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.

So what’s the point of AcaWiki when almost all articles have abstracts, which are summaries and usually available gratis? Well, AcaWiki summaries are also libre (CC Attribution license), so they invite reuse: mashup, translation, and so on. They’re also editable, so they can evolve and be improved.

Abstracts vary widely, usually shaped by the journal’s format: sometimes they’re several paragraphs, something just a few sentences. They might outline the methodology or they might not. They are usually written at the level of specialists in that field, so they may or may not be much use to other readers.

There’s room for improvement and innovation in the world of summary, in other words. For instance, Emerald launched a program asking authors to provide a summary highlighting potential applications. RNA Biology requires its authors to write up their findings on Wikipedia. BMJ publishes only one-page abridgments in its print edition, with the full article available online.

For a more direct comparison, see WikiSummary, which predates AcaWiki but covers only political science.

Two other points of comparison: journalism / press releases and Wikipedia.

Press releases are gratis; science journalism may or may not be gratis; both are rarely libre. They only cover new studies: good luck finding coverage of an article from 1989. They rarely provide a full citation to the original article. They often discuss only the findings, with little consideration of methodology. They frequently focus on studies with controversies or practical applications, rather than new theories or research methodologies. In reporting the most interesting (a.k.a. most titillating) of the findings, journalism sometimes distorts the impression of the overall study. Meanwhile, press releases try to paint the most positive picture. Since they’re written for a general audience, and often not written by someone with a background in the field, they may be too general.

If we consider research blogging in this category, conversely, the writing may be too technical. It may be more commentary or critique than summary.

Wikipedia is gratis and libre. It’s written for non-specialists (in theory), but can also go into more detail. The main difference from AcaWiki is that most academic papers will not be “notable” enough to merit their own Wikipedia page; even if someone wrote them, they would probably get deleted. As an encyclopedia, Wikipedia provides a higher-level overview. There could be some other conflicts with Wikipedia policies, such as those against publishing original research or authors writing about themselves or their work.

All of the aforementioned resources have their uses, but as we can see, AcaWiki has its niche. I hope it thrives there.

In disclosure, I did some paid work for AcaWiki some months ago, but am not actively involved in the project.

[Conyers:] My bill would restore longstanding federal copyright policy in this area. It reverses a provision slipped into an appropriations bill in the middle of the night, with no consultation with the Committee which is actually supposed to write the law in this area, the Judiciary Committee, which I chair. …

My bill lays down a marker indicating that issues this complex, with important values and convincing arguments on both sides, should not be decided by a few lawmakers without relevant jurisdictional expertise in the dark of night with no meaningful public scrutiny or input. …

I do have some sympathy for Conyers’ process concerns. I have minor misgivings about the process in which the NIH policy was written into law, via the appropriations process. By my count, neither open access generally nor the NIH policy specifically were the subject of a hearing before the policy was signed into law. I think that’s unfortunate; public access is a significant public policy issue and it should have had a public hearing. That’s not to say there was no public discussion in Congress: it was raised at least as far back as 2005, in the Senate confirmation hearings for Health and Human Services nominee Michael Levitt, and again in 2006 at a House Appropriations Subcommittee hearing. But the NIH has now had a public hearing, courtesy of last year’s incarnation of Conyers’ own bill. Even if we would have preferred a hearing ex ante, you can’t change the past.

But here’s the problem with Conyers’ claim: open access is not copyright policy. At least, the NIH Public Access Policy is not copyright policy: it doesn’t amend copyright one whit, and even specifies explicitly that the law be implemented “in a manner consistent with copyright law”.¹

Since the NIH policy is a matter of the disposition of federal money, it’s appropriate for the Appropriations Committee to make policy in this area. It’s also a matter of science and education (and, in the case of the NIH, health): it’d be appropriate to hear from committees in those areas, too. If Conyers wants to ensure the issue is seen by committees with “relevant jurisdictional expertise”, he ought to ask those committees to hold hearings.

Instead, Conyers sees it as a copyright issue, because some publishers rely on a certain method of acquiring and managing copyright for their business model². In other words: according to Rep. Conyers, tangential copyright concerns should come before the efficient and equitable spending of taxpayer dollars, and before health, science, and education!

That’s a crazy approach to public policy. It’s a shame, it’s misguided, and Congress should reject it.

¹ Contrast, for instance, then-Rep. Martin Sabo’s 2003 Public Access to Science Act, which proposed an actual amendment to copyright law, and was in fact referred to the Judiciary Committee.

² Increasingly, even subscription publishers rely on this model less and less, between allowing self-archiving, providing delayed and selected OA, and offering hybrid and even full OA options. Moreover, these publishers also have always published papers by government employees, which are free of any copyright whatsoever.

First is Anne-Catherine Lorrain of Trans Atlantic Consumer Dialogue.

• Interoperability should be a public principle.
• ISP liability: Pressure for filtering solutions (consumer surveillance).
• Government procurement should require open standards.

Richard Wilder of Microsoft.

• (I’m not speaking on behalf of Microsoft.) IP online is important; we need more enforcement. This is key to our continued R&D.
• Open source is an important part of the software sector. Our goal is to work together.
• We need to be clear about the role of government involvement in standards-setting.
• We recognize the role of IP in collaboration and competition online.
• We’re interested in patent quality.

Bruce Perens:

• Learning is a human right. There are threats under the heading of both “IP” and “security” to learning.
• Innovation in different areas has different models. But we have the same IP law. So in software we created open source.
• Government’s function is to create a level playing field for competition. IP is the main barrier to interoperability.
• Governments should make sure that file formats and communication protocols are freely available.

Nicole Allen of the Student PIRGs:

• The Internet provides the opportunity to access learning materials. It also creates the need for industries to change business models.
• Textbook prices have risen significantly and pose a significant burden to students.
• We need policies that increase the supply and demand of low-cost textbooks and help new companies enter the market.
• If textbooks take the lead in changing their business model, other industries will follow suit.

What should government do?

• Wilder: PLoS is an example of new business models made possible by the Internet. But there has to be a business plan that makes it [financially] sustainable. At PLoS, authors pay a fee to publish, which can be internalized in research funding. In software, several business models are possible, from providing services, advertising, sale and licensing, new models from software-as-a-service. IP has a role in each model.
• Perens: I don’t think it’s true in the case of scientific and technical journals today. It used to be true. We used to need the publisher for printing and distribution. There doesn’t have to be a business plan: the important players, the journals, have never been paid. They do it for the prestige, which is an economic motive, but it’s not direct remuneration. PLoS, by the way, isn’t the only such publisher. In a number of fields, we can cast aside IP because it’s no longer relevant. Apache is the most popular Web browser of the world, none of which has direct remuneration to develop Apache. They need Apache as infrastructure. There are two types of IP. One grants a substantial business differentiation, e.g. Amazon’s recommendation system — if Amazon let others use that system, they’d lose their business differentiation. But Amazon uses Linux and funds it as a cost center.
• Lorrain: The discussion on IP has been frozen, so we’re trapped talking about enforcement. Hugenholtz said we need to increase the consumer’s power in Europe. The Paris Accord, a TACD project, is about finding alternative means of remuneration for creative communities while facilitating broader access. Our goal is to build an A2K movement at the Europe.
• Allen: Business models are important, whether compensation comes from money or prestige. We need more government involvement in stimulating innovation in business models. [Marc Rotenberg: So we should spend on broadband infrastructure?] I don’t think it addresses the concern. Industry needs to evolve. We need to ensure access to affordable education.
• Wilder: I’m concerned about government intervention in standard-setting, government procurement policies using standards favoring one business model or another.
• Lorrain: Interoperability and standards are important for consumers but they must be adopted transparently.
• Perens: We need standards for standards — Danish have the best. We need transparent, open, equitable development of standards; and standards must be available to all and royalty-free. On education, formal education is not the only or best way that people learn. We’ve gotten rid of the means of private hands-on education in the name of law enforcement.

Questions:
Phillipe Aigrain: These recommendations are somewhat small. (1) We need a government that acts as a trustee for the information commons and should consider new regulation in light of its impact on the commons. (2) We need to recognize activities that occur outside markets. The IP economy is the bubble that has not exploded yet. We need a positive synergy between the economy and non-market activities.
Perens: We don’t make policy democratically, but rather by treaty.

Q: Deep packet inspection — copyright owners like this. How do we prevent copyright infringement online?
Q: (1) Interconnection directive in Europe — could we have an interoperability directive? (2) Are there open source models for textbook development?
Q: We need to keep all media of delivery in consideration. Books are expensive. We need ways to promote open source without a brand.
Q: Is government action necessary in these areas? Regulation is not necessary the answer to everything.
Q: Microsoft dominates the industry in Egypt. Is open source relevant to developing countries?

Allen: Open source knowledge and educational content exist. In the U.S., books need to be marketable to professors. Open textbooks have to replicate traditional textbooks. DRM is a big issue with textbooks. Publishers sell digitized versions of books, but it’s a subscription, so it expires. They’ll face piracy. The market is powerful, and using market forces as much as possible is important, but when there’s a market malfunction there’s a role for government to play — such as the textbook market.

Perens: The answer isn’t greater regulation, but existing regulation that is bad, such as the DMCA. It doesn’t work for music. The rhetoric of defending small businesses doesn’t hold up — small businesses can’t actually enforce patents against big business. Instead big businesses can use their IP to preclude disruptive technologies. Does open source have a role in developing countries — OLPC has been killed by big companies, Intel and Microsoft. I published open books with Prentice Hall, and people are using them in Egypt. Egypt should defend the right to learn internationally.

Wilder: We want to see access to technology. The right to learn sets up a conflict, similar to debates about the right to health — really infrastructure is the issue. On deep packet inspection, IP protection is important, but government should let business models evolve naturally.

Lorrain: (1) Governments should promote procurement of devices complying with open standards.
(2) Governments should develop alternative reward systems to compensate artists without requiring consumer surveillance.
(3) Governments should support robust work program on E&Ls at WIPO, including access for the blind, distance education, and others.