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IP Duty

This summer, the Association of College and Research Libraries (ACRL) presented for comment a draft of its Framework for Information Literacy for Higher Education. The Framework outlines the key concepts and objectives that today’s information literacy curricula should encompass. This The last of the six “frames” outlined by ACRL states that “Information has Value.” Under this, the drafters recognize that information has value as intellectual property, and therefore, learners, as both consumers and creators, of works have responsibilities to preserve this value. These responsibilities include giving proper credit and attribution to creators of works, understanding the basics of intellectual property law in the United States, differentiating between the creation of original works and remixing or repurposing existing works, identifying works in the public domain, and recognizing the importance of access to information. Libraries have been increasingly engaged in instructing college students in these areas. Librarians practicing in the area known as scholarly communications regularly provide workshops and resources on academic integrity (proper citation and attribution), copyright, open access, and creative commons licensing. However, a recent editorial in the Chronicle of Higher Education suggests that the responsibility of educating college students on these responsibilities does not solely rest with libraries. UCLA engineering professor John Vellasenor suggests that “colleges owe it to their student to do a better job of offering courses that provide a foundational awareness” of intellectual property.  Intellectual property is not just for lawyers, Vellasenor correctly posits, but is instead for students of every discipline as every field of study involves some level of creativity. However, he observes, the need for such instruction is not generally recognized across disciplines, and faculty are not likely to offer a course that is solely on the topic of intellectual property or that includes this as a significant topic of study within another course. This is an opportunity for librarians to become more embedded in curriculum of the universities where they work. Librarians already recognize the importance of intellectual property as a component of information literacy instruction, and with faculty starting to see the need for students to have a basic understanding of intellectual property, librarians have the duty to step up and assist with filling this need.

Has your library started partnering with faculty to meet this need? Do you have any thoughts about this opportunity? I look forward to hearing from you.

Put Your (Hathi) Trust in Fair Use

Once again, a court has confirmed that libraries may rely upon fair use when digitizing copyrighted works and making them available for new purposes and audiences.  The Second Circuit Court of Appeals issued its opinion yesterday in the Authors Guild’s appeal of the summary judgment rendered in favor of  HathiTrust Digital Library and several of its university library partners.  At issue in the underlying case was the legality of HathiTrust’s digitization of thousands of copyright protected books. Digitization had been done for three purposes: to create a searchable database allowing researchers to identify relevant works through keyword searches; to provide access for those with print disabilities; and to digitally preserve unavailable but still copyrighted titles that were lost, destroyed or deteriorated.

Following the district court’s grant of summary judgment in favor of HathiTrust, the Authors Guild appealed. (Click here for my summary of the 2012 judgment in the AG v. HT lawsuit.) The Second Circuit affirmed the district court’s grant of summary judgment in favor of HathiTrust as to full text searching and print disabled access but vacated and remanded as to the issue of preservation. Brian Carver at UC Berkley’s iSchool nicely summed up the decision: “Today’s decision is an important reaffirmation of the fair use doctrine’s role in enabling transformative uses of copyrighted works that enable the creation of new information-location tools and in the ability of libraries to serve the needs of their print disabled patrons.” Going forward, it will be interesting to see what impact this decision has on other pending fair use cases, including the appeal of the copyright infringement lawsuit against Georgia State for its electronic course reserves practices.

In its opinion, after providing a nice summary of previous cases that illustrated the application and importance of fair use, the court sets forth its view of the four factors of fair use and their application:

Factor One – The purpose and the character of the use. The focus here is on transformative uses; however, the appeals court disagreed with the district court’s characterization of what is a transformative use. The test is not whether there has been added value or utility; rather, the test is whether the new use or purpose allows the work to serve a new and different function while not also merely being a substitute for the original work.

Factor Two -The nature of the work. The appeals court continues the precedent of prior adjudications and looks at whether the work is more creative, which is more valued in copyright law, than factual.

Factor Three -The amount of the work used. The inquiry here is whether the quantity and value of the materials used is reasonable in relation to the new uses. That is, does the transformational character of the use justify the quantity used?

Factor Four – The effect on the market for the original work. The appeals court asserts that this is the single most important element of fair use and that the burden is upon the copyright holder to demonstrate that the secondary use serves as a substitute for the original work.

With its fair use framework established, the appeals court turns to evaluation of the purposes of HathiTrust’s digitization efforts:

Full Text Searching

Factor One – “The creation of a full-text searchable database is a quintessentially transformative use” the appeals court declares. Because authors do not write works with the purpose of enabling text searching, the digitization of those works to enable this function adds to the original “something new with a different purpose and a different character.”

Factor Two – Like the district court, the appeals court dismisses this factor as not dispositive of the case because of the overwhelming transformative nature of the creation of a full text search database.

Factor Three – Digitization of entire works was not unreasonable as it was necessary in order to enable the full text search of the HathiTrust corpus. The existence of multiple copies on different secure servers also did not negate a finding of fair use as, again, their existence was necessary to enable the functionality of the database.

Factor Four – The appears court claims that “the only market harms that count are the ones that are caused because the secondary use serves as a substitute for the original, not when the secondary use is transformative.” The appeals court dismisses the Authors Guild’s argument that the creation of the HathiTrust Digital Library could impede their ability to sell licenses to digital copies of the works. “Lost licensing revenue counts…only when the use serves as a substitute for the original,” and it has already been established here that the full text search function did not stand as a substitute for the original works.

Print Disabled Access

Factor One – The appeals court disagreed with the district court’s characterization of providing access to print disabled persons as transformative: “providing expanded access to the print disabled is not ‘transformative.’…By making copyrighted works available in formats accessible to the disabled [HathiTrust] enables a larger audience to read those works, but the underlying purpose of the use is the same as the author’s original purpose.” However, a finding of a transformative use is not required for a use to be deemed a fair use. And here, providing access to persons with print disabilities is a valid purpose under Factor One as evidenced by the legislative mandate of accommodation.

Factor Two – In short order, the appeals court states that Authors Guild wins on this factor, but a a win on this factor does not preclude an overall finding of fair use.

Factor Three – The digitization and conversion of the full copyrighted works was necessary to allow print disabled persons to perceive the works and thus was in line with and supportive of the purpose.

Factor Four – Looking at the current market for commercially available accessible works the appeals court determines that it is “insignificant” because publishers typically forgo royalties that are generated through the sale of books manufactured in specialized formats for persons with print disabilities. Further, it has been a recognized problem that more titles are not made available to persons with print disabilities. HathiTrust’s work addresses this problem while not causing any harm to the market.

Preservation

The appeals court does not believe that Authors Guild has standing to challenge this purpose of HathiTrust’s digitization because no evidence was presented that the members they represent owned copyright in works that had been shown to be irreplaceable at a fair price and thus subject to digitization by HathiTrust for preservation purposes. Therefore, the appeals court vacated the district court’s judgment as to this claim.

 


Additional recommended reading on the case:

James Grimmelman – “Google Books Round 86: Libraries Win Yet Again
Krista Cox (ARL) – “Second Circuit Affirms Fair Use in Authors Guild v. HathiTrust

The Impact of Copyright on the Resource Sharing Practices of ASERL Libraries

I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The final of these four papers is posted below and at the ASERL website.

 

Introduction

Resource sharing emerged as a common library service in the mid-1960s as library automation and telecommunication technologies developed. These developments allowed library networks to grow from an already-established tradition of cooperation among American libraries. The two primary forms of resource sharing in the early days were interlibrary loan and cooperative acquisitions.[1] When resource sharing involving only delivery of physical objects, libraries were only concerned with complying with the Copyright Act, primarily Section 108(g)(2), which states that libraries are not prevented from entering into sharing arrangements so long as the receiving library does not receive copies in such quantities as to substitute for a subscription of the work. As resource sharing grew and electronic access arose as a means of quick and efficient delivery, a group of libraries and publishers known as the National Commission on New Technological Uses of Copyrighted Works – or CONTU – convened in 1976 to develop agreed-upon guidelines for what was acceptable under the newly enacted Copyright Act.  The essential component of these guidelines is the “Rule of 5.”  That is, within a single calendar year a library should not borrow more than five articles from the most recent five years of publication of a journal. Needing more than five articles from the five most recent years of publications would indicate a subscription to that publication is warranted and permission from the journal is required for further reproduction and sharing.[2]

Today, as libraries engage in a variety of resource sharing activities involving the sharing and acquisition of both print and electronic resources domestically and abroad, and within local and global consortia of libraries, questions arise whether the nearly 40-year old CONTU guidelines reflect current assumptions about copyright law, fair use, and  the scholarly communication system as it presently exists.  More directly, what impact does copyright law have on the various modes of resource sharing in which libraries are engaged? What about license agreements? With libraries now collecting more digital content than print, how are libraries protecting copyright and fair use, observing the Rule of 5, and also fulfilling patron expectations for access and use of electronic content? The problem with guidelines is that they have a tendency to both narrowly construe the law and create rigidity in its application. This comes out of a need for the guidelines to be acceptable to many diverse groups with competing interests.[3]

ASERL Survey Results

To gauge current practices and attitudes about these issues among ASERL members, a survey was devised in February 2014 to determine what types of resource sharing practices were in use, what  policies govern their resource sharing practices, and how copyright considerations impact lending or acquiring materials through resource sharing.[4] Twenty-six libraries of ASERL’s 38 member libraries responded. Their responses reflect a wide range of resource sharing activities across a wide geographic area and a mix of attitudes and practices regarding the application of copyright law and negotiation of e-resource licenses to their resource sharing activities.

Not surprisingly, all the survey respondents indicated that they regularly share print books via physical delivery (e.g., U.S. Mail), as well as articles or other scanned, non-returnable materials via both physical and electronic delivery. When sharing resources by these means, most members did not discriminate by library type, lending within the state, across the country or across the globe. However, most libraries indicated that they are not presently engaged in sharing of electronic books in any way, and the few that are currently loaning electronic books indicated that only a single chapter or limited excerpts are shared. The small number of libraries loaning electronic books is likely due to license restrictions. Only three ASERL libraries indicated that they regularly include provisions to permit resource sharing when they negotiate the terms of electronic book licenses, even though nearly all other respondents regularly negotiate resource or scholarly sharing rights in licenses for electronic journals and databases.

Currently, only about 1/3 of the libraries that responded to the survey employ a system for tracking these electronic resource license terms. Sample license terms provided by respondents indicate an adherence to Section 108 of the Copyright Act and the CONTU guidelines but do not reflect fair use considerations being made in resource sharing decisions. A few of these examples are below:

  • “Under the terms of this Site License, the Licensee is granted the non-exclusive right to supply (whether by post, fax or secure electronic transmission, using Ariel or its equivalent, whereby the electronic file is deleted immediately after print) to an authorized user of another USA library for the purposes of research or private study and not for commercial use, a single paper copy of an electronic original or an individual document from a journal for which a subscription has been paid at the full current subscription rate, in compliance with Section 108 of the United State Copyright Law and with guidelines developed by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines).”
  • “The Institutions shall be permitted to use Reasonable Amounts of the Licensed Materials to fulfill occasional requests from other, non participating institutions, a practice commonly called Inter-Library Loan. Customer agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC §108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and the Guidelines for the Proviso of Subsection 108(2g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU).”
  • “Licensee may fulfill a reasonable number of requests for Interlibrary Loan of the Licensed Materials from institutions not participating in this Agreement, provided such requests comply with Section 108 of the United States Copyright Law (17 USC §108) and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines). Licensee may use print or electronic copies derived directly or indirectly from the Licensed Materials for the purpose of Interlibrary Loan with the same limitations that prevail for paper copies for that purpose made from print journals.”

All of the responding libraries indicated that they employ the CONTU guidelines when making resource sharing decisions. Sixteen of the responding libraries indicated that their resource sharing practices have been codified into a formal written policy. Eleven of those policies specifically address copyright compliance in resource sharing. Most of the respondents have designated someone within the library to handle questions of copyright compliance as pertains to resource sharing:

 

Title of Person Responsible for Copyright Compliance in Resource Sharing Number of Schools
Borrowing Services/ILL Librarian 15
Access Services Librarian 1
Dean or Director 2
Library Assistant 2
Scholarly Communications Librarian 2

 

In assuring copyright compliance, almost all responding ASERL libraries indicated that they use the Copyright Clearance Center for processing copyright permissions and fees. And although not reflected in the sample license terms provided above, almost all respondents indicated that they consider the principles of fair use when making decisions related to resource sharing. Further, about half of the respondents stated that their staff checks for an open access equivalent – whether it be in an institutional repository, HathiTrust, Internet Archive or some other OA resource – when responding to patron requests for items not owned by the library.

At the conclusion of the survey, respondents were asked to share any final thoughts they had on copyright and resource sharing. One respondent highlighted the growing complexities of international copyright laws and restrictions on interlibrary loan. This is an issue that has come up in the literature and in the news in recent years and will likely continue to cause libraries headaches as US universities establish campuses overseas, the number of online students in other countries expands, and the willingness to lend items to institutions in other countries grows. Other respondents commented on the restrictions in licenses with regard to sharing e-book content with persons outside the subscribing institution. Finally, technological hurdles were also cited as an impediment to lending electronic books.

 Conclusion

Resource sharing as a library service has grown exponentially since its advent 50 years ago. Changes in technology have expanded the ability of libraries to share and acquire more information efficiently and quickly, but the failure of copyright law to similarly adapt and change has complicated policy and decision making. As a result, libraries have continued to rely on outdated guidelines and encountered difficulties in negotiating license terms that have raised questions and challenges about the future of resource sharing as a service. The experiences and practices of ASERL libraries demonstrates that the issue of copyright compliance and best practices in resource sharing requires further examination, discussion, and revision in order to meet patrons needs for ready access to scholarly information and assure the principles of fair use are preserved.

Fair use has become increasingly important to the way libraries provide information as evidenced by not only court cases testing the boundaries of fair use in libraries but also the development and promotion of best practices for fair use in libraries. However, reliance upon the outdated “Rule of 5” may hinder utilization of fair use by restricting libraries to numerical guidelines where a broader view of the principles of fair use may be, in application, more equitable to the rights of users and  the rights of copyright holders as well. Further, ASERL members’ experiences demonstrate that licensing practices do not always allow libraries to utilize fair use for purposes of resource sharing. Finally, the growing availability of open access resources demands a need for staff training and workflow revision.

 

[1] Norman D. Stevens. “Library Networks and Resource Sharing in the United States: An Historical and Philosophical Overview.” Journal of the American Society for Information Science, vol. 31, no. 6 (1980): 405-412.

[2] William Gray Potter. “Scholarly Publishing, Copyright and the Future of Resource Sharing.” Journal of Library Administration. Vol. 21, no. 1-2 (1995): 49-66.

[3] Kenneth Crews. “The Law of Fair Use and the Illusion of Fair Use Guidelines.” Ohio State Law Journal, vol. 62, no. 2 (2001): 599-702.

[4] See the full survey results at http://www.aserl.org/?attachment_id=4118.

Open Access Policies at ASERL Institutions

I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The third of these four papers is posted below and at the ASERL website.

 

Introduction
The Association of Southeastern Research Libraries (ASERL) for the first time commemorated Open Access Week in October 2013 with a live interview[1] with international open access leader Peter Suber[2]. In this webcast, Dr. Suber, author of the definitive guide to open access[3], spoke with me about the current state of open access and its potential to help solve many of the problems currently plaguing the system of disseminating and accessing scholarly research. These problems include rising subscription costs, declining library budgets, disparate access to research, and loss of control over one’s own research through one-sided copyright agreements. One of the means advocated by Dr. Suber to address these problems is the adoption of open access policies by academic institutions:

“Every strong, new policy increases the likelihood of publisher accommodation, and when enough universities and funders have policies, all publishers will have to accommodate them. In that sense, every strong new policy creates some of the conditions of its own success. Every institution adopting a new policy brings about OA for the research it controls and makes the way easier for other institutions behind it….A critical mass is growing and every policy is an implicit invitation to other institutions to gain strength through common purpose and help accelerate publisher adaptation.”[4]

Several ASERL member institutions have adopted open access policies.[5] These policies differ in their origins, requirements, and application. However, similar issues and questions arose for those involved in the drafting and promotion of the policies, and their collective experience is instructive to other institutions contemplating adoption of an open access policy.[6]

Policy Formation
For many institutions that have adopted open access policies[7], the idea first formed within the institution’s library. For some ASERL members, this was also true. For example, at the University of Central Florida, the idea of an open access policy was raised before that University’s Faculty Senate by the library’s collection development manager and this presentation served as the impetus behind a larger conversation that led to passage of a resolution supporting open access publishing. Similarly, at Florida State University, a research librarian and an e-science librarian raised the issue of open access with the Faculty Senate’s Library Committee, which led to the charging of a task force to undertake the drafting and presentation of an open access policy to the larger Faculty Senate. In some institutions, the idea for a policy begins with a governance body charged with advising the institution’s library. At Emory University, the idea for an institutional open access policy grew out of discussions the University’s Senate Committee on Library Policy had on scholarly communications issues. Similarly, at the University of Florida, the Faculty Senate’s University Libraries Committee took on responsibility for drafting an open access policy for consideration by the full Faculty Senate.

Other times the idea for a policy begins with faculty or a faculty group that is external to the institution’s library. At Georgia Institute of Technology, a faculty member from the College of Computing brought the issue of open access to the forefront by facilitating presentations and town hall meetings where open access and the possibility of an institutional policy was discussed. At Duke University, the idea of an open access policy arose in conversations among the Digital Futures Task Force, a group appointed by the University’s Provost after the University was awarded a Mellon Grant to develop strategies and infrastructure to support new models of digital information use, management, dissemination, and preservation. Dr. Suber strongly favors faculty-led initiatives. As he and his Harvard colleague Stuart Shieber instruct in the “Good Practices for University Open-Access Policies,” the persons leading the campaign for an open access policy should be faculty, with support from librarians: “If the idea and initial momentum came from librarians or administrators, they should find faculty members willing to lead the effort. Because the policy will apply to faculty more than others, it should be a faculty initiative and should be perceived to be a faculty initiative. Otherwise, many faculty will suspect or object that they are being coerced.”[8]

Concerns Raised by Faculty
It is clear that faculty awareness and buy-in are keys to successful adoption and implementation of institutional open access policies. Education and consensus building takes place through formal and informal conversations at department and college level meetings, facilitated town halls, and more indirect forms of communication such as FAQs. These conversations give faculty and others affected by the policy opportunity to raise concerns about policy adoption and implementation. Dr. Suber identified many of these common concerns in the “Good Practices for University Open-Access Policies.”[9] ASERL schools also encountered many of these same concerns in the conversations taking place on their campuses with respect to open access policies. ASERL members I spoke to frequently indicated that faculty expressed confusion about what open access was and what an open access policy required. Faculty equated an open access policy with a mandate to publish only in open access journals to the exclusion of all other publications. This misunderstanding requires an explanation to faculty of the difference between “green” and “gold” open access and a reassurance that faculty may publish in the journal of their choice with, depending on the policy’s terms, a reservation of the right to archive a version of their articles in an open access repository.

Faculty at ASERL institutions also raised questions about the label assigned to the policy document. Many objected to referring to the policy as a “mandate.” Even though the policies adopted at ASERL institutions essentially allow for voluntary participation by their terms or through provision of a waiver, faculty view the terms “mandate” or “mandatory” as hostile and an affront to academic freedom. Dr. Suber addresses this issue in his book, stating: “Unfortunately, we don’t have a good vocabulary for policies that use mandatory language while deferring to third-person dissents or first-person opt-outs.…The word “mandate” is not a very good fit for policies like this, but neither is any other English word.” [10] Language was also raised as an issue in reference to the description of the version of an article to be deposited in a repository. Faculty at ASERL institutions reported unfamiliarity with the meanings of the terms “preprint” and “postprint.” This confusion highlights the importance of addressing in pre-adoption conversations and in any accompanying documentation not only the distinction between a “preprint” and a “postprint” but also the role of peer review in open access scholarship. Although the preference for open access policies is to request deposit of postprints (the final peer-reviewed manuscript prior to publication), some open access policies and repositories focus on “preprints” (the manuscript version prior to peer review). It is important to distinguish for faculty that open access built on preprints is not a means of bypassing quality measures but rather is a means of making work available more quickly, thereby “creating new and earlier opportunities for citation, discussion, verification, and collaboration.”[11] As Dr. Suber aptly notes, open access is “a kind of access, not a kind of editorial policy.”[12]

Another common concern expressed by faculty at ASERL institutions is the belief that implementation of an open access policy will create a burden upon faculty. There is the perception that compliance with the terms of an open access policy will require a great amount of work. Some ASERL institutions have addressed this concern by developing workflows within the libraries to perform much of the work for faculty. For example, at Georgia Institute of Technology the library has utilized Drupal to create a form where faculty can upload their PDFs and have them loaded by the library into the institutional repository, SMARTech.[13] At Duke University, library staff have been involved in searching for citations and mediating deposit of articles when no conflict with published version appears. As a result of this direct assistance, Duke faculty have responded by locating additional materials to deposit into the repository.

Policy Implementation
In his book Open Access, Dr. Suber identifies four types of open access policies: encouragement policies, loophole mandates, deposit mandates, and rights-retention mandates.[14] ASERL institutions interviewed for this article have adopted policies representing three of these four types.

  • The University of North Carolina at Greensboro[15], Florida State University[16] and University of Central Florida[17] have adopted encouragement policies. This type of policy is a resolution encouraging faculty to make their work available open access when it is feasible to do so. There is no grant of license to the institution nor other mandate or requirement to deposit one’s work in an open access repository.
  •  Emory University[18] adopted a policy that is a deposit mandate. The Emory deposit mandate grants the University permission to deposit in its repository articles that are voluntarily published open access; however, for all other articles, the policy allows faculty to embargo access to the works where the copyright agreement with the publisher would not permit access.
  • Both Duke University and Georgia Institute of Technology adopted rights-retention mandates. Through rights-retention mandates, the institutions are granted a nonexclusive license to deposit their faculty’s works into the institutions’ repositories, usually with a waiver provision which allows faculty to opt-out of participation. The policies at Duke and Georgia Tech both include waivers, and both have attempted to make waivers easy to attain. At Georgia Tech, for example, a request of a waiver through a simple form is all that is needed.

Next Steps
Adoption of open access policies is usually not the last step for institutions wanting to implement open access campuswide. Continued education about the benefits of open access and refinement of procedures to facilitate deposit of works into repositories are a couple of the activities that may occur once an open access policy has been adopted. ASERL members that have adopted open access policies are also engaged in further activities.

  • At the University of Central Florida and Florida State University, activities are underway to revisit the issue of open access in their respective faculty governance bodies with the goal of moving from a resolution encouraging open access to a more formal policy, whether it is a deposit mandate or a rights-retention policy.
  • The University of Central Florida will also be taking steps to develop an institutional repository, which will be a prerequisite to adoption of any policy requiring deposit of faculty works.
  • The policy at University of North Carolina at Greensboro current applies only to library faculty and the next step is to move toward a resolution that is applicable to the greater faculty body of the University.
  • Duke University is working to integrate compliance with the open access policy into the University’s faculty reporting system. Duke recently launched a faculty reporting system called “Elements.” Within that system, faculty will be allowed to upload their articles with a single click, and they will also have access to data from SHERPA/RoMEO[19] about the deposit policies of individual journals, which will assist them with determining what article version they are permitted to archive in the university’s repository.

Conclusion
At the conclusion of his discussion of institutional open access policies, Dr. Suber asserts that in the arena of open access, universities have the opportunity to be leaders rather than followers by adopting open access policies.[20] Several ASERL institutions have established themselves as leaders by adopting policies that exemplify best practices for adoption and implementation of open access policies. Their experiences and available expertise can instruct other institutions within ASERL and beyond on how to open up a dialogue on their campuses about open access and progress toward adoption of a formal open access policy. As quoted above, “[e]very institution adopting a new policy brings about OA for the research it controls and makes the way easier for other institutions behind it.” As more institutions educate their members about the benefits of open access and facilitate, through policies and supportive mechanisms the opening up of scholarship to others, publishers will adapt to make research more open and accessible and the weaknesses in the current system of scholarly communication will be strengthened.

[1] To view the recording of the interview, please visit http://bit.ly/GJz1mN.

[2] For more about Peter Suber, visit his home page at http://bit.ly/petersuber.

[3] Peter Suber. Open Access. MIT Press: Cambridge, MA 2012. The book is available open access in a variety of formats at http://mitpress.mit.edu/books/open-access. Additional updates and supplements to the text can be found at http://bit.ly/oa-book.

[4]Id. 94-95.

[5] For this article, I interviewed persons at the University of Central Florida, University of North Carolina at Greensboro, Florida State University, Emory University, Georgia Institute of Technology, and Duke University. Where relevant, I have also included information from the University of Florida, where an open access policy draft is currently under consideration.

[6] For more information on drafting institutional open access policies, please see “Good Practices for University Open-Access Policies” at http://cyber.law.harvard.edu/hoap/Good_practices_for_university_open-access_policies. This guide was written and is maintained by Dr. Suber and Stuart Shieber for the Harvard Open Access Project.

[7] For a list of United States institutions that have adopted an open access policy, see the ROARMAP listing at http://roarmap.eprints.org/view/geoname/geoname=5F2=5FUS.html.

[8] See Adopting a Policy in the “Good Practices for University Open-Access Policies” http://cyber.law.harvard.edu/hoap/Adopting_a_policy

[9] See Talking About a Policy in the “Good Practices for University Open-Access Policies” http://cyber.law.harvard.edu/hoap/Talking_about_a_policy

[10] Suber, Open Access, 87-88.

[11] Id. at 102.

[12] Id. at 103.

[13] https://smartech.gatech.edu/

[14] Suber, Open Access 78-81.

[15] University of North Carolina at Greensboro Open-Access Policy for Library Faculty http://library.uncg.edu/services/scholarly_communication/open_access_policy.aspx

[16] Florida State University Open Access Resolution http://guides.lib.fsu.edu/content.php?pid=228434&sid=1889920

[17] University of Central Florida Faculty Senate Resolution on Library Scholarly Literature http://www.facultysenate.ucf.edu/resolutions/2004-2005/index.asp

[18] Emory University Open Access Policy http://guides.main.library.emory.edu/content.php?pid=43389&sid=2144393

[19] http://www.sherpa.ac.uk/romeo/

[20] Suber, Open Access at 95.

The New Scholars: Library Publishing of Undergraduate Research Journals

I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The second of these four papers is posted below and at the ASERL web site.

 

Introduction

“Library publishing” is the latest buzzword on the tongues of library science practitioners and scholars. As the academic publishing world adapts to new business models and growing expectations for open accessibility, libraries have responded by adopting the role of publishing services provider. Recent reports[1] and the formation of the Library Publishing Coalition[2], an “organization dedicated to advancing the emerging field of library publishing,” evidences the foothold that libraries are asserting in the publication and dissemination of scholarly research in support and hosting of open access content. Members of the Association of Southeastern Research Libraries (ASERL) are active participants in this growing area of library service. In a Fall 2012 survey of ASERL members, 18 libraries reported that they were engaged in the hosting or publication of open access scholarly journals through the Open Journal Systems software[3], an institutional repository, or some other digital publishing platform.

However, academic library engagement in publishing is not mandated only by the changes in the business of scholarly publishing. The Association of College and Research Libraries also has charged academic libraries with educating students about the economics of the distribution of scholarship as part of the information literacy mission. Specifically, ACRL has found that “librarians who have become more involved with student-run journals find that working with undergraduate students as authors, editors, and publishers is an excellent way to teach about the economic, technological, and legal aspects of publishing, emphasizing the traditional life cycle of scholarly information.”[4]

Publication of undergraduate research is not without its challenges, however. A major issue is sustainability. A natural consequence of working with students is turnover in editorial support staff. Maintaining faculty support and enthusiasm can also be challenging. Another factor for sustainability is competition with disciplinary journals. To succeed, the undergraduate journal needs to offer distinctive and complementary positioning to the disciplinary journal. Another challenge faced by those producing undergraduate research publications is formulation of a streamlined workflow. Questions such as who should conduct peer review, how should the content be disseminated, and what body should maintain control of editing and journal design frequently stymie persons involved in undergraduate research journal publication.[5] Despite these challenges, academic libraries are thriving in the realm of undergraduate research publication. A survey by the Library Publishing Coalition, which will soon be published as a “Directory of Library Publishing Programs,” found that 57% of the responding libraries publish student journals.[6] ASERL Libraries are also engaged in publishing the research of undergraduate students. Three ASERL members recently presented on their undergraduate research publication activities.[7]

Tulane University

Already a host to two journals dedicated to undergraduate scholarship[8], Tulane University Libraries is a partner with its Center for Engaged Learning and Teaching[9] to develop a new undergraduate research journal, entitled Tulane Undergraduate Research Journal, that seeks to address the challenge of sustainability in publication of undergraduate research and provide an academic outlet to students seeking to become creative, inquisitive, ethical and responsible scholars. The goal of the journal’s planners is to create an organizational model that utilizes the existing relationship between faculty and the Center’s student fellows. The student authors of this new journal will be designated as Fellows of the Center working with faculty mentors on research projects in a variety of academic disciplines, including the liberal arts, science and business. The journal’s editorial board will be comprised of faculty from each of the University’s major schools and departments. Student representatives on the editorial board will function as liaisons between faculty advisors and other students. At present, there is no publication date for the new journal’s first issue. Journal planners are focusing on building adequate support within the academic community to ensure the journal’s sustainability under the proposed model. Discussions are also underway to restructure the two existing undergraduate research journals to incorporate some or all of the elements of the model devised for the Tulane Undergraduate Research Journal.

Florida State University

Started in 2010, The Owl is Florida State University’s vehicle for publication of undergraduate student research.[10] The journal started as a print publication, but migrated to online publication in 2012 through the University’s institutional repository, DigiNole. The journal is now the third most accessed item in the institutional repository. Prior to migration of the journal to DigiNole, The Owl editorial team grappled with issues concerning editor-author email communication, the process for submission of manuscripts, and the professional appearance of the journal. However, by partnering with the library and using DigiNole, the journal was able to address these challenges. Manuscript submission was centralized such that editorial board members had a single easy-to-access site for submissions. Editor-author communication was also moved to the system, thereby obviating the need to use a less secure and inefficient shared email address. The library also has been an instrumental partner in adopting a smoother workflow by training editorial board members on how to use the features of the DigiNole platform. The library’s role will continue as the journal staff works on marketing the journal to the larger campus population and assists in development of citation analysis and reporting of the journal’s impact.

University of South Florida

Successfully publishing undergraduate mathematics research since 2008, the Undergraduate Journal of Mathematical Modeling[11] positioned itself to have greater impact and presence when in 2012 it contacted the library at the University of South Florida about including the journal in the institutional repository, Scholar Commons. Librarians managing Scholar Commons met with the editorial board to review the journal’s needs and issues, such as quality and sustainability. The journal was deemed eligible for inclusion, and design of the journal’s launch page and migration of content began.By partnering with the library for central management of the journal through Scholar Commons, the journal has enabled the library to assign DOIs to articles using CrossRef, to improve indexing of the journal in several databases including the Directory of Open Access Journals, and to streamline the submission and editorial processes. As a result, the journal has experienced a marked increase in findability as evidenced by a steep increase in full-text downloads, from 271 full-text downloads in May 2012, which was the month prior to migration to Scholar Commons, to nearly 700 full-text downloads per month following the journal’s publication in Scholar Commons.

Conclusion

The number of libraries engaged in library publishing services is likely to increase as the scholarly publishing world continues to adapt to new challenges and requirements brought on by the changing economy and governmental mandates. Further, as librarians integrate scholarly communications into information literacy instruction targeted at undergraduates, and universities continue to take interest in the potential of younger researchers, development of additional journals showcasing undergraduate research seems likely. Libraries are a natural partner and collaborator in the development and promotion of these journals, and the number of ASERL Libraries involved in the publication of undergraduate research journals demonstrates how this can be successful. Further, ASERL libraries have succeeded in addressing the challenges often associated with publishing undergraduate scholarship. Through utilization of existing infrastructure and contribution of expertise, ASERL libraries have helped the undergraduate populations they serve showcase their research in a searchable and sustainable way.

[1] In March 2012, SPARC issued the final report documenting the findings and recommendations of the “Library Publishing Services: Strategies for Success” project which surveyed the publishing activities of North American academic libraries and suggested ways these services could be broadened and strengthened. http://docs.lib.purdue.edu/purduepress_ebooks/24/. In August 2013, the free eBook Library Publishing Toolkit was released. The Toolkit examines the “broad and varied landscape of library publishing” through case studies and articles on the current state of library publishing activities. http://www.publishingtoolkit.org/

[2] Library Publishing Coalition, http://www.librarypublishing.org/.

[3] Public Knowledge Project, Open Journal Systemshttp://pkp.sfu.ca/?q=ojs.

[4] Association of College and Research Libraries. Working Group on Intersections of Scholarly Communication and Information Literacy. Intersections of Scholarly Communication and Information Literacy: Creating Strategic Collaborations for a Changing Academic Environment. Chicago, IL: Association of College and Research Libraries, 2013, 7-8. http://www.ala.org/acrl/sites/ala.org.acrl/files/content/publications/whitepapers/Intersections.pdf

[5] Charles Watkinson, “Library Based Publishing: Focus on Undergraduate Research Journals,” Presentation to the Association of Southeastern Research Libraries, July 23, 2013. http://www.aserl.org/wp-content/uploads/2013/07/Perdue_Undergrad_Journals.pdf .

[6] Id. See also Council on Undergraduate Research’s list of undergraduate journals at http://www.cur.org/resources/students/undergraduate_journals/.

[7] Association of Southeastern Research Libraries, “Library Based Publishing – Focus on Undergraduate Research Journals,” July 23, 2013. See http://www.aserl.org/archive/ for archived presentation and presenter slides.

[8] See Second Line: An Undergraduate Journal of Literary Conversation and Tulane Journal of International Affairs at Tulane University Journal Publishing, https://library.tulane.edu/journals/index.php

[9] http://tulane.edu/celt/index.cfm

[10] http://diginole.lib.fsu.edu/owl/

[11] http://scholarcommons.usf.edu/ujmm/

Putting Money Where Our Mouths Are: Libraries Funding Open Access Publishing

I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The first of these four papers is posted below and at the ASERL web site.

 

Like research libraries around the world, members of the Association of Southeastern Research Libraries (ASERL) have seen the growth of open access (OA) as a mode of scholarly communication and a resulting rise in the number of open access journals. Today there are nearly 9,000 open access journals published worldwide.[1] A common business model adopted by open access journals for funding their operations is collection of Article Processing Charges (APC) from authors. As a means of supporting the open access movement and encouraging their faculty to publish in open access journals, many universities have established campus-based open access funds. In a 2012 survey[2] of ASERL members about their open access advocacy activities, more than 1/3 of the responding libraries indicated that they currently administer an open access fund, and several additional libraries indicated plans to launch funds in the near future. I recently chatted with several ASERL members[3] about the status of the open access fund at their university. The conversations revealed similarities and differences with respect to management and use of open access funds, which are likely reflective of experiences at other universities.

Fund Structure

Conversations with open access fund administrators revealed the multiple ways in which campus-based open access funds are funded. For most, a combination of sources supplies the monies to the fund. A common funding scenario features equal contributions from the library, the provost, and the university’s office of research. Libraries are also committing portions of their central collections budgets to supporting open access publishing. The collective hope is that diversion of funds from subscriptions to support of open access will encourage publishers to adopt open access as a model and reduce subscription costs. At the same time, universities should be educating their faculty on the cost of publishing and the values of open access. Until there is such a level of awareness to bring about the desired shift in publishing economics, libraries will be faced with the decision of potentially canceling subscriptions in order to continue financially supporting open access publishing activities of the faculty.[4]

Interestingly, ASERL libraries have experienced some very different levels of use of the OA funds. One of the funds is still operating with its initial allocation dating from 2008, while a couple funds have run out of monies several times during their lives, leaving faculty waiting for notice regarding the funds’ uncertain future. Libraries have capitalized on this by presenting evidence about the utilization of the fund by faculty and graduate students from diverse disciplines and the growing support within the greater academy for open access, oftentimes leading to recurring support for the OA funds across multiple years. The funds represented in this report allocated from $12,000-$75,000 annually for support of open access publishing.

Eligibility of Applicants and Publications

ASERL libraries are using their OA publication fund as a “fund of last resort,” that is, researchers with grant monies must use grant funds to pay APC charges. Additionally, all librarians I interviewed noted that the failure to include publication costs in a grant application was “not an excuse” for waiver of this eligibility criterion, and all had denied awards on the basis of available grant funding. There were differences in processes used to verify an applicant’s grant status. While some fund administrators regularly verified the availability of grant funds to the applicant through the university’s office managing sponsored research, others simply took applicants at their word regarding the availability of other monies to cover open access publication costs.

All fund administrators permitted applications from faculty, students and staff. One fund administrator reported no difference in the number of tenured versus untenured faculty applying for assistance. This is interesting because a common argument against open access is the reliance of tenure and promotion upon publication of articles in journals with high impact factors or rankings, both of which may not be assigned to or measured for many open access publications. That untenured faculty are publishing in open access journals at the same rate as tenured faculty may discredit this perceived weakness of publishing in open access journals. Additionally, two fund administrators indicated that the faculty at the medical colleges affiliated with their universities were not eligible for support through their campus-based open access fund. Interestingly, these same two funds experienced slower rates of fund depletion experienced at universities that provided APC funds for medical faculty. This supports the common perception that open access is most prevalent and accepted within medical and other life sciences.

There was some variance in practice regarding support of APC charges in “hybrid” open access journals. Hybrid open access journals are those that charge a subscription for access to journal content but also permit open access to those articles where the author has paid an open access fee. Most OA fund administrators believe publishers have added to their revenue stream by collecting the additional dollars from authors willing to pay to make their work openly accessible. As a result, most OA fund administrators in ASERL do not provide funding for hybrid journal articles. However, one fund administrator supports hybrid journals as their library did not want to close any avenue to making research available through open access; if an author was interested in making his/her article available open access, even if through a subscription journal, the library felt fund should support it.

Perceived Quality of OA Journals

There was also much discussion of the quality of open access publications. Most administrators reported that they had rejected applications on the basis of poor journal quality. Quality decisions were typically based upon a listing in the Directory of Open Access Journals (DOAJ) and adherence to OASPA’s Code of Conduct[5]. The use of Beall’s List of Predatory Publishers[6] for determining eligibility was also discussed. While all admired the thought and work that is put into maintenance of Beall’s List, many believed it should not be relied upon exclusively as an arbiter of quality or ethical practice. Some administrators believe the criteria of Beall’s List, if applied, could potentially exclude high-ranking traditional, subscription-based scholarly journals on account of their business and editorial practices. Others felt the criteria also have the potential of mislabeling good quality journals that are too new to be fully tested as predatory, or those that focus on such niche or specialized topics that their coverage and appeal to a narrow group of scholars matters more than adherence to potentially arbitrary criteria.

Fund Usage

The usage of the campus-based funds within ASERL libraries mirrored the national trend of open access prevalence in the sciences. Administrators reported that the departments most often using their funds came from medicine, nursing, veterinary medicine, and engineering. All funds had applications from the social sciences and humanities, and one fund administrator indicated that support through the fund of publication of open access books would likely encourage usage in those disciplines. The fund administrators also concurred that faculty and students from business related disciplines had not applied for funds. It is unclear whether a paucity of open access business journals, attitudes of business colleges, or availability of other funds has led to the lack of participation from these disciplines in open access publishing.

Related to the usage of the fund, we discussed how our campus-based funds had been marketed. Typical marketing venues were reported – websites, brochures, and targeted emails. However, the most effective marketing tactic appeared to be word of mouth; most applicants learned about the fund through other applicants. Further, despite their marketing efforts, administrators were still dismayed by how many faculty had never heard of the fund, even after it had been in place for a few years. Through this discussion, administrators indicated a desire that library liaisons or subject experts engage more with faculty and students about scholarly communication issues and inform them of the resources available for publication support.

A few administrators noted spikes in the number of applications submitted at various times during the year. There was no clear correlation between the timing of these spikes and the academic calendar nor discernible publishing cycles. This was a point of considerable curiosity, and we determined this may be worth investigating on a larger scale.

Future of Open Access Funds

The conversation about campus-based open access funds concluded with a discussion of their sustainability. While all agreed that the availability of open access publishing funds was an important part of a university’s overall open access advocacy plan (“it’s putting money where our mouth is”), most fund administrators agreed that the business model of authors paying APCs was not sustainable in the long-term. The administrators were intrigued by emerging business models adopted by the journals eLife[7] and PeerJ[8], and the success of these new models will be watched closely. The outcomes of the directive from the White House Office of Science and Technology Policy[9] and the proposed Fair Access to Science and Technology Research Act[10] will also greatly impact the future of funding open access publishing and will be closely monitored. The group pondered whether libraries should be diverting funds used to pay subscriptions to large, expensive bundles of largely low-use journals into support of open access, and how libraries could better advocate the many open access journals that do not charge any APCs. Regardless, the APC model of funding open access is likely here to stay for the foreseeable future; if universities want to support open access in more than words alone, the administrators believe universities – not just libraries – should plan to sustain campus-based open access funds through recurring funding.

Conclusion

The Fall 2012 survey of ASERL member libraries regarding their open access activities revealed a keen awareness of and a high percentage of participation in open access advocacy and support. Distribution of funds to support open access publishing is just one of the ways ASERL members promote open access to research. In order to facilitate further conversation and collaboration in open access and other scholarly communication initiatives, ASERL has undertaken development of a scholarly communications program. Through presentations on scholarly communications topics such as altmetrics and library publishing, an in-person event on the role of open access in liaison activities, and the appointment of a visiting program officer for scholarly communications, ASERL hopes to inspire its members to continued advocacy and leadership in the area of scholarly communications

[1] See Heather Morrison’s “Dramatic Growth of Open Access” for quarterly updates on the increasing number of open access articles and journals. http://poeticeconomics.blogspot.ca/2006/08/dramatic-growth-of-open-access-series.html

[2] For a summary of the full survey, please visit http://www.aserl.org/wp-content/uploads/2013/06/ OA_Survey_Exec_Summary.pdf.

[3] I interviewed Gail McMillan (Virginia Tech), Lisa Macklin (Emory University), Claudia Holland (George Mason University), Kevin Smith (Duke University), Molly Keener (Wake Forest University), and Robin Sinn (John Hopkins University). I also administer the Open Access Fund at University of Florida Libraries and have included my experiences in this reflection on campus-based open access funds.

[4] For more on the cost of open access publishing see Richard VanNoorden’s article “Open access: The true cost of science publishing.” Nature, v. 495, Issue 7442, March 27, 2013. http://www.nature.com/news/open-access-the-true-cost-of-science-publishing-1.12676

[5]http://oaspa.org/membership/code-of-conduct/

[6]http://scholarlyoa.com/2012/12/06/bealls-list-of-predatory-publishers-2013/

[7] http://www.elifesciences.org/

[8] https://peerj.com/

[9] “Increasing Access to the Results of Federally Funded Scientific Research,” Memorandum of the White House Office of Science and Technology Policy, February 22, 2013. http://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf

[10] Sen. 350, 113th Cong. (Feb. 13, 2013). H.R. 708, 113th Cong. (Feb. 13, 2013).

Third Time is a Real Charm! Another win for fair use.

On Thursday, a judgment was rendered in the long-running copyright infringement action filed by Authors Guild against Google for its Google Books search service wherein in-copyright books, many of which were lent to Google by participating academic libraries, were digitally scanned and snippets of scanned pages displayed to searchers.  Judge Chin, who has presided over much of this eight year roller legal roller coaster, rendered summary judgment in favor of Google, declaring its book scanning and text display fair use.  This judgment is the third in so many months that is overwhelmingly in favor of fair use and the work of libraries, both on their own and in partnership with other entities. In all three cases, similar themes emerged, as demonstrated below, as the trial courts in each case conducted their fair use analyses: educational and research uses are important to promote, providing access to materials to underserved populations is critical, and preservation of at-risk materials is an important social benefit.

Four Factors of Fair Use
In order to invoke fair use, the use or reproduction of a copyrighted work must be for the purpose of criticism, comment, news reporting, scholarship, research or education. Further, there are four factors of fair use, and the balance of these must weigh in favor of such use.  Consideration of all of the fair use factors is required; however, all four factors do not have to weigh equally in favor of the proposed use.

The four factors of fair use are: (1) why is the work being used, (2) what is the nature of the work being used, (2) how much of the work is being used, and (3) what effect does the use of the work have on the market for that work.

Fair Use in Google
Judge Chin found three of the four factors of fair use in favor of Google and thus rendered judgment on its behalf. His determinations on each factor were as follows:

Factor One – In many fair use cases of the last 20 years, a determination of transformative use has been dispositive of the first fair use factor. And here, Judge Chin determined that Google’s use of the digital book scans is highly transformative. The use of snippets of text to facilitate researcher, reader and scholar identification of relevant works as well as the the facilitation of text and data mining for research were deemed by Chin to be new purposes lending toward a finding of transformative use. He also determined that these uses had high educational and research value worthy of protection.

Factor Two – Although the works scanned by Google were of all types (fiction, non-fiction, out of print), Judge Chin found in favor of Google on this factor, determining that the majority of the corpus of works scanned were non-fiction or informational works.

Factor Three – Judge Chin concluded that his analysis of this factor weighed “slightly” against fair use due to the fact that entire books were scanned. However, he also acknowledges that scanning of the entire works was necessary to accomplish the transformative uses of those whole work scans.

Factor Four – Because the search of books on Google was likely to lead to the commercial purchase of the book, Judge Chin found no market harm. The scans would not be used to replace purchase of the original.

Fair Use in HathiTrust
In addition to suing Google, Authors Guild has also filed a copyright infringement lawsuit against HathiTrust and several of its partner university libraries. Author’s Guild alleged that HathiTrust’s digitization of books for the purposes of making preservation copies, to allow for full text searching, to provide access to persons with print disabilities, and to allow access to orphan works violated their members’ rights under copyright law. The trial court granted summary judgment in favor of HathiTrust and the universities last fall. The trial court declined to rule on the orphan works question on the ground the issue was not ripe for adjudication because the program was still in development and not yet active. Notably, the judge wrote “I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants.”

Factor One – The trial court found that the overarching purpose for HathiTrust’s activities is to promote scholarly and research activities, which are squarely within fair use. Scanning works to preserve them, though not transformative, is fair use on account of the overriding public interest in preservation of knowledge. Scanning of works for the purpose of enabling full text searching as a means of identifying works relevant to one’s research is a highly transformative use and thus qualifying as fair use. Digitization for the purpose of providing access to persons with print disabilities is also a highly transformative use qualifying as fair use.

Factor Two – Given the overwhelming transformative nature of the HathiTrust’s uses of the copyrighted works, the court determined that whether or not the works were informational or creative in nature was not dispositive of the fair use question.

Factor Three – The trial court held that even though entire books were scanned, this amount is necessary to the transformative uses made by HathiTrust.

Factor Four – Stating an intention to license the works at a later time for digital access cannot trump the transformative uses already being employed. A copyright holder will not be permitted to preempt a transformative market, particularly where, as here, there is no demonstration of market harm as a result of these noncommercial uses.

Fair Use in Georgia State
In 2008 publishers Sage, Oxford and Cambridge, filed suit against officials at Georgia State University for alleged copyright infringement arising as a result of the posting of book chapters reproduced from handbooks and other books published by them in GSU’s course management system and electronic course reserve system. The case when to trial and in May 2012 the trial court rendered judgment in favor of GSU.

Factor One – Judge Evans found that GSU’s educational purpose was clearly fair use. Significant time was spent distinguishing provision of course reserves by libraries to students enrolled in a course from the for-profit activity deemed infringing in the Kinkos coursepack case. The trial court did find, however, that mere reproduction of scholarly works for course reserves was not a transformative use.

Factor Two – The trial court found that the content of the works copied were largely informational as opposed to creative or artistic and use of informational or factual works was generally considered to be fair use. The court dismissed the “sweat of the brow” argument that the work entailed in producing scholarly works was entitled to greater protection. The court found that permitting reproduction of excerpts of scholarly works had zero effect upon an author’s incentive to create scholarly works. There was no negative impact upon the incentives of prestige, advancement of knowledge or acquiring a positive result in tenure and promotion decisions.

Factor Three – Most important in the discussion of factor three, Judge Evans rejected the Classroom Guidelines both as to amount and repetitive use. The low ceilings imposed in the outdated Classroom Guidelines and advocated by the publishers were rejected by the trial court as inconsistent with fair use as was the suggestion that fair use did not permit repetitive use of works in course reserves. The trial court held that the amount of a work reproduced has to be “decidedly small” and narrowly tailored to the express pedagogical purpose. The trial court also articulated some of its own guidelines, which it did not strictly adhere to when reviewing each of the alleged incidents of infringement committed by GSU. The trial court stated that it is generally to be considered fair use if 10% of a work less than 10 chapters or a single chapter of a work greater than 10 chapters was reproduced.

Factor Four – The publishers failed to demonstrate to the trial court’s satisfaction any harm to their bottom line. The trial court stated that the publishers argument that e-reserves would put them out of business was glib and that any revenues received from academic licensing were at best miniscule. And the recent press release from CCC that it paid out a record $188.7 million in royalties to publishers in 2013 is evidence that they are not hurting.

All three of these cases will be decided on appeal. Oral argument in the HathiTrust case occurred October 30, 2013, and oral arguments are scheduled Tuesday (November 19th) in the Georgia State case. Authors Guild announced its intention to appeal the Google case shortly after the judgment was rendered. Hopefully the appellate courts hearing these cases will further support and strengthen the well-reasoned judgments of their lower court brethren, for as Judge Chin so aptly states, uses such as the ones at issue in the Google case:

Advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

Closing Another Open Access Week

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.

Three Strikes: Are Publishers Finally Out in Frivolous Litigation Against Libraries?

Publishers and distributors of copyrighted content have struck out in their attack on libraries and fair use.  First, in May, the copyright infringement lawsuit filed by several publishers against Georgia State University for its e-reserves practices was decided in favor of fair use (and the University). Then, in late September, the re-filed action against UCLA by AIME was dismissed, again, for lack of subject matter jurisdiction and failure to state a claim (a written order is forthcoming, which should state whether this time dismissal was with prejudice). Now, last week, the trial court in the suit filed against HathiTrust and several universities by the Authors Guild found in favor of the former in a copyright infringement action challenging their mass digitization project.

At issue in the Authors Guild’s lawsuit against HathiTrust and the universities was the creation, with the assistance of Google, of a shared digital repository of nearly 10 million works, the majority of which are still protected by copyright. The digital scans were used for three specific uses: (1) keyword searching of full text scans without display of the full text  for purposes of identifying relevant works, (2) preservation of works in the event of deterioration or natural disaster, and (3) provision of access to works for persons with print-disabilities. The trial court refused to weigh the merits of the orphan works project, which was also challenged by the Author’s Guild, because that project was not yet fully functional and usable and thus not ripe for adjudication. Assessing and weighing the four factors of § 107 of the Copyright Act, the trial court found that the three uses qualified as fair uses of the copyrighted works:

Purpose and Character of the Use
The trial court found that the stated goals of the three uses of the digital scans — scholarship and research, preservation, and access by persons with disabilities — tilted significantly in favor of those uses. Further, the uses were transformative because the digital scans served an entirely different purpose than the original copyrighted works.

Nature of the Copyrighted Works
The trial court acknowledged that the majority of the works scanned were fiction or otherwise creative in nature (a distinction from the facts of the Georgia State University lawsuit) and that use of creative works was less likely to be fair use than use of factual works. However, the transformative uses of the digital scans weighed this factor in favor of HathiTrust.

Amount of the Works Copied
Although fair use typically favors using small and limited portions of copyrighted works, the use of the entire work is fair where necessary to carry out the stated purposes in this case — facilitation of keyword searching and access for individuals with a print-disability.

Impact on the Market for or the Value of the Works
Author’s Guild’s argument that economic harm would result from the defendants’ uses was based largely on speculation. No present collective licensing scheme existed for the large body of works that had been scanned nor was it likely that an economically viable scheme would exist in the near-future. Further, there was no evidence that the digital scans could easily be accessed by anyone, and thus result in avoiding purchase of a copy of the work, through circumvention of the security in place. Rather, the full-text works were only accessible by those print-disabled individuals with authorization and only snippets of the scans were available to those doing full-text searches.

While the fair use ruling is a critical one, another important holding in the trial court’s judgment is the determination that a university is an “authorized entity” under the Chafee Amendment (§ 121 of the Copyright Act). The Association of American Publishers has argued that universities and academic libraries are not “authorized entities” and thus cannot under § 121 provide full text copies of copyrighted works to persons with disabilities for their use. This ruling not only resolves this issue but also lends further credence to the Code of Best Practices in Fair Use for Academic and Research Libraries, which states that academic libraries may provide materials to persons with print-disabilities under fair use.

With these three important rulings in favor of libraries and fair use, one hopes that publishers will take a step back and reevaluate their complaints and reassess the importance of partnering with libraries instead of working against them.

At Long Last…a Decision in Georgia

Four years since the filing, one year since the trial, and 350 pages of opinion later…we have an opinion in the closely watched copyright infringement action against Georgia State University.  The case pitted prolific academic publishers Sage, Cambridge and Oxford against the GSU provost, Library Dean and others, with the publishers claiming that the policy and practice of GSU’s Library allowed faculty to post, in violation of the publishers’ copyrights, scans of book chapters in the University’s e-reserve and course management systems.  In response, GSU contended that its actions fell within the Fair Use provision of the Copyright Act, which the publishers contended that the postings, in the absence of permission or payment of license fees, far exceeded the bounds of fair use, which they argued were defined by outdated guidelines.  In the end, the judge found largely in favor of GSU, and in doing so, she crafted a fair use framework (although for the time-being is only legally binding upon persons living in the Northern District of Georgia) that libraries and publishers alike will be analyzing and implementing in the months to come.

The Fair Use Framework of the GSU Case

Under §107 of the Copyright Act, a use of a copyrighted work without permission of the copyright holder is permissible when such use is for the purposes of teaching, research, commentary, news reporting, parody, or criticism, and the balance of four enumerated factors weighs in favor of a finding of fair use.  Those four factors as set forth in the statute are: (1) the purpose and nature of the use, (2) the nature of the copyrighted work being used, (3) the quantity of the copyright work being used, and (4) the effect of the use upon the potential market. The application of these four factors to the posting of copyrighted works to electronic reserves systems has long been the subject of scholarly debate; however, this case is the first time that a court has undertaken to apply the fair use factors to such use. The judge’s application of the fair use factors in the context of e-reserves can be summarized as follows:

Purpose and Nature of Use – Because a college or university’s library is a non-profit and educational user, the court found that this factor weighed heavily in favor of a finding of fair use.

Nature of the Copyrighted Work: Because the works at issue in the case were all scholarly, non-fiction works (and many of them reference-type handbooks), the court found that this factor also weighed in favor of a finding fair use.

Quantity of the Copyrighted Work Being Used: Most of the excerpts posted in GSU’s course reserves were 10% or less of the book. The court held that this factor weighs in favor of fair use where no more than 10% of a work with less than 10 chapters or no more than one single chapter in works of more than 10 chapters is used.  In amounts greater than this, this factor weighs in favor of the copyright holders. The court also reiterated that where the portion used represents the “heart of the work,” the balance tips in favor of the copyright holder.

Effect Upon the Potential Market for the Work – Where there is a reasonably priced and readily available license for a digital excerpt of the copyrighted work, this factor tips in favor of the copyright holder. This factor also weighs in favor of the copyright holder where the amount used is so great that it substitutes purchase of the entire work.

Answers, Yes, but Also More Questions

Through her careful reasoning and explanation, the judge in the GSU case answered many questions that have been pondered by copyright scholars and academic library practitioners. In particular, she held:

– The posting of copyrighted works in an electronic reserve or course management system is not analogous to the production of print course packs by a copy shop or other commercial entity.  Thus, many points in the Kinkos case are not applicable to e-reserves.

– The posting of copyrighted materials in an e-reserve system is not a transformative use.  In recent years, a finding of transformativeness has been key to deciding fair use cases.

– The 1976 Classroom Photocopying Guidelines are too restrictive and thus inconsistent with fair use. Further, the judge expressly rejected the “subsequent semester” rule that is an outgrowth of the Classroom Guidelines. Thus, use of the same excerpts for a course from one semester to the next does not mitigate against a finding of fair use.

– No or minimal use can mean no infringement. Where items posted to course reserves are never accessed by students, there is no infringement.

– When calculating the number of pages in a work (for purposes of determining what constitutes 10%), the entire work is counted, including the table of contents, foreword, and index pages.

However, the decision also left scholars and librarians with more questions to ponder:

– What about journal articles, images, videos, etc?  The decision in GSU only dealt with monographs; however, many faculty utilize these other categories of works in their courses and request their institution’s library to post these materials in the course reserve system.

– What constitutes a “readily available and reasonably priced” license? And, if the copyright holder does not have a license or permission system available for the work or its excerpts, does this mean its fair use to use it anyway? In the wake of this decision, more publishers will likely either contract with Copyright Clearance Center or invest in devising their own license and permission systems. Does this mean libraries will end up paying more for less?

It will be interesting to see what answers folks on all sides off these issues will propose in the weeks to come and what the next moves of the publishers and their litigation funders will be in response to the judgment.

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