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Whether it began with the civil rights marches of the 60s or the Vietnam War protests of the 70s, the modern method of working to bring about change is by communities of like-minded or similarly-situated citizens joining in a single act of defiance of an identified “evil.” Last year we witnessed the rise of the “Occupy Wall Street” movement, a gathering of citizens in protest to the greed and corruption in the financial sector of our society. Although the movement has received much attention in the press and experienced expansion and presence in cities across the country, there is question of whether this collective activity can bring about real change. Similarly, researchers, librarians, and other academics have been engaged in collective action intended to bring about a change in proposed and existing intellectual property laws, including copyright and fair use.
Last fall, two separate bills (the Stop Online Piracy Act or SOPA and the PROTECT IP Act or PIPA) were introduced in Congress to address the problem of copyright infringement online. The bills’ opponents claimed that the net effect of the enforcement scheme outlined in the bills was a violation of First Amendment freedoms. On January 18th, nearly 50,000 web sites intentionally went dark in protest to SOPA and PIPA. Millions of citizens expressed opposition to SOPA and PIPA through social media venues, email, and other forms of digital communication. As a result of this mass online outcry, several U.S. Senators switched their position on the bills. And within three days of the blackout, the sponsor of the SOPA bill tabled the bill indefinitely. In the short term, it appears that this form of Internet-fueled democracy has resulted in a desired change. However, this does not mean that other bills will not be proposed or that more dangerous legislation, such as ACTA which is currently under vote in the EU, won’t soon be threatening our rights.
Another avenue through which change has been attempted is through development of community-based fair use best practice codes. The Center for Social Media, in partnership with various communities of users of copyrighted content, has created a series of best practice codes outlining principles for the fair use of copyrighted material by those particular communities. One of the most successful best practices codes was developed by the Center and documentary filmmakers. Following interview and survey of numerous notable and veteran documentary filmmakers and distributors, the documentary filmmakers’ best practices code “makes clear what documentary filmmakers currently regard as reasonable application of the copyright “fair use” doctrine.” That is, other filmmakers can rely upon the code for guidance in determining what is fair use of copyrighted content and when permission should be sought. As a result of this community-based approach, the number of infringement claims arising from documentary film making has decreased and errors and omissions insurance have more readily offered coverage for fair use claims.
Last week, the Center, along with the Association of Research Libraries, released the long-awaited Code of Best Practices in Fair Use for Academic and Research Libraries. This Code is the product of nearly two years of surveying and interviewing librarians regarding their employment of fair use in their daily work. To date, librarians have relied upon various fair use guidelines that have cropped up since the enactment of the Copyright Act. However, unlike some of these other guidelines, the Code did not solicit the input or buy-in from those most often on the other side of the fair use debate with librarians, publishers standing as rights holders. Further unlike the prior guidelines, the Code does not attempt to set forth quantifiable fair use limits, which have only served to impede and limit the employment of fair use. The Code, as fully admitted by its authors, is not the silver bullet many librarians were hoping for since learning of the project; as stated in the introduction, this Code is “not a comprehensive or exhaustive guide to all possible applications of fair use in and around libraries.” Rather, the Code enumerates eight scenarios in which clear consensus regarding fair use was identified. However, each of these scenarios, or “principles” as the Code refers to them, is accompanied by a series of limitations and enhancements, which merely articulate the nuances librarians routinely grapple with and try to reconcile within and without the strictures of existing fair use guidelines. The eight principles also include a couple principles that I believe to be “no brainers” and not the subject of debate or confusion among my peers, namely reproducing materials for disabled patrons and digital preservation of at-risk items. Nevertheless, I am not surprised by the limited guidance and clarification in this new Code; as I predicted last January, without “a judicial or legislative clarification of fair use as applied to the ever-evolving modes of publishing and content delivery” a best practices document will not be an effective vehicle for change.
A final example of an academic community trying to bring about change through numbers is the recent call by researchers for a boycott of publishing giant Elsevier. In support of the scholarly prize-winning mathematician Tim Gowers recent scolding of Elsevier for its high journal prices, strong-arming of libraries to buy bundled subscriptions, and support of the Research Works Act, as well as SOPA and PIPA, an Internet petition was formed where researchers can publicly declare their intent to no longer write for, referee, or edit any Elsevier journal. At the time of this writing, nearly 2900 faculty members, scholars, and scientists from around the globe have signed this petition.
The rapid increase in petition signatories and the growing press attention to the petition and the problems it highlight leads one to believe that a positive change is imminent; however, this may not be the case. As well-known technology writer Glyn Moody recently noted, this is not the first (or the biggest) attempt that a collective effort to change the business model of scholarly publishing. In 2001, 34,000 scientists signed onto a letter put forward by the founders of the Public Library of Science calling for the establishment of an online public library that would provide the full contents of the published record of research and scholarly discourse. Many of those same signers pledged to boycott those publishers who did not participate in this endeavor, but very few actually followed through with their boycott pledge. Going back even further, when the Internet was created in 1991, it was for the stated purpose of better facilitating scientific communication and the dissemination of scientific research. “Put another way, the Web was designed to disrupt scientific publishing.” Finally, if change in Elsevier’s (or any similarly operating publisher) business practices does not occur, what “collateral damage” may occur as a result of a boycott, and is this damage something we are prepared to deal with?
I fully support open-access, as a librarian, an author, and a tax-payer. I do not condone the practices of the Elseviers of the world. I believe that change can occur through collective action. However, we need to be mindful of what efforts may truly be needed to bring about the desired result and what consequences may exist if that desired result occurs.
Since its introduction in October of last year, the Stop Online Piracy Act (SOPA) has captured immense attention from legislators, online business proprietors, copyright experts, and privacy proponents. From the intense exchanges of opinion both on Capitol Hill and among non-politicos, an unlikely champion has arisen in Republican Congressman Darrell Issa. Promoting citizen participation in the legislative process, Issa launched a web site, based upon a theory of crowdsourcing, for the public editing of a bill called the OPEN Act (Online Protection & ENforcement of Digital Trade Act). The bill advocates approaching the piracy problem through international trade law and not through local law enforcement measures.
However, while publicly standing as for open government through citizen participation and an open internet economy, Issa quietly took a step last month to shut the doors on access to government-funded research. Entitled the “Research Works Act,” the Issa-sponsored bill, a poorly repackaged version of the failed “Fair Copyright in Research Works Act,” would, if enacted, prohibit all federal agencies from adopting, implementing, maintaining, or continuing any policy or program that provides for the online and public dissemination of commercially published and peer-reviewed research without the publisher’s consent. The effect of the bill would be the termination of the NIH public access policy and the foreclosure upon the idea of broadening the scope of that policy’s application.
Not surprisingly, although disturbingly, the Association of American Publishers (AAP) issued a press release applauding the bill. AAP President Tom Allen is quoted as stating “America’s [Professional and Scholarly Division] publishers are making more research information available to more people, through more channels, than ever before in our history. At a time when job retention, U.S. exports, scholarly excellence, scientific integrity and digital copyright protection are all priorities, the Research Works Act ensures the sustainability of this industry.” The release further asserts: “Journal articles are widely available in major academic centers, public libraries, universities, interlibrary loan programs and online databases. Many academic, professional and business organizations provide staffs and members with access to such content.”
The AAP’s statements are factually misleading. The academic entities referenced cannot afford to provide access to the large body of research that is available exclusively through commercial publishers; it is no secret that libraries and other institutions have had to make difficult budgetary decisions about maintaining subscriptions to these publishers’ publications and databases. Further, authors and researchers do not publish in AAP’s members’ journals for monetary gain and often give up all of their own intellectual property rights in exchange for publication. As a result, access by the author’s employing institution and its students is often also bargained away. Further, the AAP’s stance ignores the fact that additional publishable works, for which they can recover subscription fees, are produced as a result of the increased discoverability and collaborations that occur when there is public access to research, particularly in places where there is no possibility of access except through public channels. There is no evidence that policies such as that of the NIH have economically hurt publishers to such a degree as to outweigh the benefits realized through open and public access to scientific research.
Issa, in a statement posted on his OPEN Act web site, proclaims that Americans have the right to benefit from their own creation. Shouldn’t the American public, then, have the right to benefit from the research that they have funded? Without the tax dollars paid by Americans, there would be no funding for federal research, and without federally funded research, publishers would suffer a sharp decline in publishable material that their readers want and need to read. Apparently Issa wants to be the American public’s doorman, determining when and for whom the door may be open and shut.
Is academia at war with the publishing industry? Today, University of Michigan Dean of Libraries Paul Courant wrote that publishers have declared war upon us. Columbia University’s James Neal claimed at this Spring’s ACRL conference that the academic library community is, in fact, at the center of this war. In recent months, with actions being taken that chip away at fair use and other copyright exemptions allowed libraries and educators, it is starting to feel that we may be losing the war; and with shrinking budgets and governmental affronts to our existence, we may even feel powerless to fight for our survival.
However, we may have a viable defense that could very well preserve our place as conduits to learning and knowledge. “Open access alternatives seem more and more to be not just a nice alternative, but the only path scholarly communications has left to survival,” wrote Duke University Scholarly Communications Officer Kevin Smith this morning in response to the latest attack (an STM publishers’ association issued guidelines whose underlying purpose is to undermine international interlibrary loan practices) on educational use of copyrighted works. Open access has been touted for several years as the vehicle for revolutionary change in scholarly communications, and it still stands as our best chance for radically changing the economic climate that is leading to assaults upon barrier-free sharing of knowledge and information. However, for us to win this war, we all need to participate: librarians and faculty alike. And our efforts need to be consistent and persistent.
In this month’s Bulletin of the American Society for Information Science and Technology, the open access movement is lauded for single, albeit sporadic, milestones; but “these single events that showed the potential to cause a sudden, radical or complete reform of the entire [scholarly communications] system have failed to precipitate a complete transformation.” The authors of the Bulletin piece claim that librarians can be the most victorious soldiers in this war that we are in. However, it will take a widespread and collective movement to not only survive but even win. There are many libraries and universities out there who are to be commended for their efforts – who have established open journal publishing systems, who have adopted open access mandates, and who regularly promote open access through Open Access Week and other public events. Librarians at Duke University Medical Center Library, in a recent article in Serials Review, offer even more ways of how librarians can successfully incorporate open access into their work and bolster our defense against the war that is waging against us. In addition, legislation such as the Federal Research Public Access Act needs to be revitalized in Congress as further shoring up of our defenses. With this concentrated, widespread, and united drive for open access, I do have hope that we can survive the war.
In a recent post, the Chronicle of Higher Education’s ProfHacker states (in reference to a recent book review he’s written) that “because ideas complete, rather than compete with, one another, creativity and innovation ferment most noticeably when ideas are allowed to circulate openly and freely.” This statement concisely and beautifully describes the spirit of open access. There are many ways in which universities and their faculty and students can embody this spirit:
- Adopt an Open Access Policy – In February 2008, the faculty of the Arts and Sciences at Harvard University took a landmark step by adopting a policy a policy requiring (1) that faculty authors send an electronic copy of their scholarly articles to the university’s digital repository and (2) that they automatically grant copyright permission (“University License”) to the university to archive and to distribute these articles unless a faculty member has waived the policy for a particular article. The cumulative effect of the adoption of such policies by not just major research universities but any academic institution committed to the free dissemination of ideas is the promotion of free communication of knowledge. Further, adoption of such policies sends a message to publishers that exorbitant journal prices will not be tolerated as a barrier to the sharing of ideas.
- Publish in Open Access Journals – Open access journals are journals that use a funding model that does not charge readers or their institutions for access. According to the Directory of Open Access Journals, there are now over 4000 open access journals. This represents about 16% of the approximate 25,000 peer-reviewed academic journals now in publication. While not all open access journals are created equally, many are of high quality with as stringent of review standards are traditionally published journals. By publishing in those open access journals that exhibit certain measures of quality control, researchers promote a system of free access to knowledge. However, universities and funders must, at the same time, give equal credit to such publishing activities when reviewing researchers for promotion and tenure or for eligibility for funding.
- Create and Maintain Institutional Repositories – Universities and other research entities are increasingly establishing, typically in cooperation with university libraries and archives, digital or online repositories of the scholarly works of faculty and students. Many benefits exist for participation in this type of activity. Studies have shown that deposit of works in digital institutional repositories that are openly accessible result in greater visibility and citation of the works. Further, when access is not limited to those limited few who can afford the subscription to the journal in which the article would have been traditionally published, the public value of the work increases exponentially. Finally, research funders are more commonly requiring open and public access to works.
- Support Legislation Promoting Public Access to Federally Funded Research – In June 2009, the Federal Research Public Access Act was introduced in the U.S. Senate. The Act would require that certain U.S. government agencies with a prescribed level of research expenditures make manuscripts of journal articles stemming from research funded by that agency publicly available via the Internet. Because U.S. taxpayers underwrite this research, they have a right to expect that its dissemination and use will be maximized, and that they will have access to it. If this information is shared with all potential users, it will advance science and improve the lives and welfare of people of the United States and the world. The Act calls for the manuscripts to be maintained and preserved in a digital archive maintained by the agency or in another suitable repository that permits free public access.
These are just some of the ways that universities, faculty, students and librarians can keep the spirit of open access alive. For more information and more ideas, visit the SPARC website.
How fitting that the day I launch my Copyright on Campus blog is the first day of International Open Access Week. For those who may have heard the term, “open access” but are unfamiliar with its meaning, I provide the following definition, courtesy of Peter Suber, who, among other roles, is a Senior Researcher at the Scholarly Publishing and Academic Resources Coalition:
Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions. What makes it possible is the internet and the consent of the author or copyright-holder. In most fields, scholarly journals do not pay authors, who can therefore consent to OA without losing revenue. In this respect scholars and scientists are very differently situated from most musicians and movie-makers, and controversies about OA to music and movies do not carry over to research literature. OA is entirely compatible with peer review, and all the major OA initiatives for scientific and scholarly literature insist on its importance. Just as authors of journal articles donate their labor, so do most journal editors and referees participating in peer review. OA literature is not free to produce, even if it is less expensive to produce than conventionally published literature. The question is not whether scholarly literature can be made costless, but whether there are better ways to pay the bills than by charging readers and creating access barriers. Business models for paying the bills depend on how OA is delivered.
By supporting open access to scholarly works, we unlock the doors to knowledge. Researchers who publish in the nearly 1000 open access journals or forums find that their works are more easily found, read, and cited by students, teachers, scientists, grant funding bodies, and governmental agencies. With this larger audience, the impact of a researcher’s work strengthens, the delay between acceptance and publication is shortened, and the visibility and accessibility of a work increases. Authors of scholarly works typically exchange their intellectual property rights and royalties for the prestige of being published. With open access, researchers and readers benefit from the acknowledgment of scholarly accomplishment through publication and the free exchange of ideas.
Through the initiatives of open access, including unrestricted licensing and open archives, students enjoy greater efficiency in conducting their own research and studying. Open access increases discoverability and browseability of scholarly works. Universities and libraries also benefit from open access. Increasing journal prices squeeze library budgets and force librarians to make difficult decisions about subscription cancellations. However, open access allows libraries to continue to provide valuable information to students and faculty without incurring costs. Open access also enables universities and libraries to provide the work done by their own faculty to the campus without paying high subscription fees.
Over the course of the next few days, I will continue to explore in greater detail these benefits of open access and provide additional information on what you can do to support and to participate in the open access initiative.