more radical push to change the economics of scholarly publishing is expressed in this post on “Digital Media, Games and Open Access” from the blog “Grand Text Auto.” It is written by Nick Montfort, an assistant professor of digital media at MIT, ostensibly to explain his reasons for refusing to review for traditional journals anymore, saving his efforts for open access publications. As Montfort says, “there must be a few things that those of us who are part of the scholarly publishing process can do to foster an open-access future. The easiest thing that I’m able to think of is simply not volunteering our labor to lock academic writing away from the public.” His explanation of the current inequitable system of journal publishing is both clear and scathing, leading to his conclusion that that system, based on restricting access to scholarship rather than encouraging it, should be called “anti-publishing.”

These two very different approaches to the economic problems of scholarly communication may seem poles apart, but each is founded on the recognition that our current systems do not serve scholarship very well and are likely unsustainable. Whether changes come through carefully planned collaboration or through the radical disruption of open access (or both), change is certainly in our future.

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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.

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These issues are explored in a new book and an accompanying blog by Chapman Law School professor Tom Bell called “Intellectual Privilege.” Bell’s basic point is to suggest a better way to look at the legal protection of the products of human intellect; one that neither equates them entirely with physical property nor dismisses all such protection as a burden on the ideal of free use:

“I here offer a third view of copyright. I largely agree with my
friends on the left that copyright represents not so much a
form of property as it does a policy device designed to “promote
the Progress of Science and useful Arts” (as the Constitution
puts it). I thus call copyright a form of intellectual privilege.”

Bell’s project promises to generate some fascinating discussion about the nature and uses of intellectual production, and it models an emerging form of scholarship by making the text available pre-publication for public comment. For even more discussion, see the Lessig Blog, where an announcement of Bell’s book has also generated interesting comment.

I look forward to following this debate, but at the outset I want to note that the analogy between IP and physical property is not all bad and is sometimes quite useful. The basis of James Boyle’s now classic article on “The Second Enclosure Movement and the Construction of the Public Domain” is, after all, just such an analogy. And I recently used the analogy with physical property, appropriately, I hope, if less brilliantly, to refute some of the parade of horribles that some have suggested will follow from a mandate to make the products of NIH funded research available in open access.

Bell emphasizes that IP is a bundle of privileges granted by the government to enact certain policy goals. But this definition is equally applicable to physical property; property ownership is a government granted right to exclusively enjoy (that is, to exclude others from) a particular object or piece of land. As with IP, the exclusive rights of physical property ownership are subject to numerous restrictions and exceptions (taxes, zoning, etc.) that help serve public policy ends. The real object of the discussion should be to arrive at a careful understanding of both physical property and intellectual privilege and then look at how they relate, where they differ and what policy alternatives might result from the differing views. Tom Bell has offered us a wonderful opportunity to participate in that project.

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