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Encouraging note in the Feb. 1 Library Journal Academic Newswire, For Oxford University Press, Online Venture Breathes New Life into the Monograph, describes just the kind of thing I'm excited to see in the scholarly publishing arena -- a database of monographs that can be licensed under a "perpetual access" model. And it appears to be paying off handsomely. Says Niko Pfund, OSU's Vice President and Publisher:

"We're not seeing the end of the book, we're seeing the galloping diversification of how its message can be conveyed," he explains, describing the press' philosophy as "format agnosticism," that is to deliver content in whatever format is desired. "If dissemination and influence is our primary currency, then having books available via OSO, or netlibrary, in print perpetuity via print-on-demand, or in Google Book Search and Amazon's Search Inside the Book means that more people can access your work in more ways from more places than ever before. That does translate to dollars."

I have believed for some time that copyright is only one lever, and perhaps not the most effective lever, to press in attempting to negotiate a path into a more productive future for scholarly publishing. Creative business models are by far more powerful. Of course, I realize that holding a copyright gives one the power to veto someone else's creative business model with respect to that copyrighted work, so copyright is not unimportant. Nevertheless, it's such a relief to see evidence that copyright owners are taking chances, experimenting, and learning about the benefits of digital access and use.

I don't think it will be long before more authors will be willing to experiment themselves -- with or without the aid of publishers. It would seem to be better for both if publishers are willing partners in the exploration of the world of the networked book. Brave explorations like Oxford University Press' can shed some light on the path.

A short post by Colette Vogele, at Stanford's Center for Internet and Society, Schloss hearing, suggests that the judge in the case will likely allow the case to proceed, denying the defendant's motion to dismiss. She attended the hearing and had this to say:

From the hearing, I felt Judge Ware was fairly predisposed to rule in Professor Schloss's favor and allow the case to proceed beyond pleadings. I was really impressed with how prepared he was and how he clearly understood the background and factual questions that were being raised by the defendant's motion to dismiss the complaint. Although he didn't rule on the motion at the time of the hearing, he did give a strong indication that he'd be issuing a scheduling order (so, I gather he's not dismissing the case!).

If you are not familiar with this case, The Center, whose attorneys are representing Schloss, also has more information on it. It is a very high-stakes fair use case, so we should all be watching it carefully.

Judith Thomas does a masterful job of explaining best practices and challenges in creating a digital motion media collection in this article, Digital Video, the Final Frontier - 1/15/2004 - netConnect. I'm studying digitizing video right now at the iSchool, and this was an optional reading. I found it most inspiring because there's not one mention of copyright or rights or permissions in the entire article. It's simply not on the table. Wow. That's like a dream, isn't it?

Several years ago I was invited by the Library of Congress to participate in a 3 day discussion about digital archiving. The setting was in gorgeous Berkeley, CA at a fabulous hotel. The other invitees were a glittering array, including the Register of Copyrights, MaryBeth Peters. I gladly accepted, and I felt honored to be invited. But, a curious thing happened at the very beginning of the gathering. All the participants agreed that they would define the copyright issues out of the discussion. I don't know how the Register felt about this, but it made me feel a little under-utilized, to say the least (useless, puts it more bluntly). I was absolutely amazed at the quantity of ideas entertained, the quality of the solutions proffered, the creativity of the group. If copyright had been on the table, the group might just was well have sat around the pool gossiping. It would have been, in effect, a nonstarter.

Since that meeting, I've begun more and more to believe that for some things libraries need to do for the future, they just need to be done without much concern for what the law says today. The very idea that anyone who's job it is, or I should say who's mission in life it is, to preserve for posterity, simply cannot stand by and watch important pieces of the 20th century just crumble before their eyes because of fear of getting sued, more often than not, by someone who could care less what you're doing, or who's actually dead, or who's descendants could care less, etc. etc. etc. etc. etc. etc.

I noticed earlier today a post at Michael Geist's blog about a remarkable speech by Bruce Lehman, former Commissioner of Patents and architect of the DMCA, notably including the anti-circumvention provisions, in which he suggests that we're entering a post-copyright era. He also admits that the DMCA as an approach has failed...

This idea that copyright is becoming irrelevant is actually one of the things that contributed considerably to my decision to get a degree in information studies and refocus, away from copyright. It's just terribly out of sync right now and as much as I hate to admit it, I truly feel that it just has to be ignored in some of its more egregiously out of sync aspects. (I'm waiting to be struck dead by a lightening bolt... waiting... waiting...) This is like the moral dilemma of our time (for those of us who think about things like this), like civil disobedience. Defiant preservation, organization, indexing, and access. Will wrong-headed and failed laws go quietly into the night at some point, or do we just turn away and embrace new paradigms created on their ruins, such as Creative Commons licenses and new business models that rely on something other than artificial scarcity to motivate creativity? And will libraries just quietly do what has to be done?

It was a big week for copyright. Events were reported all over the blogosphere. My friend and fellow grad student, Carlos Ovalle, has a nice roundup on his blog, Copy This Blog, where he reports several unsurprising legal opinions based in the sad music industry war against college students, and in a post a few days earlier, the related decision of Ohio University to ban p2p software on its system.

MPAA's former head, Jack Valenti, died this week. Lawrence Lessig offers an interesting memoir.

And the Stanford Center for Internet and Society posted a note about a decision that determined that downloads were not performances for ASCAP/BMI/SESAC royalty purposes.

Tobe Liebert, one of my favorite law librarians (I have lots of favorite law libraians -- our UT Law School Library is one of the best!), posted a note about Siva Vaidhyanathan's explication of his position regarding the three serious dangers of the Google Book Search Project, well articulated and succinct. His argument raises important questions about a future that includes wildcard projects like Google Book Search. If you have a chance to see Siva in person, don't miss it.

On another note, I am winding down my first full year of grad school. Classes end next week. Papers are due, presentations will be made, files of printed articles will be dumped (recycled, of course). It has been a really amazing experience for me, one that still astonishes me, nearly 9 months into it. I'm registered for the summer session and for the fall. I shift focus next year to research, having been accepted into the Ph.D. program. In the meantime, I head off to France to do a little bit of research, sort of getting my feet wet in the Seine (and the Cote d'Azure). Whatever I conclude based on my little sojourn will be reported through the CIP, perhaps even here on the blog. I'm going to write a paper, though I have to admit, I call it that only reluctantly, because I am planning to put my money where my mouth is -- I'm focusing on the future of the book, and I'm going to place all my research data, analysis, results and predictions in forms that explore that future. So, it will be fun, as well as instructive for me to figure out novel ways to report research in progress. I hope you'll enjoy that exploration too. The future of libraries is affected directly by the future of books so it is in our interests to pay attention to the expansion of the expressiveness we experience in books today.

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!

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.

Yahoo! announced today that it will be supporting Semantic Web and microformats to improve search results for structured data (as reported in ReadWrite Web: And Nerds Became Kings: Yahoo! to Announce Semantic Web Support - ReadWriteWeb). The Semantic Web has been a dream of Tim Berners-Lee for a long, long time, and up until now, pretty much way behind schedule because it just seemed, well, too hard. Things are changing.

They always do.

You know how RSS allows you to get feeds from your favorite blogs and other newsy Websites? That functionality is one example of how we are able today to break the offerings on a Webpage up into small parts and send them zipping around the Web. The text is separated from the formatting on our page, the way the text is displayed isn't carried around with it. That enables a snippet of our text, maybe the first paragraph for example, to be displayed by someone, anyone who subscribes to our feed.

Semantic Web potentially micro-bites the content even further -- into little bits that are identified as to precise type: this part is a last name; this part is a first name; this part is a phone number; this part is a set of key words; this part is an abstract, etc. People might tag text down to this level to enable its extraction and manipulation, its readability by computers (see Michael Jensen's article, The New Metrics of Scholarly Authority, about the importance to Authority 3.0 of being computable); its reorganization for other purposes. It gets treated like data rather than information or knowledge (don't let's debate what those things are just now).

What might this mean for copyright policy and practice? Wow, it just sends the mind reeling. I can't begin to imagine the implications, but one thing seems clear: a Semantic Web has the potential to further dramatically reconfigure the relationship between copyright owners and those who wish to access and use their copyrighted works. Implicit in the markup for computer recognition, extraction and manipulation is a license to actually do those things. Atomized text and images, sounds, audio-visuals. Wow. Might a whole new round of fear and loathing be right around the corner? Or will this just add to the steady pressure on copyright owners to open up their works to use and reuse -- if they want attention at all?

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.