Welcome to the SPARC Open Access Newsletter, issue #63[Formerly called the Free Online Scholarship (FOS) Newsletter]
July 4, 2003
The Free Online Scholarship Newsletter has changed its name to the SPARC Open Access Newsletter. With this issue, it resumes regular publication.
The new name reflects two welcome changes. First, "open access" is now widely accepted as the standard term for the barrier-free online availability of scientific and scholarly literature. My old term for this, "free online scholarship" or "FOS", is still widely recognized, but has been steadily eclipsed by "open access" since the launch of the Budapest Open Access Initiative in February 2002. I now use "open access" instead of "FOS" in my own writing and see it much more often in the writings of other researchers, journalists, editors, and publishers. I could continue to ride on the branding identity that "FOS" has built up, but I decided that it was time to use the same term that I was encouraging others to use. (For the same reason, I've changed the name of the FOS News blog to Open Access News.)
The second welcome change is that SPARC is now publishing the newsletter. SPARC's support has enabled me to leave full-time teaching for full-time research and writing on behalf of open access. I'm very grateful.
On a more technical front, SPARC's excellent listserv software (CommuniGate Pro) means that I'm no longer looking for a new host for the newsletter or forum. No more advertising in newsletter issues. No more intrusive questions during sign-up. No more issues blocked by spam filters, I hope.
The newsletter was weekly during the 01-02 academic year, and will now be monthly. Formerly, my writing time was supported by a sabbatical from Earlham College and a grant from the Open Society Institute (OSI). Now, the newsletter will be directly supported by SPARC and the rest of my writing time will be supported by OSI and Public Knowledge. I hope to say more on my open-access work for OSI and PK work in a future issue.
I mention my relationships to SPARC, OSI, and PK partly because they explain my new freedom to write, and partly because I'll inevitably write about them as important players in the open-access movement. I see no conflict of interest, but I do want to make a full disclosure. I see no conflict because these three organizations support true open access, as I do. They are supporting me because of our convergent interests and positions, not in order to steer me in a new direction.
When I write about SPARC, OSI, and PK in the future, I'll remind readers of my connection to them. But I don't plan to bend over backwards to avoid covering them when they make news or to disguise what I think of them. I trust you to see whether I start exaggerating or waffling --and to let me know.
One more point that doesn't go without saying: the views I express in the newsletter are my own and not necessarily SPARC's. I'm pleased to say that this disclaimer is as important to SPARC as it is to me. I feel free to say what I wish, and I feel supported in this freedom.
Some housekeeping details about the changes
* The last issue of FOSN came out on September 15, 2002. That's a while back, in internet time, so you might have forgotten that you subscribed. You did. Instead of inviting all of you to join the revived newsletter, I simply transferred your subscriptions. This is the same publication to which you subscribed; it simply has a new name and publisher. But if you want out, it's easy to unsubscribe. (Info below.)
* To emphasize that SOAN continues FOSN, I've started numbering the issues. This is issue #63.
* The FOS Forum is moving to SPARC too, and undergoing an analogous name change. It will be called the SPARC Open Access Forum (SOAF). All subscribers to the FOS Forum are automatically subscribed to SOAF. Like the FOS Forum, SOAF is unmoderated. Like the FOS Forum, subscriptions to it are separate from newsletter subscriptions, in order to give readers a choice about how much email to receive. Starting today, the FOS Forum is closed to further postings, although its archive of past postings will remain online.
* I thank Dru Mogge of ARL for helping to set up the CommuniGate Pro lists for both the newsletter and forum.
* I launched the FOS News blog (now called the Open Access News blog) during the 02-03 school year. It was a way to gather and disseminate news about the FOS movement that took less time than writing a newsletter. I count it a big success. It lets me offer other contributors' voices, other methods of dissemination (including RSS), and daily updates. While the blog started as a newsletter substitute, it will now be a newsletter supplement. The two vehicles serve different purposes and I'll keep them both. In fact, each issue of the newsletter will have a section of news highlights and new publications since the previous issue, borrowing largely from the blog.
Open Access News blog
* While the newsletter was dormant, during the past academic year, I launched a page of information on conferences and workshops related to the open-access movement. Formerly, I put a couple of months' worth of conference info at the end of each issue of the newsletter. The web page is so much easier for users than the newsletter list that I'm keeping it too.
Conferences related to the open-access movement
* If you use a challenge-response (CR) system to block spam, then please add this newsletter to your whitelist. If you don't, I'll receive a challenge every time I send you an issue, requiring me to validate my mailing. I will not have time to respond to challenges and you'll never get your issues.
Currently the forum is unmoderated, but I may have to moderate it to prevent spam blockers from broadcasting challenges to all members. Again, the better and simpler solution is for subscribers to add the forum to their whitelists. (More on this in the second story below.)
* Finally, here's how to subscribe and unsubscribe and a few other details.
SPARC Open Access Newsletter (SOAN)--to subscribe, send any message to <SPARC-OANewsfirstname.lastname@example.org>--to unsubscribe, send any message to <SPARC-OANewsemail@example.com>--to read and search back issues, go to
SPARC Open Access Forum (SOAF)--to subscribe, send any message to <SPARC-OAForumfirstname.lastname@example.org>--to unsubscribe, send any message to <SPARC-OAForumemail@example.com>--to post, send your message to <SPARC-OAForum@arl.org> (subscribers only)--to read and search SOAF postings, go to--to read and search postings to the FOS Forum (SOAF's predecessor), go to
Newsletter & Forum home page at SPARC(subscription, posting, archiving info for both the newsletter and forum)
Newsletter & Forum home page at my personal site(same info and more, including the newsletter editorial position)
Open Access Project at Public Knowledge(the other job in my post-teaching career)
* Please help the cause by updating your bookmarks and spreading the word. Many thanks.
Martin Sabo's Public Access to Science Act
On June 26, Rep. Martin Sabo, a Minnesota Democrat with 25 years in the House, formally introduced H.R. 2613, the Public Access to Science Act (PASA).
PASA is the boldest and most direct legislative proposal ever submitted on behalf of open access. US Copyright law already holds that "government works" are not subject to copyright. PASA extends this exemption to works that are "substantially funded" by the federal government. The preamble to the bill estimates that the federal government spends $45 billion a year on scientific and medical research. If all works "substantially" based on this funding were in the public domain, taxpayers would get a significantly higher return on their investment in research. These works might be published in conventional, priced journals, but anyone who wanted to extend their reach and impact beyond the small set of paying subscribers would be free to do so. All this literature would suddenly be much more useful.
Sabo aides have told the press that the word "substantially" was not defined in the bill so that the many federal agencies that fund research could define it in their own ways. Hence, one agency could say that any publication based 25% or more on its grant must be in the public domain, while other agencies could set the threshold at 50% or 75%.
While PASA would be a giant step forward for open access, it may be bigger than necessary --for open access and for the political realities of Congress. For example, open access to research articles does not require open access to all the products of federally funded research, like software and new physical materials. Moreover, open access to research articles does not require that the articles be in the public domain. It only requires that there be no copyright or licensing restrictions (statutory or contractual barriers) preventing open access. Putting works into the public domain is a simple and effective way to remove these barriers. But consent of the copyright holder is equally effective.
The Creative Commons has many good examples of licenses that authorize open access and yet stop short of transferring works into the public domain. Since there is no need to jettison copyright in order to achieve open access, there is no reason to lose the votes of those members of Congress who would be unwilling to jettison copyright. Copyright also gives authors the legal basis to block the distribution of mangled or misattributed copies of their work, although in the real academic world authors rarely need copyright to preserve the integrity of their work.
The policy argument for exempting government-funded research articles from copyright is essentially identical to the argument, already embodied in the statute, for exempting government works from copyright. But if the current copyright climate makes Congress more likely to rethink this fundamental policy than to extend it, then PASA could broaden its appeal by allowing federally funded works to be copyrighted, provided the copyright holder consented to open access. The result for open access would be the same, and the move would disarm a host of objections. Copyright holder consent could be manifest by submitting the work to an open-access journal or depositing it an open-access archive.
Obtaining copyright holder consent for open access is difficult or hopeless for works that generate revenue. But scientific research articles earn no royalties for their authors and never have. Scientists are rewarded by making advances to knowledge, and to their careers, and would gladly consent to open access in exchange for research funding. Even in the absence of research funding, more and more scientists consent to open access as the best path to a larger audience and increased impact.
Sabo's office has made clear that PASA is a conversation starter. In the spirit of advancing the conversation, let me suggest a few revisions that would enhance its political chances and at the same time improve its effectiveness in providing open access to taxpayer-funded research.
(1) Recognize that copyright-plus-consent works as well as the public domain in creating the legal conditions for open access. If broadening the political support for the bill turns out to be necessary, then this is an easy way to do it that doesn't compromise the bill's commitment to open access.
(2) Limit the scope of PASA to peer-reviewed research articles and their preprints. This will prevent colliding with Bayh-Dole on software, machines, materials, processes, and other patentable discoveries. We should avoid these collisions not because Bayh-Dole is wise legislation, but simply in order to keep separable issues separate. This limitation would keep unrelated controversies from slowing progress on open access to research articles.
(3) Putting works into the public domain and obtaining copyright holder consent to open access are not themselves open access. They are merely two ways to clear the legal path to open access. PASA could go further and require actual open access. It could require funded researchers to submit their work to open-access journals or deposit it in open-access archives. OA journals are growing in number and prestige, and OA archives make open access compatible with publication in a conventional journal. This would take us all the way to the goal, not just to one of its important preconditions.
(4) Finally, PASA could require federal research grants to cover the processing fees charged by open-access journals --that is, could treat open-access publication as a cost of research. This would not only help assure open access to articles arising from funded research, but answer the complaints of journals that they cannot justify the expense of refereeing and publishing a paper without a revenue stream or an upfront fee to take its place.
The first two suggestions are aimed at helping the bill gather support in Congress and with the many stakeholders in scholarly communication. The last two are aimed at taking the bill further in promoting open access; they could be incorporated into PASA now or wait for supplemental legislation at a later time.
Text of the bill
Summary, status, and co-sponsors of the bill
Press release from the Public Library of Science first announcing the bill
* PS. Section 105 of the Copyright Act says that "Copyright protection under this title is not available for any work of the United States Government...." It does not explicitly extend this exemption to government-funded works, which creates the need for a bill like PASA. However, it has been an open question whether Section 105 could be extended to government-funded works without an explicit amendment.
Here's a passage from the legislative history of Section 105:
A more difficult and far-reaching problem is whether the definition [of a "government work"] should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee, to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a "double subsidy," and that it is inconsistent to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds. Those arguing in favor of potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation, and the basically different policy considerations, applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds.
The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant....What's interesting is that Section 105 has always been open to the reading that PASA makes explicit. PASA would settle a previously unsettled point of law, or close the open texture of a deliberately flexible statute, not reverse the effect of a clear rule.
Moreover, in Section 105 Congress acknowledged the important policy argument that Sabo cites on behalf of PASA. Those who say that PASA is contrary to US law and policy need to reread the legislative history.
Legislative history of Section 105 of the Copyright Act (U.S. Code, Title 17)
Saving the oodlehood and shebangity of the internet
The internet makes open access possible. Open access wasn't physically or economically possible in the age of print. These commonplace assertions are true but slightly out of focus. Let's be more specific. The internet has many properties (it's digital, it's packet-switched, it has end-to-end architecture, it has a certain number of nodes, a certain throughput capacity, a certain level of traffic at a given time, a certain degree of saturation, and so on), but one property above all others makes open access possible. It's the capacity to disseminate perfect copies of a digital file to a worldwide audience at virtually no cost.
Now that this property is in focus, notice that it's the very same property that makes spam and large-scale digital piracy or mass infringement possible. I wish this property had a name. That would do a lot to advance the discussion of open access, spam, and mass infringement. In the absence of an accepted name for it, and for lack of a better term (like oodlehood? shebangity?) let me call it the "prodigality" of the internet.
Open access proponents like to focus on the revolutionary potential of the prodigality of the internet for the public good. But our strategic thinking must address the fact that the same prodigality also has revolutionary potential for mass infringement, economic harm, loss of privacy, and spam hell. The forces at work to curb these harms are powerful and well-funded --and not especially cautious about the goods they destroy in order the crush the evils they fear. It's time to realize that the obstacles to open access don't lie merely in the inertia and ignorance of scholars, and the dysfunction of the journal market, but include a coordinated campaign to limit the prodigality of the net itself. We could be collateral damage in the war against piracy and spam.
I've written often in the past about how the reaction to mass infringement has given up on surgical responses to online crime and turned to crude remedies that threaten the prodigality of the internet. For example, we see this in the denial of the first-sale doctrine to digital content, in retroactive extensions of copyright, in the hardware mutilations contemplated by Hollings' SSSCA, and in the DMCA ban on circumvention even for fair use or other non-infringing purposes. New question: will the reaction to spam be equally harmful?
It may be. Many spam filters block mass mailings, whether or not they are spam. Or, they create a presumption that every mass mailing is spam, and put the responsibility on senders and receivers to rebut the presumption. This harms newsletters, discussion forums, and the open-access current-awareness services of free and priced journals.
Many spam filters are too crude to distinguish opt-in services from others, and many that make this distinction are hard to awaken to the fact that a wrongly blocked list is really opt-in. Even mailings that are not blocked because they are addressed to multiple recipients may be blocked because of their content. Vanilla discussions of breast cancer, safe sex, pedophile priests, and national security legislation might trigger a filter. Forthright discussions of sex and political opposition are at even higher risk. The problem is aggravated when spam filters use secret criteria, and aggravated further when they are imposed by schools, employers, ISP's, or governments without user knowledge or consent.
New challenge-response systems for blocking spam may be even more harmful to open-access mailings. Instead of blocking requested content, so that recipients never see it, they confront the sender with a challenge that takes human labor to satisfy. (This is the point; if the validating responses could be automated, spammers would automate them.) Senders of newsletters and other email-borne forms of open-access content will be showered with challenges and never have time to answer them. Either that, or answering them will create a new cost of doing business that threatens the open-access business model. This problem can be averted if users of challenge-response spam blockers put their subscription newsletters and journals on their whitelists. But it's probably easier to design a perfect spam filter --impossible to date-- than to educate all their users.
Other spam remedies, like Sen. Charles Schumer's Stop Pornography and Abusive Marketing (SPAM) Act, could ban anonymous remailers, which are essential to the free circulation of ideas in repressive parts of the world.
If my keyboard had a key that sent a non-fatal electric shock to the sender of a piece of spam, then I confess: mine would be worn out. I'm ominously attracted to a direct, Skinnerian remedy that combines text and voltage. ("Thanks for the spam. Here are 100 volts just for you.") People who hate copyright infringement hate it even more than I hate spam. On June 19, Senator Orrin Hatch said in public what many no doubt think in private, that the music industry needs a method to destroy the computers of copyright infringers. If executives at the RIAA and MPAA had remote detonation keys on their keyboards, they would be worn out.
You may not hate mass infringement, but you probably hate spam, and that's enough to put you on both sides of this problem. The prodigality of the net carries the potential for momentous good and the potential for momentous harm. Those who fight the harm have a bad track record at limiting themselves to the harm, and a proven tendency to fight the prodigality of the net itself even at the cost of momentous good.
Watch the campaign against spam and mass infringement. You don't have to love either one to love the prodigality of the internet that makes them possible. Fight to defend it and to prevent remedial overreaching. Don't hastily blame only the defenders of indefensible intellectual property theories. All of us who hate spam are now implicated. So while watching others, who might encroach on the prodigality that makes open access possible, we should also watch ourselves. Can we hate spam surgically?
Finally, let's watch for escalations of mischief and harm that create excuses to sacrifice the good potential of the net in order to block the bad. Will the dream of open access live only as long as the internet's prodigality is endurable, and die when terrorist viruses (let's call them Hatchlings) can be delivered to every desktop?
On the threat from challenge-response spam systems
Sen. Charles Schumer's Stop Pornography and Abusive Marketing (SPAM) Act
Orrin Hatch's remote detonation fantasy
* PS. In light of this, it's especially depressing (1) that the Supreme Court just upheld the Children's Internet Protection Act (CIPA), requiring federally funded libraries to use internet filters, and (2) that Ben Edelman and the ACLU lost their suit for permission to circumvent copy protection in order to learn the blacklist of N2H2, a commercially available internet filter. There will now be more filtering than ever, according to secret criteria, against the will of users, blocking much of what the Supreme Court concedes is constitutionally protected speech.
On the upholding of CIPA
On the Edelman-ACLU defeat
News highlights and bibliography since June 1, 2003
In future issues of SOAN, I'll recap the important news stories, and list the important publications, appearing since the previous issue. I'll take most of these from the Open Access News blog, which I write with other contributors and update daily. I'll give both the item URL and blog entry URL so that you can read the original story as well as what I or another blog contributor had to say about it. I'll omit items covered elsewhere in the newsletter.
* Lawrence Lessig and Lauren Gelman have created an online petition in support of the Public Domain Enhancement Act. Add your signature today.
Also see this Lessig interview about the petition.
Rep. John Doolittle (R-CA) and Rep. Zoe Lofgren (D-CA) officially introduced the Public Domain Enhancement Act on June 25.
* The ACRL made webcasts of the sessions of its National Conference (Charlotte, April 10-12) and is charging $25-160 for access to them. Even ACRL members must pay for access.
* The Nelson R. Mandela School of Medicine at the University of Natal is using a grant from Pfizer Pharmaceuticals to build a new, open-access HIV/Aids Information Gateway.
* The National Library of Medicine announced a freely available standard content model for the electronic archiving and publishing of journal articles.
* Derk Haank said again that he supports journal access that is "free at the point of use". He means that when universities buy subscriptions, their faculty needn't pay again.
He also resigned as CEO of Reed Elsevier's science and medical division, effective immediately, to become the CEO of Springer in early 2004.
* There are two more open-source packages for building OAI-compliant eprint repositories: Rapid Visual OAI Tool (RVOT), from the Old Dominion University Digital Library Group, and DLESE from the Digital Library for Earth System Education group
The other three open-source packages for building OAI-compliant archives are Eprints (Southampton), DSpace (MIT), and CDSWare (CERN).
* On his last day in office as Director of the OMB, Mitch Daniels gave up on his attempt to let federal agencies outsource their printing jobs and bypass the Government Printing Office (GPO) and its open-access policies.
Also see Miriam Drake's review of the controversy.
* This fall the University of California will launch open-access journals using the tools and framework of its eScholarship Repository.
* JISC has bought institutional memberships in BioMed Central (BMC) for all 180 universities in the UK, a major national initiative for open access and endorsement of the BMC business model.
* The Bethesda statement on open access publishing was released on June 20. An breakthrough endorsement of open access by a group of foundations, scientists, editors, publishers, and open-access proponents. Common ground and momentum are spreading.
* The first impact factors were reported for open-access journals published by BioMed Central.
* Presses Universitaires de France wants to block Canadian Jean-Michel Tremblay from posting works to his web site that are in the public domain under Canadian law but still copyrighted under French law.
* Steve Hitchcock's Core metalist of open access eprint archives has moved, reorganized, and changed its name to Explore Open Archives. It's now maintained by the OpCit Project.
* The Supreme Court has refused to hear SBCCI's appeal from the Fifth Circuit decision letting Veeck post a copyrighted statute (yes, a copyrighted statute) to his web site.
* Alison Buckholtz, Raf Dekeyser, Melissa Hagemann, Thomas Krichel, and Herbert Van de Sompel, "Open Access: Restoring scientific communication to its rightful owners", European Science Foundation
* A section of Walt Crawford's July _Cites & Insights_ is devoted to open-access journals.
* The Council of Europe has issued a "Declaration on Freedom of Communication on the Internet"
* Elizabeth Gadd, Charles Oppenheim, and Steve Probets, three articles:
"How academics expect to use open-access research papers"
"How academics want to protect their open-access research papers"
"The impact of copyright ownership on academic author self-archiving"
* Stevan Harnad, "Why I Believe That All UK Research Output Should Be Online," _The Times Higher Education Supplement_, June 6, 2003.http://www.thes.co.uk/search/search_results.asp?search=Why+I+believe+that+all+UK+research+output+should+be+online&searchwhat=both&searchYear=&searchMonth=&x=31&y=9
* Elspeth Hyams, "Scholarly publishing on the road to Damascus", _Library Information Update_, July 2003.
* LibLicense has a good discussion thread on library cataloguing of open-access journals.
* Farhad Manjoo, "The free research movement", _Salon_, July 1, 2003.
* David Messerschmitt, "Research library responses to the NSF cyber-infrastructure program", a powerpoint presentation.
* OECD Follow-up Group on Issues of Access to Publicly Funded Research Data, "Promoting Access to Public Research Data for Scientific, Economic, and Social Development". From the OECD.
* Some items by and about the Public Library of Science:
Annalee Newitz, "TECHSPLOITATION: Science for Everybody," _AlterNet_, June 16, 2003.
Christoph Droesser interviewed Harold Varmus in _Die Zeit_, June 18, 2003. http://www.zeit.de/2003/26/N-Interview-Varmus (in German)http://18.104.22.168/translate_c?&u=http://www.zeit.de/2003/26/N-Interview-Varmus (Google's English)
PLoS produced a TV spot to introduce the concept of open access to the general public.
* Michelle Romero, "Open Access and the Case for Public Good: The Scientists' Perspective", _Online_, July/August 2003.
* Thomas Susman and David Carter, "Publisher Mergers: A Consumer-Based Approach to Antitrust Analysis", white paper from the Information Access Alliance.
* John Willinsky, "Scholarly Associations and the Economic Viability of Open Access Publishing", _Journal of Digital Information_, 4, 2 (April 2003).
* The presentations from the recent conference, Electronic Theses and Dissertations Worldwide (Berlin, May 21-24), are now online.
* Some of the presentations from the workshop, Peer Review in the Age of Open Archives (Trieste, May 23-24), are now online.
* Vol. 4, issue no. 2 of the _Journal of Digital Information_ is devoted to the economics of digital libraries.
This is the SPARC Open Access Newsletter (SOAN), written by Peter Suber and published by SPARC. The views I express in this newsletter are my own and do not necessarily reflect those of SPARC.
Please feel free to forward any issue of the newsletter to interested colleagues. If you are reading a forwarded copy of this issue, see the instructions for subscribing at either of the first two sites below.
SPARC home page for the Open Access Newsletter and Open Access Forum
Peter Suber's page of related information, including the newsletter editorial position
Newsletter, archived back issues
Forum, archived postings
Conferences Related to the Open Access Movement
Guide to the Open Access Movement
Timeline of the Open Access Movement
Sources for the newsletter and blog
Open Access News blog
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