Welcome to the SPARC Open Access Newsletter, issue #140
December 2, 2009
by Peter Suber

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Open access and the Google book settlement

Google and the groups suing it --the Authors Guild and the Association of American Publishers-- released a revised version of their settlement agreement on November 13.  Judge Denny Chin gave it preliminary approval six days later.  (For the major documents, see the links at the end.) 

Many sharp eyes and sharp minds are looking at what the revised agreement says, how it differs from the original agreement of October 2008, how well it answers objections levelled against the original, and whether the preliminary approval ought to become final approval.  I won't do any of that here.  I want to focus on the settlement's implications for OA.

The questions I'm ignoring here are large, and everyone who cares about OA and the future of research should care about them.  I'm putting them to one side because many very competent people are already taking them on and because very little has been written about the OA implications.  But please go beyond my narrow analysis and try to digest and evaluate the whole settlement.  If approved, it will affect the way books are read and distributed for decades to come.  It will also, almost certainly, affect what courts and legislatures have to say about fair use, orphan works, mass digitization, class-action procedures, and anti-competitive practices in the digital universe. 

(1) The first point to make is that OA was never an issue in the lawsuit.  Google wasn't scanning copyrighted books in order to make them OA, and the plaintiff groups didn't sue Google because they thought it was making them OA or planning to make them OA. 

However, Google's wide-ranging book-scanning program did overlap with OA.  For example, Google was scanning public-domain books and making them at least gratis OA.  But the lawsuit raised no objection to the public-domain scans or their terms of access.  When the lawsuit was filed, Google suspended its scanning of copyrighted books, but continued its scanning and posting of public-domain books without objection from any quarter.

The lawsuit focuses on Google scans of copyrighted books and a few of its subsets.  Some of the copyrighted books were scanned with opt-in publisher consent under the Google Publisher Project.  The plaintiffs were fine with that, and only sued to stop the opt-out scanning of copyrighted books under the Google Library Project. 

Google Publisher Project (now called the Partner Program)
Google Library Project

Within the subset of copyrighted books scanned with library permission but not necessarily publisher permission, the settlement focuses even more narrowly on the subset of books that are out of print or "not commercially available" (NCA).  Within that set, most of the hubbub is about the smaller subset of unclaimed NCA books and the still-smaller subset of orphan unclaimed NCA books.  For none of these sets of copyrighted books did Google or the settlement ever propose OA.  The controversy and negotiation are about the non-OA terms under which these books would be digitized and distributed. 

Bottom line:  if Google had never been sued, or if it had won the suit outright, without having to settle, we still wouldn't have OA to the scanned, copyrighted books which are the subject of the suit.  In that sense, the lawsuit did not prevent OA to any class of books and the settlement is not a retreat from an earlier plan to provide OA.  

(2) If there's an exception, it's an attenuated sort.  Both the original and amended settlement provide for free online access from a small number of terminals in libraries (Sections 1.117 and 4.8.a.i) to at least 85% (Section 7.2.e.i.1-2) of the corpus of otherwise non-OA digital books. 

(Section numbers refer to the amended settlement agreement.)

We shouldn't call this OA, however.  These provisions don't make any books OA.  They merely give users a kind of special access to non-OA books. 

This exception has the approval of the plaintiffs, of course, or it would not appear in the settlement.  We could say that it's analogous to the accommodation authors and publishers have made to the existence of free lending libraries.  But before we get too comfortable with that analogy, we should remember that the Authors Guild has not fully accommodated the existence of free lending libraries.  As recently as 1987 it demanded "a government-funded royalty paid to authors of books borrowed from libraries."

Moreover, far more citizens have free access to print books through free lending libraries than will have free online access to digital books through the small number of privileged library terminals.  How hard will it be to find a terminal for free online access?  A typical college or university is allowed one terminal for every 10,000 full-time students (Section 4.8.a.i.1).  Community colleges may have one for every 4,000 students (Section 4.8.a.i.2).  Public libraries may have one per building (Section 4.8.a.i.3).  The only change from the original agreement is that the settlement-created Book Rights Registry may, at its "sole discretion", authorize more terminals in any library building (Section 4.8.a.i.3).  (More on this discretion of the BRR in #8, below.)

(3) Another attenuated sort of exception is that both versions of the settlement by default allow Google to display up to 20% of any copyrighted book it scans under the program (Section 4.3.b.i.1).  This is a larger portion than the tiny snippets Google displays today. 

When OA people say that a text is OA, they mean that the full-text is OA.  In that sense, it would be misleading to call the 20% slices "OA texts".  But no matter what terms we use to describe them, these slices are gratis OA and larger than the snippets that came before.

(4) Even if the settlement does not itself provide significant OA, two commentators have proposed ways in which the settlement could have done much more. 

Charles Nesson of Harvard Law School proposed in April 2009 that a cut of the revenue from Google-scanned orphan works should fund an Open Access Trust. 

The Open Access Trust.

Part of Nesson's argument is that the revenue generated by selling access to digitized orphan works does not belong to Google or its partners and should be "dedicated to the public good".  The amended settlement almost agrees:  it changes the way the revenue from orphan works can be spent and comes very close to dedicating it to the public good.  But it doesn't expressly require that any of it be spent on OA.  (More on how this money can be spent in #7 below.)

I've supported Nesson's argument from another direction:  the settlement makes it legally or financially impossible for competitors to re-digitize the same orphan works, and legally or financially impossible for users to make a fair-use argument for access.  An OA Trust would benefit the public by providing OA either to some of the same orphan works or to works from the public domain not yet covered by other initiatives. 

In June 2009, Peter Eckersley of the Electronic Frontier Foundation proposed that Google put its raw scans in escrow.  After an exclusive period of 14 years in which the settlement partners could profit from them, the scans would become OA.  Eckersley proposed this for all the Google scans, but the idea comes closest to a compromise that all parties might accept for orphan works.

Part of Eckersley's argument is that this digitization job is too large to repeat.  Making the scans available will make repetition unnecessary, and the delay will allow Google to cover its investment without foreclosing competition. 

Elsewhere I've supported Eckersley's argument from another direction:  digitization projects funded by public-private partnerships should provide OA to their results, even if they allow some delay, and for this purpose private universities represent public funds, since they enjoy public subsidies through untaxed property and tax deductible contributions.  (See Cases 7 and 8 in the appendix.)

(5) In a June 2009 interview with Jennifer Howard, Google's Adam Smith said that the company would be willing to put CC licenses on its scanned copyrighted books, if that's what authors wanted.

Two months later Google announced the CC option without waiting for the settlement to be approved.

Until the settlement is approved, I believe the CC option is only available to Google Partners.  Partners also have the option to specify how much of the book will be freely available to users --for example, 100% instead of 20%. 

Using a Creative Commons license with your books
Setting a book's browsable percentage
Becoming a Google Partner
Details from the (original) Google Book Settlement FAQ

Google built the CC option into the amended settlement (Section 4.2.a.i) along with the option to set the book's sale price at zero (Section 4.2.b.i.1).  These options will be available even to rightsholders who are not Google Partners. 

Note that what I've been calling a CC option allows rightsholders to select any license they like; it merely uses CC licenses as an example (Section 4.2.a.i).  If we consider this a libre OA option, then the new settlement gives rightsholders separate gratis OA and libre OA options.

Also note that the OA options can only be exercised by rightsholders.  Hence they will never be exercised for unclaimed orphan works, at least while those works are unclaimed or orphaned.  This is a barrier, but not a new barrier, to OA for orphan works. 

If anyone is wondering, it's not the case that digitization projects covering orphan works must hold off on OA until they can track down the unknown rightsholders and obtain permission.  For a large counter-example run by responsible, law-abiding organizations in the US and UK --two of the countries where the amended settlement would still operate-- see the Medical Journals Backfiles Digitization Project from the Wellcome Library (UK), Joint Information Systems Committee (UK), and the National Library of Medicine (US).  The project includes orphan works, digitizes them, makes them OA, and promises to take them down if the copyright holder steps forward and objects. 

Google has repeatedly said in public that it favors a legislative solution to the problem of orphan works and would welcome a solution that provides wider access than the settlement.  It supports Congressional action in parallel with the settlement, and we should not regard the settlement --a compromise with the Authors Guild and Association of American Publishers-- as its whole position on the question.

(6) Also in June 2009, Rainer Kuhlen and Germany's Coalition for Action: Copyright for Education and Research (Aktionsbündnis:  Urheberrecht für Bildung und Wissenschaft) proposed that Google should offer OA to at least some Google-scanned books by German authors.  The proposal was made during the public comment period on the first version of the settlement, but would be implemented independently of the settlement. 

The Aktionsbündnis proposal

Because the OA would be limited to books by German authors willing to make them OA, Google is willing in principle.  This should not be surprising, since the proposal is a variation on the theme of Google's opt-in Partner Program.  But the details have yet to hammered out.

(7) The revised agreement changes the way the Book Rights Registry (BRR) will use the revenue generated from the sale of orphan works.  If the money is not claimed after five years, the BRR may use some of it to search for the rightsholders who deserve to be paid.  If it's not claimed after 10 years, the BRR may ask the court to give it to nonprofits benefiting "Rightsholders and the reading public" (Section 6.3.a.2-3).

This solution is better than the original in two ways.  First, it's possible that some of the "nonprofits benefiting...the reading public" will be supporters or providers of OA.  At least they fit the description.  The new provision doesn't expressly use the money to fund an Open Access Trust, but it's compatible with that outcome. 

Second, even if the money never supports OA, using it to find the rightsholders who deserve it, or giving it charity, are far better outcomes than giving it to the plaintiffs.  Members of the plaintiff organizations didn't write or publish the orphan works generating this revenue.  Their only claim to the money is that they brought the lawsuit, i.e. that they have an aggressively conservative view of fair use.  It's astonishing that they gave themselves the money in the first version of the settlement and expected a court to approve it.

(8) Much of the settlement's overall impact on OA will be in the hands of the BRR.  To see why, we must look more closely at its governance and the policy questions it will be allowed to decide.

The BRR will be governed by a board to be composed of members of the Authors Guild and Association of American Publishers, the two original plaintiff groups, and new, similar plaintiffs from Australia, Canada, and the UK (Section 6.2.b.ii). 

The new, non-US counterparts of the Authors Guild are the UK Society of Authors and the (UK) Authors' Licensing and Collecting Society, and the Australian Society of Authors.  Their chairs or presidents will represent them on the BRR board.  I haven't yet seen news of the non-US counterparts of the Association of American Publishers.

Here's the key point:  the board will *not* be composed of people representing authors in general and publishers in general.  It will be composed of authors representing the Authors Guild and kindred organizations and publishers representing the Association of American Publishers and kindred organizations. 

This matters because the Authors Guild does not adequately represent academic authors.  An open letter signed by 21 faculty members at the University of California (August 13, 2009) made this point forcefully:

[B]ecause most Authors Guild members are not academic authors and academic authors did not directly participate in the negotiations over the terms of the settlement agreement, it would appear that the Authors Guild representatives were inspired by priorities different from those that academic authors would have agreed to, had our input been sought or heeded. Specifically, we are concerned that the Authors Guild negotiators likely prioritized maximizing profits over maximizing public access to knowledge, while academic authors would have reversed those priorities. We note that the scholarly books written by academic authors constitute a much more substantial part of the Book Search corpus than the Authors Guild members' books....

The general absence of academic authors from the negotiation matters for three reasons.  First, it helps explain why the original and amended settlements offer so few OA options or texts.  The California letter continues:

[T]he agreement does not contemplate or make provision for open access choices that have in recent years become common among academic authorial communities, especially with regard to out of print books....[T]he agreement does not explicitly acknowledge that academic authors might want to make their books, particularly out-of-print books, freely available by dedicating their books to the public domain or making them available under a Creative Commons or other open access license. We think it is especially likely that academic authors of orphan books would favor public domain or Creative Commons-type licensing if it were possible for them to make such a choice through a convenient mechanism. We are concerned that the BRR will have an institutional bias against facilitating these kinds of unfettered public interest, open access alternatives....Another issue that bears on open access principles is a provision of the settlement agreement that contemplates that subscribers will be able to annotate their books, but restricts the extent to which annotations can be shared....

Both points --that the settlement doesn't represent academic authors and that academic authors would have wanted more OA options-- were reinforced in a subsequent open letter organized by Pamela Samuelson and signed by 64 law professors from around the country (September 3, 2009).

Second, in a class-action lawsuit like this one, the parties in court must fairly represent the members of the class and in this case the author groups do not fairly represent the class of authors.  This should be a ground to dismiss the settlement, renegotiate it with more representative plaintiffs, or limit its application to non-academic books.  But it did not stop Judge Chin from granting preliminary approval to the amended terms.

Third, the AG-type authors will sit on the BRR board and academic authors will not.  This will affect all the decisions made down the road by the BRR.  Here are some of the OA-related decisions where bias on the BRR board could make a difference:

(a) The BRR and Google may choose to allow more library terminals for free online access to the otherwise-non-OA corpus (Section 4.8.a.iii).  But until the author seats on the board are more representative, the board is unlikely to approve more terminals for free online access.

(b) As noted, if revenue generated from the sale of orphan works is unclaimed after 10 years, then the BRR may file motions with the with the court "recommending how Unclaimed Funds...should be distributed to literacy-based charities...that directly or indirectly benefit the Rightsholders and the reading public..." (Section 6.3.a.3).  Many groups supporting OA fit this description.  But until the author seats on the board are more representative, the board is unlikely to recommend groups that support OA.

(c) When libraries provide books for digitization, the amended settlement allows them to use the digital copies in eight specific ways (Section 7.2.b.i-viii).  Any other uses require approval of the BRR in consultation with rightsholders (Section 7.2.b.ix.1).  But until the author seats on the board are more representative, the board is unlikely to approve uses that widen access for users, even for orphan works when no rightsholders are standing in the way.

(d) The amended settlement describes three not-yet-implemented revenue models for the digitized books.  Google and the BRR may agree in the future to implement any combination of them (Section 4.7).  One of the three models, file downloading, would reduce access barriers and increase reuse possibilities, even if it could only accompany consumer purchase of the same books.  (The other two models are print-on-demand and consumer subscription.)  But until the author seats on the board are more representative, the board is unlikely to implement this option.

(e) Both versions of the settlement allow two institutions at a time to treat the digitized books as a "research corpus" for "non-consumptive research", that is, for text-mining or "analysis...on one or more Books, but not research in which a researcher reads or displays substantial portions of a Book to understand the intellectual content presented within the Book" (Sections 1.93 and 7.2.b.vi).  The researchers may publisher their results (Section 7.2.d.vii), but must have the permission of Google and the BRR to make commercial use of their results (Section 7.2.d.viii).  However, until the author seats on the board are more representative, the board is unlikely to grant permission for commercial reuse.

(9) If the author seats on the BRR board will not adequately represent the whole class of authors --in particular, academic authors and their interests-- the same could be said about the publisher seats on the board.  The Association of American Publishers does not represent all publishers.  In particular, it does not represent publishers of OA books and journals, even if some OA publishers belong to the AAP.  On the contrary, the AAP lobbies hard against OA policies and was one of the key players behind the hiring of Dezenhall Associates ("Public access equals government censorship") and the PRISM fiasco.

Even if we put aside the publishers focusing on OA journals, the BRR board will not represent publishers focusing on OA books, such as Bloomsbury Academic, the Open Humanities Press, the OAPEN project, and the many publishers of OA textbooks and university presses launching OA book series or imprints.  One of the most promising new business models for scholarly monographs is to harness the synergy of full-text OA and print-on-demand (POD), a model adopted by a rapidly growing number university presses.  But the interests of those presses, and the interests of their academic authors and readers, will be systematically undervalued by the author and the publisher representatives on the BRR board.

This might be excusable if most of the books covered by the settlement were non-academic books like novels and popular non-fiction.  But as the California letter points out, the reverse is true.  "We note that the scholarly books written by academic authors constitute a much more substantial part of the Book Search corpus than the Authors Guild members' books...."

(10) In Germany, the backlash against the Google settlement spilled over into backlash against OA.  In March some anonymous scholars posted the Heidelberg Appeal, a jeremiad against the Google settlement with an aside against OA.  To date, the document has collected over 2,600 signatures.  The authors objected to the book settlement on the ground that it would steal intellectual property, distribute pirated copies of protected works, and interfere with the freedom of authors to decide where to publish their work.  It criticized OA for the same vices, and pointed out that --unlike the foreign Google menace-- OA has defenders inside Germany itself. 

The Appeal made several groundless objections to the settlement, but had a plausible case that the original version was not consistent with German copyright law.  All its objections to OA were groundless, as was the suggestion that the settlement and OA were somehow connected.

Heidelberg Appeal (March 2009)

For nearly 100 examples of the Heidelberg-based OA misunderstanding, responses to it, and articles about the ruckus, see the OA Tracking Project tag library for "oa.heidelberg_appeal".

The amended settlement agreement answers the primary objection of the Heidelberg Appeal by excluding most books published in Germany.  (The only exceptions will be German publications registered with the US Copyright Office.)  It also excludes books published in most other countries in the world, and only includes books published in the US and countries with similar legal systems:  UK, Australia and Canada (Section 1.19).

By excluding most foreign books from the settlement, the amended settlement excludes them from the free online access from the special library terminals.  This is the only sense in which the amended settlement cuts back on the free online access allowed in the original settlement.

Despite its wild swings, the Heidelberg Appeal was one of several factors leading to the settlement revision excluding German books.  Another part of its legacy has been to link the Google settlement, copyright infringement, state coercion, and OA in the eyes of many Germans who hadn't been following the issues.  Many of the signatories knew nothing about OA but what the document asserted and simply wanted to express their support for copyright law and author rights.

When Google announced the amended agreement and the exclusion of works from non-Anglophone countries, it added that "Google remains interested in working directly with international rightsholders and organizations that represent them, including those in countries excluded from the settlement, to reach similar agreements to make their works available worldwide." 

The Aktionsbündnis proposal (in #6 above) should not be seen as a direct example, since it sought author-permitted OA, not settlement-style TA.  But it does show Google's willingness to take up negotiations outside the settlement to cover books from countries excluded from the settlement, and its willingness to extend opt-in OA beyond the formal Partners program.

* Here are the primary documents on the revised agreement:

Amended Settlement Agreement (the 168 pp. document filed by the parties with the US District Court for the Southern District of NY, November 13, 2009).

Redline edition of the amended settlement agreement, marking all changes from the first edition.

Supplemental Notice To Authors, Publishers And Other Book Rightsholders About The Google Book Settlement (the notice to rightsholders which, if approved, the parties hope to send out this month).

The Revised Google Books Settlement Agreement (Google's summary of the revised settlement).

Questions about the Revised Google Books Settlement (Google's FAQ about the revised settlement).

Amended Settlement Filed in Authors Guild v. Google (the Authors Guild summary of the revised settlement).

Preliminary approval of the amended settlement agreement, November 19, 2009.

Motion from Amazon to overturn the preliminary approval, November 20, 2009.

* Here are three sites to keep help keep track of the filings, analysis, news, and comment:

The Public Index (line-by-line annotation, analysis, and discussion of the documents, and more, from the Institute for Information Law and Policy at New York Law School, a project led by James Grimmelmann).

Google Book Settlement (Google's portal on the settlement)

OA Tracking Project tag library on the Google settlement (more than 500 items tagged to date)

* Here's a selective list of some of the major comments and analyses:

James Grimmelmann, GBS: Midnight Madness, Laboratorium, November 14, 2009.

Danny Sullivan, Revised Google Book Settlement Filed & Live Blogging The Press Call, Search Engine Land, November 14, 2009

Open Book Alliance, Is the Google Books Settlement Worth the Wait?  November 14, 2009.

Fred von Lohmann, Google Books Settlement 2.0: Evaluating the Pros and Cons, The Electronic Frontier Foundation, November 16, 2009.
--Also see his subsequent installments in the same series:  November 17, 2009.
--November 19, 2009.
--November 23, 2009.

Randall Picker, Assessing Competition Issues in the Amended Google Book Search Settlement, University of Chicago Law & Economics, Olin Working Paper No. 499, November 16, 2009.

Gavin Baker, Revised Google Book settlement: what it means for OA, Open Access News, November 16, 2009.

Pamela Samuelson, New Google Book Settlement Aims Only to Placate Governments, Huffington Post, November 17, 2009.

Kenneth Crews, GBS 2.0: The New Google Books (Proposed) Settlement, November 17, 2009.

Jonathan Band, A Guide for the Perplexed Part III: The Amended Settlement Agreement, from the ALA, ACRL, and ARL, November 23, 2009.

James Grimmelmann, The Google Settlement: what's right, what's wrong, what's left to do, Publishers Weekly, November 23, 2009.

Ben Hallman, Q&A: Open Book Alliance Lawyer Gary Reback on the Google Book Search Settlement, AmLaw Litigation Daily, November 24, 2009.



Here's what happened, or what I noticed, since the last issue of the newsletter, emphasizing action and policy over scholarship and opinion.  I put the most important items first, with double asterisks, and otherwise cluster them loosely by topic.

+ Policies

** Two units at Brigham Young University adopted OA mandates:  the Department of Instructional Psychology and Technology and the Harold B. Lee Library faculty.

** The University of Guelph School of Environmental Sciences adopted an OA policy.

** The Polish Ministry of Culture and National Heritage (MKiDN) adopted a policy to favor grant proposals promising OA to the results.

* The Netherlands Organisation for Scientific Research (NWO) announced its support for OA and committed 5 million Euros to support it.

* European reapportionment in the wake of the Lisbon Treaty gave Sweden's OA-supporting Pirate Party a second seat in the European Parliament.  

* The University of Central Florida adopted an OA mandate for ETDs.

* Starting this month, Stanford will require electronic submission of dissertations for deposit in the Stanford's IR.

* Columbia University plans to join the Compact for Open-Access Publishing Equity (COPE).

* 41 Nobel laureates released an open letter to Congress (the 4th in 5 years) supporting the NIH policy and the Federal Research Public Access Act (FRPAA).

* The Presidents of six public, land-grant universities in New England released an open letter of support of FRPAA.  The signatories represented the Universities of Connecticut, Maine, Massachusetts at Amherst, New Hampshire, Rhode Island, and Vermont.

* The leaders of two more universities publicly supported FRPAA:  Felice Maciejewski, Library Director, Interim Associate VP for Information Services at St. Norbert College, and Donald Bobbitt, Provost and Vice President for Academic Affairs, at the University of Texas - Arlington.

* The MIT Graduate Student Council added OA and FRPAA to the list of national policy policy goals for which it will lobby. 

* The business-oriented Committee for Economic Development (CED) released the official version of its report on openness in research.  The report explicitly endorses the NIH policy and FRPAA. 

* The RLG released an Academic Library Manifesto, which calls on libraries to adapt to recent "radical transformations in...research practices" such as OA, cloud computing, and social networking.  Among its 10 recommendations:  "Offer alternative scholarly publishing and dissemination platforms that are integrated with appropriate repositories and preservation services."

* Participants at a meeting of the Asia Pacific Association of Medical Journal Editors (APAME) and the Western Pacific Region Index Medicus (WPRIM) released the Singapore Declaration on Equitable Access to Health Information in the Western Pacific Region.

* The Charter for Innovation, Creativity and Access to Knowledge, drafted by the Free Culture Forum (Barcelona, October 29-November 1, 2009), called for OA to publicly-funded research.

* Nobel-winning biologist Sir John Sulston, and 49 others from the Institute for Science, Ethics and Innovation (iSEI) at The University of Manchester issued the Manchester Manifest, which called for alternatives to the current patent and copyright regime which "restricts access to scientific knowledge and products,...limiting the public benefits of science;...[and] inhibiting the progress of science...."

* A group of UK publishers, libraries, universities and public-interest advocacy groups "are now seeking to establish a joint portfolio of work to underpin and facilitate transitions [to widened access for research] over the next few years...The end-points...will be associated with four broad models: open access journals (gold OA); open access repositories (green OA); extensions to licensing; and transactional solutions...."

* DuraSpace launched Solution Communities, a project build collaboration on OA from different kinds of decision-makers within an institution.

* JISC launched Research 3.0, a year-long campaign on the use of digital innovations, including OA, to improve research.

* The Harvard University Task Force on University Libraries reaffirmed "efforts to reform the scholarly communications and publishing system, such as the University’s leadership in the open access movement...."

* James Love proposed to the WTO that it should take steps to supply global public goods, including OA research.

* Lars Fischer launched a petition asking Germany's Bundestag to mandate OA for publicly-funded research.  It will accept new signatures until December 22, 2009.

* The Bundestag OA petition was supported by Coalition for Action on Copyright for Education and Research, DINI (the Deutsche Initiative für Netzwerkinformation), the German Library Association, and Wikimedia Germany.

* The Faculty Senate at the U of Virginia postponed its vote on a Harvard-like OA policy.

+ Journals

* The Journal of Aesthetics & Culture is a new peer-reviewed OA journal published by Co-Action.

* AoB PLANTS is a new peer-reviewed OA journal published by Oxford University Press for the Annals of Botany Company.

* The International Journal of Studies in Mathematics Education is a new peer-reviewed OA journal from UNIBAN Brasil.

* Italique is a new peer-reviewed OA journal of Italian poetry of the Renaissance, hosted by Revues.org.

* Trace (Travaux et recherches dans les amériques du centre), a journal launched in 1985, converted to OA.

* Humanitaire, launched in 2000, converted to delayed OA with a three-month moving wall.

* L’Orientation scolaire et professionnelle converted to delayed OA, with a three-year moving wall, and moved to Revues.org.  In its current form the journal was founded in 1972, and succeeded the Bulletin de l’Institut national d’orientation professionnelle, founded in 1928.

* The Revue internationale de pédagogie de l’enseignement supérieur changed is name (formerly Res Academica), converted to OA, moved to Revues.org.

* Allergy, Asthma & Clinical Immunology underwent a makeover, changing its name (formerly the Canadian Society of Allergy and Clinical Immunology), converting to OA, and moving to BioMed Central.  AACI is the official journal of the Canadian Society of Allergy and Clinical Immunology.

* The Journal of the Polynesian Society now provides OA to the first 100 years of its 107 year backfile.

* Jamaica Journal digitized and provided OA to its 30+ year backfile.

* New Prairie Press will provide OA to the 1975-1999 backfile of the GDR Bulletin.

* Rob Bradshaw has been hand-scanning, OCR'ing, proofreading, and providing OA to the back issues of theology journals.  He recently completed the backfiles of the Bulletin of the Evangelical Theological Society and Vox Evangelica, and has started on Reformation & Revival.

* Brill announced Brill Open, a hybrid OA option for all 135 of its journals. 

* Germany's Schattauer Verlag introduced a hybrid OA option for all 20 of its journals.

* EMBO will reduce the subscription prices of two of its hybrid journals by 9% in 2010, to reflect the uptake of their OA option. 

* MIT reported that three OA publishers (BMC, PLoS, and the Beilstein-Institut) cooperate with the institution's OA policy, so that authors need no addenda or waivers.

* SciELO Brazil adopted CC-BY-NC licenses for its OA journals.

* The British Medical Journal and Oxford University Press joined the Open Access Scholarly Publishers Association.

* The Canadian Medical Association Journal will continue to provide OA to new research articles, but next month will begin to charge for access to some of its other content.

+ Repositories and databases

* PubMed Central Canada officially launched, the result of a collaboration of the Canada Institute for Scientific and Technical Information (NRC-CISTI), the Canadian Institutes of Health Research (CIHR), and the US National Library of Medicine (NLM).

* Singapore's Agency for Science, Technology and Research (A*STAR) launched A*STAR Research, an institutional repository.

* Mozambique launched a national OA repository in collaboration with three institutions, the Centro de Formaçăo Jurídica e Judiciária, the Universidade Eduardo Mondlane, and the Universidade Politécnica.

* Concordia University launched Spectrum, its institutional repository.

* The Edelstein Center for Social Research in Rio de Janeiro launched the Virtual Library of Human Sciences (Biblioteca Virtual Cięncias Humanas).  It already contains 5,000 OA texts, and has another 5,000 in the pipeline.

* Google, the Internet Archive, and Intellectual Ventures are working together to provide OA to "several terabytes" of the backfile of the US patents database.

* JASPAR, the OA database of matrix profiles describing the DNA-binding patterns of transcription factors (TFs), announced a major upgrade. 

* DRIVER will harvest and present the content from the repositories in eIFL.net countries.

+ Data

* Starting next year the UK will provide OA to some of the Ordnance Survey maps and map data. 

* The Open Knowledge Foundation released an alpha version of its OA database of public spending in the UK, Where Does My Money Go?

* The Open Knowledge Foundation launched a Linking Open Data group within its Comprehensive Knowledge Archive Network (CKAN).

* Participants in the international Group on Earth Observations (GEO) launched two new open-data projects:  the Forest Carbon Tracking project and the GEO Biodiversity Observation Network.

* DataONE has a $20 million grant from the US National Science Foundation (NSF) "to provide universal access to data about life on Earth and the environment that sustains it."

* Australia's Bureau of Meteorology recommended the CC-BY license for the water data it must release to the public under Australian law.

* The OA Hazardous Substances Data Bank began adding peer-reviewed records on nanomaterials.

* Google's public data project now incorporates World Bank data, thanks to the World Bank's open API.

* The city of Toronto launched its portal of open data.

* Massachusetts launched an Open Data Initiative.

* The US government provided OA to the data from its Cash-for-Clunkers program.

* The US National Science Foundation (NSF) ceased funding the OA botanical database, Arabidopsis Information Resource (TAIR), putting its future in doubt.   Two-thirds of surveyed researchers said they would be reluctant to submit data to TAIR if it charged subscriptions.

+ Books

* The parties to the Google book settlement submitted an amended settlement agreement to the US District Court.  (More details and links in the lead story above.)

* US District Court Judge Denny Chin granted preliminary approval to the Google book settlement.  The final fairness hearing is scheduled for February 18, 2010.

* A major report from the Academy of Science of South Africa (ASSAf) called for OA to books.  (ASSAf has supported OA journals since April 2008.)

* The National Book Trust of Uganda (NABOTU) recommended libre OA books as the "best way for boosting educational quality" for Ugandan students.

* The Florida open textbook program received $300,000 in funds from the federal government in order to create a "national model" for other states.

* Bookshare received a $100,000 grant from the U.S. Department of Education, Office of Special Education Programs, to create handicap-accessible versions of the OA textbooks approved for use in California public schools.

* Texas A&M University Press is providing OA to selected titles in collaboration with the university IR and the Texas Digital Library.

* The Utah State University announced plans for its university press to merge with its library.  The new institution will launch a program of OA publishing, much as the University of Michigan Press did after moving into the University of Michigan library.

* The Open Knowledge Foundation is compiling a list of the works entering the public domain in 2010.

* Charles Elwood Jones compiled a list of the OA monographs in religion from Tyndale Press.

* A new book on OA:  Open Access: contro gli oligopoli nel sapere, by Jean-Claude Guédon (Edizioni ETS, October 2009).  The full-text is OA in English <http://bit.ly/ff5LN>.

A new book on OA:  Access to Knowledge in South Africa, ed. Andrew Rens and Rebecca Kahn (University of Cape Town and the Information Society Project at Yale Law School, 2009) .

* A new OA-related book:  Ensuring the Integrity, Accessibility, and Stewardship of Research Data in the Digital Age (National Academies Press, 2009).  Based on a study by the National Academy of Sciences' Committee on Ensuring the Utility and Integrity of Research Data in a Digital Age.

* Chinese officials think Google infringed the copyrights on more than 20,000 Chinese books scanned from US libraries without permission from the rightsholders.  Google scanned the books for search indexing and snippet display, and denies infringement.  The two sides are talking.

+ Studies and surveys

* The United Nations Food and Agriculture Organization (FAO) is running a survey on OA in agriculture.

* The Centre for Research Communications and the University of Southampton launched a survey on how OpenDOAR (Directory of Open Access Repositories) and ROAR (Registry of Open Access Repositories) could be improved.

* Researchers from Saarland University released a survey on the desirability of new functions for OA repositories.

* Consumers International launched a worldwide survey (in 10 languages) on access-to-knowledge barriers.

* Victoria University released the results of a survey of attitudes toward OA in New Zealand

* Research and Markets published a TA survey practices at 56 institutional repositories in 11 countries.

* The Primary Research Group published a TA survey of university faculty on the use of digital repositories and attitudes toward OA.

* Theresa Velden and Carl Lagoze released a white paper exploring why the field of chemistry has been slower than other STM fields to realize "the value of new models of scientific communication enabled by web based technologies" such as OA.

* Australian researchers found that medical professionals with differing job descriptions differed in their willingness to accept an offer of free online to BMJ Clinical Evidence.  The acceptance rates were not affected by "additional strategies such as financial incentives, opinion leader support, [or] offer of professional development points...."

* Julio Alonso-Arévalo and Helena Martín-Rodero found that Spanish authors have made more deposits to the E-LIS, the international OA repository for library and information science, than authors from any other country.

* S.A. Rands found that OA and TA journals are equally likely to have ethics policies on animal research.

* Knowledge Exchange published a brochure comparing three studies of OA journal business models. 

* Mark Ware is undertaking a new study of submission fees and called on journals and publishers to share their experience with him.  The study is sponsored by Knowledge Exchange.

* The PEER (Publishing and the Ecology of European Research) project released its final report on repository deposit procedures.  The report is "a collaborative effort between publishers and the library and repository stakeholder communities...."

* The Fedorazon project released its final report on running a cloud-based repository

* JISC released a report on crowd-sourced, participatory "data-intensive open science".

JISC released a briefing paper on Meeting the Research Data Challenge.

* A JISC-funded study explored the integration of library catalogues and research repositories.

+ Software and tools

* The European Commission offered a preview of the OpenAIRE project, which will provide the OA infrastructure to support the EC's OA policy.  OpenAIRE will accept deposits from researchers and redirect them to the most appropriate final destination, starting with the author's IR, if any.  CERN will host a universal back-up repository for authors without an IR.  

* The German version of RoMEO officially launched. 

* The HathiTrust launched its search engine for the full-text OA books in its collection.  It lists every page containing the searchstring while sometimes returns only a partial list.

* TechJournalContents is a new search engine indexing the current issues of more than 4,500 OA and TA scholarly technology journals.

* Quertle added more than 60,000 peer-reviewed articles from BioMed Central to its biomedical search engine.

* With JISC funds, the Universities of Sheffield and Hertfordshire are creating a search engine for OA resources relating to early modern and nineteenth century British history.

* A group of British researchers described Scratchpads, a framework for the OA distribution of biodiversity data.  

* Cornell's arXiv has a $833,000 grant from the US National Science Foundation to add features allowing "authors, articles, databases and readers talk to each other" and "help users identify a work's main concepts, see research reports in context and easily find related work...."

* Tenurometer is a new Firefox extension using data from Google Scholar and social tags to compute impact measurements for any author.

* Molecular Diversity Preservation International launched Sciforum, a platform for OA scholarly conferences.

* eCAT is a new electronic lab notebook for gathering, managing, and sharing data online.

* Gallica announced a Flash-based book viewer.

* New modules now make Drupal OAI-compliant.

* ResearchGATE added free blogs for members, with an optional template for "microarticles" that report research results.

* The Open Knowledge Foundation released KForge version 0.17.

* OCLC release version 5.2 of CONTENTdm.

* MOAI, A Open Access Server Platform for Institutional Repositories, released version 1.08.

* SSRN upgraded iSSRN, its app for the iphone providing mobile access to the OA papers on SSRN.

* The University of Florida released an iphone app to browse and search its OA Digital Collections.

+ Awards and milestones

* The 2009 Open Archaeology Prize from the American Schools of Oriental Research went to the USC Digital Library for its map depicting 40 years of Israeli archaeological work in the West Bank and East Jerusalem.

* The Chronicle of Higher Education had more to say on the importance of the Israeli archeological map (above).

* The Webby Awards recognized Wikipedia's 2001 launch as one of the Ten Most Influential Internet Moments of the Decade.

* Huffington Post readers voted Sue Gardner, Executive Director of the Wikimedia Foundation, "the media game changer" of the year.

* Wolfram|Alpha was named "Best of What's New" in computing for 2009 by Popular Science.

* The 2009 Sparky Awards have three new co-sponsors:  the New Media Consortium, the Center for Social Media, and the Open Video Alliance.  Entries are due December 6, 2009.

* The American Library Association (ALA) Washington Office called for nominations for its two Madison awards, honoring those who champion public access to government information.

* Brazil's National Institute for Space Research (INPE) passed the milestone of one million OA images in its satellite image repository.

* Mendeley passed the milestones of 100,000 users and 8 million works.  "Mendeley says it is doubling in size every 10 weeks...."

* The Cornell IR reported 10,000 deposits and two million downloads since its launch in 2004.

* Les Classiques des sciences sociales now hosts more than 4,000 OA titles.

* The British Library passed the milestone of 500,000 items in its long-term preservation Digital Library System.  However, the items are not OA. 

+ Other

* The Central University Library Bucharest launched Open Access Disc, a web site to organize OA advocacy in Romania.

* Google Scholar now provides full-text OA to US case law (federal and state, district and appellate), along with "cited by" and "related" links to other cases.

* Google announced plans to create a OA collection of digitized exhibits and artifacts from the Iraq National Museum.

* BestThinking, launched in September, publishes unrefereed OA articles by attributed authors, like Knol or Citizendium.  Allan Maurer reports that it plans to enter the STM journal market.

* The Open Source Science Project (OSSP) will officially launch next month (January 2010), but already hosts three online projects:  the Human Brain Project, the Human World Project, and the Natural World Project.

* The Shakespeare Quartos Archive officially launched, funded by JISC and the US National Endowment for the Humanities.

* The ROTUNDA Project from the UA National Archives the Virginia Foundation for the Humanities digitized, annotated, and provided OA to about 5,000 previously unpublished documents from the American founding fathers.

* Three OA projects migrated to the CC-BY-SA license:  Antweb, Fedora (the Linux-based OS, *not* the repository software), and WikTiravel.

* The US Federal Agencies Digitization Guidelines Initiative (FADGI) released its project planning and management outline.

* Consumers International started filming its short documentary on access to knowledge.

* The Netherlands Association of Universities of Applied Sciences signed the Berlin Declaration.

* The Université de Provence signed the Berlin Declaration.

* The Open University Campaign added a list of universities meeting its criteria for openness.  The list currently contains four institutions.

* The University of Buenos Aires Faculty of Arts adopted a resolution repudiating the criminal prosecution and web-site closure of Professor Horacio Potel for distributing unauthorized OA Spanish editions of works by Derrida and Heidegger.

* The OpenAIRE project (Open Access Infrastructure for Research in Europe) is looking to hire an Project Officer.

* The University of Essex is looking to hire an Institutional Repository Manager.

* Microsoft Research is looking for a Senior Research Program Manager to help "advanc[e] the state of the art in teaching, learning and scholarly communication."

* PLoS launched an online store for PLoS-branded t-shirts, coffee mugs, and other merchandise.

* The Repositories Support Project created a an OA advocacy leaflet with a Christmas theme.

* The London School of Economics and Political Science Library added some images to Flickr Commons.  Although LSE says it supports the Commons rule that the images "no known copyright restrictions", it attempts to bar commercial use without permission and payment.

* TechDirt reports that YouTube seems to taking down videos with public-domain material when companies claimed that they owned the material.

* The city of Schenectady, NY, claims that its ordinances are copyrightable and charges for digital access.  It even denied a freedom-of-information request for access to the ordinances.  The city plans to provide OA to the laws sometime next year.


Coming this month

Here are some important OA-related events coming up in December.

* OA-related conferences in December 2009

* Other OA-related conferences


This is the SPARC Open Access Newsletter (ISSN 1546-7821), 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 or other sponsors.

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Peter Suber

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