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 became an organizationally separate entity in 2014.