Re: New US Bill re. Copyright/Federal Funding

[Sandy Thatcher <sgt3@psu.edu>]

As Peter might imagine, I can't let his reply go unanswered. But 
I do encourage people to read his blog, which raises some very 
interesting questions, particularly about what digital rights the 
publishers of the Papers projects have had to do what they have 
done. And I hope they read the reply from Jim Cassedy as well 
because he points out that nearly two-thirds of the funding for 
the projects has come from non-federal sources.

I don't myself know the answer to his question about rights. I 
used to work at Princeton, which publishes the Jefferson Papers, 
so I know something about these projects. My educated guess is 
that digital rights were not even contemplated when these 
projects were begun in the 1950s. At that time, as Peter suggests 
(but doesn't clarify), unpublished works (like the Papers) were 
protected by state common law, not federal copyright law. When 
the 1976 Copyright Act went into effect in 1978, all unpublished 
works were given copyright protection until 2002 and, if they 
were published by that date, until 2027 (since extended by the 
Sonny Bono Copyright Term Extension Act). But I guess one 
important question is this: were all the documents included in 
the Papers considered work of the U.S. government and hence in 
the public domain? If they were, then they had no copyright 
protection at all. I am myself assuming that is their status, but 
I honestly don't know. If they are in the public domain, then of 
course the "repositories" of the various Papers had no copyright 
ownership in them either. What publishers can claim, of course, 
is ownership in all of the editorial apparatus.

That apparatus, and all the huge amount of scholarly effort that 
went into preparing it, was supported by a mixture of federal and 
non-federal funding, the latter constituting some 60% of it. 
Peter is suggesting that the government, by virtue of its partial 
funding of the work, should have the right to expropriate all of 
it and publish it, as true OA, for the benefit of the public. Of 
course, this means that any publisher investing its own funds in 
the Papers would have no means of recovering any income to cover 
its costs. The federal monies did NOT go to support the 
publishers' costs, if my memory serves me correctly.

Peter is quite right that Rotunda is not OA; it is a licensed 
product. But it has been supported in considerable part by funds 
from Mellon and other foundations. Mellon, as we all know, 
invests in projects like this while expecting there to be a 
sustainable business model in place to recover costs in the 
manner that, say, Project Muse (which Mellon also funded in its 
startup phase) does. Virginia, I am sure, does not make "profits" 
from publishing the Papers. Thus, the work is being done in the 
most economical way, one would suppose, for the benefit of the 
public, which it is that press's mission to serve, as it is for 
all presses.

Peter suggests that there is a better way to do this and and 
proposes that the LC be the online publisher. Well, that is a 
possibility, I suppose, but anyone who thinks this is a good idea 
should read Jim Cassedy's pointed reminders of why this might NOT 
be such a good idea. I don't see that Peter has replied to these 
objections on his own blog.

But let's generalize here from what I take to be Peter's overall 
position. We all know that the NEH offers grants to scholars in 
the humanities to do research leading sometimes to books, both 
works they write themselves and translations. Peter's logic would 
then lead us to accepting that the federal government would have 
the right to take the work as published by a university press (or 
any other publisher) and offer it as a PDF online in full OA 
mode. What press in its right mind would consider spending 
$20,000 to $30,000 (the average cost of publishing a monograph in 
the humanities) to publish a book based on NEH-funded research 
that no library would buy? We already know, from data supplied by 
Yankee Book Peddler, that 25% of the libraries whose approval 
plans it handles will not purchase books that are based on 
dissertations because the dissertations are available through 
ProQuest and/or NDLTD. Mind you, these are books that are NOT 
identical to the dissertations but, in the vast majority of 
cases, have undergone quite substantial revision. It is easy to 
infer, therefore, that NO libraries would rationally purchase 
books that the NEH itself made freely available over the 
Internet. Thus, with equal rationality, presses would cease to 
publish any books based on research funded by the NEH. So, Peter, 
exactly how does this benefit scholarship? Yes, the raw 
manuscripts submitted by scholars to the NEH for posting would be 
available to the public. But they would not have benefited from 
the rigorous peer review that presses conduct nor from all the 
value added in other ways by presses. They would, in effect, 
exist in the same state as dissertations do in ProQuest's 
database. Would promotion and tenure committees consider these 
unvetted "publications" as a basis for awarding promotion or 
tenure? My guess is they would not.

I would have no objection if the NEH were to demand submission of 
manuscripts, as kinds of "reports" on the research done, and then 
post these for the public's benefit (though, given the low sales 
and usage of most monographs, one wonders how much benefit to the 
broader public these would have). But I do object to the 
government's expropriating the value added by presses and 
disseminating the books that have gone through that expensive 
process, thereby undercutting any chance the presses might have 
of generating an income stream to cover their costs.

Now, if our parent universities were willing to cover all of our 
publishing costs, we would be happy to provide these books in 
full OA mode ourselves--and I daresay we could do a better job of 
it than any federal agency. But the reality is that most 
universities expect their presses to cover 90% of their operating 
costs, some require them to cover 100%, and at least one even 
expects its press to return part of its earnings to the 
university. So, we presses have an obligation to our universities 
to publish in such a manner as to create income streams that can 
be protected, by assertion of copyright claims if necessary. We 
don't have to operate in this way, but we do so because that is 
how our parent universities have decided we should operate.

AAUP-member presses are NOT opposed to OA, as all too many people 
seem to assume, and some of us are conducting experiments with 
various forms of OA publishing--but OA in a form that is NOT 
incompatible with generating an income stream. In the Office of 
Digital Scholarly Publishing that our press runs jointly with the 
Penn State Libraries, we do actually publish some materials 
online with no expectation of any income. That is because the 
cost of doing so is subsidized by the Libraries's budget, and the 
decision has been made to provide these materials in completely 
unfettered ways, In our Romance Studies series, on the other 
hand, we try to generate income sufficient to cover basic 
publishing costs by following the type of OA model pioneered by 
the National Academies Press, which uses the OA version as a kind 
of marketing tool to generate sales of a POD version. I am as 
much a fan of OA as anyone, but I can't just indulge my fancy by 
giving away everything the press publishes for free.  I am sure, 
if I did, I would have the top administrators at Penn State 
barking at my door and wondering just what we were doing.

This is a long-winded way of explaining why the AAUP supports the 
legislation that would prevent the federal government from across 
the board expropriating "value added" work for which it had paid 
nothing.

I would ask those journal publishers who support the NIH policy 
if they would also support it if the NIH were to demand immediate 
deposit of the final published article for posting at the time of 
publication. I, personally, have no problem with the NIH policy 
myself, as I do not believe that it poses any economic threat to 
publishing in the sciences. But not being a publisher of STM 
journals, I also don't feel I am in a position to speak for 
others in that regard. The AAUP position, as I understand it, is 
NOT directed at undermining the NIH policy, but rather at the 
more general problem that I outlined above with the hypothetical 
example of the NEH.

Sandy Thatcher
Penn State University Press


>At 04:01 AM 9/23/2008, Sandy Thatcher wrote:
>
>>As a footnote, I would add that university presses are concerned
>>about the government's move to make the papers of the Founding
>>Fathers, as published with editorial apparatus by a number of
>>presses, freely available on the Web without compensation to the
>>presses or editors, whose work has been supported only in part
>>by federal funding and in substantial part by private parties
>>also. This kind of expropriation would severely undermine the
>>ability of presses to continue publishing these valuable papers.
>
>There is reason to be concerned about this initiative, but not
>for the reasons that Sandy outlines.  You can see my blog posting
>called "Free the Founding Fathers!" at
>http://blog.librarylaw.com/librarylaw/2008/06/free-the-foundi.html
>for the details, but the heart of the problem is that NARA seems
>to feel that the best way for people to get access to volumes
>whose editing and often publication costs have already been paid
>for is by having people subscribe to expensive university press
>delivery systems that limit how the work can be used.
>
>There is no question that the editorial work of the projects has
>been top-notch, if sorely underutilized.  Similarly, some
>university presses are providing useful interfaces with
>value-added features that are well worth the subscription costs.
>There is no reason, however, that the government should not also
>take advantage of its license (a condition of providing the
>grant) to make this material available for free.  If editorial
>projects do not like the government's license, they should not
>have accepted the editorial funding - just as publishers who do
>not like the NIH mandate should decline to publish articles
>funded by NIH (rather than trying to interfere with the author's
>rights as the copyright owner to license things as he or she sees
>fit).
>
>Peter B. Hirtle
>CUL Intellectual Property Officer
>Scholarly Resources and Special Collections
>Cornell University Library
>Ithaca, NY  14853-5301
>peter.hirtle@cornell.edu
>http://www.copyright.cornell.edu