Moving beyond the photo album August 27, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing, Technologies , 1 comment so farLast week G. Sayeed Choudhury, Associate Dean for Library Digital Programs at Johns Hopkins University, came to Duke to talk with the staff of the Libraries about e-scholarship and the changing role of the university library as part of our strategic planning process. His presentation and conversations were fascinating, and we were left with a great deal of thought-provoking material to consider. I was particular struck by one observation, which was actually Choudhury quoting from a 2004 article that appeared in D-Lib Magazine by Herbert Van de Sompel, Sandy Payette, John Erickson, Carl Lagoze and Simeon Warner. In the article, “Rethinking Scholarly Communications,” the authors assert their belief that “the future scholarly communications system should closely resemble — and be intertwined with — the scholarly endeavor itself, rather than being its after-thought or annex.” The article further makes the point, perhaps more obvious now that it was five years ago, that “the established scholarly communications system has not kept pace with these revolutionary changes in research practices.”
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.
Orphan works, fair use and best practices July 30, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use, Open Access and Institutional Repositories , add a commentAll of the above are recurrent themes in copyright and scholarly communications these days, but a recent publication from the Society of American Archivists has put a little different spin, I think, on an ongoing conversation.
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 elements of an open access quiz July 22, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 2commentsWhen I was a first-year law student, my professor for Torts used to threaten to call us up at 3 am and demand that, before we were fully awake, we be able to recite the elements of a negligence claim – duty, breach, causation and harm (thanks, Prof. Darling). I was reminded of this demand by a small part of a recent news story, and the thought of three “elements” about open access that I would like to see every member of university promotion and tenure committees remember, even if quizzed in their sleep.
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.
I’m just a bill (and a “sourcebook”) July 12, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , add a commentOpen access advocates (of which I am one) were heartened last month when the Federal Research Public Access Act, known as FRPAA (S. 1373) and not to be confused with FERPA, was reintroduced into the 111th Congress. The bill, which would mandate public access to research funded by many federal agencies, made considerable progress in the 110th Congress, and hopes are high for its passage this year.
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.
Openness and academic values June 26, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright in the Classroom, Open Access and Institutional Repositories , 2commentsAn interesting controversy arose recently at San Jose State University, when a professor objected to the fact that one of his students posted source code he had written as part of some class assignments onto the web. Amazingly, the professor claimed that sharing this code was tantamont to plagiarism, since it made the student’s work available for others to copy, and might be copyright infringement. This latter claim seems to have been based on the professor’s belief that, as the author of the assignment, he had a copyright interest in the work of the student. There is a report and comment about this case from Ars Technica here, and one from Inside Higher Ed here. The University’s Judicial Affairs office did not comment on the copyright claim, but it did determine that the student had not violated the academic integrity policy and could not be prohibited from posting his own work. There are lots of opportunities here to elucidate copyright issues and ponder the important values of academia.
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.
