Source: The Oregonian
Source: The Oregonian

The Department of Education (DoE) is proposing a new rule that would “require all copyrightable intellectual property created with Department grant funds to have an open license.” What does “open license” mean? In this case, it means the functional equivalent of a Creative Commons Attribution (CC BY) license: “These proposed regulations would allow the public to access and use copyrightable intellectual property created with direct competitive grant funds for any purpose, provided that the user gives attribution to the designated authors or copyright holders of the intellectual property.”

Interestingly, the policy would not apply to “peer-reviewed research publications that arise from scientific research funded, either fully or partially, from grants awarded by the Institute of Education Sciences (Institute) that are already covered by the Institute’s existing public access policy.” The Institute is the “statistics, research, and evaluation arm” of the DoE, and the difference between “public access” and “openly licensed” is significant: it’s the difference between “anyone can read the content for free” and “anyone may reuse the content in any way they wish, including commercially, without having to ask the copyright holder’s permission, as long as they attribute the original version to the original author.”

Also interesting are the range of public responses to the proposed policy—147 were submitted before the commenting period closed in December—and the way those responses are distributed by type of organization.

On the one hand, we have enthusiastic support from the Scholarly Publishing and Academic Resources Coalition (SPARC):

We applaud the Department for taking this critical step toward ensuring that educational resources created with Department discretionary funds are openly licensed for the public to freely use, share, and build upon.

Furthermore, among other suggestions, SPARC urges the DoE to adopt explicitly the CC BY license itself (rather than simply describing CC BY-like terms in the rule text), to strike the exceptions for peer-reviewed articles published under the Institute’s public-access program, and to require grantees to actively distribute their works to the public.

It’s worth noting that SPARC was, until recently, a unit of the Association for Research Libraries, which commented in support of the proposed rule change.* Other library organizations expressed support for the proposed open-licensing policy as well. The American Library Association (ALA) joined with the Association for College & Research Libraries (ACRL, itself a division of ALA) to write in support of the rule proposal, saying “we applaud the Department of Education’s proposed rule” and characterizing it as “an important step towards making curricular resources more readily accessible to our campus communities.”

Individual academic and research libraries commented positively on the proposed rule, too. The University of Kansas Libraries echoed the language of the SPARC comment, as did the libraries of Florida State University and Oklahoma State University; the UMass Amherst Libraries were similarly supportive, as were many other library respondents.

On the other hand, though, we have institutions of higher education themselves, which have been much less enthusiastic: the Association of American Universities (AAU) and Association of Public Land-grant Universities (APLU) joined the Association of University Technology Managers (AUTM) and Council on Governmental Relations (COGR) in stating their concern that the proposed rule would “go too far by adopting a ‘one size fits all’ approach to disseminating copyrightable works,” requiring institutions to use open licensing in situations where it would (in these commenters’ view) not be appropriate, such as  in the cases of “curricula, manuals, videos, art, photography, software, and webpages, to provide just a few examples.” The comment goes on to assert that “open licensing is not a suitable, much less optimal, strategy in all cases,” and expresses the concern that the proposed policy “would limit the ability of our institutions to transfer tested and validated educational technologies to the private sector,” among other concerns. Harvard University wrote a separate comment supporting the joint comment by the AAU, APLU, et al., as did the University of California system, the University of Minnesota, and several others.

It’s interesting to note that while the libraries of several APLU institutions spoke up in favor of the rule and of expanding its conditions further, the University of Kansas was the only library of the AAU institutions to do so.

There is a good summary of the gap between the libraries’ positions and those of their parent institutions here by Lindsey Tepe at Forbes, and I recommend it. (Tepe herself seems pretty clearly to be taking the side of the libraries.) However, Tepe passes lightly over what strikes me as a very important and potentially troubling aspect of this gap: in many cases, the gap exists not just between libraries and academic institutions generally, but between specific libraries and their own host institutions in particular. It’s worth noting that all of the libraries whose support for the proposed rule is cited above are located at academic institutions that have voiced serious concerns about it. That’s the issue that really strikes me: the implications of the divide itself for questions of library-institution alignment.

If a library has publicly stated its enthusiastic support of an initiative about which its host institution has expressed serious reservations, it seems to me that the library needs to be asking itself such questions as:

  • Is my provost aware of the discrepancy between our position in the library and that of the institution, and are we engaged in constructive dialogue about that discrepancy?
  • Is this particular discrepancy an outlier, or is it symptomatic of a larger pattern of disconnect between the institution’s priorities and those of the library?
  • How much daylight is there between the library’s position (on this and other issues) and that of the host institution?
  • Does the library’s public position place the library explicitly in opposition to any of the host institution’s key strategic directions — and if so, to what degree is that a political issue?

Of course, at particular libraries this may not be much of an issue at all: the University of Kansas Libraries, for example, have a long history of strong open access advocacy, and (assuming it has been paying attention to the libraries’ public positions and pronouncements), no one in the university administration will likely be surprised that the libraries have taken a public stance in support of the DoE proposal. But at most other institutions, I can imagine a situation in which the administration is somewhat taken by surprise to see the library taking a public position at significant variance to its institutional stance, and a rather uncomfortable conversation between the provost and the library director ensuing.

It’s worth noting, as always, that libraries and librarians are and should be free to express their views on issues such as these, whatever those views may be. In the cases cited above, it may well be that these particular libraries are consciously and deliberately positioning themselves in opposition to the goals and priorities of their host institutions as a matter of principle, and with the full knowledge of their institutions. Where this is the case, the situation is much less concerning than if the library is doing so unwittingly and in a way that might take the institution by surprise — in which case, the library may be dangerously falling down on one of its most important duties: knowing whether and to what degree it is working in support of the institution that provides its funding, capital equipment, building, and personnel.

* Correction, 17 March 2016: This sentence has been edited to correct the author’s earlier assertion that SPARC is a subunit of ARL. SPARC become an organizationally separate entity in  2014.

Rick Anderson

Rick Anderson

Rick Anderson is Associate Dean for Collections and Scholarly Communication in the J. Willard Marriott Library at the University of Utah. He speaks and writes regularly on issues related to libraries, scholarly communication, and higher education, and has served as president of NASIG and of the Society for Scholarly Publishing.

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28 Thoughts on "Library-Institution Misalignment: One Real-World Example"

I made a similar point in 2009 about the reasons why the host institution may not be as enamored of open access as its library. (Holley, R. P. (2009). Random ramblings: Barriers in higher education to open access and institutional repositories. Against the Grain, 21(1), 73-74. The first reason was the entrenched tenure and promotion system that is used to dealing with the traditional publishing model but may have trouble evaluating open access publications. If faculty members, the department, and the university administration all want to have its faculty’s publications appear in traditional journals or published by university presses because doing so facilitates achieving tenure and promotion, they may not look favorably on any open access rules that hinder this objective.

A second issue was institutional prestige. To cite this column, an administrator at my institution “didn’t want the university to take any action that would reduce the number of places where his faculty could publish. He also worried that the faculty would not be able to publish in the high impact journals that would bring prestige to the institution since these journals had their choice of manuscripts and could reject those from authors not willing to sign away copyright with few if any negative consequences for the journal.”

While much has changed in scholarly communication since 2009, this column from Rick Anderson brings up the very important point that many librarians consider open access to be an unalloyed good not requiring justification but that the host institution’s differing priorities may lead to a less positive view.

In this case University opposition stems from a direct financial interest in the IP (which is generally referred to as OER, for Open Educational Resources). Here is how Tepe puts it:

“They make two arguments: first, they say open licenses stifle innovation and entrepreneurism. And second, they argue that open licensing negatively impacts the quality of resources. These two points align with the arguments put forward by commenters from publishing companies and many other established businesses (groups that don’t often see the benefit to any change in the status quo).”

The Unis make money from OER. This makes the divide rather deep.

Maybe this is a naive question, but is the DoE actively involved in the funding of OER production? Because if the DoE provides the money to the universities to produce or design these OERs, then it should have a say in how these OERs can be disseminated, particularly if the DoE is paying for everything. On the other hand, if the university also contributes by paying staff or providing space, then it becomes a matter of how the initial contract between the two parties was written.

Also, I can’t help thinking that if the universities are not happy with these newly proposed regulations, then simply don’t apply for DoE grants. If I am not mistaken, the DoE is not the only agency that provides grants – find another grant agency if you don’t like the DoE terms. Unless the DoE has a monopoly over grant money?

Just to clarify, I misdescribed the situation, trying to say too much in too few words. As things presently stand the University or developer gets the rights to the educational resources (ER) they develop under US DoED or ED grants (DoE is usually the Energy Department). This is analogous to the situation with grant funded technology, where the University gets the patent, not the government.

But there is a movement on to make these materials Open Educational Resources (OER) along the lines of Open Access (OA). The ED is now proposing to do just this, in future grants, as Rick describes. Few people question the government’s right to do this, so it is a policy issue, because it will hurt the Universities. I have not seen any good numbers on how much money is actually involved in ER production grants or sales revenue, but the overall grant programs run several billion dollars a year. The ED rulemaking technical support documents may have some data on this issue.

I doubt that anyone else is funding ER production at the scale the ED is. Also, in the case of the US Public Access program, which I also track, the government claims that partial funding is enough to give it a right in the copyrighted work. So the scope of this change in rights is conceivably quite large, not something he Universities want to just walk away from.

ED has done a perfunctory cost/benefit analysis of this proposal, including considering loss of commercial revenues. They basically say that commercialization seldom happens, as follows. See especially the last sentence.

“For example, under some competitive grant programs, grant recipients have produced materials that were subsequently sold or licensed to third parties, such as publishing companies or others in the field. Although an open license does not preclude the grantee or any individual from developing commercial products and derivatives from the grant funded material, it does remove the competitive advantage that these grantees currently possess as the exclusive copyright holder. In addition, publishers and other third parties may incur loss of revenue since their commercial product will potentially compete with freely available versions of a similar product. We note, however, that based on the Department’s program offices’ past grantmaking experiences, relatively few grantees develop and market copyrighted content paid for with Department funds.”!documentDetail;D=ED-2015-OS-0105-0001

This seems inconsistent with what the Universites are saying, unless the “relatively few” grantees that do commercialize stuff make serious money. This is the entire analysis of the issue, not much to say the least, as these things go in rulemaking.

As a communication strategy, its important to coordinate institution position statements, to be sure, but I think this post makes more of the situation than there really is. I just don’t see the misalignment here. Are there any comments submitted by a university that are directly contradicted by its own library’s comments? Not that I have seen. Just because AAU or APLU says something doesn’t mean that every member university has adopted that position. Members universities (and their libraries) are free to to take different views.

There is no evidence that KU, OK St., U Mass Amherst, or other libraries are actually out of sync with their universities. At some (maybe even many, I’m not sure) institutions, comments submitted to federal agencies are centrally coordinated or at least centrally reviewed. So for all we know, those library comments may have already been centrally approved by the university administration. I think it’s too much speculation to assume that they are actually misaligned with their campuses.

Also, you’ll notice that all of the institution examples (Harvard, Minnesota, UC) given above are written from their respective Offices for Research. The other university comments I have read have been similar; all authored by university Offices of Research of tech transfer offices. Who’s to say its not those campus units that are out of sync with the broader university?

My takeaway from the comments is simply that there is disagreement among institutions about how to approach access to DoE grant funded work, and that there is probably some (unstated) tension between individual campus Offices for Research (and Tech Transfer offices) and their libraries. Not that one or the other is necessarily out of sync with the university as a whole.

Hi, Dave —

I hear you suggesting that where we see misalignment between an AAU/APLU library’s position and that of AAU/APLU itself, it may be that the misalignment is between the university and AAU/APLU, rather than between the university and its library. I agree — that’s definitely a possibility. If the library asks the four questions I proposed in my posting, it should clarify that question. If it turns out that no real daylight exists between the library’s position and that of the university, then the conversation will be easy; if it turns out that there is a real internal misalignment, though, the conversation may be difficult but (if handled correctly) it will be ultimately constructive.

Is this about money or prestige? Let’s follow the money: the DoE (i.e. you and me, the taxpayers) give money to someone at an institution to do some research. Currently, the research is completed and the results can be sold to a private group (a publisher, perhaps) that can monetize the results of the research. Does the money go to the individual researcher? The department? The institution? Who stands to lose income as a result of the proposed rule? What is the potential impact of the loss of this revenue?

Hi, David —

I’m not sure I’m following the thread of your comment. Are you taking a position on the rightness and wisdom of the proposed rule, or on the issue of library/institution alignment?

The journal, if I am not mistaken, can copyright the presentation of the material but not the content.

In what way, and this I do not understand, is this any different than putting the raw (un edited and not reviewed and having reviews addressed) MS in the library and making it available?

It seems to me that once the publisher signs the piece for a journal and requests the copyright to that which is published which is different from the original ms because it is now edited and reviewer comments incorporated then the copyright issue is addressed. Am I wrong?

I think you are, but I’m having a bit of trouble seeing exactly what you’re asking. The difference between depositing one’s work in an IR (in whatever version) and adopting a CC BY licence (or the equivalent) lies not in the accessibility of the content, but in what one is allowing the public to do with one’s work beyond simply reading it. The DoE is proposing a rule that would require funded authors to adopt the equivalent of a CC BY license, which grants all copyright prerogatives to the general public. This means that while the author could technically assign copyright to a publisher, neither the author nor the publisher would have any say in how the work is subsequently reused.

I’m not 100% sure I’ve answered your questions, though.

It may be useful to keep in mind that the materials involved in this OER rule are teaching materials, not journal articles. They include things like curricula, training videos, manuals of practice, perhaps even textbooks or tests. So the publishers involved are educational resource publishers, not journal publishers. There may in fact be no publisher, rather for example a training firm that uses some materials on a proprietary basis. The University may have started this company. This is the world of education, not scholarly publishing.

Depending on how broadly one defines “scholarly publishing,” this is true, but the distinction you’re drawing doesn’t have any particular relevance to the issues under discussion here. For the purposes of this proposed rule, a publisher is a publisher, whether it’s in the business of producing textbooks or training materials or scholarly journals.

First of all it may help prevent confusion, because publishing ER and publishing journals are pretty different. In a journal the content is a brief write up of the results of funded basic research. In ER the content is the actual product of the funded effort and there generally is no basic research. Perhaps the relevance is also that in ER a lot of these materials are not published. They are used on a proprietary basis. Under OER they will have to be made publicly available. But my basic point is that the Universities make a lot of money from ER materials, both published and not, which is very different from having their research results published in journals. So I would say the distinction is very relevant, touching on several issues raised above.

“It’s worth noting that SPARC is a unit of the Association for Research Libraries.” Actually that isn’t true. SPARC started as an ARL initiative in 1998, but it has had different–and now more– members than ARL. In 2014 it moved out of the ARL organizational structure altogether and signed an administrative agreement with New Venture Fund.

Thanks for catching that, Ginny — you’re right of course, and the posting has now been corrected and an annotation added to acknowledge the correction.

For those who may (like Joe) have missed the original announcement of this change, here’s a link to the press release from 2014.

In the interest of accuracy, we would note that as library membership organizations, ARL and SPARC are always careful to alert our members to areas of potential sensitivity with their home institutions whenever we file comments or take a public position on new issues. In this instance, because we were aware of the joint comments that would be filed by our colleagues at AAU, APLU, AUTM and COGR, we were careful to include language in our comments to the Department acknowledging that there were some areas of divergence, and that we looked forward to working together as a community to resolve them. To that end, we specifically stated,

“We recognize that some concerns have been raised by members of the higher education community. As the Department reviews comments concerning this proposal to amend its regulations, there is great value in engaging in continued dialog with the higher education community to ensure that any concerns that may arise can be discussed and/or addressed.”

We have already had several productive meetings with AAU and the other higher education associations, and participated in a public panel discussion on this topic at the invitation of COGR. We are very pleased with the evolution of this conversation.

We appreciate you correcting the misinformation about SPARC’s status vis-a-vis ARL, and would just point out one more error to correct: in SPARC’s comments, we did not recommend that the Department change the rule to require CC-BY licenses, but rather suggested that they designate them in the implementation of the rule.

Can you explain or elaborate on the distinction drawn in the last half of the last sentence? What is the difference between a requirement and a designation of CC-BY licenses, as you see it?

Thanks for your comment, Heather and Prue. To clarify a couple of things:

You characterize as an error (and ask me to correct) my observation that “SPARC urges the DoE to adopt explicitly the CC BY license itself (rather than simply describing CC BY-like terms in the rule text),” but I don’t see any other way to read the language in the section of your comment titled “Specify a Standard Open License in Grant Contracts.” In that section you “urge the Department to consider not only compliance with the terms specified under § 3474.20(a), but also features that will be maximally useful to grantees and the public,” later saying that “the Creative Commons Attribution License (CC BY) would be a natural fit for the Department to adopt for licensing educational materials and other non-software works,” that “CC BY is well aligned to the terms specified under § 3474.20(a),” and that “the use of CC BY would… address an important concern that frequently arises about adaptations.” So your comment features a section the title of which urges DoE to adopt a standard license, and which then makes the argument that CC BY should be that license. It really does sound to me like you guys are urging DoE to amend the draft version of the rule to include the specific adoption of CC BY licenses. Am I misreading?

You also observe that ARL and SPARC “are always careful to alert our members to areas of potential sensitivity with their home institutions whenever we file comments or take a public position on new issues.” You offer this observation “in the interest of accuracy,” which seems to imply that I somehow suggested otherwise in my posting. I don’t believe I did so, but I’m open to correction–can you clarify?

Hi Rick.The NPRM asked for comments on both the rule itself and how to effectively implement it, and our response addresses both areas. Regarding the rule text, we explicitly ask ED to keep the proposed open licensing language as-is (see section “Maintain Strong Definition of Open License Terms in Final Regulation”). We go on to recommend that ED can best implement the rule by specifying a standard license, ideally CC BY, in applicable grant contracts (see “Specify a Standard Open License in Grant Contracts”). Nowhere do we ask for the rule text to be changed to explicitly say CC BY.

Hi, Nicole —

OK, now I see what you guys are saying; thank you. But if we’re going to insist on fine distinctions, then I guess I should point out that my piece doesn’t actually say SPARC had asked the DoE to change the rule text itself to require CC BY — what I said is that SPARC “urges the DoE to adopt explicitly the CC BY license itself (rather than simply describing CC BY-like terms in the rule text).” Isn’t that a fair and accurate representation? Right now DoE describes CC BY-like terms in the rule text, but doesn’t say anything specific about CC BY anywhere, either in the rule text or in its grant-solicitation instructions. SPARC urges DoE to “provide specific direction on which license to use in applicable grant solicitations” and says that “for non-software works, the Department should specify the exact license to be used.” If SPARC is urging DoE to “direct” grant applicants to use CC BY, then doesn’t that mean it’s urging DoE to adopt CC BY as the required license for grant recipients? The verbs “direct” and “specify” are both pretty strong. I don’t see any way around the interpretation that SPARC is urging DoE to adopt a policy of compulsory CC BY, at least for non-software works. (Whether that policy is embedded in the rule text or in the grant-solicitation instructions, the effect–a new CC BY requirement for grant recipients–is the same.)

I agree, Rick. As far as specifying CC-BY goes, it is a distinction without a difference. Even worse, adding substantive content during implementation that is not in the regs is called bootleg rulemaking, because there was no notice and comment on it. Specifying CC-BY by name is a major change because a foreign standard is then incorporated by reference.

Although it is not so relevant to this particular case, I would note that university presses are as much an integral part of their universities as libraries, albeit with much less “political” power, and I doubt very much that libraries ever think of trying to align their positions on copyright with those of the university presses that exist on their campuses. So, what exactly does aligning with the interests of the university really mean, if universities consist of disparate units that each may have different positions on particular issues? University presses, I would suggest, are much more sensitive to issues of misalignment than libraries tend to be and would never take a public position that their parents universities did not endorse (although their association, the AAUP, well might). It is no accident that the only university presses involved in the GSU case are British, and that the only US-based university press that has been involved as a direct party to a suit (in the MDS case) is Princeton, which is the only press I know that is independently chartered from its parent institution and is therefore free to take positions on public issues different from its parent (which is really not a parent so much as a partner in the case of PUP).

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