On another note

It's Open Access Day! Which I didn't know until this morning, or there'd be something more here, since there's a blogging competition going on.

Oh, well, maybe next year. Meanwhile, follow the link to learn about OA and read what other people (librarians, scholars, and more) are writing.

Fair Copyright in Research Works Act neither fair nor encouraging of research, film at 11

Yes, it's been awhile. The semester started, and that means I've been embroiled in the sorts of things one does in the library when the semester starts: library research instruction, juggling serial subscription renewals, and trying to keep the mail from overtaking both my inbox and my desk. (My mailbox is rather small, so I can only ignore it for so long.)

But while the public's attention is fixed (not without reason) on bailouts and elections, a post at Au Courant brings the Fair Copyright in Research Works Act to my attention. Really, once the open access movement started to gain a bit of traction, this sort of thing was only a matter of time. And one thing you can bet on: any piece of legislation that uses both the words "fair" and "copyright" in its title isn't going to be fair at all.

The proposed act is an amendment to Title 17 which, as most anyone reading this probably already knows, is the part of the U.S. Code that pertains to copyright. Specifically, it proposes to amend Section 201, which pertains to ownership of copyright.

What it does is add new limitations on the federal government. Now most people I know, regardless of their political affiliations, have no objection to this, especially considering the bloat of the current administration. But let's take a look at the language.

The amendment specifically pertains to "extrinsic works". What's an extrinsic work? Glad you asked. It's defined in paragraph 3 of the proposed amendment, as follows:

(A) EXTRINSIC WORK- The term 'extrinsic work' means any work, other than a work of the United States Government, that is based upon, derived from, or related to, a funding agreement and--

So this refers to a work that is funded, but not created, by a Federal agency; "funding agreement" is defined later in the act. What's under discussion here is, in essence, federally funded research: meaning, for instance, biomedical research funded through NIH grants.

'(i) is also funded in substantial part by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party; or'

The work, therefore, is being funded by other entities in addition to the Federal agency. This is hardly unusual, especially in STM (science, technology, and medicine) research; few grants are big enough to fund what constitutes a major research project these days.

'(ii) represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party.

This is where, in my opinion, the language starts to hedge. So it's not necessary to actually be receiving funding from another entity, as long as that other entity is adding meaningful value or process to the work.

Such as, for instance, publishing it. Remember that we're in Title 17, here.

Okay, so that's an extrinsic work. What are the limitations so imposed? Here's the first part of paragraph 1 of the proposed amendment:

(1) LIMITATIONS REGARDING FUNDING AGREEMENTS- No Federal agency may, in connection with a funding agreement--

`(A) impose or cause the imposition of any term or condition that--

`(i) requires the transfer or license to or for a Federal agency of--

`(I) any right provided under paragraph (3), (4) or (5) of section 106 in an extrinsic work; or

This is pretty clear. It says that the funding agreement can't stipulate the transfer of rights provided under paragraphs 3, 4, or 5 of section 106. These are, briefly put, the right to distribute copies, to perform works publicly, and to display works publicly. In other words, the rights by which copyright holders enable the sale of books and magazines, the staging of theatrical productions, the showing of movies, and so forth.

In other words, this goes directly to the open access mandate which went into effect in April 2008, which stipulates that all NIH-funded research must be made available to the public via PubMedCentral within 12 months of its publication.

Don't think so? Take a gander at this next bit:

`(II) any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or

Availability to the public. Paragraphs 1 and 2 pertain to making copies and producing derivative works. This act wouldn't touch any of that--except insofar as it involves making the work available to the public.

`(ii) requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work;

This just means that in addition to transferring these rights, the agreement also can't require these rights to be nonexistent or abandoned.

`(B) impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A); or

In addition, the prohibitions previously described can't be a condition of receiving funding in the first place.

`(C) assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work.

This wording is a bit confusing, but essentially what it boils down to is that the Federal agency can't assert Title 17 rights over existing material where the funding agreement has already restricted those rights--thereby, it seems to me, covering work released between April 2008 and whenever this act, should it pass, goes into effect.

Any term, condition, or assertion prohibited under subparagraph (A), (B), or (C) shall be given no effect under this title or otherwise.

Now I find this bit pretty alarming. It seems to be saying that if there's anything anywhere in Title 17, now or in the future, that contradicts A, B, or C, it is now void. I can see that having an ill effect for libraries.

On to paragraph 2:
`(2) CONSTRUCTION-

`(A) CERTAIN OTHER RIGHTS NOT LIMITED- Nothing in paragraph (1)(A)(i)(II) shall be construed to limit the rights provided to the copyright owner under paragraphs (1) and (2) of section 106.

So the copyright owner can still do what he/she likes with regard to copying and derivative work. No surprises there.

`(B) NO NEW COPYRIGHT PROTECTION CREATED- Nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102.

Section 102, for any of you who aren't aware, defines what can be copyrighted. Again, no surprises there.

The next bits come from paragraph 3, where extrinsic works are also defined:

`(B) FEDERAL AGENCY- The term `Federal agency' means any department, agency, or instrumentality of the United States Government.

`(C) FUNDING AGREEMENT- The term `funding agreement' means any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities.'.

Prescient of them. Yes, right now the only Federal open access mandate applies to NIH-funded works. This proposed act applies to any works funded by any Federal agency. Such as, for example, the NEA. Or the NSF. Or any other Federal agency you can think of that funds research. The Federal government is one of the biggest, if not the biggest, source of research and grant funding in this country. Think about what this means for public access to Federally-funded material.

(b) Applicability- The amendment made by subsection (a) applies to any funding agreement that is entered into on or after the date of the enactment of this Act.

Of course. You can't make it retroactive--although it seems to me that paragraph 1, subsection C sort of does.

(c) Report to Congressional Committees- Not later than the date that is 5 years after the date of the enactment of this Act, the Register of Copyrights shall, after consulting with the Comptroller General and with Federal agencies that provide funding under funding agreements and with publishers in the private sector, review and submit to the appropriate congressional committees a report on the Register's views on section 201(f) of title 17, United States Code, as added by subsection (a) of this section, taking into account the development of and access to extrinsic works and materials developed under funding agreements, including the role played by publishers in the private sector and others.


I have to admit, I'm having difficulty reining in my snark at this point. It isn't at all surprising that publishers want to control access to material that they publish; this entire proposal is just another salvo in a long-running battle.

I also have to admit, however, that it positively blows my mind that publishers honestly seem to think that they have this much authority to control access to research that they had no part in funding. Well, you could argue, but they control access to research funded from other sources, right?

Yes, they do. And isn't it interesting that their role has shifted from publishing--which is, fundamentally, about making information available--to controlling access to that information.

The difference is, that's not taxpayer-funded research. If something is made possible through a grant from NIH, NSF, NEA, or another Federal agency, then you paid for it. You ought to have access to it.

You can read more about this at Peter Suber's blog (which I recommend reading generally), and follow the links there to further commentary. In particular, also look here, where much more detailed analysis than my novice's take is available, including considerable discussion of why this is just bad law.

Congress reconvenes in January. At some point after that, the bill may come out of committee--or sail through attached to another bill, as so often happens.

If open access matters to you--and if you pay taxes, it should--contact your Congresscritters. Many of them have no idea why this is important, for reasons that Suber describes. Enlighten them.

Open Access in the Humanities

We're used to thinking of open access as primarily an STM phenomenon: science, technology, and medicine. It makes sense, since researchers in this area seem to be more likely to embrace new channels of information dissemination, and new research in these fields can be so expensive to access; one of the principles behind the open access movement is to make published scholarship accessible to researchers who lack the financial resources to gain access to expensive scholarly publications.

The humanities, in contrast, are seen as still relying primarily on print, which in general I've found to be the case (JSTOR being a notable exception for many faculty).

Today, though, Inside Higher Ed reports on Open Humanities Press, a large new hat in the open access ring and notable precisely because it is dedicated to humanities scholarship, not STM. Even I've heard of some of the names on the advisory board, and with the exception of music, I don't spend much time with humanities literature.

There's been much discussion in librarianship as to if and when the humanities would jump on the e-scholarship and open access bandwagons (not the same things, not by a long shot, but they're in the same parade). This looks like it could be a significant step in that direction.

Handy (and Short) Explanation of NIH Open Access Mandate

In the latest issue of Open Medicine, Peter Suber gives a rundown of the NIH's new open access mandate. I could not get the table included in the article to appear, but Coturnix's post on ScienceBlogs provides an image: a handy list of misconceptions about the mandate, countered by the actual facts. Take a look.

The E-book Tipping Point: Here at Last?

Is print dead? I remember Egon Spengler saying so in Ghostbusters, which dates me quite a lot, and the saying is older than that. But it might well finally be that print is, if not on its last legs, finally set to become just one of a range of options, and not the most popular one at that.

March 16th's New York Times notes that encyclopedia publishers are, finally, taking up Wikipedia's gauntlet and going online in a big way. Actually, it's not that encyclopedias weren't online before; I had a personal subscription to Britannica Online when I was a freelance writer and found using the paper version at the public library too inconvenient (parking downtown was a royal pain and all of the library's copiers were broken), and at roughly $6 a month it was a worthwhile investment. But online reference materials have been slow to arrive, and when they do, their interfaces are often poor and their search engines poorer.

However, the Internet and the way people use it to find information is practically tailor-made for online reference resources. The whole point of ready reference is the quick lookup of information, that mainstay of Google searches. As I mentioned in an earlier post, Wikipedia is not the problem. Publishers' unwillingness to embrace a medium that can enhance, not detract from, what they do is the problem. There is no inherent reason that information found online must be low quality.

The other interesting thing about this development is how much of this reference content is, or will be, open access. $6 a month for Britannica Online wasn't much, but Wikipedia is free--if you've got access to the Internet, at any rate.

Then, ebrary released its report on faculty use of ebooks. The title of the study is a bit of a misnomer, since the survey also covers electronic journals, which thus far have led the charge in moving scholarly content online, and faculty overall prefer electronic journals to print. No surprises there. For books, faculty still prefer print, but many of the responses show that the reason is that ebooks are still, after all this time, difficult and cumbersome to use. DRM restrictions on downloading, printing, and copying are a big part of the problem, as is general difficulty of use. Even e-journals, in my experience, still hew far too closely to the print paradigm, with publishing and navigational features that mirror print. But it doesn't make sense for them to continue to do that, when putting scholarly content online makes other possibilities available. You can look at the survey results yourself if you register with ebrary.

And of course, while the initial furor over the Kindle has died down, it looks like Amazon is closer to getting it right than previous e-book attempts. Whether it's actually gotten it right--probably not, not entirely--remains to be seen, but growing usage and preference for electronic resources, along with reference publishers finally getting their online acts together, suggests that the age of the e-book might, finally, be here at last.

Now, is print dead? That's another question.

Friday is Resource Day

An interesting experiment came to my attention last year, and this week we finally get a glimpse of the Encyclopedia of Life. Even if you're not interested in, or working in, biological or life sciences, this new online encyclopedia is worth a look, for a couple of reasons.

First of all, for those who get hives at the mere mention of Wiki-anything, EoL is an example of an online, digitally native, free to use encyclopedia with authoritative content creators, the lack of which seems to be a lot of people's chief issue with Wikipedia and its ilk. (One could quibble about that, but that would require an in-depth exploration of what we mean by "authoritative", which is too long for a blog post.)

Secondly, it shows, rather subtly, how an online encyclopedia must be different from a print one. Ease of access is only one of its advantages over too much of its digital competition; the design here was very clearly born in the digital realm, instead of being transferred there from the print. Jared Spool or Peter Morville could probably expound at length on the design principles involved here, but I'll just put it this way: it looks good, it feels good, it's easy to use without succumbing to the temptation to resemble Google (has anyone else taken a look at EBSCO's to-launch-this-summer interface yet?).

Thirdly, it's fun to explore, a characteristic it shares with Wikipedia. Although it's only populated a few branches on the tree of life (a pity, as I really wanted to read about African stink ants), it leverages that existing taxonomic structure really well--and its searching is flexible, enabling use by novices and experts alike.

This is one to watch.

Another open access experiment

Harvard's new open access initiative has made a lot of waves, but InsideHigherEd reports today on another, smaller scale, but in some ways more interesting initiative, this one out of Indiana University.

What makes this one of particular interest to libraries is that the Indiana library is providing the publishing platform.

This makes eminent sense, for two reasons: libraries increasingly have the technological infrastructure to support a venture like this (look at the volume and variety of online services we provide already: what's one more?), and it cuts out the expensive and unsustainable middleman from the provision of serial content. Why pay a university press when you can serve it yourself, and partner fruitfully with faculty into the bargain?

It does remain to be seen how cost-effective this will be: a big unanswered question is whether open access scholarship really saves money or just shifts the burden of cost around. That's difficult to predict without trying it out, though.

One question that has often lurked in my mind when thinking about the role of libraries in scholarship, now and in the future, is whether or how libraries could play a role in the publication process. Indiana hasn't just been thinking along those lines, they've done something about it. More power to 'em and let's see what happens.