Open@VT

Last week Tim Gowers wrote an extensive post on the cost of Elsevier journals that begins to create some transparency in this market. Much of the data so far is from UK universities, but cost data from U.S. universities (including other publishers) should be available soon from Ted Bergstrom’s Big Deal Contract Project.

Providing adequate funding for open access platforms and innovations is becoming an increasingly hot topic, and two excellent posts with different perspectives have recently appeared. Stuart Shieber’s Public Underwriting of Research and Open Access offers a convincing case for open access to research that reminded me of John Willinsky’s keynote address during Virginia Tech’s Open Access Week. Counting up the ways that research is subsidized results in a truly stunning number, and Shieber makes a solid argument for public funding. Cameron Neylon, on the other hand, notes that much of the innovation in scholarly communication comes from the for-profit sector, yet non-profit status is needed to to retain control and prevent diverging interests. So how should we go about funding innovation in scholarly communication? Perhaps OA projects could benefit from socially responsible investing?

One innovation in need of funding is open peer review platforms like LIBRE, which just announced that it is in beta testing. While I like the diversity of opinion that open review makes possible, I think there still may be a role for anonymity, and I’m also skeptical of the invite-your-own-reviewers model. Although it has been around for a while, I only recently discovered a community-edited Google document of standalone peer review platforms, and was surprised by how many there are. I think it would be great if one day I could upload a paper to VTechWorks, have it openly reviewed, and then submit it in my tenure and promotion dossier as a peer-reviewed paper. Then evaluation would have to focus on article quality rather than journal prestige or impact factor.

So few accounts of the publishing process appear that one in my own field of library and information science is definitely worth mention. Catherine Pellegrino’s Walking the walk may be trickier than it first appears: An open access publishing story relates her assessment of publishing venues while feeling the stress of needing to publish. This OA-conscious assessment, and her negotiation to retain copyright, serves as a worthy model for librarians (and non-librarians).

The University Libraries at Virginia Tech is now supporting two innovative open access efforts, Knowledge Unlatched and PeerJ. Knowledge Unlatched enables open access for books in the humanities and social sciences, while PeerJ is an open access journal in the life sciences.

Open access journals are hardly new, but PeerJ is pioneering a new pricing model that dispenses with article processing charges (APCs) in the thousands of dollars. Instead, it charges for lifetime memberships in three tiers. The University Libraries is now automatically covering these fees for Virginia Tech authors. The fees are slightly different since payment only occurs upon article acceptance, and there is a discount for purchasing memberships in bulk. Prices are radically lower than the APCs charged by other journals, and PeerJ has received positive reviews, especially for its fast peer review process. We hope our authors in the biological, medical, and health sciences will benefit from this arrangement.

The University Libraries is also a charter member of Knowledge Unlatched and provided support for its pilot collection of 28 open access monographs (at this writing 22 have been made available). PDFs of the books will be available (with no DRM) under a Creative Commons license. The project benefits all involved, and the Featured Authors section is particularly worth reading. Given the strain that scholarly monograph publishing has been under in recent years, Knowledge Unlatched and other open monograph initiatives have the potential to begin turning things around. While this support for KU does not provide direct aid to Virginia Tech authors, it does reduce the pressure on academic presses, and hopefully more books in the humanities and social sciences can be published.

Reclaiming Fair Use: How to Put Balance Back in Copyright by Patricia Aufderheide and Peter Jaszi was published by the University of Chicago Press in 2011. It’s a well-written history of fair use interpretation and an important corrective to over-cautiousness in asserting user rights. Fair use is a provision of U.S. copyright law that, broadly speaking, allows use of copyrighted works when the social benefit is greater than the owner’s loss. The law sets out four factors which are used to determine whether fair use can be employed: the nature of the use, the nature of the work used, the extent of the use, and its potential economic effect. But since there is no bright line or definitive calculation of the four factors (and other factors which may have bearing), the effect has been limiting (p. xi):

We saw that when people do not understand the law, when they are constantly afraid that they might get caught for referring to copyrighted culture- whether an image, or a phrase of a song, or a popular cartoon character- they can’t do their best work.

Aufderheide and Jaszi feel that the four factors (and checklists based on them) have been hindrance (p. 183):

People love checklists, because they hope that the lists will do their fair-use reasoning for them. But checklists tend to be more trouble than help. Sometimes a checklist simply discourages fair use in situations where the user might have an adequate rationale not captured by the list. More often, checklists simply lead to further confusion. Focused on the four factors, they treat the factors as if they had a concreteness that they do not. Those four factors have been widely interpreted by judges over the years.

Instead they distill fair use evaluation into three questions (p. 24 and 135):

Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose? Was the amount of material taken appropriate to the purpose of the use? Was it reasonable within the field or discipline it was made in?

The first and third questions are especially important in the revitalization of fair use. While copyright has become “long and strong” in recent decades, fair use has made a comeback since the late 1990s to lend the law more balance. Fair use interpretations have been primarily strengthened in two ways: first through the concept of transformativeness (use for a different purpose than originally intended), and more recently through development of codes of practice for particular fields. Both are now major considerations by courts (p. 80). Aufderheide and Jaszi have been leaders in developing best practices for various communities, first with documentary filmmakers (a process related in Chapter 7) and most recently as contributors to initial work toward a code of practice for the visual arts (PDF).

Codes of best practice “represent a common understanding in a community of practice” (p. 120) and emphasize demonstrating good faith (e.g. through attribution). The codes developed thus far are in agreement on three areas of fair use: critique, illustration, and incidental capture. The codes are also balanced in the sense that the communities (e.g. documentary filmmakers) are often creators as well, so they must take into account how their own work might be used. Aufderheide and Jaszi emphasize that, like a muscle, fair use is strengthened by use– it is one arena in which behavior affects the law, not vice-versa. In addition to communities of practice, the law provides exceptions for certain kinds of use, such as the educational exemptions in Section 110-1 and 110-2.

While the authors champion fair use, they are clear about the problems that remain. In the digital environment, many works are leased rather than owned, and contracts may include language limiting fair use rights. The Digital Millennium Copyright Act (DMCA) of 1998 made it illegal to override digital encryption, so exercising one’s fair use rights becomes impossible. Reliance on the courts to interpret fair use has its disadvantages, and one casualty has been music sampling. The interaction of three court cases has severely limited fair use for music (p. 90-93). Formal copyright registration entitles owners to statutory damages, and the potential maximum has a chilling effect (p. 32). The courts have also expanded secondary liability. The authors call for for advocacy on DMCA reform as well as on orphan works.

Aufderheide and Jaszi are unexpectedly critical of free-culture and commons advocates. They indict free-culture activists for making copyright the villain (p. 48) and seeking alternatives elsewhere rather than acknowledging balancing effects of copyright law such as fair use (p. 54):

The commons rhetoric… celebrates a particular vision of the public domain as a space entirely free of intellectual property constraint, while either ignoring or slighting exemptions and balancing features that limit copyright owners’ monopoly control.

Yet the commons is growing steadily, and search engines now allow users to filter images by license. And in their discussion of the public domain (p. 141), the authors fail to mention the Creative Commons Zero (CC0) license for intentionally placing works in the public domain. While commons advocates may have overlooked fair use, the unnecessary distinction between the two approaches is contradicted by the authors’ own work on a code of practice for OpenCourseWare, which relies on both open licensing and fair use.

The international environment for fair use is covered in Chapter 10. Most countries lack a fair use provision, but have a much lower risk of litigation and lack statutory damages for infringement. Because fair use is the exception rather than the rule, harmonization of copyright through treaties is a continuing threat to it.

Fair use is deliberately vague, and always a case-by-case decision. To Aufderheide and Jaszi, this is a feature, not a bug (p. 163):

Creators benefit from the fact that the copyright law does not exactly specify how to apply fair use…. Fair use is flexible; it is not uncertain or unreliable.

Reclaiming Fair Use features inset boxes throughout the text, “Fair Use: You Be The Judge” (with answers at the back) and “True Tales of Fair Use,” and has five useful appendices, including a template for a code of best practices and a section on myths and realities of fair use. While it contains more background than some readers may desire (they can go straight to Chapter 9, “How To Fair Use”), this book is a valuable perspective on fair use and always interesting and well-written.

More information about fair use, including codes of practice, can be found at the Center for Media & Social Impact at American University, which Aufderheide co-directs. In addition, Jaszi provided testimony on fair use to a House of Representatives subcommittee in January (his testimony begins at 39:00 in the video, and his written submission is available in PDF).

Reclaiming Fair Use is available as an e-book through the University Libraries.

The Chronicle of Higher Education‘s Vitae site has a post today titled Should You Share Your Research on Academia.edu? Research networking sites may provide services that researchers value– I don’t know because I haven’t signed up for any of them– but they do not provide open access. In a recent post, Beyond Elsevier, I mentioned that Academia.edu has the only copy of this paper I was looking for. While it is readable on the screen, if you click the “Download” button, you are prompted to sign in. This is not an open access paper. Open access does not require signing in or downloading software, and it enables uses beyond reading. The Budapest Open Access Initiative states:

By “open access” to [peer-reviewed research literature], we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself.

This paper is essentially being used as bait to sign up new users (if you want do anything other than read a long scroll through small text). Personally, I would not want my work used as an enticement to attract new members to a for-profit site without a business model. We can predict that these sites will find a way to monetize personal information, which raises the question of whether this is a good example for researchers to set for graduate students and future scholars.

The marketing pitches of these sites should be taken with more than a few grains of salt. Given the many, many existing institutional and disciplinary repositories that are already providing full open access, their talk of “sharing” and “dissemination” are marketing Kool-Aid. They may not have paywalls, but they do have log-in walls, and those are a barrier for anyone who does not want to trade their privacy for access. Additionally, some of the services treated in a “gee whiz” manner in the Chronicle article, such as statistics on views and downloads, have been available in most repositories for years.

Academia.edu is hardly the only research networking site (since none of its competitors are mentioned, was there a quid pro quo between the Chronicle and Academia.edu?). If colleagues in your field are members of different “silos” such as Mendeley or ResearchGate, do you need to join all of them, with their various terms of use and privacy policies? The existence of these silos undermines their claims of “sharing” and “dissemination”– activities that they are clearly not providing on a network level.

I hope that those wanting to take advantage of the networking capabilities on these sites will also post their work on the open web, preferably in an institutional or disciplinary repository. The private sector is again in the lead in providing services, though it should be remembered that the privatization of knowledge typically hasn’t turned out well (and remember, Mendeley is now owned by Elsevier). Eventually, non-market research networking options will appear and (I hope) disintermediate these private silos.

Last week there was a flurry of exchanges on copyright and author manuscripts, unintentionally set off by Kevin Smith’s clarifying post Setting the record straight about Elsevier. I had thought that my right to archive, given in the publishing contracts I have signed, also allowed me (implicitly) to assign whatever license I liked to my own versions. Smith (and others) make it clear that a copyright transfer applies to all article versions. So you can archive your article if permitted, but you should attach the publisher’s copyright statement, and you are not free to attach a Creative Commons license. I’m currently in the process of correcting this for my archived articles, to which I erroneously assigned a CC-BY license. And I have updated my CC-BY recommendation in the previous post on the Elsevier fallout to make it clear that this can’t be done if the copyright has been transferred.

Smith followed up with two posts (It’s the content, not the version! and So what about self-archiving?), Nancy Sims posted, and Michael Carroll addressed this issue back in 2006. All are worth reading.

These posts reinforce the importance of retaining copyright whenever possible. But the fact remains that this is not always easy to do. The suggestions of some to “never sign over copyright” or “just put it in the public domain” I don’t find very helpful. In my niche of information science, there are very few OA journals, and most are owned by the large multinational conglomerates. While I have transferred copyright in all of my peer-reviewed articles, I have archived all of the post-prints. In the one case in which I attempted to retain copyright, the journal simply refused (and my co-authors did not seem particularly interested in putting up a fight). Placing an article in the public domain, it seems to me, would likely result in journal refusal (if I remember correctly, on most copyright transfer forms this option is only available to federal government employees). Additionally, since the public domain does not require attribution, most authors would not want to explicitly give that up.

Tenure-track faculty are under pressure to publish, and copyright transfer occurs at the end of a very lengthy process. Not many authors will be willing to start this process over if they can’t come to agreement with the journal about copyright. If authors are doing their best to make open the default, then they shouldn’t be made to feel badly about copyright transfer, particularly in cases where they can provide access through archiving. And if they are willing to negotiate for that right where it is not given, so much the better. But sometimes we have co-authors who are more interested in publication than copyright or archiving. So it’s more important than ever to address these issues in advance: to identify an OA journal (or one that explicitly allows archiving), and to ensure that co-authors are in agreement well before time to sign a publication agreement. Until more OA journals are developed in more fields, that is the best we can ask for.