From The Washington Post, by Andrea Peterson:
Proponents of the open access model for academic research notched a huge victory Thursday night when Congress passed a budget that will make about half of taxpayer-funded research available to the public.
Deep inside the $1.1 trillion Consolidated Appropriations Act for 2014 is a provision that requires federal agencies under the Labor, Health and Human Services, and Education portion of the bill with research budgets of $100 million or more to provide the public with online access to the research that they fund within 12 months of publication in a peer-reviewed journal.
Some days are too full of news. Possibly this is why some people tweet rather than blog.
There are four developments I want to mention — you can choose which to follow up:
Google Books Decision A Huge Victory for Fair Use and for Research Libraries
“In a powerful affirmation of the value of research libraries, Judge Denny Chin today ruled that Google’s digitization of millions of books from university library collections was a fair use. Chin cites the Library Copyright Alliance amicus brief throughout his opinion to support a fundamental proposition: that the Google digitization project and the resulting uses are “invaluable” to society at large, and harmless to authors.”
See SPARC’s analysis of “[T]he Frontiers in Innovation, Research, Science and Technology Act of 2013 (FIRST) currently being circulated would impose significant barriers to the public’s ability to access to taxpayer funded research by restricting federal science agencies’ ability to provide timely, equitable, online access to articles and data reporting on the results of research that they support.”
In the Chronicle of Higher Education: 2 Senators Offer Bill Promoting Open-Access Textbooks
A bill introduced in the U.S. Senate on Thursday would encourage the creation of free online textbooks by offering grants for pilot projects that produce high-quality open-access textbooks, especially for courses with large enrollments. Grant money would also be available to help faculty members find and review such textbooks, as well as to conduct research on how well open-access textbooks meet students’ and faculty members’ needs.
Last but not least: — I was happy to read Kevin Smith’s post about the Harvard Business Review policy which won’t allow professors even to recommend that students in their classes read an article in a subscribed database without paying extra. An egregious policy that — if others follow suit — will severely undercut the utility of the databases we pay so much for.
A line in the sand:
Harvard Business Publishing is treating this as an issue between themselves and the institutions that subscribe to HBR via EBSCO. They accuse faculty of using articles as course readings without paying the “required” extra fee, and are disabling the EBSCO versions to force that additional fee. But this is a skewed perspective. From the point of view of the subscribing institutions, what is happening is that they are getting less functionality from EBSCO and are now being asked to pay HBP to regain that function.
Properly viewed, I suggest, this is not a dispute between libraries, or faculties, and Harvard. It is a dispute between Harvard Business Publications and EBSCO over how to divide up the pie. And libraries should refuse to make the pie bigger just to settle that dispute. …
But the truth is, these technological changes are intended to prevent faculty from even giving students a reference to an article and asking the students to read that article on their own. HBP wants to recover a separate fee even for that.
From today’s WIPO press release:
International negotiators meeting under the auspices of the World Intellectual Property Organization (WIPO) adopted today a landmark new treaty that boosts access to books for the benefit of hundreds of millions of people who are blind, visually impaired and print-disabled.
The treaty, approved after more than a week of intense debate among negotiators gathered in Marrakesh, Morocco, is the culmination of years of work on improving access for the blind, visually impaired, and print disabled to published works in formats such as Braille, large print text and audio books…..
The treaty, called the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled, addresses the “book famine” by requiring its contracting parties to adopt national law provisions that permit the reproduction, distribution and making available of published works in accessible formats through limitations and exceptions to the rights of copyright rightholders.
It also provides for the exchange of these accessible format works across borders by organizations that serve the people who are blind, visually impaired, and print disabled. It will harmonize limitations and exceptions so that these organizations can operate across borders. This sharing of works in accessible formats should increase the overall number of works available because it will eliminate duplication and increase efficiency. Instead of five countries producing accessible versions of the same work, the five countries will each be able to produce an accessible version of a different work, which can then be shared with each of the other countries.
We will need to follow closely how this is adopted and implemented in the US.
From The Chronicle of Higher Education:
As federal agencies scramble to meet an August 22 deadline to comply with a recent White House directive to expand public access to research, a group of university and library organizations says it has a workable, higher-education-driven solution.This week, the Association of American Universities, the Association of Public and Land-Grant Universities, and the Association of Research Libraries are offering a plan they call the Shared Access Research Ecosystem, or Share.
Share would expand on systems that universities and libraries have long been building to support the sharing and preservation of research. The groups behind Share have been circulating a document, dated June 7, that lays out the basics behind the idea.
Academic institutions have invested heavily in “the infrastructure, tools, and services necessary to provide effective and efficient access to their research and scholarship,” the document says. “Share envisions that universities will collaborate with the federal government and others to host cross-institutional digital repositories of public-access research publications.”
In the meantime, a group of publishers have proposed a public private partnership plan of their own:
A group of scholarly publishers is proposing a publisher-run partnership to make it easier for agencies and researchers to comply with the federal government’s new open-access policy.
Called Chorus—the Clearinghouse for the Open Research of the United States—the partnership would use publishers’ existing infrastructure to identify and provide free access to peer-reviewed articles based on publicly supported research. The proposal comes as an August deadline looms for federal agencies to comply with the new policy.
Kevin Smith examines the two proposals and finds fault with CHORUS: Continue reading
The White House Office of Science and Technology Policy has issued a directive requiring Federal agencies to develop plans to support greater accessibility of funded research. This is very big news — it clears the way for other agencies to follow NIH and make their funded research open to the public. An important paragraph of the directive:
The Office of Science and Technology Policy (OSTP) hereby directs each Federal agency with over $100 million in annual conduct of research and development expenditures to develop a plan to support increased public access to the results of research funded by the Federal Government. This includes any results published in peer-reviewed scholarly publications that are based on research that directly arises from Federal funds, as defined in relevant OMB circulars (e.g., A-21 and A-11). It is preferred that agencies work together, where appropriate, to develop these plans.
Peter Suber comments:
This is big. It’s big in its own right, and even bigger when put together with FASTR <http://bit.ly/hoap-fastr>, the bipartisan OA bill introduced into both houses of Congress just eight days ago. We now have OA mandates coming from both the executive and legislative branches of government.
White House Announcement
SPARC Applauds Landmark Directive
A new bill has been introduced in both houses of Congress. It is called Fair Access to Science and Technology Research (FASTR).
The bill is similar to FRPAA, which was reintroduced in several Congressional sessions but never passed. It would strengthen the NIH public access mandate and extend it to other Federal agencies.
Comments from the bill’s sponsors:
“This bill will give the American people greater access to the important scientific research results they’ve paid for,” Congressman Doyle said today.“Supporting greater collaboration among researchers in the sciences will accelerate scientific innovation and discovery, while giving the public a greater return on their scientific investment.”
“The scientific research community benefits when they are able to share important research and cooperate across scientific fields. Likewise, taxpayers should not be required to pay twice for federally-funded research,” said Congressman Yoder. “This legislation is common sense, and promotes more transparency, accountability, and cooperation within the scientific research community.”
“Everyday American taxpayer dollars are supporting researchers and scientists hard at work, when this information is shared, it can be used as a building block for future discoveries,” said Representative Lofgren. “Greater public access can accelerate breakthroughs, where robust collaborative research can lead to faster commercialization and immense benefits for the public and our economy.”
Peter Suber analyzes the bill and compares it FRPAA.
Full text of the bill.
The Library Copyright Alliance, a group of three national library associations representing over 100,000 United States libraries, has filed comments on the Copyright Office notice of inquiry regarding Orphan Works and Mass Digitization.
In the past the LCA has supported legislation on the issue of orphan works — works whose copyright owner cannot be readily determined or contacted for permission to digitize the work. The new comments take quite a different tack and indicate a new confidence in the strength of fair use:
LCA welcomes this opportunity to comment on the Copyright Office’s October 22, 2012, Notice of Inquiry concerning Orphan Works and Mass Digitization. LCA has a long history of involvement in this issue. It provided extensive comments to the Copyright Office during the course of the Office’s study that led to the Office’s 2006 Orphan Works Report. LCA also actively participated in the negotiations concerning the orphan works legislation introduced in the 109th and the 110th Congresses. Although LCA strongly supported enactment of these bills, significant changes in the copyright landscape over the past seven years convince us that libraries no longer need legislative reform in order to make appropriate uses of orphan works. (emphasis added)
This time the victory comes in a ruling on the case brought by the Author’s Guild against the HathiTrust Digital Library, of which Boston College is a member.
Among otherr issues litigated was whether HathiTrust could create a searchable index of digitized texts and supply them to print-disabled readers. Kevin Smith has provided a good analysis of the ruling and notes:
Judge Baer first held that the purpose of the use was research and scholarship, which are favored in the fair use statute. But he went on to hold that the use of these copyrighted materials in HathiTrust was also a transformational use. Unlike Judge Evans in the GSU case, Judge Baer cited case law that has determined that a use can be transformational because it has a different purpose, not only when an actual change in content has been made. And providing a searchable database of books, within copyrighted works only available to the visually-impaired, was, in the Court’s opinion, transformative.
Judge Baer concludes with this sentence:
I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.
As the last part of this comment indicates, the Judge also upheld the provision of digital files to persons with visual disabilities to facilitate adaptive access, using a combination of fair use and section 121of the copyright law. Hard to believe that the AG thought it was a good idea to challenge that practice, but they did. So overall this is a comprehensive win for the libraries and for the important public interest that they serve.
More analysis is available linked from the HathiTrust site.Particularly helpful is the post by Kenneth Crews.
In his latest SPARC Open Access Newsletter issue Peter Suber provides a detailed analysis of why the Research Works Act died, and why FRPAA should pass.
His assessment, quoted below, is followed by an explanation of what we can do to help FRPAA’s chances:
“Will FRPAA pass?
We don’t know, of course. Several factors weigh against it: This is an election year. Congress is as gridlocked and incapacitated as it has ever been, even for legislation with bipartisan support. Many policy issues have a higher priority in Congress than OA.
But several factors boost its chances. This is FRPAA’s third time around, and the first two times did a lot of the hard work in educating policy-makers about the issues. The first two times around also gathered some significant endorsements, for example, more than 120 US college and university presidents and provosts, 41 Nobel laureates, major library and public-interest organizations, and at least two non-academic, business-oriented organizations, NetCoalition and the Committee for Economic Development. The White House RFI responses are generally stronger than FRPAA; they’re already public and may soon appear in Interagency Working Group reports and White House action.
Finally we can’t overlook the RWA shipwreck and the rising tide that beached it. The same forces that brought down RWA are now refocusing on raising up FRPAA. The same forces that protect the NIH policy from repeal now want to see it strengthened and extended to other agencies. The Congressional offices which have begun to understand the issues are heartily tired of publisher misrepresentations.
The RWA, COMPETES Act, FRPAA, and the White House RFI can be put in roughly this order: anti, weak, strong, and stronger. Subtract anti and what do you have? Unambiguous good news. Only time will tell how good it is. And that’s where you come in.”