A recent decision out of the Southern District of New York is a nice illustration of just how friendly fair use can be to scholarly uses of images. Fair use is the right that allows use of in-copyright works without permission in some contexts, and as this case shows, a scholarly context is often a very friendly one for fair use.
The persistence of closed access journals is a collective action problem, specifically a coordination problem. As economist Ted Bergstrom shows in his parable of the Anarchists’ Annual Meeting (see p.10), the main barrier to transitioning to an open access publishing system is the inability of scholars in particular fields to agree together to divest from closed venues and redirect their energy (and prestige) to open ones.
An ecosystem is a compelling metaphor. A healthy ecosystem is complex, balanced, and interdependent. It lives, thrives, grows, etc. As such, the ecosystem metaphor is a good way to warn against extraction, factory farming, pollution, over-fishing, ‘invasive’ phenomena, and even ‘disruption.’ When I talk about copyright, I often talk about a “cultural” or “expressive” ecosystem, which copyright is supposed to foster, and which consists not only of “creators” and copyright holders, but also of teachers, students, critics, scholars, politicians, and any number of other organisms whose well-being depends in part on being embedded in a healthy ecosystem.
Happy Friday, y’all! In lieu of the usual academic article or long-ish blogpost, I want to share
two three major Big Deal breakups that were announced in the last couple of days. Iowa State, UNC-Chapel Hill and the entire SUNY system have announced that they are breaking up their Big Deals with Elsevier, switching to an a la carte set of their most-used journal titles. The cuts appear to be quite deep - IA State is retaining 428 journals, UNC is retaining 395 of the 2000 or so titles in the Big Deal, and SUNY has retained a ‘core list’ of 248 titles, which individual institutions in the SUNY system may augment with additional titles if needed to support local priorities.
In an announcement posted today, the Provost and University Librarian at UNC Chapel Hill explain that they are making major cuts to their Elsevier Big Deal, dropping the vast majority of titles and subscribing to just the core, frequently-used part of the portfolio. The full announcement is worth a read, as is this Twitter thread from Elaine Westbrooks. Some commentary from me:
As the White House Office of Science and Technology Policy is in the midst of an inquiry into whether and how to update federal open access policy, many are wondering whether increasing free access to research will undermine the ecosystem of scholarly journals. For a sense of what to expect, it’s worth looking at how the National Institutes of Health policy, the longest-running federal open access policy, effected the biomedical journals where funded researchers were likely to publish.
I was happy to have the chance to co-author this blog post with Tucky Taylor and Kyle Courtney about screening films online, especially with the Zoom “Share my screen” functionality. I wish the answer were cleaner! There may never have been a better example of how the law has been warped, both by rights holders’ moral panic about digital piracy (which led them to lobby for strictures in the TEACH Act that have rendered it an unworkable mess) and by their massively increased power in the age of licensed, streamed media. A teacher can perform or display ANYTHING for ANY REASON with ZERO WORRY if they’re using physical media in a physical classroom. Now contrast that with the mish-mash of angst that you have to work through to do even the most obviously legit activities in an online environment.
I’m proud to be part of this plain, simple, but powerful statement in favor of using fair use to support teaching and research in these extraordinary circumstances. Special credit should go to Brandy Karl at Penn State Libraries who helped to organize a busy group of librarian-lawyers and to bring this statement and related efforts to fruition. Read the whole thing here:
My friend and library copyright maven extraordinaire Nancy Sims has written the guide that we all may need sooner than we’d like to admit: Rapidly shifting your course from in-person to online. If you’re looking for good advice on this issue, check out Nancy’s post. If you’re not sure how it translates to our context here at UVA, drop me an email and I can help you work through it.
This might be surprising given our general pro-open access bent here at The Taper, but this news from VCU is welcome: they are ending their support for Open Access fees. It’s welcome news because, as VCU notes in its announcement, libraries subsidizing APCs:
Weekend Big Deal Longread for March 6: "How the academic publishing oligopoly skews debates on the cost of publishing"
Happy Friday! This week brings another modest entry in our Big Deal Longread series; we might more accurately call this a “read,” TBH, because it’s not that long at all. But it’s still a thoughtful and thought-provoking entry in the discussion about the future of academic publishing. In “How the academic publishing oligopoly skews debates on the cost of publishing,” Moore provides some useful reminders about the diversity of publishers and publishing models out there, and the value of preserving (and growing) that diversity. He also explains how the concentration of power in the hands of just a few (mostly commercial) publishers has obscured that diversity, leading to discussions that emphasize openness or affordability without recognizing that even an open, affordable landscape could be dominated by a dysfunctional oligopoly in ways that harm researchers.
Later this year, my friend Peter Jaszi and I are speaking on a panel at the 2020 Biographers Conference, to help that community understand how fair use can help them do their very important work. In advance of that conference, Peter and I were sent a series of questions that will become an interview published in The Biographer’s Craft, the group’s monthly newsletter. They were generous enough to let me publish my own rough answers to their questions here, for Fair Use Week. Peter will add his thoughts, and the final version will go up on the BIO website. For now, enjoy my own rough cut version!
For Day Four of Fair Use Week, I want to commend to your attention an excellent blog post by my friend Dave Hansen, Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. In it, he warns against over-reliance and oversimplification of fair use, and points to some recent cases where folks are in danger of hurting the doctrine by treating it like a “God in the Machine” that can swoop down and rescue us whenever we feel threatened by copyright law. Check it out here, at Harvard’s OSC blog: Fair Use Week 2020: Day Four With Guest Expert David Hansen
For Day 3 of Fair Use Week, I wanted to share a few thoughts on the current state of fair use and sampling in music, especially (but not uniquely!) in hip hop.
cross-posted at the Fair Use Week Blog at Harvard.
Today is the first day of Fair Use Week 2020! Of course, fair use is the flexible user’s right to copy, share, and otherwise use in-copyright works without payment or permission, in the right circumstances. Folks often panic at that last part—what are “the right circumstances”? And since fair use is so important, and it really is a user’s right (not a privilege or a defense or whatever other gobbledygook some folks try to say to scare you out of using it…), it’s really important that ordinary people be able to make reasonable, confident decisions about what the right circumstances are.
This week’s longread is not too long, actually, but it’s a nice exploration of a vexing topic, through the lens of a new tool that might help shift the dynamic in a very useful direction. Check out Reforming Research Assessment: A Tough Nut to Crack, published earlier this week. And follow the links in her piece to read more about the miserable culture that permeates research, as well as the deep thoughts at Center for Open Science that animate the release of tools like the TOP Factor.
I was proud to be part of the drafting process, and to sign onto this: Joint Comment to WIPO on Copyright and Artificial Intelligence. As WIPO appears to be embarking on a policy inquiry into the relationship between AI (so hot right now) and copyright, this early intervention tries to ensure they ask the right questions.
Yesterday I learned that the Vice Provost for Research here at UVA is hosting a half-day workshop on scientific integrity in March. I’ll be there, for sure, because when I saw the topic, I thought immediately of the Big Deal. If you’re not steeped in this stuff, the notion that expensive, high-prestige journals would have a negative effect on the quality of science may be counterintuitive. Indeed, lower quality and lower “integrity” are more often associated with so-called “predatory” journals.
'We're opening everything': Scientists share coronavirus data in unprecedented way to contain, treat disease
The radical openness that scientists are using to tackle the coronavirus are shining a light on the value of openness in general. As Vincent Lariviere observes, isn’t the adoption of openness here an admission that traditional systems are slowing progress everywhere else?
Two articles released in the last week tell a compelling story when read in tandem.
This week’s ‘read is not so long. In fact, it should take just about 6 minutes, according to Medium. So set aside a few minutes during this long weekend to take a look at this open letter from 21 scholars, addressing the tricky relationship between learned societies and for-profit publishers. One of the authors is UVA faculty member, and co-founder of the Center for Open Science, Brian Nosek.
Today my friends Kendra Albert and Daina Bouquin, along with coauthors Alena Farber and Russell Hoover of the Cyberlaw Clinic at Harvard Law School, published the Copyright Guide for Scientific Software. It’s a really handy, short and sweet guide to the ways that copyright can impact the ways you use, reuse, and share the software that scientists make and use in their research. It’s the first guide of its kind, to my knowledge, and should be required reading for any scientist who works with software.
Friday's Big Deal (not-so-long) Read: Leaked Dutch Contract with Elsevier Raises Significant Alarm Bells
From Claudio Aspesi, long-time observer of the academic publishing industry, comes a powerful warning about the dangers of a rumored deal between Dutch universities and Elsevier. The deal is said to include lower prices for the Big Deal journal bundle in exchange for the Dutch agreeing to purchase more of Elsevier’s data analytics products. Aspesi has warned repeatedly about the dangers of allowing these commercial data products to become entrenched in the decision-making processes at colleges and universities, and this deal seems like a move decisively in this dangerous direction:
I was lucky enough to be able to advise Prof. Guler just a little bit as she was working with Arin to develop this grant proposal, which supports the creation of new virtual reality models of infectious diseases. I was thrilled by her interest in making all the products of this grant openly and freely available for reuse as open educational resources. Once their completed, all models will be posted to the VIVA Open OER hub to ensure these very cool tools are findable and reusable by teachers and students anywhere in the world.
Last week I tweeted about my angst at the Supreme Court taking its first case about fair use in 25 years. The good folks at Law360 reached out and asked if I could expand my thoughts, so I did, and here’s the result: Google-Oracle High Court Fight Threatens Fair Use Ecosystem.
I recently had the opportunity to record this fun little interview about authors rights and open access with my colleague Ashley Hosbach, the Librarian who works with our Curry School of Education. Faculty at Curry, like so many at UVA, have a real impact on policy and practice every day, shaping the future of education in profound ways. Using open access, they can make their work even more accessible to policymakers, teachers, and learners, increasing their impact and changing the world for the better.
From Scholastica, this is a nice overview of the “overlay journal” concept, a highly affordable mode of publishing that leverages the open repository infrastructures that many research institutions already support. H/T the OA Tracking Project.
For this final post for Open Access Week 2019, I’d like to focus on one of the oldest and (IMO) coolest tricks in the open access playbook: the “open access policy.” It’s a bland name for a powerful legal maneuver, and to answer this year’s theme, “open for whom,” an OA policy can make the status quo scholarly publishing system open for authors in a way that preserves their freedom of choice about publishing venue by making an open option available regardless of venue. We can supercharge OA policies by combining them with tools like the MIT Framework for Publisher Contracts, turning the abstractions in the policy into concrete gains for public access to knowledge.
Harvard’s University Librarian, Martha Whitehead, has a powerful statement up today on Harvard’s commitments to advancing open access. I want to highlight this part, which I think is crucial. It gets down to brass tacks on an important issue with which the open access community needs to reckon. When we talk about equity, and “open for whom,” we have to talk about APCs, which are inherently problematic from an equity perspective:
This week’s guest post comes from Dave Ghamandi, Open Publishing Librarian, and gives an update on the work he’s doing at Aperio, the open access publishing house that lives at the UVA Library.
The Journal of Modern Philosophy now included in the Directory of Open Access Journals
Statement of Virginia Research Library Deans and Directors on Endorsing the MIT Framework for Publisher Contracts
I am running from pillar to post again today (just arrived at ODU!), but wanted to be sure I shared a link to this—the MIT Framework fills an important gap for all of us who want to reform our investments with big vendors:
Today’s OA Week Guest Post is by Sherry Lake, our scholarly repository librarian. For the last several years, Sherry has been focused on data sharing, supporting UVA researchers in managing their data and sharing it with our data repository, LibraData. For today’s post, Sherry explains how her work helps make it easy for researchers to do the right thing.
Our first guest post for OA Week 2019 is by Rebecca Cooper Coleman, Research Librarian for Architecture. Rebecca’s work on a regional equity atlas started from a recognition of the long-running problem of universities engaging with their communities in a way that doesn’t always reflect the equitable and public-spirited aspirations of the academy. Reforming a university’s approach to its neighbors can be difficult; here Rebecca explains how open access to research can be a relatively simple step in the right direction.
It’s Open Access Week 2019! This year’s theme asks a question that needs our attention more than ever as the consensus solidifies around an open access future: Open for whom? How can we ensure that new, “open” forms of scholarship don’t impose new kinds of barriers (or re-create old ones) that are inconsistent with the egalitarian vision of the open access movement? How can we make equity a priority in our open access work?
Hyku Open Source Institutional Repository Development partnership awarded $1M Arcadia grant to improve open scholarship infrastructure
Exciting announcement today from my colleagues working on institutional repositories:
Weekly Big Deal Longread: “Article Processing Charge Hyperinflation and Price Insensitivity: An Open Access Sequel to the Serials Crisis”
Khoo, S. Y.-S. (2019). Article Processing Charge Hyperinflation and Price Insensitivity: An Open Access Sequel to the Serials Crisis. LIBER Quarterly, 29(1), 1–18. DOI: http://doi.org/10.18352/lq.10280
Elaine Westbrooks gets it. She’s the Vice Provost for University Libraries and University Librarian at UNC-Chapel Hill, and she’s just inaugurated what looks to be a series of posts on the need to transform our relationship to scholarly journals (and, more importantly, their commercial publishers) with an essay that shows how very far we’ve come from the origins of scholarly journals as a service by and for scholars.
With apologies for the delay, I want to offer a Big Deal Longread for this past weekend that is hot off the presses: From symbiont to parasite: the evolution of for-profit science publishing by Peter Walter and Dyche Mullins, two molecular biologists at UC San Francisco. In it, the authors bring evolutionary metaphors to bear in describing the changing relationship between scholars and commercial publishers like Elsevier, proposing steps that individual academics can take to help their communities escape from what they characterize as a parasitic relationship. Here’s the Abstract:
Weekend Big Deal Longread for Friday, Sept. 13, 2019: Evaluating Big Deal Journal Bundles, by Bergstrom, Courant, et al.
This week’s Longread is a stroll down memory lane to 2014 to read a pathbreaking article, Evaluating Big Deal Journal Bundles, by Ted Bergstrom, Paul Courant, R. Preston McAfee, and Michael A. Williams. The authors used Freedom of Information Act requests to amass a collection of Big Deal journal contracts from a variety of institutions. Elsevier actually brought legal challenges to two of these requests, filing a lawsuit in Washington state claiming that their prices are trade secrets, and contesting another FOIA request in Texas. State authorities rejected both challenges, clearing the way for the the first major comparison of journal bundle deals across a variety of providers and types of institutions.
This week I wanted to share two shorter pieces with you, both from the Scholarly Kitchen blog, a venue that publishes analysis of scholarly publishing that is often from a more industry-friendly perspective, but with contributions from librarians and neutral analysts as well.
Your humble correspondent has been traveling some these last few weeks, and I apologize that I haven’t had a chance to post your weekly long-read in a while! But I’m back, and with a new read that, while not really a longread, per se, is certainly a timely one. In Pursuing a new kind of “big deal” with publishers, Lindsay McKinsey at Inside Higher Ed describes a public meeting hosted by the University of California libraries who have been engaged in one of the highest-profile fights over big deals in the US in a long time. I have my concerns about the whole “transformative agreement” project, but it is clearly an important phenomenon to watch.
If you’re reading this blog, you may have at least a passing familiarity with the Jeffersonian aphorism from which The Taper takes its name. If so, you might be interested in a new article by Jeremy Sheff, summarized and reviewed by Dave Fagundes here, that traces the origins of the metaphor back to Cicero, and a very different theory of property and justice. Sheff explains that the Cicero’s version of the taper story is a parable about charity and beneficence, built on a theory of property and justice that is, well, not very Jeffersonian. Looking forward to the reading the full article!
Team Awarded Grant to Help Digital Humanities Scholars Navigate Legal Issues of Text Data Mining – UC Berkeley Library Update
I’m really proud to be part of this Berkeley-led project, which was just awarded a $165,000 grant by the NEH. Our goal is to spread the good news about the way the law treats text and data mining (it’s heavily favored by fair use!), and to help folks think through an array of legal and ethical issues that come up once you get into the nitty gritty of doing that kind of research. Next June we will assemble a group of humanities researchers, librarians, and research staff and walk them through these issues, with help from a star-studded team of experts.
Our weekend Big Deal Longread this week may be one of the ultimates of the genre: Richard Poynder’s history Not Price But Cost.
As I said a year ago, when I first ran across this essay, Ken Frazier was a Big Deal Cassandra back in 2001—he tried to warn us at the dawn of the Big Deals that nothing good would come of them, but nobody listened. In The Librarians’ Dilemma: Contemplating the Costs of the “Big Deal”, Frazier made a compelling case against these new package deals of electronic journals. 18 years and countless budget crises later, Frazier is looking downright prophetic.
In this message from the Provost, LSU announces it will leave Elsevier’s Big Deal and go title-by-title to purchase only the most-used content from Elsevier.
According to information provided by UVa, several large journal packages consume about 40% of the libraries’ collections budget. Elsevier, which offers the most expensive package, provided 3,354 journals in 2018 at a cost of $1.8 million, or 19% of the collections budget that year.
Weekend Big Deal Longread #2: The Changing Academic Publishing Industry – Implications for Academic Institutions, by Claudio Aspesi
The move by publishers into the core research and teaching missions of colleges and universities, with tools aimed at evaluating productivity and performance, means that the academic community could lose control over vast areas of its core activities. In addition, the collection of massive amounts of data about faculty and students poses a significant legal and reputational risk for institutions, along with potential privacy and security threats for individuals.
Louisiana State University Dean of Libraries Stanley Wilder announced on Twitter last Wednesday that the LSU faculty senate had overwhelmingly passed a resolution in favor of leaving the Elsevier Big Deal. They follow Florida State University and the University of California system in securing a broad faculty endorsement of their Big Deal position in advance of negotiations with the big publisher. You can read a little more about the LSU resolution in the announcement they posted earlier this month. Gary Price has collected the minutes of the meeting and the text of the resolution at his Infodocket post.
Weekend Big Deal Long Read: “Is the staggeringly profitable business of scientific publishing bad for science?”
“Scientists are not as price-conscious as other professionals, mainly because they are not spending their own money,” [Robert Maxwell] told his publication Global Business in a 1988 interview. And since there was no way to swap one journal for another, cheaper one, the result was, Maxwell continued, “a perpetual financing machine”. Librarians were locked into a series of thousands of tiny monopolies. There were now more than a million scientific articles being published a year, and they had to buy all of them at whatever price the publishers wanted.
This is a little bit meta, but Peter Suber recently shared a really nice resource that I wanted to turn around and share with you. It’s a Google Doc with a collection of links that Peter compiled in connection with a talk he gave on UC, Elsevier, and Plan S. If the constellation of these three things interests you, you will definitely benefit from a perusal of these stories.
Welcome to "No Big Deal?": News and Links About the Cost, Value, and Sustainability of Big Journal Bundles
Today we are launching No Big Deal?, a new feature of UVA Library News that will track the latest events and scholarship about the biggest vendors serving research libraries like ours. Tracking, shaping, and responding to this landscape has always been part of what the Library does, and we would like to share some of what we are seeing, doing, and thinking with you, the faculty, students, and researchers who use our collections.
Statement from Deans and Directors of Virginia Research Libraries on the University of California System’s Termination of Contract with Elsevier
As Deans and Directors of Virginia research libraries, our core mission and our highest priority is to ensure that our research communities have access to a rich, diverse, and sustainable collection of information resources. Recently, our colleagues in the University of California system took an important stand in defense of that mission by refusing to renew their $50 million “Big Deal” contract with Elsevier, the world’s most profitable vendor of information products. We write to express our gratitude and our support for them and the brave step they have taken, the latest in a global trend of libraries rethinking their biggest expenditures.
UC system President Janet Napolitano has a nice post up today (a great coincidence with our statement) with a poignant rallying cry to public (and publicly funded) institutions:
Since the ten institutions in the University of California system walked away from their Elsevier subscriptions in February, several other institutions have expressed their support and solidarity, as well as sharing information with their local communities about what the UCs’ decision might mean to other researchers and institutions across the country. I wrote one such post for our Library News blog. You can find several more statements and explainers in this Twitter thread, started by Chris Bourg at MIT. There you’ll find statements from Oregon, Oregon State, Duke & Iowa State, Williams College, University of Minnesota, and the Canadian Association of Research Libraries.
Simple common sense and the brutal math of finite budgets tells us there’s more than correlation between exploding costs for journals from big vendors and receding investments in monographs and journals published by university presses. One of the most compelling critiques of the Big Deals is the way their sheer size and perceived “must have” status crowd out competitors in the journal market as well as non-journal resources like monographs.
From the awesome team at OAButton comes a new tool to leverage all the ways we can get access to articles outside the subscription model. It looks dead simple, and could make a big difference for institutions looking at leaving the Big Deal. Read more from Joe at OAButton:
UVA folks interested in open science, this looks like a great talk, connecting FAIR data practices to the problems facing neuroscience. Details at the DSI event page:
UC terminates subscriptions with world’s largest scientific publisher in push for open access to publicly funded research
“Make no mistake: The prices of scientific journals now are so high that not a single university in the U.S. — not the University of California, not Harvard, no institution — can afford to subscribe to them all,” said Jeffrey MacKie-Mason, university librarian and economics professor at UC Berkeley, and co-chair of UC’s negotiation team. “Publishing our scholarship behind a paywall deprives people of the access to and benefits of publicly funded research. That is terrible for society.”
This year we are celebrating Fair Use Week by profiling some of the awesome fair use heroes at UVA. Check out our final installment, highlighting how fair use helps Sarah O’Brien and Brandon Walsh teach and write critically about film and sound:
Check out the second installment in our series of profiles for Fair Use Week:
From Authors Alliance: Spotlight on Publication Contracts: Fair Use and Third-Party Permissions Clauses
The Authors Alliance is celebrating Fair Use Week with a nice blog post that covers the high points of authors’ agreements provisions on fair use and permissions. Check it out:
(Cross-posted at Kyle Courtney’s Copyright at Harvard Library blog. Thanks, Kyle, for the invitation!)
From UVA Today comes this great profile of the Library’s open publishing imprint Aperio and my colleague Dave Ghamandi, who is leading Aperio in collaboration with Mark Saunders at the University of Virginia Press. This praise from one of the Editors of our first open journal, the JMPhil, is everything we hoped for in launching this effort—connecting scholars with the tools and expertise they need to make open journals that work:
“We didn’t really know how to manage hosting or article production or archiving or any number of other technical things that go along with running a journal. This is where UVA Library and Aperio came in,” said LoLordo. She added, “it’s been a fantastic experience” working with Aperio and Ghamandi.
This post highlights one of the nearly 50 items digitized by the UVA Library in celebration of the Rebirth of the Public Domain on January 1, 2019. I’ll share similar spotlights throughout the year to help highlight the value of the public domain in entertaining, informing, and fueling the creativity of present-day readers, thinkers, artists, and others.
“Federating Repositories of Accessible Materials for Higher Education” awarded a $1,000,000 grant from The Andrew W. Mellon Foundation
What if three major repositories of digital texts could work together with libraries, disability services offices, and university presses, to make it much, much easier to do the right thing for all our students AND comply with civil rights laws?
Inside Higher Ed reports on a highly appropos flip to open access by a journal whose core subject matter appears to be measuring science. Given that monopoly control of this metadata about science appears to be the next frontier of monetization for publisher-cum-“data analysis” company Elsevier, it makes a lot of sense that scientists who depend on access to that kind of data would be anxious to keep their own data open and free.
Copyrighted works: Robert Frost’s poem “Stopping by the Snowy Woods” enters public domain - The Washington Post
The work’s four stanzas—spare, musical and haunting—have been memorized by generations, dissected by scholars and beloved by presidents. And now that they are beyond the reach of copyright law, anyone can emblazon them anywhere, from inspirational posters to beach towels. Composers can lyricize them. Teachers can photocopy them. FedEx can paint “Miles to go” on its trucks. “Easy wind and downy flake” would make a good line of dryer sheets and laundry soap. Frost’s words belong to the ages and to everyone. —Copyrighted works: Robert Frost’s poem “Stopping by the Snowy Woods” enters public domain - The Washington Post
Public Domain Day s around the corner, and The NY Times has a nice rundown of the ways the publishing industry will be taking advantage of the new crop of free works.
[S]tudents quickly discover the gaps and blind spots in commercial services like YouTube when they attempt to study earlier periods in media history. Not only is most popular media poorly preserved, but even those materials that do turn up on the web are rarely given the context required for rigorous historical analysis.
I recently gave this interview to David Bixenspan for Gizmodo. Thanks to my friend Annemarie Bridy for sending him my way, and for giving great explanations of how the DMCA works and why the Internet Archive is wise to respond quickly and decisively to legit takedown notices. As I told David, rightsholders and others fret sometimes about whether entities like the Internet Archive are really “libraries,” but the law already handles that issue pretty well, with a fairly permissive definition that encompasses any institution that has collections open to the public, or to relevant researchers. The rights that libraries have are important, but they’re also sufficiently modest that making them available to anyone who meets minimum criteria doesn’t pose any risk to copyright holders.
Sharing your work in an open repository is a great way to increase your impact, help preserve your legacy, promote legal open access, and poke a tiny hole in the big publishers’ oligopolies. And the team at OAButton just made one of the most frustrating steps—finding the version you can legally share—a little easier with a tool that helps you find your accepted manuscript in a variety of publisher platforms. Learn more here:
Let them eat cake (that they made, reviewed, gave away for free, and now have to buy back at an absurd markup)
Suppose there was a wholly state-funded bakery, whose aim was to create world-class cakes and to encourage the development of excellent cake-baking. Everyone in the bakery – the master bakers, the managers, the kitchen assistants, the human resources consultants, the cleaners – is paid by the state. But the bakery is not allowed to give or sell the cakes directly to the public.
“The struggle itself … is enough to fill a man’s heart. One must imagine Sisyphus happy.”
This afternoon I had the pleasure of engaging in an Oxford-style debate sponsored by the Charleston Library Conference. The topic? “Resolved: all scholarship must be made freely available for access and reuse.” I argued in favor, and I’m proud to say I “won” (which, in the rules of this kind of debate, means that more people changed their mind in favor of my side over the course of the debate). It was fun, and I wanted to reproduce my opening statement and rebuttal here, in case you’re interested in reading them. My opponent, Angela Cochran, was a great sport and raised important issues that I think we should address—after we make all scholarship free to read and reuse. :)
The way to start spending less on toll access literature is to start spending less on toll access literature. Start today. Libraries should slowly but surely divest from the biggest vendor oligopolies and invest instead in open alternatives. For decades they’ve been steadily growing their prices at rates that consistently outstrip inflation, the CPI, and our own budgets’ rate of growth, and they long ago outgrew any value proposition associated with the Big Deal. It is time to divest. Call it the “Negative 2.5% Commitment.”
Libraries, Archives, and Museums: Stop Worrying About the Digital Locks on Software! (But you still need fair use.)
So the new round of DMCA rules came out this Thursday morning! They were actually prereleased on Thursday, will be printed in the Federal Register on Friday, and will go into effect on Sunday, 10/28. The amazing Harvard Cyberlaw Clinic, who took the lead in securing the rules protecting software and video game preservation, is working on an explainer that I’m sure will be more thorough and probing, but I know folks are itching for a quick digest. So, in 400 words or so, what do the new rules mean for software preservation?
In the latest episode (#9) of the podcast Science for Progress, Björn Brembs, a trenchant critic of the status quo in scientific publishing, lays out his critiques of the Journal Impact Factor, and suggests a radical alternative for awarding positions or funding among a pool of qualified candidates: random chance. Here’s a direct link to the MP3.
From Gary Price’s InfoDocket comes news that Elsevier and ACS have filed a copyright infringement suit against ResearchGate in federal court in Maryland. The suit mirrors a similar one filed almost a year ago by the same publishers in a German court.
[T]he argument that we’re all being egregiously and continuously screwed over by The Incentives is just not that good. I think there are a lot of reasons why researchers should be very hesitant to invoke The Incentives as a justification for why any of us behave the way we do. I’ll give nine of them here, but I imagine there are probably others.
I’m really excited about this. Today the Association of Research Libraries is publishing something I’ve been working on for a while now with a really wonderful team of facilitators and an amazing community of practitioners: the Code of Best Practices in Fair Use for Software Preservation. ARL has a detailed press release here, but I wanted to add a few of my own thoughts on the import of the document.
This is a big deal:
Most of the work involved in writing the papers, reviewing and editing them is carried out at public expense by people at universities. Yet this public asset has been captured, packaged and sold back to us for phenomenal fees. Those who pay most are publicly funded libraries. Taxpayers must shell out twice: first for the research, then to see the work they have sponsored. There might be legal justifications for this practice. There are no ethical justifications.
Aperio is pleased to announce the launch of our first publication, the Journal of Modern Philosophy.
We plan to grow a community of academics who pledge to exclusively support community-owned free open access publication systems. Crucially, pledges made by members will only become active when a pre-specified threshold of support has been reached, with names anonymised until this time, allowing individuals to show support without risking their livelihoods.
Check out this extraordinary Twitter thread by @michael_nielsen telling the story of his open monograph, “Neural Networks and Deep Learning.” Publishing his book online, free for all, got Nielsen millions of views, hundreds of thousands of reader-hours, and readership all over the world, including in places where a closed monograph would never have been accessible. He acknowledges benefiting from writing in a “hot” area, but even so, estimates that OA gave him a ~100X advantage in impact over closed publishing of the same content. He also saw pretty healthy citation rates, meaning the book is “legible” in the academic prestige economy on sites like Google Scholar.
On a business trip to New York in March 1968, Simpson toured each of the three [television] networks. At each stop, he asked to see a broadcast from the previous month. They all told him that they weren’t available – they only saved their broadcasts for about two weeks because it was too expensive to preserve them.
In a recent blog post, Rick Anderson touts a series of new studies on publishers who (mostly) lie about their value, including fictional editorial boards, false metrics, hasty or non-existent peer review processes, and more. People have a lot of opinions about these publishers, and there’s been a fair amount of scholarly writing about them, with much of the interest focused on various ways of figuring out if they are a “real problem” for the academy. Anderson says we now have more proof that “predatory publishers” (PP for short) are a real problem, and notes in a comment that, coincidentally, he’s organizing a “summit group of schol-comm stakeholders” to devise solutions.
Paywall: The Movie looks like a compelling presentation of the issues that preoccupy me, personally, for many of my waking hours every day. We’ll be screening the film in October (currently 10/25, tentatively)—watch this space for more info as the date approaches.
Yesterday Judge Claria Horn Boom (what a great name—right up there with Washington Nationals baseball player Spencer Kieboom) of the Eastern District of Kentucky issued a nice opinion(PDF), IMO, finding infringement against a radio station that used a CC-BY photo of Willie Nelson (I’m now terrified of being sued for misattributing a CC-BY photo (more on that later), so you’ll have to click through to see it) without the attribution or license information required by the CC-BY terms. The photographer, Larry Philpot, had posted the photo to Wikipedia Commons, and sent a cease-and-desist letter to the radio station when he found the photo, sans attribution or license info, used on the station’s website to promote an upcoming Nelson concert.
As I’m sure you’ve heard by now, last night the President announced his nomination of Judge Brett Kavanaugh of the D.C. Circuit to the Supreme Court. There is no shortage of information about Judge Kavanaugh in the media, and there will surely be much more in the coming weeks, but I wanted to call your attention to one of his opinions that has already taken center-stage among folks interested in information policy: a remarkable dissent from the DC Circuit’s opinion upholding the FCC’s net neutrality rules. (Well, not to get too wonky, but it was actually a dissent from a decision not to re-hear the case en banc, i.e., with all of the judges in the D.C. Circuit, after a smaller panel had upheld the FCC’s rule.)
If you’re a scholar looking for a list of things to do to reform the awful, evil, stupid, unjust scholarly publishing system, you could do a lot worse than this list from Jon Tennant’s recent article in Aeon:
We are finding it difficult to convince individual universities or funders to commit to supporting us even at the basic level of €1,000 per year, since their budget is eaten up by all the insistent (and well-calculated) invoicing from for-profit publishers.
Academic library directors should not sign on to the Big Deal or any comprehensive licensing agreements with commercial publishers.
Although denying fair use, these content owners were acknowledging a larger truth about copyright, the Internet, and even the law in general: It works largely due to toleration. Not every case is clear; not every outcome can be enforced; and not every potential legal outcome can be endured. Instead, “grey area” conduct must be impliedly licensed, or at least tolerated.
CC-BY does indeed allow resale — of something that is already on the Internet for free. Anyone who pays for an object under CC-BY is either making a donation, or is paying a tax for being inept at searching the Internet. And a few key elements of CC-BY make it possible to prevent dastardly uses.
UMaryland's Philip Cohen on the dysfunctional social science publishing process, and the promise of SocArXiv
Like the U.S. healthcare system, academic publishing is laboring under the burden of supporting its usurious middlemen. Getting them out of the way is a problem of politics and organization, not technology or cost. We academics do all the work already – research, writing, reviewing, editing – contributing our labor without compensation to giant companies that claim to be helping us get and keep our incredibly privileged jobs. But most of us are supported directly or indirectly by the state and our students (or their banks), not the journal publishers. We don’t need most of what the journal publishers do any more, and working for them is degrading our research, making it less innovative and transformative, less engaging and engaged, less open and accountable.
In the quest to create a universally accessible online archive, individual humans’ downloads and printouts, hoarded offline, are the only things that can complete the catalog.
UVA Today: Faculty, Students, and Librarians Are Building Open Anthologies of English Literature at UVA
Study finds that for-pay scholarly journals contribute virtually nothing to the papers they publish / Boing Boing
This blog post reprints an addendum I wrote to a short legal consultant’s report on the legal issues around archiving television news. The full report and the addendum will be available soon from Vanderbilt’s scholarly repository under a CC-BY license.
Happy Fair Use Week! Today I want to write a little about software. I’ve been working a lot with software preservation folks, lately, and trying to think about the kinds of challenges they face due to copyright. I’m hopeful the community can find fair use solutions to at least some of those challenges, but in the meantime I’ve been struck by one unique aspect of software from a copyright perspective: in many ways it’s more like a player piano than a piano roll. Courts have taken this functional aspect of software into account in many contexts, and I’m hopeful that this will make it a good candidate for fair use arguments in the preservation context.
Why am I talking about player pianos? Well, there’s a great case, typically taught fairly early in most copyright courses, called White-Smith v. Apollo, a 1908 case that deals with the copyright consequences of the then-new player piano technology. (New tech is often a challenge to copyright, which is in many important ways a regime of technology regulation, focused on copying technologies. Every time the law seems to have tamed a given technological paradigm, a shift comes along and unsettles things!) The question for the court was whether the piano rolls that allowed a player piano to play songs were “copies” of protected musical works for purposes of copyright law. If they were, the music publishing companies’ permission would be needed before manufacturing new rolls that encoded songs they control. As the Supreme Court noted in its opinion, “the question involved in the use of such rolls is one of very considerable importance, involving large property interests, and closely touching the rights of composers and music publishers.” The publishers brought suit.
Cross posted at SPARC for Fair Use Week!
The following guest blog post was written by Tyler Garling, a student who recently took Steph Ceraso’s Remix class. Tyler will be talking about his audio remix project at our Fair Use Week event, The State of the Remix @ UVA, today, Feb. 27, from 9am-Noon at Harrison-Small Auditorium. Below Tyler talks about the ethos of remix—a vision of creativity that is open and collaborative. Fair use exists to enable exactly that kind of ethos, so this is a great way to continue our celebration of Fair Use Week 2018.
From NPR’s Weekend Edition, a nice summary of one of the many dysfunctions in scientific publishing, which is really a dysfunction in science: the lag time and unreliability of peer review. Scientists Aim To Pull Peer Review Out Of The 17th Century
Fair Use Week 2018 Kickoff: Getting Ready for *The State of the Remix @ UVA* by Revisiting the Renaissance
Fair Use Week is here! It’s the special week each year when we take a little time to celebrate the most important part of the Copyright Act (IMHO)—Section 107, the flexible, judge-made doctrine that permits free, unlicensed use of copyright-protected works for valuable cultural purposes.
Software may be eating the world, but something even bigger is eating software: copyright. Specifically, the fear of copyright among the professionals tasked with keeping legacy software alive and useful for future generations. That’s what I and my co-authors conclude in a report released today by the Association of Research Libraries, part of a project funded by the Alfred P. Sloan Foundation.
Libraries have been fighting for net neutrality for more than a decade. As usual, we were way ahead of the curve; now fast food chains are getting in on the act! It’s almost enough to make you want to go eat a Whopper. More from AdWeek:
This looks like a really powerful tool that solves a very real problem - how to find quality OER when it’s spread across so many disparate locations? Mason’s page seems like the perfect starting point for any faculty member wondering if they could make the switch to OER for their course, or add value with open content.
A compelling new op-ed in Times Higher Ed, by Björn Breembs and Alex Holcombe:
This Wednesday the Authors Alliance published an extremely useful new document about fair use that I think will be helpful for virtually everyone at UVA who is creating original works of scholarship, research, and criticism: —The Authors Alliance Guide to Fair Use for Nonfiction Authors. The guide follows in the footsteps of a long and distinguished series of fair use best practices’ documents and identifies three core scenarios where fair use will apply to non-fiction writing that uses third-party copyrighted material.
Academic publishers have long had an uneasy relationship with academic social networks (ASNs) like Academia.edu and ResearchGate, which facilitate sharing of journal articles. STM, the association of STEM publishers, developed its own narrow definition of permissible academic sharing as a way to constrain these sites. Then a group of STEM publishers (ACS, Elsevier, Wiley, Brill) signaled its displeasure with ResearchGate by demanding it sign on to the STM principles and develop technical measures to enforce them on its site. When ResearchGate refused, publishers in the group sent takedown notices for articles taken from journals they publish. Most recently, two publishers (ACS and Elsevier) filed a lawsuit against the site in Germany, where ResearchGate is based, alleging widespread copyright infringement.
I’m very excited to share that I’m working with my good friends at the Association of Research Libraries, including ARL’s Krista Cox, and the creators of the fair use best practices method, Peter Jaszi and Pat Aufderheide at American University, on a new project: a code of best practices in fair use for software preservation. With generous funding from the Alfred P. Sloan Foundation, and in close collaboration with the Software Preservation Network, we are learning about the current state of the field, then we’ll be helping the community to deliberate collectively about ways fair use can support its vital work.
A guest post by Ellen Catz Ramsey, UVA’s Director of Scholarly Repository Services.
Way back in March I gave a talk as part of the UVA Medical Center Hour series on the phenomenon of so-called “predatory publishing,” and I used that as a starting point for a much broader conversation about forms of predation in academic publishing.
As of this Monday, May 22, 2017, the Department of Education’s Open Licensing Rule is in effect. The Rule helps ensure broad public access to the products of federal grant-funded education research. Federal investments in this area can yield great benefits to the public, and requiring a plan for public access that includes broad licenses to encourage reuse will help multiply those benefits. SPARC has an excellent overview of the rule, including the full text and links to relevant laws and regulations.
Does Fair Use Affect Academic Authors’ Incentive to Write? Some Lessons from Authors of Works from the GSU Course Reserves Case
This post was co-authored by David Hansen and Brandon Butler and cross posted on The Taper and on Duke University Libraries’ Scholarly Communications Blog.
Imagine if you could download a .ZIP file with every single Copyright Office record, from the beginning of time thru, say, 2014, in a standardized and searchable format, free online. Who owns what, when it was published, whether it was renewed, even (dare to dream) when copyrights were sold or licensed exclusively to others, all in your choice of standard formats. What could people build around that free dataset? What could scholars learn? What deals could get done to revive forgotten works for new audiences?
I ask because the Library of Congress just did the equivalent with its MARC records, the electronic version of cards in a card catalog. The Library released 25 million records, its largest public data release ever, for free bulk download online. For years the Library has diligently created, compiled, updated, and distributed these records to libraries through a subscription service, which it will still offer. (The free bulk download doesn’t include the last 2 years’ worth of data, to preserve some incentive for institutional users to maintain the subscription service, presumably a cost-recovery mechanism that supports creation and maintenance of the data).
This is noteworthy because it is deeply inconsistent with the argument from supporters of HR 1695 that the Copyright Office needs to cut ties from the Library in order to “modernize” its information services.
Check out this little piece I wrote for the HathiTrust, explaining the new non-consumptive use policy that a group of us helped to craft to guide researchers as they seek to make lawful fair use of the millions of in-copyright volumes in the HathiTrust library.
cross-posted at Harvard’s Library Copyright Blog
From Kyle Courtney, Mary Minow, and me, posted at the Library Journal here. Also, I wrote up a little tweetstorm this morning about the last Register’s new job, the revolving door, and the risk of cultural capture.
Today I sent a letter on behalf of 42 copyright lawyers, scholars, and expert librarians to leaders in Congress. In it, we explain the rich relationship between libraries and copyright, and urge Congress to keep the Office where it has lived for more than a century: inside the Library of Congress. We hope this letter will be a useful input as the House Judiciary Committee considers the first part of its copyright reform agenda, announced earlier this week in a one-pager and short YouTube clip focused on the Copyright Office. The Duke University Libraries sent a fantastic letter yesterday, the Library Copyright Alliance (LCA) issued a clear preliminary statement, and I expect there will be more input from the library community as this discussion continues.
Our letter was originally prompted by another letter,
Fellow man! Your whole life, like a sandglass, will always be reversed and will ever run out again, - a long minute of time will elapse until all those conditions out of which you were evolved return in the wheel of the cosmic process. And then you will find every pain and every pleasure, every friend and every enemy, every hope and every error, every blade of grass and every ray of sunshine once more, and the whole fabric of things which make up your life.
Friedrich Nietzsche, Notes on the Eternal Recurrence
In times of great change and tumult, we in library- and copyright-land can take a measure of comfort in at least one eternal recurrence: the Georgia State course reserves case grinding on and on.
Change is in the air in Washington, D.C., and everyone is talking about it. Of course I’m referring to the Copyright Office. The Washington Post and the Wall Street Journal have both run pieces full of wild speculation about sinister forces conspiring with the new Librarian of Congress, Dr. Carla Hayden, to change the guard at the Copyright Office in order to, like, undermine copyright as we know it, man. Libraries let people read books for free, Don Henley told the Post, so firing former Register of Copyrights Maria Pallante must be part of a library-tech conspiracy to suppress the royalty rates YouTube pays to songwriters.
The strangest thing about all this conspiracy theorizing (other than the WSJ calling Pallante a “patent defender”—wrong IP, dudes) is that it starts with the idea that the Librarian’s move is a mystery that can’t be explained by available facts. I don’t have access to any insider info, but I don’t think I need it: former Register Maria Pallante didn’t think she should be working for the Library. The Librarian apparently agreed. The end.
So what’s really going on?
In this guest post, UVA Open Publishing Librarian Dave Ghamandi provides commentary on the state of the federal government’s open access policies, and in particular a response to the Department of Energy’s recent blog post on the “compromises” involved in working with publishers to provide open access to federally-funded scholarship. It’s important to applaud our friends in government when they move in the right direction—and they have certainly done that, as Jerry Sheehan’s recent Open Access Week round-up makes clear. But Dave’s message here is equally important: we must also question dubious compromises and half-measures along the way, before they harden into accepted practice.
Welcome to The Taper, a blog about copyright and related library policy issues as seen from my office at the University of Virginia Library, the spiritual (and, originally, the physical) heart of Thomas Jefferson’s “academical village.” I’m Brandon Butler, the new(-ish) Director of Information Policy for the Library, and I’ll be the blog’s primary author. It will also be my privilege to host guest posts from my colleagues at the Library and beyond, who will appear on these pages in the coming days and weeks to share their thoughts on the policy scene and let you know about all the cool stuff they are doing to foster a better-functioning ecosystem for teaching, learning, and scholarship, on Grounds and beyond. Read on for some thoughts on the blog’s name and our Founder’s founding insight.