RE: Science Commons, SPARC Announce New Tools for

["Mark Sandler" <msandler@uiuc.edu>]

One might get the impression from Sandy's entry that his Press' 
stable of journals was firmly in the black, serving not only the 
needs of scholars in such burgeoning fields as Shaw Studies and 
Nietzsche Studies, but providing a needed revenue stream for the 
University.

Then, without warning, this excellent business opportunity is put 
in jeopardy by librarian ideologues needlessly prodding the 
always tractable faculty authors to seek the right to post their 
work in institutional repositories.  Now, the once profitable 
undertakings of the Press are being undermined as hundreds of 
staff hours are redirected to address the ceaseless demands of 
misguided rhetoriticians, bibliophiles, and nihilists waving 
addenda under the noses of editors and rights managers.  Oh my, 
the collateral damage we have wrought!

____________________________________
Mark Sandler
Director, Center for Library Initiatives
Committee on Institutional Cooperation
1819 South Neil, Suite D
Champaign, IL 61820-7271
Phone: 734 764-1444   Fax: 734 764-6849

The Committee on Institutional Cooperation (CIC) is a consortium 
of 12 world-class research universities, advancing their missions 
by sharing expertise, leveraging campus resources and 
collaborating on innovative programs.

________________________________

From: owner-liblicense-l@lists.yale.edu on behalf of sgt3@psu.edu
Sent: Sun 5/27/2007 11:00 PM
To: liblicense-l@lists.yale.edu
Subject: Re: Science Commons, SPARC Announce New Tools for Scholarly Publishing

First I will beg the indulgence of the moderator of this list and 
its readers to accept a flurry of postings from me. I have 
dutifully downloaded the postings for the past six weeks but had 
such a busy schedule that I have had to postpone to this weekend 
responding to any. So here I begin....

I have a simple question to ask those who stand behind and 
support this initiative (and others similar to it, like the one 
proposed by the CIC provosts): how does it help universities that 
pay for their presses to publish journals to create a lot of 
extra work for their staffs explaining to authors why they cannot 
accept all of the proposed clauses in the addendum? This is a 
real cost, which will add to the burden of already understaffed 
university presses (like mine).

A university press (like mine) that relies for a very substantial 
part of its journal income from participation in Project Muse 
simply cannot afford to sign an agreement that would have the 
effect of undermining Project Muse. A clause that allows authors, 
or others, to post on the open Internet the final peer-reviewed 
and copyedited version of their articles, with or without a 
six-month delay, is very likely to lead eventually to the demise 
of Muse-which, may I remind you all, was established with the 
support of a Mellon grant jointly to the press and library at 
Johns Hopkins and was developed from the beginning to be a 
library-friendly, reasonably priced resource.

If Muse disappears, then so too do all of the ten journals that 
we currently publish and have enrolled in Muse, including such 
long-established leading journals in their fields as Philosophy & 
Rhetoric, The Chaucer Review, and Comparative Literature Studies 
and such newer journals as Book History (the official journal of 
the Society for the History of Authorship, Reading, and 
Publishing). It has long since passed the time when their print 
subscriptions alone could sustain the cost of publishing them.

I am also curious as to the legality of this further strategy 
proposed by SPARC and adopted by the University of Wisconsin 
Faculty Senate on May 7 when it approved the CIC initiative:

The Library Committee amended the original CIC addendum 
distributed by the CIC provosts to include subsection 4 that was 
derived from ARL's Scholarly Publishing and Academic Resources 
Coalition (SPARC). ARL/SPARC has been an international leader in 
the discussion of author rights and scholarly communications. 
This sub-section is a default clause that states that in the 
event that the publisher publishes the article in the journal 
without signing a copy of the addendum, the publisher will be 
deemed to have assented to the terms of the addendum.

Not being a lawyer, I'm no expert on the validity of such 
"default" clauses, but I would bet that they are unenforceable. A 
license is a license, and if the publisher does not agree to 
terms explicitly in writing, no "default" is going to compel the 
publisher to do anything it doesn't want to do. Other opinions, 
please?

As for the general approach of Creative Commons (copied in this 
Science Commons version) to provide a means for authors to 
license any uses that are "noncommercial,"  I would appreciate 
knowing what "noncommercial" means. If it is meant to be the 
equivalent of "educational," then it is as vacuous and unhelpful 
as the view that "fair use" sanctions any "educational" 
use-which, as we all know from a variety of Supreme Court cases, 
is not the view of the highest court in the land. For the vast 
majority of the specialized scholarly writing that is the subject 
of journal licensing agreements, there is NO market outside of 
higher education-which is, by the way, the reason that university 
presses were established in the first place. Is "noncommercial" 
then supposed to be a synonym for "nonprofit"? But university 
presses are nonprofit entities. Thus, are we permitted by 
Creative Commons licenses to republish any articles or book 
chapters whose authors have signed such a license? It would be 
nice to know so that we don't have to bother paying them any 
permission fees. The same, of course, would hold for "nonprofit" 
society publishers. Our missions are, of course, to serve 
scholarship, so we would be happy to accept this interpretation 
of "noncommercial." I'm not sure its creators intended for it to 
be interpreted in that way. On the other hand, I really haven't a 
clue about how they did intend it to be construed, since it is 
inherently a slippery concept. And the whole edifice of CC 
licensing is built upon this shaky commercial/noncommercial 
distinction, is it not?

As in much else that is going on now, every step forward in one 
arena seems to entail a step backward in another. If universities 
were thinking systematically about this issue instead of narrowly 
focusing on the STM journal problem, they would realize that 
proposals like these are at least partly self-defeating.

Sandy Thatcher
Penn State Press