When Open is Not Enough

when open is not enough
educators grappling with the need for libre
Laura Quilter, UMass Amherst (@lquilter) March 21, 2015
Nicole Allen, SPARC (@txtbks)

academia in crisis
• Despite successes of OA & growth curve, challenges remain
• Entrenched third-party economic interests …
• with significant control over legacy content &
• Significant political power
• Internal fractures & gaps
• Intra-university – faculty $$, tech transfer, presses, scholarly societies
• Disciplinary gaps
• Real confusion, and questions, over core licensing regime
• Perverse incentives to perpetuate third-party economic interests against self-
interest of academy
• Solutions unclear: F/OSS, Wikipedia, some disciplines offer possible
models.

TROUBLES IN PARADISE
academic dissemination of scholarship &
education

defining academia
TEACHING [learning] and RESEARCH [publication /
learning] done NOT-FOR-PROFIT
• fundamentally about creating & disseminating knowledge
• preK-12, higher ed, librarians
• for-profit parallel industries; segmented, except in code,
because of network characteristics of for-profit industries
• Professional creative sectors: academics, coders,
commercial creators, journalists. Large economies built
around the professions; cf. nonprofessional creative
sectors (smaller economies). Lines blurring! [e.g., etsy]

academic outputs
products
Research outputs
• Journal articles
• Monographs
• Conference papers / Posters
• Presentations
• “Data” in fixed forms : charts, graphs, photographs, datasets
• Reagents, materials
• Methods, protocols (including software)
• Inventions & discoveries
Teaching outputs
• Syllabi
• Presentations [Lectures, Slide decks]
• Notes, graphics, charts, etc.
• Tests & Problem Sets
• Textbooks & Anthology Readers
dissemination
Research outputs
• Publishers
• Publishers [including university presses]
• Scholarly societies
• Publication & informal dissemination on request
• Informal dissemination on request
• Publication & informal dissemination on request
• Patenting & Tech Transfer
Teaching outputs
• Informal sharing; Largely not transferred
• Classrooms; commercialized; MOOCs
• Classrooms; commercialized; MOOCs
• Informal; Commercial publication
• Commercial publication; library reserves, coursepacks, & roll-your-
own

striking features
• Publishers: Originally cooperative model; became service
sector over time; growth in prestige gave them market
power; larger commercial publishing sector trends shifted
their business model.
• Highly commercialized academic publishing
• Highly commercialized educational services sector
• Informal & ad hoc sharing: Methods, reagents; syllabi
• University commercialization:
• Bayh-Dole 1980; Tech Transfer
• Online Education, Works-Made-for-Hire, Academic
Freedom Exemptions

coders & academics
academics
• Salaried [universities]
• Reputation: Peer/Community assessment
• Sector product is split between publishers, academics,
& universities; “independent” work not separately
incentivized, but included in the whole
• Dissemination is overt goal; “scooping” &
protectionism to establish reputation are counter-trends
• Build on earlier work, necessitating open
infrastructure; interoperability, sharing of methods.
Proprietary controls based on paywalls—access
always there, for a fee.
coders
• Salaried [employers]
• Reputation: Peer/Community assessment
• Sector product is split between employer-owned product
and independently owned
• Interoperability & competition are overt goals;
dissemination depends on specific product. Role of
“scooping” in F/OSS a question; in commercial sector,
treated by law.
• Builds on earlier work; but significant proprietary code
base; regulated by law (copyright, patent); leads to
parallel structures / worlds. [MacOS, Windows, Linux]
Compare with commercial creators (musicians, novelists) and journalists.
Each economy has creators; service sectors that have become vested third-
party interests that claim ownership rights.

Problems Promoting the Progress
• Obvious individual harms from paywalls: Ellen Roche.
Preventable death; information about side effects locked
away behind paywalls.
• Social imbalances: Global south & undeveloped nations;
less privileged sectors & groups of all sorts
• Academia’s internal for-profit arm (tech transfer) leading to
perverse incentives [hold off publishing; patent litigation]
and overlawyering, hampering basic research [MTAs]
• Drain of capital out of academia to for-profit publishers

For-profit publishers
• Transfer of capital out of academy to for-profit sector, while
in direct conflict with central mission of academy
• Restrictions on use by second authors
• Restrictions on re-use by authors of their own content
• Takedowns by ASCE, Elsevier, IOP, others
• Charges to reprint figures
• Restrictions on use in teaching
• Litigations : Cambridge Univ. Press v. Georgia State Univ.;
AIME v. UCLA; Canada, India, Israel, New Zealand
• Loss of control over risk management; e.g., shifting fair use
analysis to for-profit sector
• Lobbying against open access policies
• Profiting from OA policies – e.g., higher fees & hybrid double-
dipping
• Selling OA articles

OA timeline
• 1971 – Project Gutenberg
• 1983 – GNU Project
• 1985 – Free Software Foundation founded
• 1989 – PACS-R, online open access journal; others followed
• 1991 – arXiv.org, physics preprint server; others
• 1992 – Various NIH projects from NCBI etc.
• 1994 – National Academies Press free, online versions
• 1994 – Stevan Harnad “self-archiving” proposal
• 1994 – Social Science Research Network [SSRN]
• 1996 – Bermuda Principles for humane genome data
• 1996 – Internet Archive
• 1997 – PubMed launched by NCBI; incorporated MedLine index
• 1998 – ARL launched SPARC, Schol Publ’g & Acad. Resourc Coal.
• 2000 – PubMed Central for free full-text
• 2001 – Wikipedia
• 2001 – PLOS announced; launched in 2002
• 2002 – Budapest Open Access Initiative
• 2002 – Creative Commons launched
• 2002 – SHERPA / ROMEO launched by JISC-FAIR
• 2002 – HHMI committed to funding gold
• 2003 – Bethesda Statement on Open Access Publishing
• 2003 – NIH Data Sharing Policy
• 2003 – Berlin Declaration on OA to Knowledge in Sciences & Humanities
• 2005 – NIH Public Access Policy
• 2005 – Research Councils UK draft OA policy
• 2005 – Wellcome Trust Mandate
• 2006 – Major publishers begin adopting hybrid journal programs
• mid-2000s : European mandates … author addenda … OA funds
• 2008 – Harvard mandate (opt-out with automatic waivers)
• 2008 – NIH mandate passed into law
• 2013 – White House OSTP Memorandum

“Open” successes
• Wikipedia & crowd-sourced knowledge sharing
• Open science – participatory science
• Open Access Movement – primarily journal articles,
therefore sciences; some movement on monographs
(humanities/social sciences)
• Open Education Movement
• Open Data [codifying informal practices]

Wikipedia
• Crowd-sourced knowledge sharing; from the people, for the
people
• Problems:
• Recapitulation of existing social inequities
• Bureaucratic growth
• Integrating academics & experts
• Non-Problems:
• Financial
• Initial editor / creation
• Numerous related & side & small projects (fandom!);
recognition for crowd-sourced knowledge communities.

Open Science
• Citizen science - sharing methods & reagents; crowd-
sourcing data collection. Promising effort that applies the
original academic vision, but early days yet
• Problems
• High barriers to entry in knowledge & capital; these also
recapitulate existing social inequities
• Infrastructure is professionalized & commercialized
• Models & Initiatives: Astronomy; distributed computing
projects; maker/DIY movement;

OPEN ACCESS
• Open Access [to published articles/research] – “free
online access to scientific and scholarly research
literature” – “Open access (OA) literature is digital,
online, free of charge, and free of most copyright and
licensing restrictions.” – Peter Suber, Open Access
• Focused on journal literature because most bang for the
buck. Immediate implications for access to health &
medical information; these exported into major gains
across global south & underdeveloped regions, players,
etc.

The Development of Open Access Journal Publishing from 1993 to 2009, Mikael Laakso et al, June 13, 2011. DOI: 10.1371/journal.pone.0020961
http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0020961#pone-0020961-g004

The graph (from Laasko and Bjork's paper - BMC Medicine 2012, 10:124) shows the numbers of papers published in three different
types of online open access journals from 2000 to 2011. Mikael Laakso, Bo-Christer Björk/BMC Medicine. Sourced from The
Guardian, http://www.theguardian.com/science/occams-corner/2012/oct/22/inexorable-rise-open-access-scientific-
publishing

Growth in funder OA policies
http://roarmap.eprints.org, screen-captured 2015/03/21

OA IN DETAIL
Licensing & Key Issues

Open in academia
• Open ACCESS … open DATA … open EDUCATION
• GOLD versus GREEN open access
• GRATIS versus LIBRE (in academia)

Open in academia
• Open Access [to published articles/research] – “free
online access to scientific and scholarly research
literature” – “Open access (OA) literature is digital,
online, free of charge, and free of most copyright and
licensing restrictions.” – Peter Suber, Open Access
• “free of most” – attribution required
• Removes price tags / toll access [creating “gratis”]
• Removes copyright permission requirements for repro / dist
• Removes copyright restrictions on derivatives
• Requires re-distribution on equivalent terms

“green” versus “gold”
• Green: self-archiving in repositories
• Gold: open access when published by journal or press

“green”
• Green: self-archiving in repositories.
• Rights blurry: Rights restricted by transfer of copyright to
academic publishers; “permitted” by agreement of
publisher.
• Copy not “final” & not preferred: Preprints; author final
manuscript; sometimes embargoed.
• Institutional & funder mandates in US largely
implement / require GREEN, relying on commercial
search engines (Google Scholar) to enable access

“gold”
• Gold: open access when published by journal or press.
• Key advantages: Rights clear up-front
• How to support commercial publishers or enable their
transition from toll to open access? Author fees.
• Recommendation by RCUK led to perverse incentives
• Gold rush of predatory publishers
• Hybrid journals & double-dipping
• Higher fees for hybrid journals & commercial publishers

“gratis” versus “libre”
in academic open access
“Gratis OA is free of charge but not more free than that. Users must still seek permission to exceed fair use. Gratis OA removes price barriers but not permission barriers.”
“Libre OA is free of charge and also free of some copyright and licensing restrictions. Users have permission to exceed fair use, at least in certain ways. Because there are
many ways to exceed fair use, there are many degrees or kinds of libre OA. Libre OA removes price barriers and at least some permission barriers.
-- Peter Suber, Open Access, p.66

“gratis” versus “libre”
in the Open Access Movement
• gratis: still relies on fair use or permission to reproduce &
distribute; to “use”, build on, translate, etc.

problems persist
• “Journal articles” first approach – monographs, whole disciplines
lagging behind
• Licensing choices – implications not always understood; adverse
interests of commercial players have affected choices.
• Entrenched players with vested commercial interests.
• Reputation management outsourced to (captured by?) the entrenched
commercial players.
• Academic publishing is VERY profitable.
• Educational services market is VERY profitable (and one of the few
ways in which academics earn $$$ for product).
• Perverse incentives in funding transition

Academic publishing
profitability
• Elsevier profits, $1.1bn in 2011 – BILLION, not million

Open Access
Open Data
Open Education

budapestopenaccessinitiative.org

Budapest Open Access Initiative
By “open access” to [peer-reviewed research
literature], we mean its free availability on the public
internet, permitting any users to read, download,
copy, distribute, print, search, or link to the full texts
of these articles, crawl them for indexing, pass them
as data to software, or use them for any other lawful
purpose, without financial, legal, or technical
barriers other than those inseparable from gaining
access to the internet itself. The only constraint on
reproduction and distribution, and the only role for
copyright in this domain, should be to give authors
control over the integrity of their work and the right
to be properly acknowledged and cited.

Routes to Open Access
1. Self Archiving (or “Green” OA)
2. Open Access Journals (or “Gold” OA)

Panton Principles: Summary
1.Make a robust statement of your wishes for the re-
use and re-purposing of data
2.Use a recognized license or waiver
3.The use of licenses consistent with the Open
Definition is strongly encouraged (use of licenses
that limit commercial use or derivatives is strongly
discouraged)
4.Placing data in the public domain is strongly
encouraged (especially when the data is publicly
funded)

UNESCO OER Definition
Open Educational Resources (OER) are
teaching, learning and research materials
in any medium, digital or otherwise, that
reside in the public domain or have been
released under an open license that
permits no-cost access, use, adaptation
and redistribution by others with no or
limited restrictions.

TAACCCT Licensing
As a condition of the receipt of a TAACCCT
grant, the grantee will be required to license
to the public all work (except for computer
software source code, discussed below)
created with the support of the grant under a
Creative Commons Attribution 4.0 (CC BY)
license. Work that must be licensed under the
CC BY includes both new content created
with the grant funds and modifications made
to pre-existing, grantee-owned content using
grant funds.

TAACCCT Licensing
Further, the Department requires that all
computer software source code developed or
created with TAACCCT funds will be released
under an intellectual property license that
allows others to use and build upon them.
Specifically, the grantee will release all new
source code developed or created with
TAACCCT grant funds under an open license
acceptable to either the Free Software
Foundation and/or the Open Source Initiative.

Adapted from slides by Cable Green available under CCBY at
http://www.slideshare.com/cgreen

LICENSING FLIP
Academia moves from CC–NC to CC-BY

CC-NC
Nina Paley, Mimi & Eunice, #219: “Money on the Internet”
Initial trend was a default CC-BY-NC; sometimes with –ND or –SA.
Early adopters were frankly unhappy with commercial academic outfits, and –NC seemed
obvious way to undermine them.

CC-BY
OASPA : Why CC-BY?
http://oaspa.org/why-cc-by/
“To fully realise that potential of open access to research literature, barriers to reuse
need to be removed.”
“The most liberal Creative Commons license is CC-BY, which allows for unrestricted
reuse of content, subject only to the requirement that the source work is appropriately
attributed.”
“CC-BY is now emerging as the gold standard for OA publishing, particularly in STM
fields.”
OASPA (Open Access Scholarly Publishers Association) + SPARC Europe Seal of
Approval program for OA journals : Both recommend CC-BY

from CC-BY-NC to CC-BY
http
://blogs.plos.org/opens/2014/08/15/rise-rise-creative-commons-1-2m-cc-licensed-schola
rly-articles
/
“1.2M CC licensed scholarly articles”
720,000 of them CC-BY
DOAJ: 547K CC-BY … 312K CC-BY-NC
Major Funder Mandates Now Trending CC-BY:
• OASPA requirements
• Wellcome Trust – CC-BY
• Bill Gates – CC-BY [gold], as of 2015/01/17 ; data

the beef with CC-NC
2005 : Kuro5hin - http://www.kuro5hin.org/story/2005/9/11/16331/0655
(1) “Non-Commercial” is vague & unclear
(2) Biased for academic uses and against commercial uses: “Enabling the commercial
sector to have access to and freedom to reuse the findings of published research (as
exemplified by the human genome project) is a natural way to seek to achieve
these ends.”
(3) The "non-commercial use only" variants of the Creative Commons licenses are
non-free, and in some ways worse than traditional copyright law -- because it can
be harder to move away from them once people have made the choice. – kuro5hin
(1) Incompatible with other free content
(2) Rule out other basic uses
(3) Support current copyright terms
(4) Commercial players use –NC to exclude competition

CC-NC – 2nd thoughts
• Anxieties about combination, permission, & permanence perhaps overstated:
• These are non-exclusive licenses & other licenses can happen, or be changed.
• Combination possible, so long as labeling & accounting followed
• -NC hasn’t been well-tested, but although grey, not necessarily excluded
• Central academic concern: Forecloses automatic harvesting & indexing in for-
profit databases of aggregated content. Good or bad? YMMV
• Possible cause of action in –NC: Publishers like Elsevier are continuing to sell CC-
licensed works. CC-NC gives open access rightsholders a cause of action.
• OASPA will not work with CC-SA or CC-ND (but will with CC-BY or CC-NC).

CC-ND
NO DERIVATIVES [ND]
“Derived use is fundamental to the way in which scholarly research builds on what has
gone before. One of the many benefits of open access publishing is that elements such
as figures from a published research article can be reused, with attribution, as part of
teaching material, or in other published works, without needing to request permission
of the publisher. Similarly, article translations, image libraries, case report databases,
text-mining enhancements and data visualizations are all examples of how additional
value can be created by allowing derivative use.”

CC-SA
SHARE-ALIKE [SA]
• “For example, material distributed within a Share-Alike article could only be
combined and redistributed with other share-alike content. In contrast, CC-BY
content can be combined with any content, and redistributed according to the terms
of that other content, as long as CC-BY’s own attribution requirement is respected.”
– False on its terms, since CC-BY can be mixed with CC-SA, so long as it is re-
distributed with a CC-BY-SA.

MANY QUESTIONS REMAIN
Challenges & lessons we may draw
from F/OSS and other open projects

core goals
• Students must be able to learn; society needs education broadly dispersed
• Academics need attribution & reputation management
• Dissemination to scholars, practitioners, & consumers, of immediate products &
infrastructure of research – papers, monographs; datasets; methods; reagents
• Promotes the Progress
• Remedies social inequities
• Fulfills individual goals & institutional missions
• Economically efficient – knowledge as a commons reduces transaction costs
• Enable building upon existing work
• Verifiability & Bug-Checking
• Incrementalist [better mousetraps]
• Innovative [peanut butter + chocolate; FTL drives]
• Aggregate [meta-analyses & algorithmic discoveries]
• New fields of study [digital humanities, e.g., linguistic, rhetorical analysis]

how to do community?
fostering & maintaining communities – what works?
• Lessons from Wikipedia
• F/OSS
• preexisting academic networks – informal sharing; scholarly societies; conferences.
Preprint servers have proven successful
Challenges:
• Academia is highly discipline-specific
• In software, salary & side projects can be separate; in academia, not so much—side
projects are salaried, intentionally. But this means that side projects are subject to
constraints of primary profession – politics, risk aversion, existing ownership rules,
bureaucracy, etc.
• Broadening the community really threatens elitism of academy. Academics worry
about misuses of science for political purposes (Sarah Palin); misunderstandings by
nonscientists (climate change denialists, anti-vaxxers, etc.).
• Response from library community : Remedy for speech is more speech

Internal conflicts
• Disciplinary gaps
• Ownership interests within the University:
• University Tech Transfer
• University presses
• Online education
• Faculty profits from patents & educational sector
Possible responses
• Re-asserting mission-first principles of university & societies ??
• F/OSS manages to maintain parallel structures; how?

challenges & lessons
Entrenched actors with adverse interests
• one response is to “code around” & build alternatives.
• Problem: Building parallel structure of information leaves gaps.
• Example: ProQuest (dissertation abstracts) versus NDLTD [Networked
Digital Library of Theses & Dissertations]
• Problem: Already captured content. Abandon or recapture?
• Termination of Copyright – 35 years. [1980 songs & comics right now]
• Example: Substituting significant revenues given to scholarly societies by
commercial publishers.
• Build alternative new societies reinvents the wheel, abandons existing
infrastructures, leaves orphans

TDM
PLOS: 2014/03/09 – Best Practices in Content Mining. http
://blogs.plos.org/opens/2014/03/09/best-practice-enabling-content-mining/
Does CC adequately provide for data mining in any case? - relation with EU Database
Protection Directive.

When Open is Not Enough

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