The Scholar’s Space

This month’s SPARC Open Access Newsletter contains an excellent overview of both past and current commentary regarding the reintroduction of Conyers’ Orwellian-ly named, “Fair Copyright in Research Works Act.” Suber sums up both the reasons to be optimistic and reasons to be concerned. Much has changed since the last go-round. I urge anyone interested in continuing public access to publicly funded research in the US to read the Newsletter this month. Much is at stake, beyond the NIH mandate itself. Not that OA in general will suffer or be set back, but the US role in furthering public access will be set back, as well as the public access itself to publicly funded US research. Our best should be out there along with the rest of the world’s. It won’t be if our seemingly quite short-sighted US publishers have their way.

Georgia’s post on Kindle made some very good points. Interested readers may be willing to follow Ariadene’s thread a little longer and  look at an article in Slate which discusses some features of the new version.  Many  people shared Georgia’s irritation at the high clunkiness quotient in the original product, but AMAZON seems to have gone a long way to overcome at least some of these dorky things, and the new item is bigger, thinner and sleeker-looking than Kindle 1. But, some of the other complaints remain in force. The gadget is still pricey, pegging in at about $350 US, give or take.  And the DRM doesn’t seem any looser than on the last go-round.  The Kindles, pere et fils, are will probably go into some kind of technology museum one day, but the technology in itself is only part of the story, and not really the most interesting part either.  The Slate piece considers this side of things attentively.

Slate

Information Week  published a long article on other aspects of the e-book movement, including a speculation that AMAZON may turn out to be the victim of its own success and wind up cannibalizing itself. There is some danger, to AMAZON, that the various hand-held devices now around in great numbers will be modified by their manufacturers to allow downloading of e-books. Why should you buy an extra gadget, one that’s  pretty heavy and definitely not cheap, to read books on the commute or in the doctor’s office when you’ve got one with you that will do the same thing, perhaps not as well, but well enough for a few minutes reading here and there.  This is the best that many people can manage  nowadays, and this market may be the bigger one.

We’ll see.

The latest edition of Peter Suber’s Open Access Newsletter includes a roundup of great news from 2008. There’s so much good news to report that he must say up front that he’s been selective, left out some things, and organized what he has into nine categories. And it is a lot to read. But it is so inspiring! It’s just what I needed to feel hopeful for 2009, that the momentum will carry forward.

Several of the items that were news to me were really surprising as well. Top among the surprises was this paragraph under heading 8, Books:

There were new OA textbook publishing initiatives from Flat World Knowledge, the Open University of Israel, and the Community College Open Textbook Project.  Florida became the first state in the US to approve an OA textbook program for use in its public schools.  The MakeTextbooksAffordable campaign released the Open Textbooks Statement to Make Textbooks Affordable, with signatures of 1,000+ professors from 300+ colleges in all 50 states.  StudentPIRGs launched a sign-on “Statement of Intent” for faculty to show their support for OA textbooks.  It also published a report recommending OA textbooks and criticizing TA digital textbooks for high prices, hobbling DRM, printing restrictions, and automatic expiration.

Having been a graduate student for the last 2 1/2 years and having used quite a few analog and digital textbooks, I see this industry as *way, way behind the curve* unable to take serious advantage of the digital networked environment. And I’ve heard that the negotiations with publishers to offer their texts in more innovative and more useful ways often fall flat if the publisher can’t be assured of making more money from the new model than he already makes from his existing strategy. Talk about innovator’s dilemma. This sets the stage perfectly for the upstarts who are willing to try new things because they don’t already have preconceived ideas about what they *ought* to be making right now from their existing customers. Have none of these folks read Christensen’s book, Innovator’s Dilemma? Their industry is positioned classically as the losing trajectory in the chart to the left. It shows how new technologies at first fail miserably to meet the needs of a firm’s current customers. Though their performance qualities fall so far below what current customers expect even at the low end of the market, they eventually improve through the process of sustaining innovation until they “break through” into the up-scale markets, directly competing with established firms for the same customers. Christensen documents this pattern in industry after industry. Publishing in general is following the pattern — like a puppy dog. Sad to see, but it’s frustrating as well.

Lessig’s latest, Remix, has been out for a couple of months now. I guess I didn’t rush to grab a copy because I follow his lectures closely (he posts videos) so I thought I probably knew what he was going to say in the book — and it was not available immediately in a CC licensed version. Had it been CC’d up front, I would have read it immediately. This actually was the biggest news about his book for me: 6 months before the CC version would be released. I’m sure there’s a reason why he agreed to this, but I can’t imagine what it is. Wait a minute, yes I can. Maybe I’m wrong, but I think maybe his publisher was taking a little baby-step towards a remixed business model, a step Lessig’s in a position to encourage, and so he did.

In fact, this particular kind of remix is precisely what I found to be new about the book now that I’ve relented, gone to BookPeople, my local “keep Austin Weird” (that is, buy local) endangered species of bookstore, and bought a copy (for $9.60 more than I would have paid at Amazon…) off of the wooden shelf to bring home, read, and put on my wooden shelf, which shelves I am running short of, and would just as soon not keep adding more shelves, but that’s none of the book publishing industry’s concern, is it? The book was offered for Kindle at Amazon, but I don’t want a Kindle. But back to remix, er, Remix.

The part of the book that’s new-to-me describes remixed businesses. He calls them hybrids (oh, I want one so bad but I’m determined to wait until the all-electric comes out in 2010), but they are really just examples of the mashups he lectures about, the creative combinations of video, voice, images and text that he celebrates so as the harbingers of new creativity. These mashup businesses combine aspects of traditional commercial economies (I do this because I want to make money) with aspects or expressions of traditional sharing economies (I may do this for a million reasons but expressly *not* to make money) to take advantage of aspects of the Web that the analog world alone can’t take advantage of, thus competing better, in a Clayton Christensen kind of “innovator’s dilemma” way. They are the hybrid upstarts that Lessig predicts will upend not only bricks-and-mortar competitors like BookPeople, but even Web competitors who are not taking advantage of what can be done in Web 2.0 that couldn’t be done in Web 1.0.

Lessig gives plenty of examples of these hybrid business models that combine commercial aspects with sharing aspects, but he goes much further. He analyzes the elements that make them better competitors, their aspects that actually define what it means to make the combination, sort of an entry-level criteria recipe:

1. taking advantage of the Long Tail
2. taking advantage of the information that people freely leave about what they like, what they do and what they want, all over the place online
3. allowing others to innovate on your platform (i.e., letting others turn what you create into a building block for their own businesses).

In the world of book publishing, who is doing this? Right now?

So, it’s not that pairing a CC licensed version with a physical copy option is a hybrid. Look at the list above and ask yourself whether any of the criteria are met. It’s just that at the stage of experimentation the publishing industry is at right now, CC/buy at the same time represents a step in the right direction, and CC later/buy now is sort of sizing up that step. It takes a little bit of advantage of what people who love to share can do for the publisher — increase sales. But it leaves a lot of innovation on the table, it still leaves the industry quite vulnerable to the upstart that figures out how to compete better online, how to take better advantage of what networking (hybridizing commercial and sharing economies) can do that not-networking can’t.

Well, I haven’t finished the book. From what I understand, the best part is at the end where he suggests how copyright law ought to be changed to facilitate this advance. So, more later.

So, have you visited James Boyle’s book blog yet to check out his latest, The Public Domain? I mentioned it a few days ago, and am now about a third of the way through it. I’m reading it in pdf form on my Mac in a beta screen reader called Stanza. A bit buggy, but I like it. As I mentioned, the book is CC licensed and for sale, at the same time, as Boyle’s blog explains.

Then, yesterday, on a list I subscribe to, Michael Carroll raised an interesting question for the publishers on the list that brought together Boyle’s book’s CC license, the Google/Publisher/Author settlement agreement and OA generally. Oh, Michael Carroll — he’s actually one of the people who appears on the little CC video explanation that Boyle links to from his book blog that explains why a CC license (in Boyle’s case, OA for a book) makes sense to authors (at :20 and again at 1:02, maybe further in). Again, if you haven’t had a look, please go check it out. It’s a great little, short, pithy explanation of CC licensing and very well-done. You could send the link to faculty who don’t have lots of time to figure out the future of scholarly publishing while they’re busy, busy, busy with their scholarship…

But back to the story. So Michael asked this question:

I know that the issue of monograph publishing and the sustainability of university presses has been an oft-discussed topic on this list.

I’d be interested in … reactions to the question of whether academic authors and publishers might not do better tha[n] the Google settlement route by taking the open access route for scholarly monographs.

Case in point.  James Boyle’s new book has just been released under a Creative Commons license by Yale University Press.

According to publicly available sales statistics, it’s doing quite well.

According to Amazon, yesterday, its Sales Rank was: #3,103 in Books (See Bestsellers in Books) Popular in these categories: (What’s this?)

#1 in   Books > Professional & Technical > Law > Intellectual Property
#1 in   Books > Nonfiction > Law > Intellectual Property
#4 in   Books > Nonfiction > Social Sciences > Sociology > Culture

So, is that an aberration?  If so, why?  If not, why doesn’t this point the way to a more profitable future for the public and university presses?

I’m not a publisher, but I certainly am interested in the future of publishing, especially scholarly publishing, and I wonder the same thing as Michael. Is he asking, “should a publisher just OA its books to raise sales of the print copies in lieu of participating in the settlement infrastructure or entering an agreement with Google?” I’m not so sure that it has to be either/or, does it? Maybe Michael doesn’t think it is an either/or either.

I think it can be both — for three reasons right now, and another hypothetical reason in the future:

1. NOW: Any publisher can take the chance Yale took with Jamie’s book and allow CC licensed downloads and sales at the same time
2. NOW: Any publisher can also have an agreement with Google about including its books in Book Search through the Partner Program (see below)
3. NOW: Any publisher without an agreement with Google can have its already published books displayed as it sees fit (previews up to 100%) in Google Book Search pursuant to the settlement terms, and it can opt out of algorithmic settlement pricing, and set its own price for digital download, why not at $0 (4.2(b)(i)(1)).
4. FUTURE: The settlement terms provide for a possible future print on demand option, and I would assume that, again, for books published before 2009, for a copyright owner without an agreement with Google, 100% preview (ie, totally readable online) could be combined with a free download, which could be combined with a paid print on demand option. But that’s not currently offered.

The Google settlement is, as a practical matter, only really about pre-2009 out of print (commercially unavailable) books. If you have a new book, the best way to get involved with Google Book Search is by becoming part of its publishing partners program. You negotiate a contract with Google. Google markets and helps you sell your book. Every major US publisher has already done this (*while they were suing Google*). Lots of scholarly presses have too (UT Press has an agreement, for example; maybe Yale does too but I don’t know). Those publishers with agreements with Google can have their negotiated terms *instead of* the settlement terms for all their books. Any publisher or author with a book currently in print and without an agreement with Google will find that those in print books are automatically opted out of display uses. Nada: no one sees anything if the book is identified as relevant to a search unless you specifically direct Google to change your in print work to a “display book.” It is assumed that if your book is in print, you want to define the terms upon which it is offered to the public. It’s your baby. It’s all up to you.

So, what is keeping at least the scholarly publishers from doing what Yale did? Maybe a bit scared. Actually, as Michael knows, lots of them are doing what Yale did, sort of. They have OA projects. They are experimenting, just like Yale is. Those who are not experimenting in some form or fashion are probably making plans to. But it will just take some time to get up the courage, based on good results of experiments, to finally figure out more broadly workable new business models for scholarship that do not prevent people from accessing the work as a means for paying for production and distribution. OA just makes too much sense to not be among the options that get a lot of attention. If you can cover your costs from some sales, while everyone else who won’t or can’t buy reads for free, and those who pay are happy to pay for the added whatever it is that you add that they pay for, what’s not to like? OA will work because OA already works.

So, one more brick *out of* the wall! I would say we should get set to see considerable progress in scholarly publishing this coming year, progress towards OA and CC licensing as viable alternatives to, but not replacements for, settlement pricing (that is, Google’s algorithmic pricing), rightsholder pricing (traditional sell only copies), collective institutional support for publishing and distribution, author pays/institution pays one-item-at-a-time, and some things no one’s thought of yet.

Lessig’s got a post up this morning urging all of us to take CC’s 15-25 minute survey about what we think noncommercial means. As you may know, CC licenses come in several varieties, depending on how you choose to combine the basic features (attribution, commercial/noncommercial use, derivative uses and share-alike). And, as you may also know, there is much concern that the commercial/noncommercial distinction is not clear to many people, or put more practically speaking, what I think I mean by noncommercial may not be what you mean when you use my work. But even more problematically, I worry that *I myself* don’t really know what I mean by that distinction! If presented with a set of, say, 20 or 30 different uses, each subtly different, which am I comfortable with and which am I not comfortable with? Commercial/noncommercial may not get at the dividing line for me.

Even more disturbing, do I really want for all eternity to make this distinction, whatever it is? A gazillion years is a long time. What exactly do I care whether my photo of fall color in Austin in fall 2008 ends up in some way or another making someone some money some day? Really, do I care about that? Especially if there’s collateral uses I am disallowing by that distinction that I really don’t mind at all (some of the commercial uses that one can think of that one might not mind at all, but that one excludes categorically with the selection of a noncommercial license)?

Very confusing.

Well, CC is undertaking to try to sort it out: what do people think the distinction means? What do they want it to mean? Can it be clearer? The survey will help CC to do this. I urge you to go take it too, whether you’ve done a lot with CC licenses or not. It was a very good exercise for me to help me clarify my own thinking about what I want people to be able to do with my works that they find online now, or that they find in an archive of what was online in the late 1990’s and early 2000’s, 100 years from now!

Go check it out! The Public Domain — Enclosing the Commons of the Mind. You can read it online at Yale University Press’ website, or download the pdf, or (and) buy a copy if you prefer or desire.

Boyle  includes on the download page two explanations for why it makes sense to offer his book in its entirety online for free at the same time it’s for sale in physical copies, one explanation for authors and one for publishers. The reasons, and the motivations, of these two groups are not the same, but they overlap sufficiently  in the open access business model to make it work. And that is worth celebrating.

The book, well, I just got started on it today, and it will be awhile before I finish it with school in its last week and papers due and homework due and all that. I’ll report more later. In the meantime, since you can, go ahead and download it and get started reading it yourself! From what I’ve read so far, it’s incredibly fluid, easy to get into, filled with clever legal references to all the most important cases without mentioning them by name, and not the least bit wordy, legalistic or esoteric. I have to say though, Boyle *apologizes* upfront for committing to make this a readable story and I find that just a little sad. I wish he didn’t feel he had to apologize for trying to avoid creating barriers to a wide readership. It’s the scholar thing. Thank goodness he took the plunge. I for one am very, very grateful that his book has half a chance of being more widely read than most scholarly works will be read. It deserves and needs a wider audience. Most of us just don’t realize what’s happening to America’s legal infrastructure that supports creativity and innovation. Boyle is making it clear as a bell, and clear that it makes a difference and affects us all. Go have a look!

Making your work openly and freely available is such a good start, and no small accomplishment when you consider all a scholar has to go through to assure the simple advantage of free availability. But it’s still just a start.

We tend to think of orphan works as those books, images, recordings and films made long ago, still protected by copyrights, but whose creators or copyright owners are *now* dead or unable to be determined or located. What about the billions and billions of works being created every day and placed online right now that are destined to be the orphans of tomorrow? Does your own online, freely available scholarship fit that description? Have you made it available, but failed to limit the damage from a copyright term and an extensive set of exclusive rights that will ensure your work’s uselessness in the future? Pity.

It’s so easy to limit the damage by incorporating into whatever you put online a Creative Commons license. A CC license would mean that those who want to use your work in the future will not run into the problem of not being able to find you or your heirs, or your heirs’ heirs, or their heirs (copyrights being destined to become all but perpetual if the content industries have their way). Think about it. Your work is online. You are long gone. Your copyright is not. The same kinds of questions we face daily now as we dig down into our massive physical literary, image, sound and film archives (who owns this? can we find him/her/it? how likely is he/she/it to care? what are the risks of going forward without permission? what is the cost to the public of not going forward? can we manage the risk?) are going to crop up several orders of magnitude more often for those in the future who have to deal with our billions of digital creations, the works spun out by scholars in the early 21st century before everyone finally got it that interminable terms have interminable costs.

Lessig’s commentary about YouTube and Creative Commons got me thinking about this. How many videos are there on YouTube? Give up? I have no idea, but there are way too many to have to figure out what’s too risky to preserve and provide access to 100 years from now. Especially when it’s SOOOOO EASY to incorporate a CC license into your online work, letting everyone know exactly what you want them to be able to do without further inquiry. No one has to figure it out then. You’ve spelled it out. OK, OK. It’s not that CC licenses are perfect, without critics or ambiguities (what is non-commercial? is it really a good idea to “share-alike?”). But compared to doing nothing or doing something much more ambiguous (ideosyncratic interpretations of sets of rights to provide to the public), it’s way, way better. Do it. Visit Creative Commons. License your work. License your site if you publish to a particular site regularly. Help future scholars and others to make use of your work when you’re gone. They’ll thank you for it.

There is another contender in the “we can beat Google” line up. Cuil is the name, and it’s pronounced ‘cool’ or maybe ‘coo-il’ (2 syllables).  Claiming to be bigger than Google,  and saying that they have some nifty new methods for digging deeper into recovered pages to provide more information, Cuil people have certainly staked out some big territory. The founders are ex-Google employees who left the Mother Church for various  reasons, so they  have a more than ordinary acquaintance with what goes on inside.  I’m all for competition, and I think the newcomers should have their shot. But, judging from some of the comments on library discussion lists, the advantages of Cuil are not obvious and the company has some tweaking to do.  Cuil also displays its results in a different fashion, and that novelty may be worth something to somebody.  The desert floor is littered with the bones of Google wannabees, so it’s better not to excite oneself needlessly, and just await the outcome.

Newspapers are facing tough times. It’s  not just a phenomenon here in North America, it’s something found in, oh say, France as well. In Monday’s New York Times there was an article about an experiment underway in which a small number of readers were given an device which allows them to download a digital version of, I think, four newspapers.  The readers can use a stylus to tap for their paper of choice, and then tap their way through the various stories, columns, features or whatever items they please. France Telecom is the nation’s telecommunications agency, and it is supporting the product to see whether users take to it and what features about it they like and don’t like. The effort goes under the English name of “Read and Go”.  The reader is about laptop size, and of course you can’t use it for all the marvelous secondary purposes we have assigned to old newspapers: swatting flies,  wrapping nasty, smelly stuff,  using them to wash windows and so on. But, theorists have been saying that a “re-usable” newspaper, based on a re-chargeable (literally) digital paper-like substrate was the way forward. Now, somebody will put this to the test.  In the end, it’s what people…customers…want and do that counts.  In the same issue of the Times, the CEO of Esquire states his view that print is about to go into a period of glorious innovation. The magazine will soon appear with a specially designed mini-battery inserted into the front cover, to make  possible various dynamic effects. It’s an interesting concept, and of particular relevance to publishers of scientific and technical materials, in that it opens the possibility of supplementing journal articles with supplementary graphics of different kinds.  Think of the cover art of Science or  Cell or Nature being used to support and extend one of the major articles in that issue with slick visualizations.

If newspapers are going under because people are lazy and stupid and don’t want to read, no amount of digital fiddling will save them.  If people are abandoning them for other media, then there’s a chance to lure the readers back.  We shall see.