Evolutions in Scholarship

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Open Access Explained

Friday, October 26, 2012 4:48 pm

It’s international Open Access Week 2012, when librarians and researchers around the globe are talking about OA and related issues. Here at Wake Forest, I led a workshop for faculty and staff on fair use and copyright in teaching and scholarship Thursday afternoon (slides). On Tuesday, I gave a guest lecture on OA to faculty at Furman University (slides).

The guys behind PhD Comics have created a fun video explaining OA. While it focuses only on OA journal publishing, and is science-specific, it’s a wonderful, quick primer on the principles of OA. Enjoy!


Busy week across the courts

Thursday, October 11, 2012 5:20 pm

It has been a busy – and exciting! – week in courts across the country, with important implications for libraries and fair use. Last Thursday, it was reported that Google and the Association of American Publishers (AAP) reached a settlement in their long-running case surrounding the Google Books project. Although the terms of the settlement have not been disclosed, we do know that publishers will have the option to opt-out of Google Books for out-of-print yet still in-copyright content, and the digital scans Google created will be removed. For those publishers who elect to stay in, Google will continue to provide 20% views via Google Books, sell full-text access via Google Play (with revenue sharing), and provide the publisher with a digital copy. On the whole, this changes things very little for users in practical terms – and does not end the class action lawsuit by authors still pending against Google – but ends one aspect of a 7 year lawsuit that libraries have been monitoring closely.

We also learned last week that for a second time, the lawsuit brought against UCLA for digital video streaming has been dismissed. Details are scant (and hat-tip to Kevin Smith for cluing me in, as I’d missed this until today), and the dismissal does not mean that what UCLA was doing was either fair use or covered by the licensing terms. Perhaps UCLA’s use is fair, perhaps it’s covered by licensing terms, perhaps the plaintiff did not have the rights to bring the suit in the first place. So like the Google settlement, little practically changes with this dismissal.

The big, fabulous, fist bump-worthy news for fair use and libraries came last night with the ruling that the Authors Guild’s lawsuit against HathiTrust has been dismissed on summary judgement by Judge Harold Baer. In 2011, the Authors Guild, two American authors, and several similar authors’ groups overseas filed suit against HathiTrust and several member institutions on the grounds that the in-copyright digitization that HathiTrust was coordinating, which enables new scholarship opportunities via searching and indexing and greater print-disabled patron access, exceeded the library-specific exceptions outlined in Section 108 of the Copyright Act. Furthermore, the plaintiffs claimed that because of the provisions outlined in Section 108, HathiTrust could not rely on fair use as provided in Section 107 to cover uses that fell beyond 108. Convoluted, no?

In a huge win for libraries, Judge Baer granted the defendants’ motion for summary judgement (MSJ). Nancy Sims provides an excellent explanation of the importance of an MSJ ruling, but the bottom line is that the judge felt that HathiTrust’s fair use defense was so air-tight, a trial was unnecessary as the outcome was a foregone conclusion. As Judge Baer wrote, “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act]” (see pg. 22 of the ruling).

Fair use wins!!

As always, there are deeper nuances in Judge Baer’s ruling, including the role of transformativeness and the option for foreign authors’ groups to pursue a suit based on copyright law in their respective countries, and for more on those I point you to:


Publishers to appeal the GSU decision

Tuesday, September 11, 2012 4:41 pm

Less than a month after Judge Orinda Evans declared Georgia State University to be the prevailing party in the four-year long lawsuit brought against GSU by three scholarly publishers–Cambridge University Press, Oxford University Press, and SAGE–which hinged on alleged copyright infringement in e-reserves and course management systems, the plaintiffs have announced that they will appeal the ruling. This appeal rather frustratingly comes as little surprise to those who have kept tabs on this long-running case, as it has been clear throughout that the publishers’ interpretation of fair use is fundamentally different than that of GSU, which correlates to the interpretation of many academic libraries, and ultimately that which Judge Evans thoroughly examined in her ruling.

For the publishers, who articulate their dissatisfaction and disagreement in a statement released yesterday announcing the decision to appeal, there is little to lose and potentially much to gain in an appeal. As Brandon Butler, the Association of Research Libraries director of public-policy initiatives, was quoted as saying in the Chronicle of Higher Education’s coverage, “the plaintiffs’ situation [is similar] to that of gamblers who have little left to lose. ‘They’ve been gambling all day, they’re way, way in the hole, they can make one last gamble and win everything back.’”

Interesting times ahead, it seems.

Additional coverage:

GSU is the prevailing party

Tuesday, August 14, 2012 3:27 pm

Last Friday, August 10, Judge Orinda Evans issued her final ruling in the GSU e-reserves copyright infringement case. In her final court order, she dismissed the plaintiff publishers’ proposed injunction, which would have placed severely burdensome oversight and reporting requirements on Georgia State, and found GSU to be the prevailing party in the case. Judge Evans furthermore ordered the plaintiffs to pay Georgia State’s attorney’s fees, which is estimated to cost $2-3million. Although many had presumed GSU to be the prevailing party when Judge Evans issued her decision on the case in May, in which she found only 5 of 99 instances to be infringing, it was not until this past Friday that our presumptions were confirms. And now we wait to see if the publishers will appeal…

Read more on Inside Higher Ed.

Rising awareness

Friday, July 27, 2012 9:24 pm

With the 2012 Summer Olympics underway, many eyes and ears are turned toward London, anxiously awaiting news of much hoped-for victories. But for many involved in scholarly publishing, our attention has been drawn across the Atlantic for some weeks now, as open access news has been coming from both the UK and the EU throughout the summer. To some, the news is welcome and championed as being a step in the right direction for ensuring public access to publicly-funded research. To others, it’s cause for concern. Here’s a quick overview of what is happening, and some thoughts on how these changes might impact us in the US.

In June, the “Finch Report“–a report of the Working Group on Expanding Access to Published Research Findings, so-called for the chair of the group, Dame Janet Finch–was released, calling for the British government to support broad public accessibility to funded research articles via open access publishing. While the call for accessibility is laudable, the recommendation that it be achieved exclusively through open access publication and not archiving was sharply criticized. In mid-July, the Research Councils UK (RCUK) announced that under its new open access policy, all RCUK funded research articles submitted for publication beginning April 1, 2013 must be published in journals compliant with the new policy and be freely available to the public within 6 months (STM) or 12 months (social sciences and humanities), effectively meaning that in under two years, all RCUK research articles will be fully open access. The following day, the European Commission followed suit, announcing that under the Horizon 2020 research program, all funded research articles will be open access. While it is too early to predict how the implementation of these policies will impact research budgets and publishing (although some are trying), broad European political support for public access to research output is clear.

Closer to home, this week the U.S. News and World Report published an article on scholarly journals and open access. Although I share a colleague’s criticism of several misunderstandings in the article, the fact that such an article was published in mainstream media is telling. As Barbara Fister points out in her own Olympic-inspired post (hat tip for the theme prompt!), the rising awareness of inefficiency in the scholarly publishing industry and increasing demands for greater access to research outputs has been steadily rolling since January. The Federal Research Public Access Act (FRPAA) is once again before Congress with strong bipartisan support, and the “We the People” petition to the White House calling for taxpayer access to publicly-funded research garnered over 28,000 signatures in less than half the 30 days allotted to reach 25,000.

Although the White House has not yet responded to the petition, and the FRPAA legislation may yet stall as we move ever-closer to November elections, I am encouraged by the multiple signs of increasing awareness of open access I have seen this year. I hope it continues. Oh, and Go Deacs competing in the Summer Games!

Decision in the Georgia State U. copyright lawsuit

Friday, May 18, 2012 6:25 pm

On Friday, May 11, 2012, nearly one year after hearing concluding arguments in the trial of the 2008 lawsuit brought against Georgia State University by three scholarly presses, Oxford U. Press, Cambridge U. Press and SAGE (funded by the Copyright Clearance Center and the Association of American Publishers), Judge Orinda Evans issued her opinion. As detailed in her 350 page analysis, the defendants clearly prevailed, with Judge Evans finding only 5 instances of infringement out of 99 (only 75 were actually submitted as evidence at trial), amounting to $750 in lost royalties. News is mostly good for libraries looking at this decision for guidance on their own e-reserves practices, although there are a few frustrations.

Fair use determinations came down to the third and fourth factors (amount used and market impact, respectively), as the first two factors favor libraries nearly every time. Under factor three, one of the frustrations is the use of a bright line rule for determining an appropriate amount: 10% of a text with 10 or fewer chapters, or up to 1 chapter of a text with 10+ chapters, assuming that neither amount is the “heart of the work.” This is less flexible than desired, but the silver lining is that Judge Evans rejected the publishers’ assertion that the 10% should only be factored from the text, excluding acknowledgements, introductions, indexes, etc; she followed GSU’s determination of 10% of the work in its entirety. Also, even if an excerpt exceeded 10%, the use may still be fair, depending on the fourth factor.

The fourth factor of fair use assesses market impact, or harm, and in instances where there is a readily available and reasonably priced license for digital excerpts, then the use cannot be fair. Although reasonably priced is not defined (another frustration), Judge Evans was explicit that the readily available license must specifically allow for digital excerpts; if publishers try to force a license for the whole work, then fair use remains a possibility. How publishers will respond with future licensing remains to be seen, but to some this is a victory for the Copyright Clearance Center, as they will have more leverage in enticing publishers to participate in CCC licensing options offered to academic libraries.

Two clear victories for libraries pertain to the third factor of fair use determination: 1) Judge Evans rejected the publishers’ claim that the 1976 Classroom Guidelines should define the maximum amount of allowable copying; and, 2) the court rejected the idea that using the same excerpt for more than one semester somehow makes the use no longer fair–Judge Evans called this “an impractical, unnecessary limitation.”

Below are links to news articles and commentary on the decision, and I especially call your attention to those that are asterisked **. To learn more about the GSU decision and implications for e-reserves at Wake Forest, join me for a discussion of the case on Tuesday, June 12 at 10am. Register at https://pdc.wfu.edu/event/4882/.

News Articles


New code to help libraries exercise Fair Use

Tuesday, February 28, 2012 5:52 pm

In late January, ARL released the Code of Best Practices in Fair Use for Academic and Research Libraries. The code “enhances the ability of librarians to rely on fair use by documenting the considered views of the library community about best practices in fair use, drawn from the actual practices and experience of the library community itself” (p. 3). The code uses eight common situations where consensus on acceptable practice and rights application was reached in a series of long-form interviews with 65 librarians, conducting around the country over the course of 10 months in 2010-2011, to illustrate the principles, limitations and enhancements of exercising fair use.

It is important to recognize that this code outlines best practices, and does not establish guidelines; it contains “principles, not rules; limitations, not bans; reasoning, not rote” (Peter Jaszi, Emory University panel, Feb. 14). ARL coordinated the creation of this code of best practices in part because other communities of practice that have established similar codes (e.g., documentary filmmakers) have had successful implementation across the field, and favorable viewing as good documentation of community standards by courts when cases have been brought. Furthermore, fair use in libraries is consistently under-used, and often risk aversion is substituted for fair use analysis. It is hoped that with the establishment of this code of best practices, libraries can better fulfill their mission to preserve knowledge by looking to the best practices to reduce insecurity and hesitation in exercising fair use.

Over the past month, I have participated in a series of webinars and live-streamed panel events introducing and discussing the code. I have pages and pages of notes, and as with all things copyright-related, I’d love to talk to anyone who wants to know more. But for now, I’ll share my key take-aways:

  • Increasingly, courts are assessing fair use on transformativeness of the work, in addition to the traditional four factors (nature, amount, purpose, impact); can be easier to determine if use is transformative than if it clears all four factors.
  • With digital content, so much is being licensed that we aren’t dealing with copyright–and by extension, fair use–as much as we are contract law; this is concerning.
  • If the maximum isn’t supported from the top-down, faculty will resort to the minimum use in course reserves.
  • Q: Is the transformative nature of work in digitizing collections in Special Collections enough to justify fair use? A: “Please, God yes!” (from Emory live-streamed panel; digitization a primary transformative use)
  • Distinction between legal analysis and risk management analysis is important.
  • Making one copy to share among 7 libraries would actually enhance fair use scenario as it would limit the number of copies created. [Interesting, not sure yet how I come down on this point - MK]
  • If someone is speaking before a camera, should expect to be distributed; agreement to be filmed should be implicit agreement to be distributed, implicit nonexclusive agreement covering copyrighted content in speech. [Again, very interesting point that I'm still mulling over - MK]
  • Presumption has usually been to first seek permission, and only rely on fair use as a last resort; need to flip this.
  • In highly transformative use, existence or high likelihood of license revenue not recognized as valid argument against fair use; transformative use licenses do not belong to copyright owner; when transformative, effect on market no longer a factor.
  • Most of the time, libraries exercising fair use aren’t going to land in the middle of lawsuit, but rather be issued a cease-and-desist order, at which point *you take it down.*
  • Embrace ambiguity and risk management!
  • In evaluating risk, must evaluate both bad AND good; acknowledge the good that will NOT happen if fair use isn’t exercised.
  • Fair use is context-sensitive: who is the user and why is this being done?
  • Reliance on fair use statements and codes adds to good-faith defense when questioned.

Finally, the code of best practices is not meant to be a ceiling (or even a floor), but represents current consensus on topics in which agreement among the 65 librarian interviewees could be reached. If it is too conservative, then it reflects the current conservative nature of our execution of fair use as a profession, and we need to go out and push those boundaries!

Blogging as Scholarship

Tuesday, July 6, 2010 8:03 am

Updated July 8, 2010 – see below.

Blogging. For many, the term evokes thoughts of cringe-worthy diary-esque posts by angry teenagers, or bland breakfast tweets by bored acquaintances. But in many fields, including the sciences, law and librarianship, blogging has become vital to the advancement of scholarship. Blogs provide outlets for scholarly exchanges and expression of ideas that might otherwise be lost among the cacophony of hallway conversations and hastily-jotted margin notes. Blogs expand the conversation beyond a handful of colleagues gathered in the same physical space to an online intersection of scholars, students and interested individuals who are able to share insights in a more real-time manner than traditional exchanges via letters and rebuttal articles in journals. Blogging advances an idea or argument, and that is the ultimate goal of scholarship.

Blogging has changed dramatically, both since its genesis in the late 1990s and again within the last five years. In 2005, the Chronicle of Higher Education published a pseudonymous article titled, Bloggers Need Not Apply, which was soon followed by Attack of the Career-Killing Blogs by Robert S. Boynton on Slate. Although Boynton was critical of the claim that blogging automatically had an adverse effect on career success, Mark Sample best summed up the objection to blogging within the academy when he stated that “…the real problem with academics who blog is that they leave evidence that they’re not at that precise moment engaged in research or teaching. A blog is an index to one’s daily ‘unproductive’ activity” (Sample Reality blog).

In the five years since “career killing blogs” first “attacked,” blogs and specifically scholarly blogging have matured. Publishers, such as Nature Publishing Group, and higher education media outlets, including the Chronicle, have blogs, speaking to the importance of blogging within research fields and higher education generally. The the rise of vetted blogging communities and the evolution of publications via blogs/blogging platforms point to the rising value of blogs as an outlet for scholarship. Noted examples of these communities and publications include:

  • ScienceBlogs – 80+ bloggers covering various aspects of science; sharing and assessing research, discussing science news and events; launched in January 2006
  • ResearchBlogging.org – over 1,000 blogs/10,000 posts; aggregates blog posts on peer reviewed articles, posts similar to review articles; started in mid-2007
  • In the Library with the Lead Pipe – peer-reviewed (one external, one internal) blog authored by six librarians, with submissions by guest authors; has an ISSN; peer reviewers named but reviews not public; average 2 articles per month, 2,000-5,000 words; publication began in October 2008
  • Hacking the Academy – book project of the Center for History and New Media at George Mason University; collected in one week in May 2010 through crowdsourcing, using hashtags (e.g., #hackacad); over 300 contributions from nearly 200 authors; full content available online, print edition forthcoming from Digital Culture Books

Despite such projects, written scholarly output in many fields is still expected to appear in a journal or monograph, vetted by pre-publication blind peer review. To engage in written discourse that does not have the peer review stamp of approval prior to distribution seems folly to many. Even fields with a healthy culture of sharing articles pre-peer review via repositories such as arXiv or SSRN eventually feed that scholarship into traditional publication structures.

Admittedly, the lack of editorial oversight and traditional peer review are strikes against blogging as scholarship. But to automatically dismiss blogs from the realm of scholarship, even while desiring universal electronic access to information (ahem, that’s scholarship folks!), is to fail to “stop trying to pound the square peg of digital scholarship into the round hole of analog scholarship” (Mills Kelly, Making Digital Scholarship Count (2), edwired). As Kathleen Fitzpatrick, author of Planned Obsolescence, notes, the criteria used during a scholar’s tenure and promotion review usually tries to assess impact on the field through the tally of peer-reviewed publications. But, she argues, “why should the two-to-three readers selected by a journal/press, plus that entity’s editor/editorial board, be the arbiter of the authority of scholarly work–particularly in the digital, when we have so many more complex means of assessing the effect of/response to scholarly work via network analysis?”

If scholars are to be truly evaluated on their impact to the field, a blog that fosters healthy debate and discussion, and ideally advances ideas or problems within the field, is a strong indicator of immediate impact. Blogging busts through access barriers that are currently limiting scholarly advancement by tying scholarship that “counts” to a centuries-old system that often fails to connect and engage scholars expediently. Through commenting and response posts, blogging has even evolved its own peer review system, albeit post-publication. Do you believe it is time for blogging to be validated by the academy as a means of scholarly discourse?

UPDATE: This week, an event has taken place that might have undermined my argument that blogging is scholarship, but I believe it actually underscores it. ScienceBlogs (SB) has come under scrutiny for a move that angered many of its bloggers and brought its credibility into question. Because this event did not pass by unnoticed, but sparked intense debate across the SB blogosphere and beyond, it confirms that blogging is actively monitored and reviewed by an engaged peer community that takes threats to credibility and autonomy very seriously. Read more from the Columbia Journalism Review, the Knight Science Journalism Tracker at MIT, The Guardian’s Science Blog, and Carl Zimmer at The Loom.

Sharing Your Research

Tuesday, March 9, 2010 8:19 am

Discoverability of research is vital to scholarship and the expansion of knowledge. Expectations for access to scholarly publications are changing. Are your publications optimized for maximum reach and impact?

As published research output increasingly becomes digitally delivered, expectations for easy access are the new norm. While faculty and students affiliated with large universities and colleges are typically able to access the full text of needed research outputs through electronic journals and ebooks with minimal clicks, researchers at smaller institutions or independent research firms are more likely to encounter barriers. Although there are options to gain access, many researchers have neither the time nor money to pursue access for an article or book that only might be beneficial to their scholarship.

As a scholarship producer, you have the power to lower or remove access barriers to your published research. Many publishers automatically allow authors to post the peer-reviewed-but-not-copyedited version of their papers on individual and institutional websites. Some publishers allow authors to archive those versions in subject or institutional repositories, such as arXiv or PubMed Central. Other publishers allow you to keep your copyrights and retain control over the final published version of your article by publishing under an open access model. For consultations on maximizing research accessibility, you can contact the Scholarly Communication Librarian.

Resources exist to help you determine what rights you have as an author when publishing in a particular journal, as well as to help you ask for rights you don’t already have or to find more rights-friendly publication venues.

  • SHERPA/RoMEO: database of author permissions normally granted in publication agreements; searchable by journal or publisher name; provides information on funder archiving requirements and author archiving allowances
  • DOAJ: Directory of Open Access Journals: search for free, full-text journals to find scholarship or explore publication venues
  • SPARC Author Rights: information on how to negotiate for author rights when publishing using the SPARC Author Addendum
  • Open Access Guide: resource guide on all things open access, including initiatives happening at Wake Forest University

Easy access to the full text of published research is not only desired, but by many is already expected. Researchers have unequivocally stated that if they cannot get access on the first couple of clicks, they move on. You do not want your research to be bypassed due to access barriers. Might you alter your publication strategies to ensure broader access?

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