Journal Open Access and Reuse: An Interview with Kevin Smith
While the open access model seems simple in principle, there are countless implications for journal publishers to consider. One of the most hotly debated issues in scholarly publishing today is article reuse and permissions – what can readers do with an open access article? Allen Press Publisher Peter Burns interviews University of Kansas Dean of Libraries Kevin Smith from Essaylamba.com to discuss the various facets of this issue and gain insights into what publishers need to do to prevent copyright violations and misuse.
Taylor Fulton: Today, Allen Press’s Peter Burns will be joined by copyright guru Kevin Smith in a lively discussion covering open access permissions, reuse and licensing.
Peter Burns has worked in the publishing world for more than 25 years. After several years as a copy editor for various consumer and trade publications, he started working at Allen Press in 2003 as a Managing Editor. For the past 10 years, Peter has been a Publisher in our cooperative publishing division, managing several society-owned journals in the fields of biology and medicine. Peter earned a Bachelor’s degree in Journalism from the University of Arkansas at Fayetteville, and still frequently utilizes these skills as a frequent contributor to our webinar series and company blog. Outside of work, Peter is active in the local history and genealogy communities, serving as a board member for the Franklin County Historical Society and as vice president of the Franklin County Genealogical Society.
Our guest presenter today is University of Kansas Dean of Libraries, Kevin Smith. As the dean, Kevin advocates on behalf of the libraries, positioning them as an integral partner with the university’s academic and administrative units to ensure the organization’s continued leadership in advancing research, teaching, inclusivity and global initiatives.
Kevin joined KU Libraries as dean in May 2016, after previously serving as the director of copyright and scholarly communication at Duke University.
During his tenure at Duke, Kevin advised faculty, staff and students on issues of copyright, intellectual property licenses and scholarly publishing. Kevin played a vital role in coordinating online publishing, offered instructional opportunities on copyright, and increased awareness surrounding intellectual property and open access to the Duke community and beyond.
Kevin earned a J.D. from Capital University Law School, a master’s degree in library science from Kent State University and a master of arts in religion from Yale University Divinity School.
I’m going to turn the discussion over to Peter and Kevin now as they discuss best practices for journal open access and reuse.
Peter Burns: All right, Taylor, thank you. Thank you, everyone, for joining us today. In addition to all the impressive credentials that Taylor mentioned for our guest, Kevin Smith, Kevin also quite literally wrote the book on the topic that we’re covering today. The title of the book is Owning and Using Scholarship: An IP Handbook for Teachers and Researchers and it’s available as a free download from the KU ScholarWorks website.
Kevin, I’d like to start with this. What can you tell us about this book and why you wrote it?
Kevin Smith: Well, first of all, thank you for having me as a guest today. I appreciate that. I love the introduction but I have to see if I can get my title changed from dean to guru. I don’t know if they’re going to do that for me. Anyway, writing the book, I was originally asked by a publisher, if I would consider this. I found it a really helpful exercise in organizing my own thinking around a lot of topics and particularly, keeping me focused on who my proper audience was and that was researchers and authors. I looked at my job at Duke and to some degree, even my job at the University of Kansas, as representing authors.
Libraries exist to support scholarship and so I thought of my role as being an advocate for, and an advisor to authors, to help them navigate the intricacies of copyright and the complications of scholarly publishing. You’re right, the book is available for free. It also actually has sold pretty well from the American Library Association, who published it.
One lesson I learned from that book is that open access and sales are absolutely not only not in conflict, but can often support one another.
Peter: That’s a great point. Thank you for bringing that up. That leads me to something I want to say before we get down into the details of this discussion and define exactly what it is we’re talking about today.
For one thing, this is not a discussion about the merits of open access. Here at Allen Press, we work with a number of society-owned journals. They all have slightly different goals and needs. There are plenty of societies that rely on revenues from their publishing programs in order to finance other activities that are part of their mission. For those journals, maintaining those revenue streams are very important.
There are other clients we work with that consider their mission to be the widest possible dissemination of information. For them, open access is a critical part of that. Here at Allen Press, we certainly don’t judge. We just want to work with all of our clients to help them meet their goals.
What we’re here to do today is to provide factual information that can help anyone who’s managing a publication program be able to make the best decisions they can. What we’re talking about is specifically this area of open access that is focused on republication, reuse, or as I sometimes refer to, downstream use from the original publication.
What we’re going to do today is outline some of the main things that could have an impact on that area. The three main categories that we’ve put together are the legal implications, the financial matters and implications, and clear communication, which we’ll talk about in some detail. Then toward the end, we’ve got a number of different real-world scenarios that anyone who’s involved in a publication program could find themselves in. Kevin’s expertise is going to help us navigate those situations. We’re really looking forward to getting his input on this.
First, we’re going to start with the legal and the practical implications of open access in the reuse environment. To do this we have to define what we mean by open access. Kevin, in your book, you mentioned that there are three definitions that have been widely adopted. These definitions come from conferences that occurred in Budapest, Berlin, and Bethesda. Each is a little different from the next but if you had to summarize those definitions, how would you do that?
Kevin: Yes, thank you. I think they’re actually pretty easy to summarize. As you say, they each emphasize different aspects of the reasoning behind the movement towards open access but I think the definitions all share a couple of pretty clear principles. The ones I’m thinking of are from the definition that’s used by Peter Suber in his book on open access. He states that a work of scholarship is considered open access if it can be accessed online without cost and is as free of legal restrictions on reuse as possible. I’d say that’s a pretty good definition.
Peter: That’s a good summary. I should add to that though there is not necessarily a universal agreement about some of the details of open access. I think Rick Anderson of The Scholarly Kitchen has done a good job of pointing out some of the areas where maybe there’s still a range of possibilities and is still widely debated. These include such things as the type of license that the content is published under, which dictates what can be done with that content, and whether or not there is any type of embargo.
That could be anywhere from no embargo, meaning the content is open access immediately upon publication to, in some cases, content not being openly available for a year or more after publication. Then also, there are a number of different versions of articles and open access could apply to one or more of those including the accepted manuscript, the final published version, or even earlier, the version of the manuscript before peer review. Whatever your definition of open access is, I think that the information in today’s discussion is still going to be helpful in helping you navigate situations involving reuse of your content.
Now, Kevin, when we talk about copyright, we’re talking about intellectual property. Some people may not realize this but that actually is in our Constitution. What were the founders thinking when they added this language to our Constitution?
Kevin: Right. The power to pass copyright and patent laws, those are two of the forms of intellectual property. The third one is trademark law, which is a power that the Constitution gives to Congress. It’s not a requirement. We don’t have to have a copyright law but we have had one since 1790.
The framers of the Constitution, coming from the background of English law where copyright had been introduced into law in 1703, some years before the Constitution was written, they had this example. They believed that by giving authors (that’s who they were mostly thinking of at the time) exclusive rights for a limited period of time in their works it would allow them to, frankly, make some money from those works and encourage them to continue to write or invent. It was intended for “the progress of science and the useful arts,” as the passage says.
It’s interesting to note that this is the only power of Congress that is listed in article one, section eight. The others include the power to lay taxes, to declare war, to regulate interstate commerce. This is the only one of those powers of Congress which is actually qualified with a purpose. It’s the only one where Congress has been told in order to do a specific thing, you have this power, and that is to promote science and the useful arts.
I think it’s a reasonable debate to ask if copyright law became so burdensome that it no longer did that, would it be constitutional? The Supreme Court has told us we’ve not gotten to that point yet.
Peter: Interesting. It seems that what they’ve done is acknowledge a real balancing act here. We want to do something that benefits the individual who then will, in turn, do something that benefits the public at large.
Kevin: That’s correct and the framers were very aware of that balancing act. Copyright is a state-granted monopoly. The phrase “exclusive rights” indicates this monopoly power but our copyright law has always had built into it limitations on that monopoly. The framers especially, if you read the Federalist Papers, debated whether a monopoly was a good thing. They usually thought it wasn’t but I think it’s Madison in the Federalist Papers who basically says it’s usually not a good thing, a monopoly, but in this case, we think it will provide enough of a social benefit to be worth doing. They built limited times in so we can’t grant eternal copyright.
Yes, that balancing act is there from the very beginning.
Peter: As they say, this is all an experiment that we’re living in. We continue to weigh the pros and the cons of that balancing act. When it comes to open access, one of the things that I have heard people say to me is since an article is open access, copyright, therefore, does not apply. I think that’s probably one of the more common misconceptions.
Have you heard the same thing and how would you respond to that?
Kevin: Yes, I’ve heard the same thing. Sometimes it’s not even open access. Sometimes, if it’s up on the web so that everybody can see it, someone might think there’s no copyright, which is not true. It used to be that you had to do something to get copyright. You had to at least put a ‘c’ in a circle and a name and date on a work. You had to give notice that it was protected by copyright. There was a time when you had to file your work with the Copyright Office or register it. None of that is the case anymore. We’ve done away with all of those formalities. Copyright is genuinely automatic. It pretty much follows the pen.
As soon as something is, as the law says, “Fixed in a tangible medium of expression,” it is protected by copyright. Things that are up on the web, things that are made open to the world without charge are not necessarily free of copyright. That’s why the open access definition has those two parts, free of charge and free of legal restrictions. Authors need to use some form of licensing like the Creative Commons license, some way to signal to people what they can and cannot do with this work downstream. If there’s nothing there, if it doesn’t say anything, copyright, in all of its glory, applies.
There’s a little bit of sarcasm in that. I’m sure you realize. Copyright applies to the work and gives all the exclusive rights.
Peter: Right. That’s what’s meant when you see the phrase “all rights reserved.”
Kevin: Correct or even if you don’t see it. You don’t have to have that phrase there. What you need is a license to give people permission if you want them to be able to do something.
Peter: That license, ideally, would even go to the level of detail that it would specify what version of an article because actually, different copyright licenses could apply to different versions of an article.
Is that right?
Kevin: That’s correct and it’s an important point, I think. The idea of versions is an artificial construct and it was designed in the past few years essentially to protect journal business models from open access, from wide distribution, from the internet, if you will. Very often, a publishing contract will specify to the author that they can do something or other with this version but not with that version. It is the licenses that are different for different versions. Copyright applies to the content. The different versions all have copyright and that copyright is owned by the author initially.
At some point, very often, the author transfers that copyright to a publisher. In the course of that transaction, the publisher will then specify to the author what that author can do with his or her work under certain licenses for different versions. That’s how we get to that situation.
Peter: Much more nuanced than many people probably realize.
Kevin: Very likely.
Peter: One thing that is not necessarily covered in those licenses though is these moral rights. This is something that I got from your book. Can you talk a little bit about what moral rights are and how they affect scholarship?
Kevin: Sure. Moral rights are a tradition, primarily, in European copyright law and countries that take their copyright law from European models. Moral rights refer to something other than those exclusive rights that are economic in the US. The economic rights are things to make copies and distribute copies. Moral rights refer to things that are more part of the personality of the author. They come primarily from the French tradition. Most copyright laws in the world recognize moral rights. The ones that are usually listed are the right of attribution, the right to have your name associated with your work, and the right of integrity. That is the right to not have your work changed without your permission in ways that would harm your reputation.
The important thing about moral rights is we don’t have them in the United States. We don’t have any specific designation of moral rights in our copyright law with one exception. That is for visual artists, for works that are produced in a limited format, a single painting or a print that’s distributed in no more than 200 copies. It’s only for visual artists. For scholarship, for people who are publishing an article, for example, publishing a book, there is actually no right of attribution. It’s possible that you could transfer your work to a publisher and an unscrupulous publisher might then republish that work without your name attached to it. It’s happened occasionally.
The best way for a scholar to address this, because we don’t recognize a broad range of moral rights in the United States, is in their contract. Many publishers have a clause in the contract that says, “We will not distribute your work without your name attached to it,” and that’s, I think, the best practice for publishing. It reassures scholars that they will get from the publication the main thing they want from it, which is credit for their work.
Peter: A great point. The lesson here being, if you are in charge of permissions for a publication, be cognizant of the fact that moral rights are something authors are going to be looking for and explicitly state that in your policy. On the flipside, if you are an author, look for some indication that moral rights are a part of your agreement. That’s a really good point.
Kevin: Yes. When I see that clause in a publishing contract, I always smile. I think, “Okay. I’m happy that I’m doing business with this publisher because they recognize something about my need.”
Peter: Exactly. The last point that I would like to mention here is something that I just thought of. There’s a passing mention that what we say about copyright and reuse applies, not just to content in the form of an article, but also things like data and data mining. These are things that are very complex and I think we’re a long way from sorting out a lot of the details about that but it’s only going to become more important as we go forward. I just didn’t want to leave that unsaid in this interview.
Kevin: Right and I’ll add to that that in the digital world, as we see more digital humanities projects and things like that, what we mean by data has exploded tremendously. We’re not just talking about charts of numbers. In fact, if we’re talking about charts of numbers, the chances are there’s actually no copyright protection because copyright doesn’t protect facts. When we’re talking about text, when somebody is doing their digital humanities project on modern poetry, the texts of the poems become the data.
One of the things that has become very complicated is that some journals have open data policies. If you publish in our journal, you have to make the data available so that other researchers can look at your data and verify your conclusions. We have these issues about data mining. Those policies will vary a lot and their application will vary a lot depending on whether the data is something that is protected by copyright, strictly numerical, whether there are privacy implications or if you have patient data or student data that is personally identifiable. There’s a lot of restrictions on what you can do with it. As you say, this is a very complicated area.
Peter: That sounds like another discussion to me.
Kevin: Or two.
Peter: We’ll get back to that one.
Peter: The next major implication for open access and reuse is the world of finance. As you indicated earlier, the intellectual property laws that we have really, in a large way, are focused on economics. One of the main points, I want to make here, is that if you’re in charge of a journal program and you’re trying desperately to hang on to those various sources of revenue or develop new ones, something to keep in mind is that your content does have value even beyond the initial sale. What we see sometimes is that journals that are in a position to license the reuse of content, even if it’s just figures from an article or a republication of entire articles themselves, that can sometimes add up and the numbers can be impressive.
I spoke with someone at the Copyright Clearance Center which I’m sure many of our listeners will be familiar with. The Copyright Clearance Center works with a lot of different publishers including scholarly and during a 10-year period, from 2006 to 2015, distributed more than $1.6 billion in royalties. They don’t have that broken down by type of publisher but someone there confirmed for me, as a rough guess, maybe half of that was scholarly content. That doesn’t say anything about your specific journal and what that value is but clearly there is a willingness for a lot of people to pay for reuse of scholarly content. That also comes with a cost, either in staff time to approve permission requests and to administrate those requests or if you were to work with an agency such as Copyright Clearance Center, of course, they take their cut.
Something to keep in mind is simply that this is something that can have a financial implication for your publishing program.
Kevin: Sure and it also gets us back to that balance we were talking about when we talked about copyright law because one of the controversies, if you will, in scholarly publishing right now, is the scope of fair use. Scholars and non-profit educational institutions get some benefit from the exception to the copyright law called fair use that allows uncompensated reuse. It’s a very subjective exception. It’s not laid out as a kind of a checklist of things that you have to do in order to take advantage of fair use. It is quite literally a judgment call. There is some controversy about the role of fair use.
The Copyright Clearance Center is, in fact, financing a lawsuit that was brought by three scholarly publishers against Georgia State University over electronic reserves of journal articles or excerpts from books. As of now, it’s in its second appeal and has been going on for over nine years. So far, it has found a lot of space for fair use in academia that will be a limitation on the ability to continue to get revenue through reuse licenses.
Of course, there are a lot of people who don’t get the advantage of fair use businesses that are reusing materials or even scholars, if they’re reusing a lot of a work or if they’re reusing it in a non-transformative way. Fair use is the boundary on this and also a source of considerable litigation.
Peter: Well, and that’s a good point is that the publisher gets to say, to some extent, how their content can be used but not to the full extent. It brings up one question that I have which is, if you are in charge of granting or refusing permissions, somebody wants to reuse your content. This would apply whether it’s open access content or not. You as the copyright owner have full say on whether permission is to be granted or not, right? I mean you don’t have to play by any rules about this if you only want somebody who asked you on a Thursday, “Can I use this?” and you would grant it.
You can do it that way, right? You’re the owner.
Kevin: Yes, you can be as arbitrary as you want. I just want to emphasize that fair use limits your ability to say yes or no.
The classic example was the Supreme Court case where the rap group, 2 Live Crew, wanted to make a parody version of Roy Orbison’s famous song, Oh, Pretty Woman. They actually went to the music publisher and asked permission. The publisher said no, you have a bad reputation. You use bad language in your songs, that sort of thing. We’re not going to give you permission. The 2 Live Crew went ahead and made their parody version and were sued.
Ultimately, the Supreme Court upheld their right to do that even though the publisher had said no because the court concluded that parody was a new, transformative use of the work and, therefore, fair use.
Peter: Very interesting. Well, I have yet to be approached by a rap group to use any content from one of my journals but it’s good to know that I could have.
Kevin: You mentioned figures from an article. In many cases, a scholar writing an article who takes a figure from a previously published article and incorporates it into her own new argument will have a very strong fair use case. Probably doesn’t need to ask permission for that reuse of a particular figure or graph because it is transformative, in a different way, but under the same kind of principles as the rap song was transformative.
Peter: Fascinating stuff. The third major point that I want to make today has to do with communication. You run a journal program and you have established what type of copyright license you want to see your work published under. You need to make sure that anyone downstream of initial publication understands your intentions. The question is, well, how do you do that? You’ve already mentioned this but one very widely accepted way of doing that is through Creative Commons licenses.
Now, I have heard that there are both pros and cons to using Creative Commons licenses. On the one hand, they do serve to summarize the different types of reuse.
On the other hand, they sometimes could be subject to misinterpretation. For example, when you get down to the fine details, just specifying non-commercial reuse could sometimes be subject to misinterpretation.
Kevin, what’s your take on Creative Commons licenses?
Kevin: I’m a big fan of them for the reasons you stated. They tell a user what they can and cannot do in a fairly clear way. There are literally millions, if not billions, of items shared on the internet under Creative Commons licenses.
Actually, I think they’re better understood than a whole lot of other things. I talked to a lot more authors who are publishing articles who don’t understand the contract they’ve been given by their publisher than who don’t understand what a Creative Commons license does. They’re pretty straightforward, in my opinion. You make a couple of decisions. A Creative Commons license always protects attribution, which is a great reason for using them. They reassure authors about that moral right that our law doesn’t protect, but you can use a Creative Commons license to leverage the copyright that you hold to protect attribution. They always protect attribution.
Then there is the issue of: Are you going to allow commercial or non-commercial uses or are you going to allow commercial uses or restrict reuse to non-commercial uses? Then the issue of what are you going to do about derivative works? Are you going to forbid them entirely, permit any kind of derivative work, or permit derivative works only if they’re shared under the same license as the original?
That set of decisions is pretty straightforward. We’ve seen the Creative Commons license tested in court and courts seem to get it and understand it and enforce it. I’m a big fan.
Peter: Do they also work internationally?
Kevin: Yes and in fact, the cases that I’m familiar with, I know of three that have tested Creative Commons licenses. Two of them, one’s in the Netherlands and one’s in Australia and the third one is in Texas. If I can, I’ll just tell you the case. The Australian case was a person who posted their family photographs under a Creative Commons license from a vacation trip and put them under a creative attribution, non-commercial license. An unscrupulous advertising agency came along and they liked the picture of one of the daughters in this family. It gets a little bit creepy but they liked this picture of this very attractive young woman and they used it in an advertising campaign. The man successfully sued, arguing that the non-commercial term of his license didn’t permit that. Because they were outside of the terms of the license, he was simply able to enforce the underlying copyright. He was able to prevent the reuse of his daughter’s photograph that way.
Peter: Well, fascinating and that does bode well for being able to enforce the terms of that license. Now there are cases where journals, in some cases, are using multiple licenses based on different types of content, either content that is published open access versus content behind a paywall, say in a hybrid journal or other similar situations.
Is there any risk of confusion by doing that?
Kevin: I mean there’s always a risk of confusion. We already talked about the huge risk of confusion if you don’t use a license, that is people will think, “It’s just open for everybody.” I think it’s probably a good practice for journals to allow the choice of multiple Creative Commons licenses in different disciplines. Different licenses may be appropriate. Different individuals may be more or less comfortable with things like derivative works or commercial uses. I think allowing that choice is a good practice.
I know there are certainly some publications that are going to say, “We don’t want to allow commercial uses because we don’t want competition that way. We don’t want to allow derivative works because we’re afraid that our articles will be compiled into other kinds of works without our knowing about it or getting a chance to license it.” I think those restrictions can apply in some places but where it’s possible to say to authors, “What works for you?” I think that’s the best practice.
Peter: Well, that sounds good. Now, we’re going to talk about, within the industry or the ecosystem, if you will, of scholarly publishing, how this information is transferred from one person who handles a manuscript to another, and that is metadata.
I mentioned that I had spoken with somebody at Copyright Clearance Center. They’re getting content from many different publishers and distributing it all over the place to many different end-users. I asked, “What is the main concern about open access content in that reuse environment?” and the answer was, “It’s all about the metadata. We have to have accurate and very detailed metadata that travels with that article all throughout the ecosystem.”
I was given an example of a publisher who was in a position to license the reuse of the content even though it was established with a permissive license that end-users should have been able to do what they wanted to without charge. Keep in mind that this was several years ago. We’re all still finding our way through many of the big changes in this industry and the metadata just was not that detailed. What happened was that they were being charged for the use of this content all because the metadata simply wasn’t there.
Now, what I’m hearing is that that’s getting better but it’s not perfect yet. I would imagine Kevin, in your position in the library, you probably see similar things, that the metadata is all important, right?
Kevin: Well, absolutely. Of course, libraries have been in the business of creating metadata. We used to call it cataloging for years and years and years. I absolutely agree that creating the best and the most fulsome metadata for works is extremely important. It’s a costly practice. It takes time and expertise but yes, good metadata can solve an awful lot of problems.
From my perspective, in the libraries, we actually now publish quite a bit of stuff. We have repositories where doctoral dissertations are and sometimes earlier versions of faculty work. My library publishes 26 journals that are all open access for different scholarly societies and things like that. We have exactly the same experience.
Creating the best possible metadata is key to avoid problems downstream.
Peter: It really is the way that we communicate our intentions throughout this industry. It is important and the point has also been made to me that not only is metadata important for that purpose so that licensing can be understood, there are other best practices and initiatives throughout the industry that really are only going to be possible with the existence of that metadata entity such as ORCID and FundRef. Also, metadata can be used to target promotions to help reach strategic goals. For example, if you know that an author of a paper is not a member of your society, understanding that would allow you to target a membership campaign to certain authors.
There are a lot of implications to that.
Kevin: There really are. Can I just add one more thing about metadata?
Kevin: Because you were talking earlier about the ability to license downstream uses that also depends on metadata in a very fundamental way.
The problem that we copyright lawyers talk about and I’m sure many of you, the folks in the audience have heard of, is called orphan works. Those are works that are still protected by copyright but where it’s impossible to find a rights holder.
In other words, there’s no one to ask for permission and therefore no one to pay for permission when payment for permission is needed. That is fundamentally a failure of metadata. That is that there’s nothing that travels with the work that says, “This is the rights holder. This is who to ask.” Metadata really underlies that potential revenue stream.
Peter: Right. We don’t see it but it’s there.
Kevin: When we don’t see it, we have a serious problem.
Peter: Exactly. All right, well that pretty much establishes the main points that I wanted to make on the big picture implications for open access and reuse. A lot of times, you think about these things and you think, “Well that’s fine but I’m in a specific situation today. How do I navigate that?” I thought we could run through a few scenarios. Maybe they’re hypothetical but they certainly are possible.
Kevin, if I could just get your input on how a journal publisher might deal with these situations. This first one involves two different parties. Party A has published original content in a subscription-only journal. Party B comes along later and requests permission to reuse a portion of that content in another journal but the second journal is open access. This content is going to be published in that second journal under a very liberal or permissive license.
Is there any way for party A to allow for the reuse of that content to grant permission but to also restrict its use to that article specifically? In other words, not allow it to now enter the ecosystem without any restrictions whatsoever. Have you seen that kind of situation?
Kevin: Yes and it does create significant discussions. First of all, some level of reuse, as I’ve said before, is probably permissible under fair use. In that case, there’s really nothing the rights holder can do to prevent it and that’s built into the copyright law in order to establish that balance we talked about. If the use goes beyond fair use and at that point, party A, the publisher of the subscription journal, has a decision to make. I can certainly understand especially if it’s enough material that it goes beyond fair use why they would want to protect their subscription. They feel like this is going to, in some way, substitute for the original.
There is a way to deal with that and that is that even within a work that is licensed under a Creative Commons license, the licenses allow for material that isn’t subject to the Creative Commons license. You could simply ask that whatever it is that’s being incorporated that the article is published with an indication that material that’s taken from party A’s journal is all rights reserved or whatever it is. That can work and it preserves your legal remedies. That would be the way I’d suggest dealing with it. Of course, another option is to say, “No this is too risky. I’m not going to grant permission.”
Peter: Sure. Another situation is probably something that happens a lot. A journal publishes an article open access but does not bother to specify a particular license. I think you touched on this earlier, effectively what that means is standard copyright protections apply. Is there any more to be said about that?
Kevin: I don’t really think so. I think it’s an unfortunate error and it happens all the time that people intend to use the internet to make their works accessible to others and reusable and just don’t understand that copyright is automatic, without some indication of what reuse is allowed. All reuse beyond the scope of fair use would require permission.
Peter: Right. Let’s look at this one. In this situation, somebody violates the copyright license of an open-access article. They’re found in the wrong but what is a publisher actually to do? I mean, in a practical sense. What does it take to pursue that claim? You’re talking about going to court which of course is going to have a cost. For a single violation, maybe it’s not worth it, but, what are the options?
Kevin: Right. This is an issue whether the material is published under some kind of open license or if it’s not. Anytime a work is infringed, whether it’s infringed because an open license has been exceeded or if it’s all rights reserved and somebody’s infringed it, your remedy is the same. Your remedy is the remedy established by the copyright law. Copyright is federal law. It is very expensive to bring a lawsuit. Like I said, that’s the remedy for a publisher of any kind of material.
Now, a couple of things. One is in order to go into federal court, a work has to be registered. If the work is not registered with the Copyright Office, it’s not a requirement for protection but it is a requirement for the federal courts to hear a case. If it hasn’t been registered, register it before you try to bring a copyright lawsuit. If you register a work early, shortly after it’s created or published, you’re able to ask for statutory damages. Statutory damages can be very high and that’s sort of where you make your money if you’re going to bring a lawsuit. Federal litigation is very expensive.
There is a movement right now and there’s a bill that was introduced in Congress in the last couple of weeks to establish essentially a small claims court for copyright infringement. That would help reduce the cost of litigation. That’s especially for rights holders. That’s a very positive development, I would think.
In any case, copyright enforcement is the remedy whether you’re talking about open access material where a license is violated or fully protected material where there has been no license but there is infringement, which does happen of course.
Peter: Well, this is a fascinating thing that we’ll be keeping an eye on. As a publisher, I like the idea of small claims copyright court. I assume that would potentially involve only lower stakes violations but could also potentially keep my costs down?
Kevin: Yes. That’s the intention. I’m taking advantage of the internet myself right now to tell you that the bill that has been introduced is called The CASE Act, Copyright Adjudication for Small Claims Enforcement is what I think it means. It’s House Resolution 3945 and was introduced into the House of Representatives within the past few weeks. The article I found about it is from earlier this month. Yes, I think that’s a development that would be very positive especially for smaller publishers that don’t have a stable of lawyers and can’t afford the sometimes hundreds of thousands of dollars that it would cost to bring a federal lawsuit.
Peter: Well that’s great information. Thank you. Definitely, something to keep an eye on.
In the next scenario, I wanted to talk about some of the things that are happening in the world of scholarly publishing today. We’ve got some entities such as ResearchGate and Academia.edu where people can post their content. Then we’ve got, of course, the pirate things going on now with things like Sci-Hub where it’s unfortunate but it is happening and we have to deal with it. What are the implications of this type of sharing and piracy and what do they mean for open access content today?
Kevin: Right. You did a good job of this. These four sites are actually really quite different. Sci-Hub is, as you say, a pirate site. It is putting up tens of thousands, hundreds of thousands of scholarly articles without anybody’s permission. It is very popular with researchers. I think it poses a significant challenge to the scholarly publishing model that we’ve become used to. I was in a meeting the other day with a faculty member who said, “I don’t have my students bother with all the complications of getting to articles in databases and things like that. It’s just too much trouble. I give them the DOI for Sci-Hub and let them find what they need.”
That’s disturbing to me as a librarian and it should be very disturbing to the publishing community. But we need to distinguish Sci-Hub from Mendeley, ResearchGate, and Academia.edu because there are legitimate business models and proper procedures for those three research sharing sites.
Now there are, as I said and you said before, publishers often let people do different things with different versions. We’ve seen a controversy around ResearchGate. For most authors, the different versions don’t make much sense to them. They think of it as my article and they post my article to ResearchGate often in the final published form and that is often not allowed by the publishers.
Some major publishers have been trying to stop that practice by sending takedown notices which is a legal mechanism to prevent copyright infringement without having to go to federal court. For example, the American Chemical Society and Elsevier have both been sending takedown notices to ResearchGate and I think to Academia.edu, for final published versions of their articles, even though the authors are permitted to put up a final submitted manuscript (the post-peer-review manuscript that hasn’t been typeset and published as a PDF).
Then the further complication is that Mendeley is owned by Elsevier. When Elsevier is objecting to the practices of ResearchGate and Academia.edu that is also a competitive practice to try and get more people to share through their site rather than their competitor’s site. It’s a very complicated environment right now.
The only other thing I pointed out, especially about Sci-Hub, is that a lot of our creative industries, changes in the business models have been driven by piracy. This is true in the movie industry. A lot of early piracy resulted in the current business practices, the structuring of contracts and licenses. That’s true in the music industry as well. It’s also true that the publishing industry in the United States was driven by piracy back in the 19th century when the way for a publisher to establish itself was to publish works of literature that had been originally published in England. You made much more profit if you didn’t pay the author anything for those works and US law didn’t require you to. We wring our hands about piracy at one point and then there’s another point where it’s actually driving the business models.
I’ve yet to know what will happen in the scholarly publishing industry. Anybody who tells you they can predict the future is probably lying to you.
Peter: I totally understand. I know my crystal ball hasn’t been working so well lately.
We probably have time for one more scenario. This is something that I wanted to ask about because we’ve been talking a lot about journals. I know that I work primarily with journals in the STM world but I don’t want to forget about humanities and I don’t want to forget about books because certainly there are open access books as well, but the environment is really different, especially in the humanities, where books are often more important to scholars.
What does that landscape look like from your viewpoint?
Kevin: Well the first thing I’d say from my viewpoint is that a significant problem we have in all universities is that the cost of the large journal packages that we subscribe to (the Elsevier, Wiley, American Chemical Society), the cost for those packages, their big deals where we’re buying hundreds and sometimes thousands of journal titles, many of which we don’t need but that’s the way they’re packaged, are going up 6% to 8% sometimes every year. That’s higher than the rate of inflation. It’s much higher than any increases in library collection budgets.
The result of that is that we’re spending more and more of our budget on those packages and we have less money available for monograph purchases. That disturbs me, as somebody who’s trained in the humanities, because it is the humanities that suffers when our libraries cannot buy as many monographs as we need to support humanities research and social science research.
The other thing is that there is a very robust discussion going on about how to publish monographs in open access. There, the big focus of the discussion is both: What is the actual cost? What does a publisher need to recoup in order to make it worth their while to publish a book where they’re not going to have as much revenue from sales as they would have if it wasn’t also available in open access? What does it actually cost and what is the business model? Can we share that amongst libraries? Can we find ways for libraries [to do this]?
Well, there is such a model out there right now where we can subscribe to a batch of open access books.
Last thing I’d say about that is open access for monographs does not necessarily preclude sales. At the beginning, I said that about my own book that often, especially with a book that’s been out for a little bit of time, for a year or two or three years, open access to that manuscript will actually support greater sales. Open access and the normal traditional business model are not anywhere near as in conflict in the monograph world as they seem to be in the journal world.
Peter: Great point. Thank you. I’m going to have to turn it over to Taylor now because it looks like our time is really winding down.
Taylor: Well, thank you, Peter and Kevin. That was really engaging and I guess I speak for everyone when I say that that was a really lively discussion.
There are a few questions that we’ll skip over to. The first one is how does a publisher go about getting a Creative Commons license? Is there a formal process or any type of application?
Kevin: It’s a great question. No, there isn’t. You do it online. If you go to creativecommons.org and click License my Work. You can go through the set of choices you need to make and it will generate a symbol that you can place on an online work. That symbol connects to what they call human-readable language for the license. Then behind the human-readable, there is what they call lawyer language. I’ve always appreciated that as a lawyer and again as a human being. It’s very easy to do. There’s no application and there is no cost. Then you put that symbol on your work and it’s a link to the full license text. It’s very, very easy to do.
Taylor: Okay great. Thank you. Another question from our audience.
In the scientific community, we’re dealing with a number of preprint servers. Can you discuss how that affects copyright and author manuscripts overall?
Kevin: Sure. Usually, if an author posts their work to a preprint server before it’s been submitted (the version that is the initial submission to a journal) and if they do that before there’s a transfer, the author initially holds the copyright and there is absolutely nothing to prevent them from posting their work wherever they want. If they post to a preprint server and then submit it for publication to a journal, first they should tell the journal because journals are very sensitive about things that have been previously published.
They should tell the journal, “Okay my work is on arXiv,” or the SocPsych archive, whatever it is, preprint server. Then the license (when they transfer copyright it is usually due to the publisher) will say, “A preprint on a preprint server is fine. That’s very common. We don’t care about that.” Often the license will say, “If you want to replace that with what’s often called a postprint, with a final author’s manuscript, the one that’s post-peer-review, you can do that, perhaps, after the publication or after some embargo.” In terms of embargoes, that will be governed by the license once copyright has been transferred to the publisher.
Taylor: Okay, great. Thank you again. Well, we have a couple more questions but we are running out of time. I would like to thank Kevin for graciously accepting to participate in our webinar and sharing his knowledge of open access and copyright law. On behalf of everyone at Allen Press, we really do appreciate your support and hope you will join us again in the future.
Kevin: Well, let me just say thank you for the opportunity. I’ve enjoyed this and as you know, the KU Libraries and Allen Press are partners in a lot of things. I’m always delighted to work with you, but I really appreciate this opportunity especially.
Taylor: Great. Thank you, Kevin. I’d also like to thank Peter for being our lead presenter today and I’d also like to thank all of you for attending this webinar. We hope you found this event engaging and learned a few things about open access reuse and licensing.
That concludes our discussion today.