The first of January, as many of you know, is the day on which works whose copyright term expired the previous year officially rise into the public domain. For many years now, however, no published works have entered the PD because of the way the 1976 Copyright Act restructured the term of copyright protection. 2018 was the first year in decades that the term of protection for some works – those published in 1923 – began to expire, so on January 1, 2019, many such published works will, finally, become public property. Lots of research libraries will celebrate by making digital versions of these newly PD works available to all, and the Association of Research Libraries plans a portal page, so folks can find all these newly freed works.
A guest post by David W. Lewis, Mike Roy, and Katherine Skinner
Even in the early stages of this effort we have had to confront several uncomfortable truths.
First Uncomfortable Truth: In the main, there are two sets of actors developing systems and services to support digital scholarly communication. The first of these are the large commercial publishers, most notably Elsevier, Wiley, and Springer/Nature. Alejandro Posada and George Chen have documented their efforts. A forthcoming SPARC report previewed in a DuraSpace webinar by Heather Joseph confirms these findings. The second set of actors may currently be more accurately described as a ragtag band of actors: open source projects of various sizes and capacities. Some are housed in universities like the Public Knowledge Project (PKP), some are free standing 503(C)3s, and others are part of an umbrella organization like DuraSpace or the Collaborative Knowledge Foundation (COKO). Some have large installed bases and world-wide developer communities like DSpace. Others have yet to establish themselves, and do not yet have a fully functional robust product. Some are only funded with a start-up grants with no model for sustainability and others have a solid funding based on memberships or the sale of services. This feels to us a bit like the rebel alliance versus the empire and the death star.
Along with others from the Big Ten Academic Alliance, I had the pleasure of participating in the Choosing Pathways to Open Access forum hosted by the University of California Libraries in Berkeley last month. The forum was very well orchestrated, and it was valuable to see pluralism in libraries’ approaches to open access. (The UC Libraries’ Pathways to Open Access toolkit also illustrates this.) The forum rightly focused on identifying actions that the participants could take at their own institutions to further the cause of open access, particularly with their collections budgets, and it recognized that these actions will necessarily be tailored to particular university contexts.
Collections spending is a huge part of research library budgets and thus — as the organizers of the forum recognized — of their power. (At ARL institutions, the average share of the overall budget devoted to materials was 47% in 2015-2016.) Offsetting agreements were a major theme. These agreements bundle a subscription to toll access content with payments that make scholarship by the institution’s researchers available on an open access basis. The idea behind offsetting agreements is that if multiple large institutions pay to make their researchers’ materials open access, then not only will a large majority of research be available openly but subscription prices for all libraries should come down as the percentage of toll access content in traditional journals decreases. The downside is that offsetting agreements tie up library spending power with traditional vendors; they redirect funds to open access, but the funds go to commercial publishers and their shareholders instead of supporting the creation of a new scholarly ecosystem.
Experiments with offsetting are underway in Europe, and MIT and the Royal Society of Chemistry have recently provided us a U.S. example. I look forward to seeing the results of these agreements and seeing whether they make a positive difference for open access. However, I am concerned that some see offsetting as a complete solution to the problems of toll access scholarship, when it can be at best a transitional step. I am concerned that it will be perceived, especially outside libraries, as a cost-containing solution, when it is unlikely to contain costs, at least in the near term. And I am also concerned that libraries and universities will commit too many resources to offsetting, jeopardizing their ability to pursue other open access strategies.
Offsetting agreements must be transitional, if they are used at all. They are inappropriate as a long-term solution because they perpetuate hybrid journals. Within a particular hybrid journal, or even a particular issue, articles from researchers at institutions with a relevant offsetting agreement are open access, as are some other articles where authors have paid an article processing charge (APC). However, other articles within that same journal or issue are not open access. An institution that wants access to all the journal’s content must still pay for a subscription. In contrast, if the library that made the offsetting agreement had instead directed those funds into a fully open investment (e.g., open infrastructure or library open access publishing), the fruits of that investment would be available to all.
Controlling the costs of the scholarly publishing system has long been a goal of the open access movement. It is not the only goal — for many institutions, promoting equity of access to scholarship, especially scholarship by their own researchers, is at least as important. However, with library and university budgets under perpetual scrutiny, and with the imperative to keep costs low for students, it is important to be transparent about the costs of offsetting. In the near term, offsetting agreements will cost the academy more, not less, than the status quo. Publishers will demand a premium before acceding to this experimental approach, as they did in the deal between MIT and the Royal Society of Chemistry. The UC Davis Pay it Forward study likewise estimated that the “break-even” point for APCs at institutions with high research output was significantly below what the big five publishers charge in APCs. In other words, shifting to a wholly APC-funded system would increase costs at such institutions.
The authors of the Pay it Forward study and others have written about structuring an APC payment model to foster APC price competition between journals. Institutions pursuing offsetting agreements should build this into their systems and take care not to insulate authors further from these costs. They will then have some hope of decreasing, or at least stabilizing, costs in the long term. Barring this, libraries’ payments to traditional publishers would continue to escalate under an offsetting regime. That would be disastrous.
Whether or not offsetting agreements stabilize costs, libraries will have to be cautious not to take on costs currently borne by other university units (i.e., APCs) without being compensated in the university’s budgetary scheme. What’s more, because offsetting agreements reinforce pressure to maintain deals with the largest publishers, they undermine libraries’ abilities to acquire materials from smaller publishers, to develop community-owned open infrastructure, to invest more heavily in library publishing, to support our university presses in their open access efforts, and to invest in crowdfunding schemes that support fully open access journals and monographs.
To maintain this pluralistic approach to open access, either within a single research library or across the community, libraries signing offsetting agreements should be cautious on several points. To inform their negotiations, they should gather data about current APC outlays across their institutions. They should structure the APC payment system to make costs transparent to authors, enabling the possibility of publishers undercutting each other’s APCs. They should safeguard flexibility in their collections budgets and invest in other “pathways” alongside offsetting. And they should, if at all possible, make the terms of their offsetting agreement public, in the spirit of experimentation and of openness, to enable others to learn from their experience with full information and to enable themselves to speak, write, and study publicly on the impact of the agreement.
The judges on the appellate panel seem to realize how trivial the case has become. After working on it for one year, two months, and three weeks, the court produced a decision on only 25 pages, which sends the case back, yet again, for new proceedings in the district court. The short opinion simply reviews their earlier instructions and cites ways in which the panel believes that Judge Orinda Evans misapplied those instructions when she held that second trial. What it does not do is probably more significant than what it does. The ruling does not fundamentally alter the way the fair use analysis has been done throughout this case. The publishers have wanted something more sweeping and categorical, but they lost that battle a long time ago. The 11th Circuit also affirms Judge Evans’ decision to not reopen the record, thus preventing the publishers, and the Copyright Clearance Center that is pulling their strings, from introducing new evidence of licensing options that did not exist when they brought the case in 2008. Although it seems like a mere technicality, this ruling, another loss for the publishers, really points out how silly and out-of-date the lawsuit now is.
This time around, the circuit court seems to say more explicitly that they expect more of the excerpts that are at the center of this dispute to be found to be infringing. They clearly do not like the fact that, after the first appeal, and with their instructions to be less mathematical in her analysis and to weigh the fourth factor more heavily, Judge Evans found fewer infringements (by one) than she had in the first trial. So if there is a third trial, maybe the outcome will be six infringements, or even ten. But the big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs, but the real victories, for fair use and for libraries, have already been won.
The saddest thing about this case is that, after ten years, it continues to chew over issues that seem less and less relevant. Library practices have evolved during that time, and publishing models have changed. Open access and the movement toward OERs have had a profound impact on the way course materials are provided to students. So the impact of this case, and of any final decision, if one ever comes, will be negligible. The plaintiff publishers actually lost a long time ago, they simply lack the wisdom to recognize that fact.
Cambridge University Press, Oxford University Press and Sage Publishing v. J.L Albert should have settled years ago. Instead it has devolved into a kind of punchline, much like Jarndyce v. Jarndyce from Dicken’s Bleak House; the mere mention of it causes people to roll their eyes and giggle. The final resolution of this dispute may yet be a long way off, but at this point the takeaway from the case is clear: carry on with your daily work, teachers and librarians, there is nothing to see here.
What is unusual about Siglufjordur is its economic history. It was a boom town in the 1940s and 50s, the center of the North Atlantic herring trade. In addition to fishing, a great deal of processing and packing was done in Siglufjordur, and the town was triple its current size. In the early 1960s, however, the herring industry in Siglufjordur collapsed quite suddenly, because the fishing grounds had been overfished. Now the town is a shadow of its former self, surviving on sport fishing and tourism (the Herring Museum, perhaps surprisingly, is very much worth a visit).
We often refer to scholarly communications as a kind of eco-system, and I think the problem of overfishing has an important place in that analogy. The proliferation of new journal titles, whose sole function seems to be padding out the “big deals” that publishers sell, using the growing number of titles to justify the ever-increasing cost, strikes me as a kind of overfishing. It is an example of pushing the market too far. In Siglufjordur, it was the product that dried up, however; in commercial publishing it is the customer base, which is being systematically priced out of the market.
A sign that they are creating a market where monopoly pricing is slowly pushing customers out is the growing gap between bundle pricing, which publishers now like to call a “database model” in order to distance themselves from the unpopular phrase “big deal,” and the list prices of journals. I was recently part of a conversation where a rep for one of the large commercial academic publishers told us, inadvertently, I think, that while the bundle she was selling cost $800,000, the list price for all those journals would be about 9 million. If she intended to tell us what a great deal the bundle was, her comment had the opposite effect; it emphasized how absurd the list prices are. They are punitive, and obviously unrelated to the cost of production; when list prices are 11 times the price most customers actually pay, I think they qualify as pure fiction. This pricing practice is equivalent to throwing an explosive into the water to drive the fish into the nets. It represents a blatant effort by these publishers to force customers to buy the bundled packages, so they can profit off junk titles they could not sell on their own merits.
There was a time when similar practices were called illegal tying under the U.S.’s anti-trust laws. Movie companies, for example, were found to be illegally using their intellectual property monopoly to force theaters to rent unwanted titles in order to get the movies they really wanted to show; the Supreme Court forbade such “block booking” in 1948. But anti-trust enforcement has changed dramatically over the years, and this kind of tying is now tolerated in the cable TV industry, as well as in scholarly publishing. (For the record, a U.S. court has held that bundling channels on cable is not illegal tying, but there are ongoing antitrust lawsuits over related practices.) Publishing, in my opinion, has pushed the practice even farther than cable TV has, as the bundle prices spiral upward, the list prices become more and more penal, and customers are forced to consider a draconian loss of access, the academic equivalent of “cutting the cable.”
The problem with this kind of “overfishing” is that it is unsustainable; the commercial academic publishers are pushing the market so far that their customers simply can no longer afford the resources they need and, incidentally, create in the first place. The profits generated by these companies are still extremely high, in the range of 35% and rising, but, as happened in Siglufjordur, the bottom can drop out quite suddenly. In recent months we have seen whole nations, not to mention individual universities, start to reconsider not only whether the value offered by these publishers is worth the price, but even whether the price itself is simply out of reach. And back in June, the Financial Times reported that RELX, the parent of Elsevier, had suffered its biggest decline in value in 18 months, and the financial services firm UBS was advising investors to sell, to take their profits and get out, due to “structural risks.” Structural risk is a very accurate description of the problem you create when you push your market well beyond its capacity.
First, brief background: AgEcon Search is a subject repository serving the fields of applied and agricultural economics. The University of Minnesota (UMN) has been operating it since 1995, back in the pre-web days; the first iteration was Gopher based. It is still jointly sponsored by the UMN Libraries and the UMN Department of Applied Economics, but is now also a partnership that includes financial and other support from the USDA, private foundations, both the national and the international agricultural economics scholarly associations, and others (full list and other info here). There is tremendous support within its scholarly community for AgEcon Search and, increasingly, very strong international use and participation, especially in Africa.
The two UMN host units have started long-term sustainability planning. Right now, a leading strategy is a joint fundraising program with a goal of building an endowment.
Here’s the thought experiment. Roughly speaking, a $2 million endowment would generate sufficient revenue to pay most of AgEcon Search’s annual staffing, infrastructure and other costs. $2 million is about 11% of what the University of Minnesota Libraries spends annually for collections. So if we were able to take just 10% of what we spend in just one year on collections, we would be most of the way towards ensuring a long-term financial future for one project. And if Minnesota could double that, or even go to 25%, then in one year we would be able to do this for two similarly-sized, community controlled open projects. And if we did it for two years, we probably would have funded all four of these (Minnesota-homed) projects. And if we kept going, in the next and following years and be able to use that money to do the same for other projects, at other institutions. And if all academic libraries did the same, how many years would it take to put a really huge dent in our collective open funding problem?
Obviously, there are many, many practical, political, logistical and other challenges to actually doing this with our collections funding, but I’m leaving those aside for the moment, though they are far from trivial. This thought experiment has helped bring focus to my thinking about David Lewis’s 2.5% solution (see also his post on this blog and his later writings with other colleagues), and Cameron Neylon’s response in ‘Against the 2.5% Solution.’ Which, spoiler alert, is not strictly speaking against the solution, but in favor of a number of things including an investment quality index that can guide these investments, a variety of different strategies, and in support of a much bigger investments than the 2.5%.
Which is where I think we absolutely need to be — more aggressively and more deeply investing in open. 2.5% per year is not enough. 25% might be getting warmer. Would I love for that money to come from our universities instead of from our collections budgets? Sure. But will it happen and how long will it take? Speed and agility will be increasingly important. To underscore that point: the Data Curation Network got its Sloan pilot grant funding and was well underway planning and (openly) sharing rich information about what it takes and how to do data curation when Springer announced it would offer for-fee data management and curation services. Wellcome Trust is now in a pilot to fund its investigators to use Springer’s service (I’m not linking, use your favorite search tool). The Data Curation Network, like many collective projects, has been starting to make the case for community support, with the usual mixed responses. How many more projects will teeter on the brink of survival while publishers with a long history of enclosure and extortionate pricing gobble them up, or out-market us, or out-innovate us? What’s your favorite open project or workflow tool? Has it been asking for support?
I am, personally, decidedly lukewarm on the all-APC flip that started the OA2020 conversation, but don’t think we have the luxury of ruling out many strategies at this point. More, smarter, and faster are the words that guide my thinking and my hopes for a more open, community-owned scholarly communications ecosystem. I’m very much looking forward to the ‘Choosing Pathways to OA‘ workshop at Berkeley in October, and grateful to colleagues at the University of California, including the faculty, who have injected recent energy and inspiration, and who have invested in space to bring us together to talk about advancing practical strategies. See other posts on this blog about offsetting at MIT and the
publishing layers (formerly known as RedOA) project.