From: Kevin Smith <[log in to unmask]>
Date: Thu, 4 Jun 2015 12:22:03 +0000

I am at something of a loss to know how to respond to this, since we seem
to have moved very far from the original topic of discussion, which was
the new Elsevier policy about article sharing and the COAR Statement in
response to it.  My first reply to Sandy was trying to point out that the
rhetoric of stealing was inappropriate to the conversation, because
nothing in the COAR statement remotely justified the idea that someone
would "steal" the property of university presses, even if we were using
the correct term.  To now move to a scenario where libraries offer POD
copies of eBooks published by university presses seems even farther
afield.  No one is suggesting such a thing; we are trying to discuss the
need for the business structures of scholarly publishing to serve the
ultimate goal of scholarship, rather than undermining it.  The COAR
statement asks that we in the academy put the goals of scholarship --
presumably related to learning and the advancement of knowledge -- in the
forefront and find appropriate business models to advance those goals, not
that we violate the law.

Surprisingly, the reference to Robert Spoo's book "Without Copyright:
Piracy, Publishing and the Public Domain" might be germane here.  I have
read it, of course, and wrote a blog post that is largely a review of the
book back in 2013.  See:

https://blogs.library.duke.edu/scholcomm/2013/09/27/the-varieties-of-the-pu
blic-domain/

For one thing, Spoo does discuss the fact that the rhetoric
of theft, piracy, etc. is often used in inaccurate and inappropriate ways.
I cite some of that discussion in the post I wrote.  But more importantly,
the whole thesis of Spoo's book is that the publishing industry evolved to
address changing legal and business conditions.  "Piracy" by U.S.
publishing houses was an economic strategy that helped the industry
develop, but it eventually gave way first to informal agreements and then
to formal legal structures and business practices. In the discussion of
the Elsevier policy and the COAR response, we should be considering how
the dissemination of scholarship will likewise adapt to changes in the
academic, legal and economic ecosystem.

The issue that has generated so much heat on this list, about not
subordinating scholarly goals to commercial interests, ought to be
relatively non-controversial.  We are simply asking the industry that has
grown up around scholarship to change with the times, and with new
technologies.  It seems reasonable that older economic structures will
become outdated, and successful participants in the market will be those
who adapt.  This is what I take Spoo's book to be about.  In the area of
scholarly publishing, no one, that I know of, is advocating a
free-for-all; that is nothing but an irrational fear, or perhaps
intentionally inflammatory rhetoric, from some in the industry who
steadfastly resist change.  What we do expect, and what seems inevitable,
is a shift in business models so that the goals of scholarship -- the
reasons why the works are written in the first place -- are the driving
force in determining which business models deserve support.  Any other
approach is the tail wagging the dog.

We are not talking about stealing anything here; we are talking about not
giving works to publishers whose policies seem at odds with what we
believe are the best interests of our work and our academic commitments.
If a scholar doesn't like Elsevier's policies about sharing and open
access, she shouldn't publish in Elsevier journals.  Then, if enough
scholars make that decision, academic libraries will no longer need to buy
those Elsevier journals.  The same is true with any specific university
press -- if I think their policies are harmful, I will not publish with
them.  I made exactly this decision last year and blogged about it at:

https://blogs.library.duke.edu/scholcomm/2014/12/22/getting-press/

On the other hand, we should, and I think will, continue to support those
business practices which seem most in accord with the basic values that
underlie the scholarly enterprise.

Kevin L. Smith, M.L.S., J.D.
Director of Copyright and Scholarly Communications
Duke University Libraries
Durham, NC 27708
[log in to unmask]



On 6/3/15 8:22 PM, "LIBLICENSE" <[log in to unmask]> wrote:

>From: Sandy Thatcher <[log in to unmask]>
>Date: Wed, 3 Jun 2015 18:01:01 -0500
>
>Kevin is evidently not aware that for most books they publish
>university presses do pay royalties, just as commercial publishers do.
>
>He also seems not to have read Robert Sproos's book titled "Without
>Copyrights" (Oxford 2013) that shows that the language of piracy and
>stealing was very
>commonly used in the late 19th and early 20th centuries in reference
>to American publishers bringing out U.S. editions of foreign works
>when there was no legal copyright protection for them at all. My use
>of the word is much more literally true because I am talking about
>actual copyright infringement if, say, libraries as publishers were to
>issue POD editions of u-p ebooks posted under a CC-BY-ND-NC license,
>which they might do to further the progress of knowledge while
>denigrating all commercial interests.
>
>Sandy Thatcher
>
>
>> From: Kevin Smith <[log in to unmask]>
>> Date: Fri, 29 May 2015 12:17:30 +0000
>>
>> What is ridiculously overreaching is the use of the word "stealing"
>> here.  It is an unfortunate fact that the legacy content industries
>> often use the language of theft and stealing in a legally inaccurate
>> way to create a moral panic.  But it is less appropriate around
>> academic publishing than in almost any other context.
>>
>> We need to recall that academic publishers get the content they sell
>> for free.  There is no other industry I know of that is allowed to
>> sell, at monopoly prices, content for which they pay their suppliers
>> nothing at all.  Scholarly publishing has had an incredibly privileged
>> market position for years because what they supplied -- printing,
>> binding and distribution -- was so costly and difficult.  But that
>> market position has changed in the digital environment.  All that the
>> quoted statement suggests is that we should ask if the value
>> proposition still holds.  Are we getting a benefit that justifies the
>> cost?  Clearly many people believe that we are not getting adequate
>> benefit from the large commercial publishers.  The value proposition
>> is different with non-profit university presses, but we are still
>> entitled to inquire into it.
>>
>> To steal from a university press, in the proper legal sense, we would
>> have to break into its offices and take away their computers, etc.,
>> with the intent to permanently deprive the press of their use.  That
>> would be the crime of theft.  To infringe a publishers copyright, we
>> would have to use content over which they held a valid copyright in an
>> unauthorized way.  That would be the tort of infringement -- a civil
>> wrong -- but not theft or stealing.  But to decide that a particular
>> press is not giving value that justifies the cost -- to decide not to
>> give that press content over which I am the legitimate copyright
>> holder -- that is just a business decision.  Presses are not entitled
>> to the works of any author; they must compete, at least a little bit,
>> to show that they deliver value.  To shout theft just because someone
>> says that they do not believe the value is there is truly ridiculous
>> overreaching.
>>
>> Kevin L. Smith
>> Director, Copyright & Scholarly Communication
>> Duke University Libraries