The Scholar’s Space

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!

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.

I blogged on this atLibraryLink, but I think it’s worth a note here also. The July 4 issue of Science published an editorial on peer review and how it’s faring.  I found it largely predictable. The usual expressions of  PR’s  importance are there, right up front. There is also some discussion of “inefficiencies” in the process. I’ll say, when the same manuscript can go through as many as eight different reviews.  And it’s said that too many scientists want to publish in the top tier, high impact journals, which seems to surprise the authors for some reason.  There are recommendations, but they are of so anodyne a character that you wonder why anyone bothered to write them down. Researchers are being goaded by their evaluators to publish in high impact journals, or else. It’s not a matter of mis-identifying which journals are suitable, as the editorial’s authors seem to suggest, and it’s not a question of the hubris of younger scientists wanting to publish in Science and not in Transylvanian Journal of Hematology.   The same issue features a letter from some investigators who see themselves compelled to perform numerous “referee experiments”, that is , tests suggested during the review process, even though this delays publication, distracts the team, and wastes time. But, the advantages of publishing in a top tier journal force everybody to hold their  noses and do what the referees suggested.

Yesterday, the Harvard Law School announced that its faculty had unanimously agreed to make its scholarly output open access. Not surprising, really. Law review article authors have been in the forefront of the move to open access. There’s rarely an article I need these days that I can’t find on SSRN. And months, sometimes more than a year before it actually gets published in a law review or journal.

My friend Peg O’Donnell and I are preparing a syllabus for a class we are offering this summer at Catholic University (the Library School’s Dean, Kim Kelly has invited us to contribute to her summer Institute) and Peg had done a considerable amount of research on Westlaw to find articles (Peg is more traditional in her search strategies than I am). The articles were, of course, excellent and most of them very much on point. But for the rest of the syllabus, we were able to link to full text of our required and recommended readings (having located them all on the open Web). Not so with articles accessed through Westlaw. I really didn’t like the idea that the law review articles couldn’t be provided to the students conveniently (linking to full text) or that we would have to negotiate license rights (ugh). So before we finalized the syllabus, Peg Googled the articles on the open Web to find digital versions and, sure enough, all but one were on SSRN. Thank you legal scholars (and SSRN and Google and law reviews for having liberal open access policies)!

Rationality is our hallmark, for better or for worse. But, whatever its limitations, it certainly militates against doing all the work of research, writing, soliciting feedback from your peers, revising, rereading what’s come out since you started writing, and revising again, and then LOCKING UP THE RESULTS in a journal, even a very prestigious one, that comes out 18 months after you finish the article and no one can read it without a subscription, paying tuition at a college or university, or pulling out a credit card to get access to even see if you want to read it.

Law reviews are among the leaders here, in graciously accepting that lock up and lock down are not the future of scholarly communication. They are not marginal to our endeavors. They are central. And they have a prayer of remaining so simply because they have not tried to bar the door to innovation and improvement.

As Peter Suber notes at Open Access News (Statement from NIH Director Zerhouni), NIH’s director held a meeting on March 20 that turned out to be sort of a hand-holding kind of thing, or so it appears from reports about it (I wasn’t there). He basically reiterated his belief that this is a good thing, and that with input from the public, we’re all going to get through it just fine. The focus was on implementation issues, not on whether we should do this — that is over — but the comments received before the meeting, summarized at the meeting, indicate that people are still in the mode of thinking about it as something we have to advocate or attach, depending on our point of view.

This may be because proponents of the Public Access Mandate still can’t quite believe it passed, and opponents of the Mandate haven’t given up hope of somehow turning back the clock. We would all be well advised at this point, it would seem, to focus on implementation and thinking about how the *process* can be best managed.

The enactment becomes effective in just one week. Are your plans in place to facilitate your institution’s compliance? Do you have ideas about how the process can be accomplished most efficiently and effectively? Please do share!

With just under a month to go before we hit the April 7 NIH OA deadline, I hope your campus is scrambling to figure out what, if anything, it needs to do to be on board when the new law goes into effect. The big surprise for me at University of Texas at Austin, was that what had, for seems like forever, been a library OA evangelist’s job, suddenly, overnight, became a matter of institutional “compliance.” OMG. Compliance is not a nice word in libraryland these days (we’ve totally lost whatever control we ever thought we had over information, patrons, etc.). So we went into collaboration with our Office of Sponsored Projects, the folks who handle grant funding processes for all NIH grantees, and thankfully they were interested and capable of responding quickly. We’re on our way towards the deadline without too much trepidation. But still, we don’t exactly have time to celebrate the incredible step forward for open access that this represents. I think I’ll feel more like celebrating when we’ve seen how this works after a year or so.

Here’s what we’ve done:

1. Read the new policy
2. Read Michael Carroll’s excellent summary of institutional options
3. Figure out which one makes the most sense for your institution (we’re going with his number 3)
4. Dot the policy i’s and cross the policy t’s, if any (we are still working on this part, but this is a compliance issue — we don’t have the luxury of 36 months to get everyone on the campus to “buy in” to the idea this is a good thing)
5. Plan an informative briefing session for NIH grantees with materials that can be posted to OSP and Library websites
6. Email the grantees to tell them about the deadline (luckily, we actually have all their names because OSP is able to run neat reports about them)
7. Hope for the best.

I’m sure I’ve forgotten something. Oh, I’m writing a short article for the Center for Intellectual Property‘s Newsletter about what I call the “do nothing” option, and why I think it’s not as attractive as it might appear at first blush. Look for it around first of April.

What’s your story? What are you doing to keep your institution out of NIH hot water?

I’ve been trying on different dissertation topics over the last couple of weeks and blogging about the ideas at Lifelong Learning, but today I read some good news/bad news about the Columbia University Press, American Historical Association and Columbia’s Library Gutenburg-e collaboration, with respect to the very subject I wanted to explore, week-before-last, as noted by Peter Suber, Open Access News: innovative interfaces and business models for e-monograph publication and distribution.

Peter Suber’s post quotes at length from the Robert Townsend post at the American Historical Society Blog, about the aims of the original project (Gutenburg-e), how they were grant-funded, and how those sponsoring or undertaking the project feel that it has failed in very important respects — no viable sustainable business model has emerged, and scholarly journals would not review the monographs that the Press published in the Gutenburg-e series.

Geez. These are pretty serious failures. Pretty depressing failures. But on the other hand, I visited the project’s OA portal for these books and had a look at one on sewing and wow, the interface is really cool with very well-done features, finely crafted, very functional, and elegant. The scholarship would have to be first rate, wouldn’t it, given the pedigree and the process Gutenburg-e put in place. Putting on a scientist’s hat, a failed experiment is just as valuable as one that succeeds. In fact, from what I’m told, failure is the norm, and it advances science just as steadily as success. So, hurray? No, not hurray. This just does not feel right.

If Columbia University Press and the American Historical Society can’t motivate scholarly journals to even *review* its innovative e-books, whose authors were chosen in some cases from among the best history dissertations in the country, what does this say about humanities support for presses? Presses are on the ropes. Can their authors really afford to turn their backs on efforts to find a viable way forward? I really am, quite simply, appalled. Maybe I’ve misunderstood what this story says. I hope I have.

Today news is flying all over the net about Harvard’s faculty vote to implement an “opt-out” process for institutional posting of scholarly research materials. Peter Suber comments on Robert Darnton’s opinion piece in the Harvard Crimson, making the case for open access to the Harvard community: Peter Suber, Open Access News. And Bill Patry comments on the irony of publishers’ claims that what bothers them about mandates (the NIH mandate in particular) is a lack of choice for authors. That claim has got to cause a lot of eyes to roll. The original NYTimes article that got the conversation going doesn’t give us much detail, but since the vote is today, we will know more by tomorrow. If the vote is yes, the Harvard Library will be taking a most active role in implementing the will of the faculty, and a leadership role in the development of substantively important institutional repositories. Go crimson!!

The Guns of August by Barbara Tuchman was a best-selling exploration of the opening weeks of WWI.  Since then various authors have rendered hommage to the work and to the author by appropriating the title for their own creations. Among these is Prof. Peter Suber who writes The SPARC Open Access Newsletter  or SOAN. In the issue for Feb. 2, Prof. Suber explores, in The Mandates of January, the numerous policy releases and recommendations for OA publishing  issued by various governmental agencies or other groups during the month of January. Among them of course was the NIH policy. He is very, very thorough on the NIH document and I  have recommended his analyis to inquirers at our campus. He includes the necessary links to primary documents and web sites.  I think we are very fortunate to have an able and articulate expositor for OA concerns, and one who comes from a background in philosophy and law. These are fields in which you have to pay attention to texts and read them closely, to see both what is and isn’t there.  I hope  you can take a moment to visit SOAN and read his summary.

SOAN