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On February 14, 2013, the Fair Access to Science and Technology Research Act (FASTR) was introduced in both houses of Congress. A successor to the once again defunct Federal Research Public Access Act (FRPAA), FASTR covers the same agencies as the former proposed legislation and similarly mandates public access within 6 months of publication, through unspecified open access repositories, to the final versions of peer reviewed manuscripts that report results of certain federally funded research. FASTR differs from FRPAA in its inclusion of a provision for covered agencies to coordinate the policies they develop in response to the legislation and inclusion of provisions requiring open licensing of research so that it may be reused under certain conditions.
The introduction of FASTR, particularly its open licensing provisions, immediately drew praise from open access supporters, including library and public interest organizations, and scorn from publishers. Association of College and Research Libraries President Steven Bell stated in that organization’s letter of support: “I am particularly pleased that this legislation addresses both greater access to research and greater reuse through open licensing. As scholars undertake new research, it is crucial to build on the works of others who came before. Open licensing is an important step towards a more open system of scholarship as it facilitates subsequent reshaping into new scholarship.” On the other side, the Association of American Publishers (AAP) called the new bill a “boondoggle.” AAP Vice President Allan Adler complained: “This bill would waste so much taxpayers’ money at a time of budgetary crisis, squander federal employees’ time with busywork and require the creation and maintenance of otherwise-unneeded technology all the while ignoring the fact that its demands are already being performed successfully by the private sector.”
While the press and others were still spinning support and criticism of FASTR, the Obama administration through the White House Office of Science and Technology Policy (OSTP) released a public access directive on February 22, 2013 that commands Federal agencies with over $100 million in annual research expenditures to “develop a plan to support increased public access to the results of research funded by the Federal Government…[including] any results published in peer-reveiwed scholarly publications that are based on research that directly arises from Federal funds.” Similar to FASTR, the directive encourages agencies to work collaboratively in the development of public access plans. The directive, drafted in response to a 65,000 signature petition calling for action and to comments filed in response to 2011 OSTP Request for Information, specifies the features these plans must incorporate, including strategies to foster public discovery and access of scholarly research and to either utilize existing archives and repositories or develop new partnerships for creation of modes of open and public access. Unlike FASTR and its predecessor bills, the directive calls for a 12 month (rather than a six month) embargo. Drafts of these plans are to be submitted by covered agencies to the OSTP within six months for its issuance.
As expected, the OSTP directive garnered immediate praise from open access advocates. Surprisingly, however, the AAP also came out in support of the directive, leaving one to wonder if perhaps a better alternative to FASTR had been born. One way the OSTP directive improves upon FASTR is in its stroking of publishers’ egos by recognizing the services they provide and by seemingly recognizing their interests as stakeholders. As the AAP response praises: “As one of its core principles, the policy ‘recognizes that publishers provide valuable services…that are essential for ensuring the high quality and integrity of many scholarly publications. It is critical that these services continue to be made available.’” The incorporation of the 12 month embargo similarly makes the OSTP directive more palatable to publishers. The writers at the blog Scholarly Kitchen, which frequently directs criticism at open access endeavors, specifically called out the 12 month embargo and the ability for agencies to petition for an extended embargo period if data was presented to support the request. Embargo periods, as the blog points out, are often established without much rationale or evidence (and are frequently the subject of debate among open access advocates and opponents alike). The provision for establishment of an embargo period supported by data may very well be a positive step.
Aside from seemingly making publishers happy, there may be other reasons to position the OSTP directive as superior to FASTR, or at least as a necessary complement or supplement to the as of yet enacted legislation. The FASTR bill only covers public access to scholarly publishing; the OSTP directive covers both publications and data. This recognition of the importance of access to research data is certainly an improvement and a recognition of changes in policy already taking place at some federal agencies, including the National Science Foundation. Another improvement of the OSTP directive over FASTR is by its definition it applies to more agencies than FASTR. This larger umbrella includes agencies such as the Smithsonian Institution, which are excluded from FASTR. A final positive of the OSTP directive is its effective date: immediately. Agencies are under an immediate mandate to start crafting policies and publishers are put on notice that they must be open to working with agencies to carry out the objectives of the directive. Rather than spending energies lobbying for or against proposed legislation, these groups can direct their attentions to doing real work that will culminate in real results. Granted, the directive could easily be stricken in four years with a new administration; whereas legislation takes an act of Congress or the U.S. Supreme Court to be nullified. However, the force and effect of an executive order to move forward rather than continuing to spin wheels is certainly a better and perhaps truly “faster” means to an end than the FASTR bill.
Open Access Week 2012 has come and gone. Across the globe, institutions of higher learning, funders of research, library groups, and publishers of open access works celebrated the theme “Set the Default to Open Access,” challenging us all to work toward open access as the norm for publication of scholarly works rather than an option. At the University of Florida, several events commemorated Open Access Week. The Libraries hosted two events featuring presentations on open data, publishing in the Open Journal System, and open access in the humanities. Additionally, I had the privilege of presenting on open access at Graduate Student Research Day. During this presentation, I observed dozens of “lightbulbs” go off above the heads of students when I used this scenario to demonstrate open vs. closed access: I asked them to imagine conducting the research they now do after they graduate without the benefit of University paid subscriptions. It was not surprising that several of them were unaware that the electronic resources they use regularly were available on account of expensive licenses paid for from the Libraries dwindling budget. But it was surprising to see their reactions upon realizing that the scholarship and knowledge they depended upon for their education and training was not available to all. Once the lightbulbs of shock dimmed, discussion ensured about why open access was important not only for education and creation of new knowledge but also for purposes of public access to publicly funded research.
Reflecting upon the graduate students’ reactions and questions, I concluded that for real change to happen in scholarly publishing we should advocate more to our graduate students. They are not only the future producers of scholarly content, but also future tenure track or tenured faculty, future editorial board members, future employees of publishers and research funders, etc. This is a large population of agents of change. In her own blog post about Open Access Week, librarian Barb Fister also recognized the importance of students in the open access movement. She cautions other librarians against “extinguishing their common sense” by promoting our paid-access resources too heavily. We are perpetuating the problem of equating quality with closed access by not exposing students to the full range of resources, open and closed. Fister writes:
When we teach students that the library is a terrific shopping platform that they get free access to as a member benefit, we aren’t preparing them for life-long learning. We’re reinforcing a number of false premises: that knowledge is stuff somebody out there created, stuff you can acquire if you are among the privileged few, that answers are things you go shopping for, that what anyone can read without paying for it must be, by definition, inferior to our designer goods. We’re trying hard to help students see knowledge as a social act, that when they do research they are joining a conversation, that the point of research isn’t to find the answer, it’s to build a new understanding that involves the student and the people who are speaking to them through the sources they encounter. Apart from these intangibles, I don’t want to build an artificial wall between what we pay for and what is available to all. I want to make it as easy as possible for students to find good sources, whether they are paid for by the library or not – because the future is open.
This is excellent advice for librarians. Students are an essential, but often overlooked, component to the movement to make open access the default. Whether we are engaged in information literacy or in open access advocacy, we must be mindful in the message we send to them. If we are successful in converting students to the cause for open access, we stand greater chances of success overall.
Important copyright and open access news has come out of Canada and the UK in the past several days:
Supreme Court of Canada Issues Several Copyright Rulings
On July 12th, the Supreme Court of Canada issued its rulings in five separate copyright cases. Four of the five cases concerned music royalties and the fifth case concerned the charge of royalties for photocopying short excerpts of works for use in education. (The controversy over assessment of this tariff was previously discussed on this blog.) In sum, the Court’s rulings established a broader reading of “fair dealing” — a phrase nearly equivalent to “fair use” under U.S. copyright law. Specifically, the Court held that photocopying textbooks for or by students for private study, even if in the context of instruction, or research is fair dealing, thereby dismantling the expensive licensing scheme put into place by Canada’s version of the CCC, Access Copyright. Duke University Scholarly Communications Officer Kevin Smith made a nice analogy of the Canadian Court’s ruling to the recent decision in the Georgia State University e-reserves case. He writes:
Another important part of these decision about instructional copying is that [Supreme Court of Canada] Justice Abella found little or no harm to the market for published work caused by this copying. The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales. This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses. I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional revenue stream for publishers is.
The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case. The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not. By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us. In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study. In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience. Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.
UK and EC Mandate Open Access for Government Funded Research
The Research Councils of the United Kingdom (RCUK), a body representing the UK’s seven government-funded grant agencies, announced on July 16th that it had approved a policy mandating that all publications produced from grant funded research have to be made public 6 months after publication beginning in April 2013. (The blog for the journal Nature provides a great summary of the policy and its effects.) A day later the European Commission announced that it would similarly mandate open access. Its proposal endeavors to open up all the work funded by its Horizon 2020 research program, set to run in the European Union from 2014 to 2020 and disburse €80 billion (US$98.3 billion). The EC says that it is aiming for 60% of all European publicly funded research articles to be open access by 2016. Meanwhile, in the United States, the National Institutes of Health remains the sole federal agency mandating open access for grant funded research, and a bill (FRPAA) proposing to expand this mandate to all federal agencies remains in limbo until after the November 2012 elections.
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.
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 this month’s College and Research Libraries News, the scholarly communication feature article examines adoption of open access policies by liberal arts colleges. The author (Rollins College’s Olin Library director Jonathan Miller) explains that his institution adopted an open access policy as part of a “larger strategy to refocus the faculty and students on a larger world of information.” This strategy also involves migrating print journals to digital, acquiring more electronic resources, and promoting the use and creation of open access resources. The latter mandates the deposit of works by faculty and students into the college’s institutional repository. The author concedes that creation of institutional repositories (IR) and more so drafting of open access policies ordinarily are not the enterprises of liberal arts institutions (the 2007 report of the MIRACLE project supports this statement with only 10% of baccalaureate institutions reporting implementation of IRs) ; however, he urges, faculty and students should not “take advantage of open access to materials produced at the expense of others without also promoting open access to scholarly information that they create.”
I believe that the mandate for liberal arts colleges to participate in open access initiatives extends beyond the appearance of equal participation and giving back to the scholarly community. Liberal arts colleges should concern themselves with open access initiatives in an effort to remain vital and relevant in the larger education sphere. Last week, at the Council of Independent Colleges’ conference for presidents, Pulitzer Prize-winning historian Jon Meacham addressed the problems facing the liberal arts. As reported in the Chronicle covering the conference:
President Obama has made much of creating a new “Sputnik moment” to put more federal emphasis on education and science, he said. Most people think of that in terms of high-end science and technology projects—the domain of Research I institutions, not small liberal-arts colleges, Mr. Meacham said. But he noted that liberal-arts institutions should make the argument that they are providing a critical service in today’s political environment: the ability to think broadly and critically, at a time when “everyone thinks they already know the truth.”
Demonstration of the relevance and necessity of critical thinking and broader ideas can be accomplished through open access to the scholarly works produced by liberal arts faculty and students. It also demonstrates a shared commitment with research institutions to dissemination of knowledge. Further, with open access comes discoverability and the increased likelihood of collaboration between large and small institutions.
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.