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Boston Library Consortium Networking Day 2013: Strategic Thinking about Copyright for Libraries in a Digital Environment presented by Kevin Smith, J.D.

This week I went to the annual networking day for the Boston Library Consortium, an association of 17 academic and research libraries working together to provide better information to our patrons.

The speaker this year was Kevin Smith, J.D., a lawyer librarian (yes, those exist) who is an expert in copyright law for libraries.  He works at Duke University and also writes a widely regarded blog on scholarly communication.  The following are my notes from his presentation entitled “Strategic Thinking about Copyright for Libraries in a Digital Environment.”  Please feel free to ask me for any clarifications (to the best of my ability) in the comments.

  • When we open a library and let the public in, we are taking risk. We plan and mitigate for them [risks]. Copyright should be no different. It’s not all or nothing.
  • Digital environment has rewards
    • opportunity to create new knowledge
    • new ways to reach community
  • Think about copyright in terms of the mission of your organization
  • In the past 5 years, there’ve been an unprecedented number of lawsuits [against libraries regarding copyright]. So far, libraries have won all of them.
  • Kirtsaeng vs. John Wiley
    • doctrine of first sale applies to any material manufactured with consent of owner in the US [ie it doesn’t apply to pirated copies]
    • this leaves the status quo in place
    • Courts like libraries. They understand and appreciate what libraries do.
    • Library Copyright Alliance
    • copyright cuts across partisan lines
  • New Challenges: MOOCs and mass digitization
  • Author’s Guild vs. Hathi Trust
    • AG argued that what HT was doing with the scans, not the making of the scans themselves, was what was wrong
    • AG argued that libraries shouldn’t be allowed to rely on fair use
    • Judge said no, libraries can rely on fair use
    • Judge said fair use can support a mass digitization project
    • Is it fair use to digitize for greater access? We don’t know yet/it depends
    • Courts like transformative use
    • purpose –> even if the work itself isn’t change, its purpose is now for a different audience
    • Judge said these instances are transformative:
      • indexing
      • preservation
      • access for persons with disabilities
  • Strategy for Mass Digitization
    • recognize some material is public domain
    • seek permission from prominent or large-scale rights holders
      • people who are most likely to object and are possible to find
      • watchfile –> writers, authors, and their copyright holders
    • rely on transformative fair use
      • improve the context of the transformation (frame it)
      • fair use supports good library practice and good pedagogy (teaching)
    • have a “talk to” policy
      • a talk to policy is not a take down policy
      • you can learn a lot from people who originally call angry
  • GSU and UCLA
    • 70 of 75 excerpts on ereserve were deemed fair use
    • strict length limit of 10% or 1 chapter, whichever is less, was used
    • if we’re within limit, the subsequent semester rule (ereserves can’t be duplicated from one semester to the next) is impractical and unnecessary
  • non-transformative fair use
    • not clear that new form of access is transformative
    • ereserves are generally not viewed as transformative
    • address with context and creativity
    • It doesn’t have to be transformative to be fair use. It helps but isn’t necessary.
    • 4 factors of fair use
      • purpose
        • usually in favor of libraries
      • nature
        • usually in favor of libraries
      • decidedly small
        • can go either way
      • impact on market of original
        • This usually weighs against as long as holder is providing way to get license for digital use. If there is no way to get a license then it weighs against the copyright holder.
  • Strategy for eReserves
    • balance forms of access
      • having all the readings available digitally looks bad
      • balance purchases, licenses, and fair use
    • for fair use, stick to small portions
      • 10% isn’t the law, but it’s a good rule of thumb
    • always keep course site closed
    • be creative
      • think about what makes your site a unique exercise in pedagogy
    • seek permission when larger excerpt is needed
  • Strategy for Streamed Videos
    • almost anything shown in face to face classroom is legal
    • students are not a market that rights holder is allowed to exploit
    • look for ways to enhance the case
      • works that are unavailable
      • works where it’s difficult to contact rights holder
      • special pedagogical needs ie language instruction
  • Strategy for MOOCs
    • two separate MOOC tracks:
      • teaching content
      • course readings
    • teaching content
      • clearly transformative fair use but it’s more limited
      • be as obvious about transformative use as possible
      • link to original when possible
      • seek permission
      • Remember creative commons is a form of permission. Use creative commons when possible. For example, if it can be illustrated with any picture of a tomato, find a creative commons one.
    • course readings
      • when seeking permissions, talk to the marketing guys! MOOCs are a great marketing opportunity
      • MOOCs are new and are a huge opportunity
      • remind faculty of open access options, such as putting their author’s final draft into the institutional repository
  • Conclusion
    • balance risk with reward
    • If we don’t take at least some risks, we won’t get any rewards
    • Avoid extremes
  • Q and A
    • Tiered pricing has no legal support for academic use
    • fair use argument is harder to make the larger the scale. ie if it’s for a 30,000 person MOOC as opposed to a 25 person face to face class.
    • copyright law defines fair use for educational purposes as “teaching activities in classroom or similar space normally dedicated to instruction”
    • Dissertations are a work of public scholarship. The university can set what requirements they want to for issuing degrees. Indefinite embargoes should not be accepted, although a case could be made for the traditional 6 month, 1 yr, 2yr, or 5yr. 5yr should be an exception though.
    • Gray markets, such as ebay and Costco, are very important industries.

For more information on fair use, copyright, and libraries, please see my posts Code of Best Practices in Fair Use for Academic and Research Libraries and On Open Access (OA) and Institutional Repositories (IRs).

On Open Access (OA) and Institutional Repositories (IRs)

October 19, 2012 Leave a comment

I recently went to a town meeting on Open Access (OA) and our Institutional Repository (IR).  (Universities and colleges have our own town meetings, because we’re basically our own mini-towns).  This meeting spurred me on to do a bit of a blog post on OA and IRs.  I’ll first give a brief explanation of OA and IRs, including links to some resources for more information, and wrap up with my own thoughts.

OA is the concept and movement within academia that access to academic literature should be free online and free of most copyright restrictions.  The idea is that for knowledge to flourish the exchange of ideas should be as free and fluid as possible.  Because this is a concept and movement this means that not everyone agrees with this idea.  Agreement and support of OA also varies drastically by area of specialty.  The sciences are the most supportive of OA, particularly Physics.  This is evident by the existence of the website arXiv.org, which provides “open access to 792,606 e-prints in Physics, Mathematics, Computer Science, Quantitative Biology, Quantitative Finance and Statistics.” The humanities are less so.  This has to do with the culture of the different disciplines. The sciences are more focused on teamwork and sharing new knowledge as quickly as possible, whereas the humanities tend to be more concerned with ruminating on ideas.  The pace is simply faster in the sciences than in the humanities, and OA is more useful in that environment.

Utilizing and supporting OA comes across in a few different ways.  There are OA journals, which are free to use, but not necessarily free to submit an article to.  To those concerned, the submission fee does not guarantee acceptance of an article.  It is simply there to help the OA journals function.  Studies on the percentage of OA journals charging a fee vary rather widely on their final numbers.  These fees are of concern to faculty members, though, because they can quickly go through grant money that could have been used in other ways just paying submission fees.  Although there originally was concern as to the quality of OA journals, OA does not negate peer-review.  There are many peer-reviewed and respected journals; the PLOS ones in particular spring to mind, but you can see a listing of all OA journals at the Directory of Open Access Journals.  Academics can support OA both by submitting to and reading OA journals, and institutions can support OA by giving articles published in OA journals equal consideration when doing tenure reviews.

OA can be pursued in traditional publishing as well, however.  Frequently faculty members do not fully understand what is happening with their copyright when they sign contracts with a publisher.  The creator owns the copyright of an item at the moment of creation. He or she does not need to register it.  This is not always clear to people because from 1923 to 1963 (in the US) you did have to register your copyright and re-register it every 28 years.  Anything published before 1923 in the US is officially in the public domain aka free of copyright.  This is why mashups such as Pride and Prejudice and Zombies can happen.  What all this means is that the author of the paper owns copyright until they sign it over to the publisher, and they do not have to kowtow to all of the demands of the publisher.  OA advocates encourage authors to return the contract to the publisher unsigned with a SPARC Addendum attached.  This addendum gives the publisher some rights over the paper/article/book while retaining some for the author.  What this essentially means is that the author retains certain rights over his or her article that most faculty members think they have anyway.  Only now it’s legal.  For instance, this addendum gives the author permission to deposit their paper in an Institutional Repository or include it in a group of pdfs of publications on their personal website, as long as it is properly cited to the journal of first publication.

A popular way for publishers to support OA while still staying in business, beyond agreeing to SPARC Addendums, is the concept of an embargo.  An embargo means that articles are available exclusively through subscription and fees for a set period of time (usually from 6 months to 2 years), and after that point they are available through OA.  The qualm some advocates of OA have with this model is that for certain fields of study, particularly in the sciences, the embargo period is long enough that the article will be practically irrelevant by the time it is available openly, thereby defeating the whole purpose of encouraging collaboration and free flow of ideas behind OA to begin with.

If you are interested in learning more about OA, check out Peter Suber’s book Open Access.  You can also check out this this handout that explains the OA spectrum in an infographic style.

So what do Institutional Repositories (IRs) have to do with OA?  An IR is a curated collection of all academic publishing, as well as collections such as photographs taken by anthropologists, created by scholars associated with the institution.  The IR is the institution’s research portfolio.  It’s important for the institution to be able to demonstrate to interested parties the valuable work their scholars are doing.  The connection to OA is that the current restrictive copyright contracts publishers send to authors frequently make it impossible to include their works in the IR.  The SPARC Addendum addresses this, but an institution can also address this concern by making it a mandate that all scholarly work done while at their institution be deposited in the repository.  This gives the author a prior commitment that is usually already covered in the contract.  A pioneer in the world of IRs is MIT’s IR: DSpace.  Check them out to get a feel for what an IR is like.

So what do I think about all of this?  I can understand and sympathize with all three sides (universities, scholars, and publishers).  The publishers are concerned that they will go out of business if everything is available immediately in OA.  As an indie author, I can easily see how valid that concern is.  Frankly if OA does take off the way, say, literary zines have, most journals will go out of business.  Yes a few big name zines are still surviving, and most zines also sell a print version and do alright with that, but publishing as we know it must change for OA to take hold.  Of course one doesn’t want that in one’s own industry.

I can also understand the dual view scholars hold.  Academic journals are peer-reviewed, and while OA journals can be, they aren’t necessarily.  OA can seem like a scary free-for-all with no verification of facts or quality.  Things don’t always become popular because they’re good.  But on the other hand if your audience is other scholars, aka the peer part of peer-review, then it should work itself out anyway.  Not to mention the fact that OA journals can mandate peer-review if they want to.  Similarly, I get it that scholars usually want to share their work with anyone interested and to that end want to post the pdfs on their website.  The problem is, though, if a person can get your article just by googling it and going to you instead of the publisher then we’re right back to putting the publisher who published you in the first place out of business.  But if publishing changes the way we think it will, then that would be a moot point anyway.

As far as IRs go, I truly see their value for gray literature.  Things like posters from poster sessions, dissertations and theses that are frequently not available or searchable otherwise, etc… but I also think an institution obsessively collecting a copy of everything every scholar has done is a bit redundant.  Not that the institution shouldn’t ever broaden to that level of collection and archiving, but since IRs are so new, it might be better to focus in on the gray literature for now.

Overall though the change won’t really happen until institutions start accepting OA publications in the tenure process. Until that point all scholars must publish in traditional journals in order to secure tenure.  It seems to me that the power is really in the hands of the universities.  The universities must decide: what do we want true scholarship and academic achievement look like in the 21st century?