©ollectanea

Just noticed an interesting entry at the Institute for the Future of the Book (if:book), if:book: chromograms: visualizing an individual's editing history in wikipedia that connected up for me with an article I had read earlier at Peter Brantely's blog, shimenewa, Recontracting authors' rights.

Peter was commenting upon the marvelous possibilities for research that open access provides -- not merely access to results, but access to a rich data treasure that can be mined for connections, where the value is in the collection rather than the individual work. The if:book note is about just that kind of mining: researchers at IBM are mining the very open Wikipedia for information about how editors work, how they manage a peer production project.

Open access is not an end in itself. It is instrumental. It admits possibilities that no one has thought of today. These possibilities are the heart and soul of research. Open access enables the heart and soul of research. Freely accessing others' writings is not the payoff for open access, it is a small, first step, a door through which creativity enters. It is worth pursuing. It is worth spending scarce resources to make it possible, not so an article can park itself in an institutional repository, but so that someone who isn't yet born can connect up some dots some day because the article and a gazillion other things were there for her to ponder, search, mine, analyze, ...

I don't often lose sleep over copyright issues anymore. But last night I could not stop thinking about the Copyright Office's new resource for *children.* Please have a look if you haven't already: Taking the Mystery Out of Copyright. There's a text only version if you want to skip the cartoons and the music (assuming you are not 13). This bothers me on so many levels, but I'm only going to address one level here, the most obvious. My experienced, calm, collected voice is telling me to wait a few days before I write this. Ok, at least wait a few days before I publish it. Clearly, I am ignoring that voice. I should at least acknowledge that I'm probably overreacting. I no doubt will feel differently about it after I have thought about it for awhile. Maybe I'll write about it again after a few days.

That said, do children really need to know about copyright? Well, I reluctantly must admit that yes, they do. Should they need to know about copyright registration, copyright history, and the role copyright plays in protecting film, music, art and literature? Well, it's not like they need to be protected from this, like it was senseless death, war violence or something cruel and ugly. So, it is commendable that the Library of Congress offers a well-done, straightforward, and fairly neutral informational piece. What would we expect the Library to talk about, other than what it does, which is, in this case, copyright registration. A narrow slice of the copyright pie, to be sure, but again, that's one of the things the Library does that no one else does.

But on the other hand, remember what it was like to be 13? Was registering your copyrights something you were all that concerned about? Should you have been? Have things changed that much with respect to how likely it is that the metaphorical box of things you created during your 13th or 14th year of life needs protection? From what? From becoming part of the stream of creativity (my metaphors are all over the place) from which you yourself borrowed to create?

If I had one opportunity to tell kids about copyright, I suppose I would mention its role in protecting the commercial interests of creators and distributors like the film, music, art and publishing industries, but in the next breath I would appeal to their own sense of how most things we all create are not meant for commercial exploitation, but instead are meant to be shared, reused, remixed and borrowed from. I'd say, "Look inside that box of things you created last year. Let's look at where all your things came from. Let's see how borrowing and modifying and adding your own ideas works in real life, and what we all need to keep that going."

The lesson I would teach is about the fact that *YOU HAVE TO DO SOMETHING* if you want your own creativity to be added to and be a part of a flowing, lively stream, rather than be caught up in a little eddy that goes nowhere. Congress (something here about infinite wisdom) has created a set of rules that, without your doing anything beyond the mere act of creating (tangible things, of course), keeps everything you create in that box, locked away, maybe forever, but at least for, let's see, you're 13? Let's say you'll live to 78, your box of stuff stays locked away for the rest of your life (65 years) plus 70 more years. Yes, in 135 years your box of stuff will possibly join the stream of creativity. If the box is still around then. And somebody finds it. And they know you and only you created it, and when you died. And they know about copyrights. If that doesn't fit your idea of what you want, then YOU HAVE TO DO SOMETHING. You have to let people know that you have something else in mind for your box of stuff. Fade to Creative Commons logo/website.

The assumption that everything needs "protection" for 1 1/3 centuries is so out of step with the reality of how we all create and most importantly, *why* we all create (overwhelming, not to make a living from our creations), and the serious consequences of being out of step with reality makes me very sad, and angry. The waste, the untapped creativity, and the criminalizing of creativity cannot be defended in my opinion. One size does not fit all. Given the enormity of the explosion of creativity enabled by the networked environment, to say nothing of creativity in the real world, the lessons we need to teach are about taking responsibility to do individually what Congress cannot seem to do for us as a nation -- create a copyright that fits our widely divergent needs, rather than one that both stifles us creatively and turns us into criminals (or potential civil litigants -- there's another interesting copyright lesson for kids) if we ignore it. We need to tag our creative works with simple statements that express how we feel about their place in the creative stream. I would recommend Creative Commons licenses for many reasons, but any statement about sharing is better than doing nothing and thereby consigning your work to copyright's centuries-long holding bin, or perhaps appropriately named, wastebasket.

I read a press release on the Liblicense listserve this morning from Wiley-Blackwell announcing a new series of journals: "Wiley-Blackwell Launches Review Journals in Social Sciences and Humanities -- Cutting-edge functionality added to Compass journals," the title read. I went to visit the site (Compass Journals and glimpsed the future of publishing in a world of open access (OA). Many people still vigorously debate whether OA will result at some point in library cancellations of journal subscriptions. Theoretically, if all journal articles are freely available on the Web, why would a library subscribe to a database containing them? Sounds rational enough, enough to cause any thoughtful publisher to 1) resist OA or 2) accept OA and find a way to build a business on its back with customers you already have ...

Publishers are doing both. In addressing their admittedly different but pretty much parallel challenges to copyright control, so is Hollywood (see Lawrence Lessig's OpEd piece in the Washington Post. At last, so it the music biz.

I don't believe that resistance will thwart OA (or remixing, or p2p file sharing). OA has such obvious advantages for the "progress of science and the useful arts" to borrow a line from the Constitution. Nevertheless, resistance slows it down long enough for the new business models to start to take shape. Far from saving libraries money, however, OA is going to be a gold mine for publishers who can offer brave new services built on the treasure trove of high-value articles that are going to be out there free for the taking.

Is this a bad thing? Certainly not. It's the American Way (at least), and libraries will buy the services (rent the services actually), and prices will continue to spiral like they always have because that too is the American Way. If you are not growing (profits) you are dying.

Debate about this seems academic at this point. While I'm not that concerned about the future of Hollywood or the music biz, I do care deeply about the future of scholarly publishing and I applaud those at the helm of our University Presses who spend as much of their time as possible concentrating on new business models, not just debating whether OA will cause subscription cancellations (or whatever else it might cause). We have to figure out, like Wiley-Blackwell (and Lucasfilm and EMS in their worlds), what we can do to take advantage of this new OA, socially networked world of digital scholarship, either as businesses, or as more integrated parts of the institutional framework -- whichever works.

I am very proud to announce the launch of the Texas Digital Library's (TDL) blog, The Scholar’s Space , featuring a team of four contributors, including me, two of my colleagues at the University of Texas at Austin, and a colleague at University of North Texas, with more to come over the next few months. The Scholar’s Space joins scholarly communications blogs sponsored by friends at other colleges and universities, and national and international organizations. We’ll be providing commentary on newsworthy items related to TDL participants’ local and global interests.

If you have an interest in scholarly communications issues, I encourage you to visit and subscribe to our RSS feed to keep up to date on the news and become active participants yourselves, either by commenting or contributing. If you’d like to be a regular or a guest contributor, please contact Georgia Harper. If you visit, let us know what you think!

Peter Brantley and Carl Malamud have just asked the Copyright Office to make its retrospective database of registrations of copyright freely available to the public: Carl Malamud Tackles the Copyright Office. The claim is that the information is public domain (the Copyright Office apparently claims copyright on it) and that it is a valuable dataset that, if publicly available for research activities, could yield improvements to the search process itself as well as other information about the registration process.

It is rather remarkable that the massive numbers of registrations and renewals are only searchable back to 1978. Stanford made headlines when it provided access to the "determinator," its database of earlier records that are proving indispensable to determining which of the works registered during the period 1923 - 1963 are in the public domain because their owners did not renew their copyrights as was required during that time.

University of Texas is joining this effort to determine the copyright status of works that have been digitized by Google, but not just for the purpose of making those works that are found to be in the public domain more accessible, but also to further the research efforts of others along these same lines. We plan to document in detail the process we go through to make our determinations, the resources we find indispensable to our work, and when we are unable to make a determination, all the evidence that we were able to bring to bear on the question of copyright status so that others might be able to pick up where we left off. This is the kind of work that requires a "knowledge community" to further it. I know that the Copyright Office is a part of that knowledge community. Contributing its records to the research community is a special step that only it can take, a unique contribution I hope it will make.

Lessig' gave a talk about remix culture back in March at TED: How Creativity is Being Strangled by the Law. His talk was just posted this month. For anyone who has seen him give a talk in the last 1 - 2 years, this won't be new, but it's very streamlined and very succinct. The video only runs about 18 minutes and it's excellent -- watch this!

Lessig emphasizes the importance of competition, that "more free" can compete with "less free," that artists' choice (to distribute differently, for example, to make their own works more freely available) is the key to defeating monopoly, and that laws that criminalize our children's creativity are corrosive -- and we can do better.

I have been developing an argument that touches on these same themes at Mass digitization ~ changing copyright law and policy, and in fact I had just posted this new segment last weekend that talks about how the sheer availability of so much good free content online inevitably puts pressure on even Hollywood and the music industries to stop making it hard for people to get to their content (DRM and subscription barriers, among others). Check it out.

Lessig announced today that Carl Malamud had accomplished a coup: Building the Legal Commons (Lessig Blog). He purchased a huge collection of federal case reports and is making them completely pd -- not just CC licensed for some but not all purposes, but CC licensed for *all* purposes through a new CC license that commits the licensed work to the public domain. I feel like I'm watching one of those amazing movie final scenes where people who have been stunned into submission over the course of the entire movie, one-by-one stand up and finally refuse to go along with atrocity anymore. They just say no. Or, rather, they just say yes -- yes to the protection and promotion of the public domain, not just for some, but for all.

Tears and cheers (the audience is reacting).

Peter Suber has a very interesting write-up on a new Google initiative, OA knols from Google. For a more thorough explanation visit Google's blog where the subject is set out in more detail. What I found interesting about Suber's commentary was that he noted right away the obvious potential competition with Wikipedia and other forms of collective knowledge, but he also realizes that what Google is proposing has the potential to compete with open access as it is currently conceived, that is, as connected to institutional and discipline-specific repositories.

Siva Vaidhyanathan has also noticed the announcement, and will be commenting on other aspects of the new Google initiative in keeping with his focus.

The idea of Google hosting a collection of pieces written by experts on subjects does drift pretty far afield from advertising and searching, doesn't it? What's up with this? What do *you* think?

Last year I was not able to attend the CIP's annual conference, but I've caught quite a few of them over the years. This one is special for me, however, because as the Center's Virtual Scholar, I have had the honor of participating in the planning. Kim Bonner, the Center's Executive Director, is at the helm of the planning process and has put together a great lineup of events and speakers. At the top of the list is Jamie Boyle, Duke law professor and advocate of the public domain. I am looking forward to meeting him and hearing what he has to say.

I, too, am speaking at the conference. I plan to discuss an idea I am working on as a possible dissertation topic that fits well with this year's CIP theme: Copyright Monopoly.

The lineup is widely diverse, including speakers representing content industries (Copyright Alliance, CCC), law professors and practicing lawyers, librarians and lawyer librarians, and intermediaries like OCLC and Google, among others.

The conference also features a new format for day three -- a series of roundtable discussion groups focused on what you can take back home with you to put what you have learned into practice.

Hope to see you there!

The ARL has published a very helpful report for universities and colleges that receive NIH funding regarding their options for facilitating their authors' compliance with the requirements of the new NIH Open Access Mandate: Complying with the NIH Public Access Policy - Copyright Considerations and Options (SPARC).

I would note that even without this mandate, many publishers had already established policies that permitted public access posting (about 60% according to stats available from SherpaRomeo). The interaction between these policies, typical publisher contracts, and the new Mandate's requirements that authors retain sufficient rights to grant the NIH the public access rights necessary for grant compliance would make an interesting addendum to this report. The report 's author does not explore this option, perhaps believing that to leave it up to authors to wade through such contract/policy/regulation interaction subtleties is probably not the best risk management strategy. Or, he may not realize that a large percentage of publishers have these policies. I certainly think it's worth having a look at. If the combination of the policy and the contract properly referencing the policy were sufficient to meet the requirements of the mandate, it might reduce the administrative burden in many, though not all cases. But that might be the rub right there: depending on the institution's size, the strategy that requires the least case-by-case might be a better choice even if it isn't technically necessary in all cases.

I have taken nearly a week to mull over this case that has been buzzing around the blogosphere, around email and even in real life, and I'm glad I did. I think I see it more clearly now than I did a week ago when the news first hit. I managed with a little time to connect it up with everything else in my life, well, my copyright life.

I guess it was reading Claire Stewart's post at the Northwestern University Library Blog (NUL Copyright: What does the lawsuit against Georgia State mean?) that pushed the last little piece into place. OA.

Yes. OA.

It all started at an AAUP/ARL Scholarly Publishing Symposium in the early 90's. I was lucky to be invited, and I made a speech about Texaco (the case) or something like that. I don't really have a lot of memories from this event (hearing Jean-Claude Guedon speak is one of them, however), but my memory of a conversation with Ann Okerson, now at Yale University, is still very fresh. The lead in must have been about market failure as the driver for fair use and she contrasted L. Ray Patterson's point of view, as expressed in his book, Copyright: A Law of Users' Rights. She talked about it fondly, but she agreed it wasn't the way things were, rather, it was how they ought to be.

Second piece: That idea of "how things ought to be" contrasting with "how they are" is a constant of fair use discussion because fair use is so open to interpretation. It can mean so many things. But we get our "how it is" meanings about fair use from the courts' interpretations. We have to draw that distinction, if we represent real clients, between how it could be or even should be, and how it is.

And that's what I've been doing for years as copyright counsel for the UT System. I'm grateful to have this task. It keeps me grounded. You have to know what your absolutely best arguments are, the law, and policy, but you also have to be realistic about the likelihood of winning those arguments, so your client can be realistic too, and make his or her risk assessment and go forward.

Which brings me to the third piece. Many people have spoken eloquently about why we as a society need to provide educators with a broader scope of fair use than just the "high transactions cost market failure" approach would allow for the kind of copying at issue in the suit against GSU. I rounded them up in an article I blogged at Lifelong learning a year or so ago. See for example, this section on Market Failure, and this one about market dysfunction. I can add Claire's comments to the list. I cannot believe that these arguments were not made on behalf of educational fair use in the cases about classroom and research copies. And they did not win the day. Maybe it was because of the profit aspect of the defendants in all those cases. Maybe the result would be different today with GSU a nonprofit educational institution as the defendant.

But my money is not on that proposition. And that brings me to my 4th piece. Losing in Congress and losing in courts -- happens all the time. Even when you win, you lose. The so-called compromises hashed out between stakeholders in congressional statutory marathon negotiation sessions read like some of the worst contracts I've ever had to review. And this is law for teachers and students to follow. Uh-huh. Right. All we've managed to effect with Congress is a stalemate. Oh, that's no small accomplishment. Keeping things from passing has become the best we can do. Think about that.

Many are optimistic about the string of fair use cases coming out of the "transformative" field lately, and I am too, but I don't think they offer the life saver to digital course materials distribution that others hope for. I don't think courts will go that far.

So, 5th piece: what's left if you really, really, really believe that educators ought to be able to use whatever they need to and want to use in their classrooms without worrying about what it costs or whether it's fair use?

Consumer resistance, or OA.

I don't have to advocate consumer resistance. We can get there without infringing people's copyrights. The very same arguments that Claire makes on behalf of educators and students being able to just read others works even if they can't afford to pay are turning the corner on OA for scholarly publishing. The battle for OA in journals is far from over, but the outcome is pretty clear. Now read anything about OA for the scholarly literature and substitute educational materials and see if you don't agree. It makes perfect sense. The same struggles the industry is going through to figure out how to make the economics of OA work for journals are going to come to monographs next and then why not educational publishing. If journals can figure out how to charge for other things besides digital copies, so can monographs, and monographs are, well, books with longer names. Books can be freely accessible without authorship, editing, peer review and distribution falling into the gutter. Do we know how right this minute? Maybe not. Is it impossible? Absolutely not. Do we need to figure it out? Absolutely. Will we. Absolutely.