Peter, of course, was my editor at Open Access News, and it was an honor to work with him. You could hardly have asked for a better boss, and I learned a tremendous amount.

Before OAN, though – and since – Peter has always been there for me. He helped publicize my work for open access at the University of Florida and with Students for Free Culture, when I thought I was a lonely outpost in the hinterlands. When I was developing SPARC’s student outreach campaign, he was a tremendous resource. When I decided to try my hand at freelancing, he helped me understand what it would mean. When I started pondering going to grad school, he helped me think it through.

And I’m far from the only one. Peter is the glue that holds the open access movement together. Much more could be said about Peter’s talents and accomplishments, but that might be the most important thing to know.

I had the good fortune to be working for ALA during last year’s Patterson Award ceremony. It is, I think, a tremendously important award. Take a look at the past recipients and you’ll see what I mean. They’re the people who the future will thank.

What do you see as the strengths and weaknesses of each criterion?

The current Broader Impacts merit review criterion includes the consideration, “Will the results be disseminated broadly to enhance scientific and technological understanding?” NSF should retain and strengthen this consideration of the merit review.

Broad dissemination must be a high priority for NSF-funded research. As a federal agency operating with taxpayer funding, NSF has a responsibility to maximize return on investment by removing barriers to access for the scientific community, as well as to ensure access for taxpayers. In addition, broad and equitable dissemination of scientific information advances the goals of the Universal Declaration of Human Rights, which affirms that “everyone has the right freely to … share in scientific advancement and its benefits,” and the International Covenant on Economic, Social and Cultural Rights, in which governments agree to take the steps “necessary for the conservation, the development and the diffusion of science;” the United States is a signatory to both documents.

Under the current criteria, which are more than a decade old, proposals may be inadequately reviewed with regard to the dissemination consideration. During that time, the landscape of scholarly publishing and information has undergone significant changes. In particular, the exceptional opportunities created by the Internet behoove NSF to ensure that its funded research takes full advantage of the new technology to maximize cost-effective dissemination.

At present, broad dissemination of results is promoted through two avenues at NSF: the merit review criteria, which investigators must address in their proposals, and the Award and Administration Guide (AAG), which governs projects after an award is issued. This dual approach is beneficial and should be maintained and strengthened.

NSF establishes minimum requirements for dissemination in Chapter VI.D.4 of the AAG. In particular:

• “Investigators are expected to promptly prepare and submit for publication … all significant findings from work conducted under NSF grants;” and
• “Investigators are expected to share with other researchers, at no more than incremental cost and within a reasonable time, the primary data, samples, physical collections and other supporting materials created or gathered in the course of work under NSF grants.”

This policy is underpinned by Sec. 7011 of the America COMPETES Act of 2007, which requires NSF to enforce the standards by making any researcher who fails to comply ineligible for future funding.

Additionally, Sec. 7010 of the 2007 COMPETES Act requires NSF to make project reports freely available to the public online, along with citations to any publications resulting from NSF funding. This provision of the law is implemented by Chapter II.E.3 of the AAG, which requires grantees to submit a report describing the project outcomes, written specifically for the public, to be made freely available via Research.gov.

In addition to the baseline standards of the AAG, investigators are required to address the dissemination consideration of the Broader Impacts merit review criterion. This dual approach is beneficial because it encourages creative approaches to dissemination beyond the minimum, as appropriate to the proposed activity. Moreover, by including dissemination in the merit review criteria rather than only in post-award requirements, NSF ensures that investigators plan for dissemination beginning from the proposal stage, a valuable way to keep dissemination in mind throughout the project’s life cycle.

Unfortunately, both aspects of this approach currently are insufficient. Both the dissemination requirements of the AAG and the dissemination consideration of the Broader Impacts criterion should be updated and strengthened.

While NSF is to be recognized for its leadership in recently requiring investigators to develop data management plans, in other regards the AAG is outdated and should be reformed. Most importantly, NSF has not implemented a requirement that its funded investigators provide public access to resulting peer-reviewed manuscripts, rather than merely the citations to those publications. Among federal science agencies, the National Institutes of Health (NIH) is the current leader in this area, having adopted a mandatory public access policy as required by Sec. 218 of the Consolidated Appropriations Act, 2008. Dozens of other public and private research foundations worldwide have successfully adopted similar policies. NSF should incorporate a similar mandatory policy in the AAG. Furthermore, NSF should improve on the NIH policy by reducing the “embargo” period when manuscripts can be withheld from public access from the current maximum of twelve months to a six-month maximum, as several other research funders worldwide have done.

However, as this comment is directed to the Task Force on Merit Review, I will focus on the dissemination consideration of the Broader Impacts criterion, rather than the requirements of the AAG. To be clear, even if the dissemination requirements of the AAG are strengthened, the dissemination consideration of the merit review criteria also should be retained and strengthened.

The first regard in which the dissemination consideration of the merit review criteria is inadequate is its construction. Currently, broad dissemination is a consideration only of the Broader Impacts criterion, not the Intellectual Merit criterion. However, dissemination is properly understood as fundamental to both the intellectual merits of the proposed activity as well as its broader impacts.

The thrust of the current consideration is that maximizing the social value of the funded project requires communicating the project’s results to relevant audiences outside the research community, such as industry and policymakers, and to the public to enhance the public understanding of science. This is useful strategy to increase the broader impact of NSF funding and should be maintained. In particular, it supports the requirements of Sec. 526 of the America COMPETES Reauthorization Act of 2010, which directs NSF’s Broader Impacts criterion to advance the goal of “increased public scientific literacy.”

However, even within the academic community, the broad dissemination of research results cannot be taken for granted. Access barriers imposed by the high and rising cost of serials and monographs can significantly hamper the circulation of knowledge. These barriers can be particularly imposing to researchers and students at smaller institutions and in developing countries. Additionally, reticence to share data or materials with other researchers, or delays in doing so, also hinder the progress of science.

Thankfully, online technologies enable innovative approaches to the broad dissemination of research information which previously was only shared in small circles. These approaches already have begun to bear fruit. For instance, the NIH-supported Alzheimer’s Disease Neuroimaging Initiative was recently highlighted by the New York Times for its innovative approach to data sharing which is already being emulated. Given the promise of openness, the Board should ensure that the merit review criteria promote the broadest possible dissemination of results.

What changes, if any, would you like to see made to the merit review criteria?

If the Board retains the current criteria, it should add a consideration for broad dissemination in the Intellectual Merit criterion, in addition to the current consideration in the Broader Impacts criterion. Such a consideration might read, “Will the proposed activity ensure the broadest possible access to its results within its own field or across different fields?”

Alternatively, the Board might adopt a single consideration that addresses broad dissemination both within and beyond the research community.

What role should the institution play to ensure that the intellectual merit and broader impacts in NSF proposals can be realized?

NSF should provide additional guidance to proposers on how best to address the dissemination consideration. The Task Force will be aware of Sec. 526 of the COMPETES Reauthorization Act, which directs NSF to better inform proposers as well as staff and reviewers about the Broader Impacts criterion’s requirements, among other changes. The process of implementing these statutory provisions offers a timely opportunity for NSF to suggest “proven strategies and models” for cost-effective broad dissemination.

Currently, NSF provides a list of examples of representative activities for the dissemination consideration. These examples should be updated to better take advantage of proven strategies. Most critically, NSF should encourage investigators to provide open access to their publications by publishing them in an open access journal or by depositing them in an open access repository immediately upon publication, under an open copyright license. NSF could also encourage investigators to consider the impact of their publishers’ policies and pricing on the broad dissemination of their research. Further, NSF should encourage investigators to post their data online for free public access, and to freely distribute online any software created resulting from NSF funding under a free software license, depositing both in appropriate repositories as applicable.

Beyond mere suggestions of activities, NSF should refer investigators to resources on how to accomplish these activities, such as existing guides prepared by the library community and others. NSF should also encourage institutions to play a more proactive role in supporting investigators in maximizing the dissemination of their research, including collaboratively sharing resources and strategies between institutions.

Additionally, NSF should ensure that these resources and guidance are available to its reviewers and staff, and that they duly take into account these activities in reviewing proposals’ commitment to broad dissemination of research.

What impact, if any, has NSF’s two review criteria had on how you think about developing your research projects?

Any other comments?

Thank you for the opportunity to comment on the merit review criteria. Please do not hesitate to contact me with any questions.

The term is obviously coined by analogy to “environmental justice”, an incredibly powerful idea that succeeds at articulating the costs of environmental degradation. Most simply, environmental justice is the concept that damage to the environment disproportionately affects the most vulnerable human populations. It’s an obvious idea once you think about it: if you’re poor, a child, elderly, disabled, or otherwise disadvantaged, you have fewer resources to cope with (or move away from) environmental perils in your environment. In some sense, it’s an argument against inequality per se (and rightly so), but it also accounts for the fact that some inequality will always exists and helps clarify the burdens that are inequitably distributed.

Culture justice is my attempt to do the same for topics that the free culture movement is concerned with. (The term “information justice” already has some traction, but I prefer a frame that includes access to and participation in culture, not just access to information.) This approach is particularly valuable to the free culture movement (with its roots in elite law schools) and SFC (with its roots at elite colleges).

In his presentation today, Eric Frank of Flat World Knowledge made the argument for open textbooks by pointing out that most of the growth in higher education has come from students with low-SES backgrounds, many of them first-generation college students, attending schools where they pay less than $5,000 in tuition per year. No one clapped. Unfortunately, most of the students in this room are not those students.

SFC’s base has been in the Northeast and West Coast. Although women have had important leadership roles, it’s always been dominated by men. Some panels today couldn’t find a single woman among the five participants. There is a significant place for higher-SES ethnic minorities, such as East Asians and South Asians, there’s a paucity of participation from lower-SES ethnic minorities, such as blacks and Hispanics. Most are training for high-status careers in IT. My point isn’t to smear SFC, but to point out some of its privileges. (I should point out, many of its leaders are acutely aware of them.)

To be fair, white male software engineers and tech enthusiasts have legitimate issues with public policy and dominant institutions. That’s my background in the free culture movement. But its claims will have greater resonance if they’re drawn more broadly. This has been a perpetual aim for SFC.

Culture justice takes this further by attempting to articulate a general framework for the role of social privilege in cultural policy.

One example is re-use of copyrighted material. Less privileged users will have less knowledge of their rights under the law, less ability to negotiate licensing, and in some cases even less protection under the law (see e.g. discussions of gender in fan fiction).

Similarly, Net neutrality is ultimately an argument about privilege and justice.

This is far from an exhaustive list, but it’s enough to make me think that culture justice (under whatever name) could be an important and valuable frame for the free culture movement. Freedom is an important frame, but so is justice. In some cases they may work at cross purposes, but they can also reinforce each other in important ways.

What do you think?

There’s a bit of buzz about OA + POD (open access + print-on-demand) as a model for books, particularly for small scholarly publishers like university presses. Consider the following: a book published gratis OA + POD, with no copyright license, all rights reserved (ARR).

• If I legally acquire a digital copy of the book (downloaded with rightsholders’ permission), under copyright, am I permitted to print a copy of the book for personal use?
• If not: would fair use or another exception apply?
• Is the fair use analysis affected by the offering of print-on-demand?
• If I am permitted to print a copy for personal use: am I allowed to pay someone else to do the printing for me, e.g. by bringing the file to a commercial copyshop?
• If so: Do ARR publishers know that?
• What if the copyshop advertises that they will download and print the file for the customer?

Now consider a book published OA + POD, with a Creative Commons NonCommercial (NC) license.

• Presumably I am now unambiguously permitted to print a copy of the book for personal use.
• Am I allowed to pay someone else to do the printing for me, e.g. by bringing the file to a commercial copyshop?
• If so: Do NC publishers know that?
• What if the copyshop advertises that they will download and print the file for the customer?

Similar questions apply to related scenarios, e.g. paying an intermediary to download the file for you and deliver it on physical media, or to format and deliver it for an e-reader.

A footnote in Pamela Samuelson’s objection tipped me off:

Most other signatories [to the brief] … are members of the Author Subclass by virtue of the book-bound copies of their Ph.D. dissertations filed in research libraries of the universities from which they received their degrees.

I hadn’t realized that dissertations were eligible “works” under the terms of the settlement. That means my late mother’s dissertation, for which I now exercise copyright, would be subject to the settlement terms. An email to the class counsel confirmed it.

I’ve claimed the work on the settlement site. It’s not listed as having been digitized. I’ve set the options as permissive as possible, including a zero price for consumer purchase. (The promised option to apply a Creative Commons license isn’t yet offered.)

I don’t intend to opt out of the settlement: I support the further availability of the work (which, on balance, I think the settlement would increase). If participation brings any financial benefits, well, I’ll take them.

However, I’m entertaining the thought of joining an objection to some terms of the settlement. Since I missed the deadline to object to the original proposed settlement, I’ll only be able to object to terms revised in the amended settlement, but there’s still plenty to be wary of. My concerns are primarily competition, users’ rights (open formats, DRM, privacy), and facilitating rightsholder choices more permissive than the settlement defaults (including open access). If you know of an objection which addresses these points and is accepting additional signatories, please let me know, in the comments or by email.

• The revised settlement cuts out a huge swath of international works. There’s no legal reason for this, since the settlement is based in U.S. law, which treats works equally regardless of where they were published. (Moreover, the settlement only provides access to users in the U.S.) Yet I haven’t seen one public interest advocate criticize the loss to access that will be the result of this change.
• The discussion of this change has mostly been summarized as “foreign language works are now excluded”. But that’s a misleading oversimplification. The new settlement includes works published in the U.S., UK, Canada, or Australia, or registered with the U.S. Copyright Office. That will certainly include many non-English works (remember Canada is bilingual?). It will also exclude many English works: consider New Zealand, Jamaica, India, or many other English-speaking countries.

• Much criticism has focused on the question of orphan works. This is a bit baffling to me. The settlement would provide an unprecedented access to orphan works. Indeed, to me this is the biggest benefit of the settlement.

  The main criticism of this is that Google would be the only provider of access to these orphan works. Monopoly access is certainly undesirable (particularly given the other flaws of the settlement: the privacy weaknesses, the DRM, the single interface, the overall market position of Google, etc.). But isn’t monopoly access (with antitrust scrutiny) better than no access?

  The only way the answer is “no” is if the settlement holds back progress toward non-monopoly access. For instance, a settlement clause that guaranteed Google competitors the same terms (even if they had to do the scanning themselves) would open competition. Obviously, Google is not interested in such an approach, and since the settlement is a negotiation between Google and the plaintiffs (who I would guess to be agnostic on that question), we shouldn’t expect to see those terms unless the judge or the Department of Justice forces them.

  A legislative solution, such as proposed by the Copyright Office, would be an improvement as well. But orphan works reform has so far stalled in Congress, and I haven’t seen any indication it will be a priority for the current Judiciary Committee. For its part, Google says it will still support orphan works reform if the settlement is approved.

  I’m not sure how to predict what the effect of the settlement would be on the prospects for legislative action. One the one hand, Congress might say, “It looks like Google has solved that problem, so we don’t have to do anything.” Alternatively, Congress might say, “That Google settlement seems to have riled a lot of people up; I’d rather not put my stick in that antpile.” On the other hand, the settlement might give greater impetus to Google’s competitors to tell Congress, “We’re on unequal terms now; we need you to pass orphan works reform to level the playing field.” No matter what happens, I don’t expect this Congress to pass orphan works reform. How long are we willing to wait?

• Speaking of orphan works, the Unclaimed Works Fiduciary is a trustee with one hand tied. As I reported for OAN, the UWF — an independent agent entrusted to manage the works of rightsholders who haven’t claimed their works under the settlement — doesn’t have all the powers of an actual rightsholder. Whereas a rightsholder is guaranteed under the settlement the options to, e.g., set a zero price for her work, to apply a Creative Commons license, or to remove DRM, the UWF isn’t guaranteed those same options. In fact, the UWF can only exercise those options with the approval of the Book Rights Registry, which is run by publisher and author representatives. So if the UWF came to the conclusion that the best fiduciary interest of its absentee rightsholders was represented by making their works freely available, it would not necessarily be able to do so. Given the growing suggestions that making a book freely available often has no discernible negative consequence on sales revenues for that book, and in some cases may even increase sales, the settlement should not exclude that option.

A student wanting a coursepack comes to Excel’s [the copy shop] premises and fills out a form on which the student writes the course the student is enrolled in and for which the student needs the material. The form contains a statement to the effect that: “I am a student in this class and am making a copy for educational purposes.” The student signs and dates the form. The student hands the form over to an Excel staff member who retrieves the “master,” hands it to the student, who then makes a copy using Excel’s copy machines. [...]

Excel does not pay copyright fees to the publishers, which it admits enables it to charge a lower fee than if the students obtained the materials at a traditional “copyshop” [...]

Excel’s position that this is a case of protected student copying is sophistry. [...] Simply put, copyright law should not turn on who presses the start button on a copier. Excel’s actions violate the publishers’ copyrights.

My purpose is not to argue the legal merits of the decision. Rather, I want to highlight this case as an example of the social impacts of closed-access scholarly publishing. I particularly want to address researchers here.

Scholars: You conducted your research for the advancement of knowledge. In many cases, your research was supported by taxpayer dollars, whether in the form of a research grant or a university salary. You entrusted your research to the publisher, for the purpose of disseminating it. In many cases (for scholarly journals, not necessarily for books) you did so for no remuneration from the publisher. The publisher sells access to your work to universities and reaps massive profits: Elsevier alone reported more than $800 million in profits in 2008. When a small business tries to help students get access at a reduced price, the publisher sues to shut it down.

If that’s scholarship, then I want no part of it.

The publisher is wielding the copyright in your work as a legal bludgeon and supposing to act on your behalf. If you know this and you sign a copyright transfer with a publisher, then you are responsible.

There is an alternative.

For reference, the list of infringed works is here. Some are more than 20 years old.

• The settlement only applies to books which are in copyright as of January 5, 2009. Specifically:
  • It doesn’t apply to periodicals (including scholarly journals, magazines, newspapers, etc.). For all the hype about Google Books as the “universal” or “last” library, that’s a gaping hole in coverage.
  • It doesn’t apply to books published after January 5, 2009. (Presumably this is due to the limitations of the instrument of class action lawsuits.) New books are not included in the settlement terms.
  • It doesn’t apply to public domain works, and so has no influence on how those works are treated in Google Books.
• Opting out of the settlement doesn’t mean Google has to remove your books. From the FAQ:
  

  … [By opting out,] the author or publisher is retaining all rights to bring a legal action against Google … [T]he Settlement neither authorizes Google to make certain uses of these books and Inserts nor does it prohibit Google from doing so.

  By checking a box on the opt out page, however, the author or publisher can request that the Settlement Administrator ask Google not to digitize (or, if already digitized, not to display any contents from) the books or Inserts identified in the opt out form, Although Google has no obligation under the Settlement to comply with such request, Google has advised the Settlement Administrator that it is Google’s current policy to voluntarily honor such requests …

  So Google has not (legally, at least) abandoned its claim to fair use absent the settlement. The publishers and authors are willing to let that slide in exchange for the settlement. But that’s not the same thing as a precedent that mass digitization and providing access to snippets is fair use: if you want to do that (let alone providing open access to orphan works), and you’re not Google, you still run the risk of a lawsuit. Google didn’t want to fight the publishers; do you?

• By default, in-print books will not be included in “Display Uses”, i.e. actually viewing the book. (I’m not sure how Google will make the determination of whether a book is currently in print, and whether it yanks the book if it’s reprinted.) The settlement doesn’t do much to increase access to in-print books: access is still solely at the election of the rightsholder. (Rightsholders of out-of-print books can opt-out, but the default will be in.)
• The rightsholders’ percentage of revenues is strikingly similar to the percentage for iTunes (63% in Google Books vs. 65% in iTunes). But I don’t know how much of that share goes to the authors and how much to the publishers. My guess: authors won’t get a bigger share than they used to; publishers will still take the lion’s share.
• This is probably the most important class action suit in copyright in about a decade (since Tasini at least). There probably hasn’t been as much interest in any copyright case since Grokster.
• A lot of criticism from the openness side has been directed at Google. While there’s plenty to criticize here, including Google’s market position, remember (as I’ve dented) that Google is the defendant here. Presumably, Google planned for more liberal use terms prior to the settlement, which is why the Authors Guild and the AAP sued. (More cynically, the publishers and authors sued not because they thought Google’s plans were a threat to their revenue model, but just to get a payout from Google.)

• That payout, by the way, is not an insignificant one. Google will pay at least $45 million to “compensate Rightsholders whose works Google has scanned without permission”, at $60 per book. Then there’s another $35 million to establish the Book Rights Registry. Then there’s 63% of all revenue from the project. Then there are the legal costs…

  If Google hadn’t settled, and if its fair use claim held up, what would it have cost to re-create the settlement? The transaction costs to allow uses beyond fair use (e.g. selling copies) would have been massive. Google still would have remained vulnerable to submarine authors of orphan works showing up later and winning a massive court award. The settlement effectively inoculates Google from this risk: if you don’t opt-out of the settlement class now, you’re in, forever. Given the insane amounts of damages under copyright (even for non-commercial purposes), this has to count as a huge benefit for Google.

[I]ntellectual property policy is being managed as a legal issue, whereas although this area like any other must operate through the legal system, intellectual property policy is most fundamentally an aspect of economic policy. … [T]he consideration of policy with regard to both [copyrights and patents] is dominated by IP practitioners and by the beneficiaries of the IP system. We need the expertise of lawyers in this as in many other areas of policy but it is imperative that IP policy make the transition that competition policy made over a decade ago now, from a specialist policy area dominated by lawyers, to an important front of micro-economic reform. (emphasis added)

I can’t help but nitpick: While I would welcome a shift from viewing copyright, etc. as primarily legal matters to significant matters of economic policy, it would be a failure to (continue to) not consider them as significant matters of cultural policy, as well.

(Thanks to Eve Gray for calling my attention to the quote.)

The Law Library of Congress began harvesting legal blawgs in 2007. The collection has grown to more than one hundred items covering a broad cross section of legal topics.

Questions:

• What are the criteria for inclusion here? (It’s apparently curated, not an opt-in service like I suggested previously. Note that the two strategies are not incompatible.)
• The archived pages are openly accessible (just like pages in the Internet Archive). This is contrary to concerns which some had raised about copyright in either the blog or third-party content (like blog designs). Is there a special exemption for LOC? Or are they relying on the same argument as the Internet Archive (or Google’s cache, for that matter)? (P.S. Is the Internet Archive’s argument fair use or a specific statutory exemption? What about Google?)
• Did LOC ask the authors of these blogs for permission before archiving them, or do they consider it part of their general duty to collect and preserve? (For that matter, do the authors of these blogs even know they’re being archived by LOC?) Does it matter, either as a matter of etiquette or of law?
• The archiving frequency for all the blogs seems to be monthly. Should it be more often, less often, dependent on the blog (some are updated more frequently than others) …?
• Are other branches of LOC harvesting blogs in those subject areas, too? Are other national libraries doing this?
• What’s the history of the program? What’s the case they make for doing this? What’s it cost?