Open Access &Copyright 101 Philip Young Gail McMillan University Libraries, Virginia Tech February 6, 2013

Introduction to Open Access Philip Young University Libraries

Scholarly Communication 1. Do research, write article 2. Give publisher free content, free peer review, free editorial services 3. Buy back content 1.With many potential readers excluded 2.With lost control over our own work 3.At high prices and 8% annual inflation

Who are we excluding? n Colleagues n Scholars in the developing world n Virginia taxpayers n Students who graduate

What control are we losing? n Ownership n Finer control over permissions n Ability to use in teaching

What are the costs? n Monopoly market n Prices rise faster than CPI n Large publishers are among the most profitable businesses in the world n Journals take up more of library budgets, less money for monograph purchases

What is Open Access? “…digital, online, free of charge, and free of most copyright and licensing restrictions” -Peter Suber The Internet + Permissions

Advantages of Openness n Scholarly information is a public good n Increase in “visibility, retrievability, audience, usage, and citations” n Text and data mining n Research integrity n Unforeseen benefits n Scales with growth in research

Misunderstandings n Not intended for patentable or royalty- generating works n Not a way to bypass peer review n Not an assertion that publishing is cost- free n Not all open access means publishing in an open access journal, or paying a publication fee

Two Roads to Open Access n Self-archiving (Green OA) –Depositing a pre-print or post-print in your university or disciplinary repository (e.g. VTechWorks or arXiv) n OA publishing (Gold OA) –Publishing an article in an open access journal (e.g. PLoS)

Self-archiving (Green OA) Benefits: n Access for all n You control license n Citations n Statistics n Preservation n All of your work in one place

Self-archiving (Green OA) Problems: n Voluntary efforts don’t scale n Not the version of record n Usually requires journal permission – Read contract – Check SHERPA-RoMEO for publisher policies

Self-archiving (Green OA)

If not explicitly permitted:

OA publishing (Gold OA) Benefits: n Access for all n Version of record n Greater visibility/citations n Some use CC licensing n Directory of Open Access Journals (doaj.org)

OA publishing (Gold OA)

Altmetrics

OA publishing (Gold OA) Problems: n Often not highest prestige n Publishing fees (30% of OA journals) n “Predatory publishers”

Predatory Publishers n Scholarly Open Access blog

A few criteria n Assess website, TOC, articles, editorial board n DOAJ, digital preservation n Red flags: multiple journals launched at once, irregular publishing, lack of focus, few articles published, high fees n OASPA members:

Virginia Tech Mission Statement Virginia Polytechnic Institute and State University is a public land-grant university serving the Commonwealth of Virginia, the nation, and the world community. The discovery and dissemination of new knowledge are central to its mission. Through its focus on teaching and learning, research and discovery, and outreach and engagement, the university creates, conveys, and applies knowledge to expand personal growth and opportunity, advance social and community development, foster economic competitiveness, and improve the quality of life.

Library Services at Virginia Tech n Institutional memberships that reduce publication charges (PLoS, BMC, etc.) n Subvention fund for those without a grant n Hosting open access journals n VTechWorks for archiving articles, data, etc. n Consulting on publishing agreements n Assisting with digital projects (Port)

What you can do n Archive your articles, data, presentations, syllabi, reports, white papers in VTechWorks n Read contracts and use addenda to gain self- archiving rights n Publish in an open access journal n Start an open access journal n Consider a departmental, college, or university-wide policy on article archiving n Apply for publication funding and spread the word about the library’s OA fund

Gratis and Libre n Gratis OA removes price barrier –But permission needed to exceed Fair Use n Libre OA removes price and permissions barriers –Determined by author or journal

OA journal licensing chart

Licensing

How open is it?

Copyright in Scholarship and Instruction Pt. 2 of Open Access Gail Center for Digital Research and Scholarship, University Libraries, Virginia Tech Feb. 6, 2013

U.S. Constitution Article I Section 8 Clause 8  [The Congress shall have power] "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Copyright Law: U.S. Code, Title 17  Section 102: Original authorship stabilized – when fixed in a tangible medium of expression  Section 106: Exclusive rights of creators Limitations to exclusive rights  Section 107: Fair use  Section 108: Library services  Section 110: Instruction--TEACH Act

Who owns the copyright?  Creators of original works  Creators' assignees  Employers: works for hire  Explicit, e.g., job description  Is the work we do owned by Virginia Tech?

VT Policy n 2 groupings of policy creations –Traditional results of academic scholarship –Novel results of research, e.g. products, processes, machines, software, biological technology, etc. n Intellectual properties in the first (traditional) group are considered to make their full contribution to the university's benefit by their creation and by continued use by the university in teaching, further development, and enhancement of the university's academic stature –The presumption of ownership is to the author--unless there is explicit evidence that the work was specifically commissioned by the university –The IP rights remain with the author and the university rights are limited to free (no cost) use in teaching, research, extension, etc. in perpetuity.

Copyright holders control  Reproduction  Modification  Distribution  Public performance  Public display EXCEPT…

Permission or license to use a copyrighted work is NOT required if  Public domain –Does not mean publicly accessible Internet/Web –Intellectual property not owned or controlled by anyone US government documents It’s well aged: –70 years after the creator passed on –95 years after the work-for-hire was published, or –120 years after the creation of the work-for-hire n Fair Use n TEACH Act

Fair Use Myth It's OK--it's for educational purposes. 1. Purpose and character of use 2. Nature of the work 3. Amount and substantiality 4. Effect Before using someone else's work without permission, weigh ALL 4 FACTORS Tools to help: - VT Fair Use Analyzer - Fair Use Evaluator (ALA) e/

1. Purpose and character of use  Commercial or educational use  Profit or not  Criticism, commentary, news reporting, teaching, scholarship, research  Transformative, value added FAIR USE 1 of 4

2. Nature of the copyrighted work  Worthy of (extensive) protection?  Not a quality judgment.  Can it legally be protected by copyright?  Character of the work? –Fact or fiction Published facts weigh in favor of fair use Unpublished original expressions weigh in favor of seeking permission FAIR USE 2 of 4

3. Amount and Substantiality  Use only what is necessary  In relation to whole work  Quantity  Quality FAIR USE 3 of 4

4. Effect  Will your use reduce the value of the original work?  Harm to the market  Real or potential FAIR USE 4 of 4

Fair use: weigh each factor  Tools to help  VT Fair Use Analyzer VT Fair Use Analyzer  Fair Use Evaluator Fair Use Evaluator  Did the scales tip in favor of fair use?  If not –Modify your use –Use library services: Title 17 U.S.C. Sec. 108  Reserves  Why not use Scholar? –Ask for permission

After you’ve checked n Sherpa RoMEO –publisher copyright & self-archiving policies –

Copyright permission services  Copyright Clearance Center –  Association of American Publishers – You asked but they never responded. You don’t have permission.

Orphan Works  Good faith, diligent, unsuccessful search  US Copyright Office report ( )  The “Orphan Works” Problem ( ) – Marybeth Peters, Register of Copyrights, to House Subcommittee on Courts, the Internet, and Intellectual Property  Legislation, amendments, no vote.  Assume it’s copyrighted  HathiTrust

Copyright re Libraries: Sect. 108  Ground Rules – No commercial purpose – Open to outsiders – Notice on copies  Preservation copying  Photocopy Services: Copies for private study  ILL: copies for InterLibrary Loan  Reserve Services: copies for students in a course

Copyright for Instruction  USC Title 17 Section 110 –Limitations of certain performances and displays –Face-to-face classroom settings  Broadened by TEACH Act (Nov. 2, 2002) –Technology Education And Copyright Harmonization –Must have an institutional copyright policy

TEACH Act  Fair use standards in online education environment  Modified existing copyright law for –Accredited nonprofit educational institutions –Mediated instruction –Integral part of class session –Limited to enrolled students –Accurately informed about copyright compliance –Reasonably prevent  Retention beyond course  Unauthorized further dissemination

TEACH Act: Works allowed DISTANCE LEARNING CLASS IS THE SAME AS IN THE CLASSROOM  Show entire nondramatic literary works –News, poetry, speech –Show entire nondramatic musical works  Everything else in reasonable and limited portions –Plays, movies, operas, TV shows, choreography

TEACH Act--You must not use  Works marketed primarily for distance education  Unlawfully made or acquired copies  Materials meant for additional study outside of class –eReserve, Reserve, Scholar (i.e., CMS)

TEACH Act--You must  Transmit as an integral part of class session – Regular part of systematic, mediated instruction  Use copyrighted materials only when directly related to the lesson  Limit access to students enrolled in the course  Have an institutional copyright policy & inform students about it  Block further dissemination

Copyright Resources from VT DLA  Copyright Homepage  Library Copyright Policies  Fair Use  Copyright and ETDs  Request Permission: Sample letter n Publishers copyright & self archiving policies

Copyright Resources  Copyright Advisory Office, Columbia  Crash Course in Copyright (UTAustin)  Library of Congress, Copyright Office  Legal Information Institute (Cornell)  Stanford University Libraries  WIPO Study on Copyright Limitations and Exceptions for Libraries and Archives (Crews, )  TEACH Act Toolkit (NC State)

Resources for Open Access VTechWorks Library Open Access page Institutional memberships Subvention fund OA-related courses and awareness Directory of Open Access Journals Publisher archiving policies Copyright addendum engine Creative Commons List of quality OA publishers List of predatory publishers

Open Access & Copyright 101 Philip Young Gail McMillan (540) (540)