No question, 2008 was an eventful year, one that ended with hope as Barack Obama was elected the first African-American president in U.S. history, and uncertainty, with the country and world amid a staggering economic collapse. As 2009 dawns, hope and uncertainty will remain a theme for libraries. Stark challenges lie ahead for higher education budgets and university endowments. Still, there is room for optimism, as well, with emerging technology, glorious new library buildings, and quickly changing attitudes regarding scholarly communication.
We kick off the LJ Academic Newswire’s 10th Anniversary year with our list of the top ten stories of 2008, in two parts, and the potential for these stories to make even more news in the coming months.
1. Georgia State University Sued by Publishers over E-Reserves
E-reserve policy has pitted libraries and publishers against each other contentiously. But the way it landed in court in 2008 still managed to shock librarians and the higher education community. In April, Oxford University Press, Cambridge University Press, and SAGE Publications, supported by the Association of American Publishers (AAP), filed suit in Atlanta charging Georgia State University (GSU) with “pervasive, flagrant, and ongoing unauthorized distribution of copyrighted material.” The lawsuit was the first to be filed over e-reserves, despite years of saber-rattling, and marked a risky new tactic in the ongoing battle (see Down With E-Reserves!)
Among the suit’s many complicated points, two overarching questions loom. The first is whether GSU, a public university, can claim protection from the suit under the constitutional doctrine of state sovereign immunity. Given that the plaintiffs seek not damages but a policy change, they can take advantage of “one of the few exceptions to sovereign immunity,” explained Kevin Smith, on Duke University's scholarly communication blog, citing a 1908 Supreme Court decision known as Ex parte Young. “That exception holds that one can sue state officials in their official capacity if one is seeking only injunctive relief,” Smith noted
More importantly, however, and surely not coincidentally, two of the three plaintiffs are nonprofit university presses. As University of Michigan librarian Paul Courant pointed out in a blog post about the case, there is an element of “robbing Peter to pay Paul” in university presses suing a university library over fair use. “Things have come to a pretty pass when academic institutions sue each other over academic matters,” he wrote. “For all of the flowery language that we often hear from university presses about the importance of a robust nonprofit publishing sector in service to the academy, the issue here is plainly about the profits of the ‘nonprofit’ publishing sector.”
Legitimate disagreements over the bounds of fair use notwithstanding, the GSU lawsuit raised bigger questions for the current system of scholarly communication. In 2008, publishers opted to use the legal system to try to force change. The question in 2009 is whether the suit will ultimately serve as a catalyst for broader change.
2. Harvard’s OA Mandate
In February 2008, the Harvard University Faculty of Arts and Sciences (FAS) unanimously approved a motion that compels FAS researchers to deposit their scholarly articles in an open access (OA) repository to be managed within the Harvard University Library and to be made freely available via the internet. While the effect of the policy remains to be seen - faculty members can opt out, for example, and the functionality of the repository itself is still in question - the leadership of Harvard’s faculty offered the biggest boost for open access in the movement’s short history.
Indeed, in 2008, it was evident just how far things have come for open access. More than two-thirds of academic journals now permit self-archiving, so-called “green OA” on author web sites or in institutional repositories. Funding agencies, as evidenced by the passage of the NIH's mandatory public access policy, as well as recent mandates by funding agencies in Europe including the RCUK and the Wellcome Trust, now mandate open access. And innovative approaches like last year’s deal between Germany's Max Planck Society (MPS) and Springer, which includes a provision to pay for MPS researchers’ open access charges in Springer journals, indicate a shift in attitudes of both researchers and commercial publishers. And of course, Springer also bought pioneering commercial OA publisher BioMed Central.
Surely the Harvard mandate, which has since inspired other faculties to consider similar policies, will prove to be a major boost to OA. “The need for open access, and the failure of the traditional model of scientific publishing to make full use of the internet’s potential…are no longer issues of interest only to librarians or to activists,” observed Matt Cockerill, president of BioMed Central, after the Harvard mandate passed. “Open access is no longer just a nice idea,” he added, “but a concrete objective.”
3. The Google Book Search Settlement
In October, as first reported by the LJ Academic Newswire, publishers and authors agreed to settle their sweeping lawsuit over Google’s library scan plan with the announcement of a complex, ambitious USD125 million business deal. On his blog, University of Michigan’s Paul Courant, Google’s biggest partner in its book scanning efforts, acknowledged the settlement shifted Google Book Search from a “universal digital library” to a “universal digital bookstore” but suggested the deal was a win, because it was the quickest path to increased access to books.
Wider reaction to the proposed deal, however, has been mixed, with librarians and library advocates questioning whether libraries got a fair shake, with access to the full database, created from library collections, now subject to subscription terms. LJ Editor-in-Chief Francine Fialkoff warned in an editorial that “Libraries need to protect the public interest.” On his blog, The Googlization of Everything, University of Virginia media studies professor Siva Vaidhyanathan wasn’t buying Courant’s argument. “I am sympathetic to the claim that something is better than nothing and sooner is better than later,” he wrote. “These claims are not convincing when one considers just how great an alternative system could be, if everyone would just mount a long-term, global campaign for it rather than settle for the quick fix.”
Some critics of the deal bemoaned the lack of a decision on fair use in the settlement. Others breathed a sigh of a relief that fair use was not touched. Others wondered whether the deal signaled a deeper, troubling shift in Google’s corporate philosophy. “[Google] positioned itself as being willing to fight certain lawsuits on principle in order to get precedent-setting rulings on the books in support of openness, fair use, safe harbors and many other important issues,” Mike Masnick blogged on TechDirt. “It’s safe to say those days are long gone.”
So let’s get this straight: Google strikes a groundbreaking, game-changing deal with publishers and authors to put all books online - and we clock it as the third biggest story of 2008? Well, yes, and here’s why. First, having covered the lingering Tasini case (involving payments to freelancers for work in databases) for a decade we’re not sure the Google settlement will be approved in 2009, much less implemented. Approval seems to be on the fast-track, but we’ll see.
More importantly, while Google’s book-scanning is a vital change, it is part of a transition. The emergence of the Google subscription database could have enormous implications, exploding access - of some sort - to users from institutions with modest collections. It could change the way libraries develop collections, as smaller libraries deaccession titles or even subject areas in deference to the digital substitute.
But librarians should be more concerned with what the books and publications of tomorrow will look like. Print books of yesteryear may be scanned from library shelves within a decade, if you believe Google. Meanwhile, the issue of born-digital content - how it is bought, sold, throttled, and shared, even how that content is created and what functions it will embrace - will steadily become the key issue for libraries, publishers, authors - and most of all, users.
4. The Launch of the HathiTrust
It is the library community’s most ambitious digital collaboration ever. In a groundbreaking venture, some two dozen large research libraries announced in October the launch of a single, shared repository of digital collections, including scanned books, articles, special collections, and a range of “born digital” materials. The HathiTrust (incorporating the Hindi word for elephant), seeded largely by the University of Michigan’s work with Google, contains more than two million books and roughly a billion pages, nearly 16 percent of which is in the public domain and available to read freely online.
The project is worth watching for a few reasons; notably, its collaborative model, sharing everything from funding to technology and expertise, suggests that, after years of experimentation, libraries at last understand and grasp the needs and challenges facing them in the digital future. It may not always work smoothly, but HathiTrust suggests that libraries are finally pulling in the same direction.
5. NIH Public Access Policy Enacted, Challenged
In a major victory last April, the National Institutes of Health (NIH) public access policy, fought for by librarians since 2004, at last went into effect. The policy has had an immediate impact: monthly submissions to PubMed Central skyrocketed, more than tripling the monthly deposits over the previous, ineffective voluntary policy.
As they warned, however, publishers pushed back against the policy last fall. In what turned out to be a remarkable piece of political theater, on September 11, a Congressional subcommittee heard testimony on a bill titled the Fair Copyright in Research Works Act, which would bar federal agencies from requiring the transfer of copyright in order to get public funding. If passed, the bill would essentially ban public access policies like that of the NIH.
News of the hearing was first reported in the LJ Academic Newswire. Raising tensions, however, the bill’s text was not released until days before the hearing. In testimony, Ralph Oman, a former register of copyrights, bluntly and dramatically told lawmakers the NIH mandate would “destroy the market” for commercial scientific journals. Oman’s testimony, however, seemed mostly to raise a larger question: where was the current Register, Marybeth Peters, on this bill? Outgoing NIH director Elias Zerhouni strongly defended the policy, joined by SPARC executive director Heather Joseph. Letters of opposition to the bill poured in, from copyright experts, researchers, public advocates, as well as librarians.
In 2009, the controversial “Fair Copyright” bill will continue to face nearly universal opposition. Nevertheless, Association of Research Libraries associate executive director Prue Adler told the LJ Academic Newswire that advocates of the NIH policy should not underestimate the bill’s chances to resurface in 2009.
