Theme 8: Public Policy and Legal Matters
Public policies and the legal environment have great power to inhibit or enable scholarship and its communication whether indirectly or intentionally. As works of research and scholarship move to formats where they can be shared, reused, reformatted, segmented, and repurposed in a variety of ways impossible with print works, a host of policy questions arise. Many of the themes discussed previously, such as preservation and organizational models, present public policy issues.
Copyright policy has many points of intersection with changing systems of scholarly communication. As new modes develop, questions of how to manage ownership emerge. As new kinds of joint authorship arise, how is authorship and the ability to control the use and dissemination of works managed? Who actually owns the copyright to works such as postings in blogs, etc.? Other kinds of compound and hybrid works raise similar issues.
Copyright policy also affects the uses that can be made of works of research and scholarship, whether these are publications or less formal communication mechanisms. Rights to make particular uses of works may be poorly defined when copyright ownership is ambiguous. Attempts to map old definitions into new situations may significantly inhibit the opportunities that new communication modes offer to speed and enhance research and scholarship. Fair use exemptions in copyright law permit a wide range of uses of works without permission of copyright holders and underpin many uses of works for teaching, and a host of traditional practices such as quotation, citation, criticism, and parody. Our current environment may be undermining the intent of fair use provisions as works of research and scholarship shift from print to digital formats, for instance, when payments are made for permissions when it is unnecessary to do so or if authors refrain from making use of works when they are unable to ascertain who, if anyone, exercises copyright control over them (e.g. orphan works).
Federal policies are also being considered or enacted that intend to increase access to the results of scholarship and research, including a “public access” mandate under consideration for the NIH (and other federal funders via the 2006 Federal Research Public Access Act) in the U.S., or in place for the research councils in the U.K. and elsewhere. Rhetorically, both proponents and opponents support advancing knowledge through efficient and well-structured scholarly communication systems. But there are significant differences of opinion and resulting tensions from policy and legal intervention. Meanwhile, libraries are challenged to participate in crafting and debating new policies, informed by an only modest amount of modeling and evidence of their impact.
Policy environments also enable or constrain innovation differentially, so that private universities, public universities and commercial enterprises have advantages and disadvantages relative to each other. This differential may be mined creatively, such as in the Google Books Library Project, but may dampen innovation and collaboration at other times.
Illustrative Challenges
With regard to copyright, we need to understand better the ways in which universities could maximize fair use to repurpose materials for distance education, K-12 teaching, public service and outreach, other research uses, accessibility for special populations, teaching and learning outside of formal educational venues, and the like.
Protecting fair use, especially as collections shift from print to digital formats, and for which there are fewer guidelines and guiding case law, is an enormous challenge. Rights boundaries and ownership affect the informal and new forms of communication such as blogs, gray literature, and commentary. The need is increasing for informed investments in copyright expertise, risk assessment, and reduction plans. Will, for example, proposed orphan work legislation requiring “reasonable effort” to identify and try to contact the rights-holder for these works help libraries or require additional workload and resources?
Libraries may not have the requisite experience and expertise in assembling copyright services to assist authors to incorporate others’ material in their own creative work and to help authors manage their own copyrights. They need to understand the legal boundaries and the potential for influencing local policy in order to leverage copyright as a tool to enhance the dissemination and impact of scholarship.
With regard to public policy, universities and their libraries need to gauge their commitments to scholarly communication policy interventions and to make investment decisions about their advocacy efforts. This is necessary, for example, to differentiate the goal of “open access” from the policy compromises that may appropriately first enable “enhanced” or “sustainable” access.
As for the differential effects of policy, government funded research and academic institutions employ human subject constraints to protect participants in experiments, clinical trials, and other research activities. While the oversight of Institutional Review Boards (IRBs) is mandated by law, each institution is responsible for setting up their own policies and procedures. As a result, the IRBs operate locally and autonomously, so that conducting research across multiple institutions is difficult if not impossible. Consequently, commercial entities, such as search engines and Internet service providers, have much richer data about use of the Internet and other facets of the cyberinfrastructure than do universities.
As noted in the previous theme, public policy developments will play a key role in addressing preservation challenges. In the short term many rights questions complicate or even inhibit preservation efforts, and the development of long term preservation solutions are dependent on the evolution of the public policy agenda.
Research Possibilities
- Determine new investments in copyright expertise and service that have been made by libraries and their institutions. Use information from a sample of institutions and extend projections for those who have not yet invested. Characterize the potential for deeper collaborations in copyright expertise and services.
- Quantify increased expenditures by libraries for individual permissions and expanded licenses to allow needed uses of content that may actually be covered by fair use. For instance case-by-case analyses of whether fair use would address specific needs, or cost-benefit analyses of the cumulative labor costs required to make these determinations compared to expanded licenses.
- Encourage local study of the cost and impact of complying with new policies, such as funders’ “public access” mandates, and aggregate that information. Explore the potential for collaborations that provide community-wide compliance services.
- Mine the literature and records on university-industry partnerships, identifying cases where differential strengths or policy environments led to an innovation in library or scholarly publishing service.
