Yearly Archives: 2017

A Tale of Two Cases: Fair Use in Who’s Holiday!
and KinderGuides

Posted September 28, 2017
Photo of Dr. Seuss drawing the Grinch

Dr. Seuss (Ted Geisel) at work on a drawing of a grinch, the hero of his forthcoming book, “How the Grinch Stole Christmas”  /  World Telegram & Sun photo by Al Ravenna | Courtesy of the Library of Congress

We would like to thank Authors Alliance legal research assistant Allison Davenport for writing the following analysis.

Two courts in the Southern District of New York recently decided two fair use cases that, on the surface, may appear to be similar but ultimately reached different outcomes. In one, a beloved children’s classic is grown-up for an adults-only stage adaptation. In another, classic adult novels are presented as colorfully illustrated children’s books. Yet, the former was judged to be a fair use and the latter was not. What led the court to these opposite rulings, and what can it teach us about how fair use works?

Fair Use

Fair use is a limitation on U.S. Copyright law which allows authors to use portions of a copyrighted work without permission or payment, so long as that use is “fair.” Courts consider at least four factors when determining whether a use is fair: 1) the purpose and character of the challenged use (often asking if the use is “transformative”), 2) the nature of the copyrighted work, 3) the amount and substantiality of the copyrighted work used, and 4) the effect on the potential market for the copyrighted work. These four factors do not work in isolation and must be carefully weighed together to determine if a work is fair.

Who’s Holiday! – Matthew Lombardo and Who’s Holiday, LLC v. Dr. Seuss Enterprises

“In creating these juxtapositions, the Play, rather than trading on the character of Cindy-Lou Who and the setting of Who-Ville for commercial gain, turns these Seussian staples upside down and makes their saccharin qualities objects of ridicule.”

Who’s Holiday! is a one-woman stage play by Matthew Lombardo which features a 45-year-old Cindy-Lou Who from How the Grinch Stole Christmas recounting the circumstances that led to her life as a drug addict living in a trailer, alone on Christmas. In the play, Cindy retells the events of Seuss’ story but then goes on to describe how she became pregnant with the Grinch’s baby at 18, married him, and suffered through unemployment and starvation before eventually killing the Grinch and being imprisoned for his murder. The play is told in rhyming couplets similar to the style of Seuss’ original, with a few exceptions.

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Termination of Transfer FAQs

What does termination of transfer mean?

Termination of transfer is a way for authors (or their family members) to reclaim rights to works that they previously signed away (after a statutorily specified amount of time). An author’s ability to exercise this option depends on many factors, including how old the work is, when the transfer agreement was signed, and whether the work was ever published.

Why would I want to get my rights back in a work? What can I do with the rights once I have them?

There are number of reasons you may wish to get your rights back in a work. Sometimes, you may be motivated by the work’s lack of performance as currently licensed, such as when your book is no longer being printed or isn’t selling well anymore. Or maybe your work is performing even better than expected and you now want leverage to renegotiate a long-outdated contract. You may even wish to open your work up to more readers through digital distribution or free licensing.

Whatever reason you have for getting your rights back, there are a variety of options available to you once you have them. You may relicense the work to another publisher or to the same publisher under different terms, you may release the work under an open access license, or you may self-publish the work either in a new print or digital edition. Success stories from authors who have received their rights back can be found here.

It is important to remember that terminating a transfer of rights is contract-specific only applies to the rights you initially contracted for. These rights will come back to you, though your publisher may retain certain rights to derivative works, international publications, etc. If you have contracted your rights out to multiple publishers, you will have to execute a termination for each contract.

How does termination work?

Congress has granted authors the right to terminate a transfer of their copyright through three subsections of the Copyright Act (§§ 203, 304(c), and 304(d)). Whether termination is available for a given work is determined according to a long list of factors; however, a work typically must be at least 35 years old to qualify for termination, and notice must be given at least two years in advance before the right is exercised. Works much older than 35 years may still be covered under these provisions, and notice can be given up to ten years before termination so these windows vary greatly. If you think a work may be eligible for termination, we encourage you to go to rightsback.org and use the tool to get a sense of how these windows are calculated. In order to effectively terminate a transfer, the author must first give notice to both the rightsholder and the U.S. Copyright Office. Check out Authors Alliance’s guidance and templates for submitting a notice of termination.

If your work is not old enough or does not otherwise qualify for termination, seeking a rights reversion instead may be your best option for getting your rights back.

How is termination different from reversion?

Reversion is a process through which an author can get back some or all of the rights she has signed away to a publisher, either through a contractual provision that permits her to regain rights in her book when certain conditions are met, or through voluntary negotiations if her contract does not have a reversion clause. To learn more about reversion, visit our Rights Reversion Portal.

The main difference between termination of transfer and reversion is that termination of transfer is a mandatory right granted by the U.S. Copyright Act, whereas reversion is a contractual commitment or a voluntary act by your publisher. Even if there is a clause in your contract that prohibits termination of transfer, you may still exercise this option. Reversion, on the other hand, is not always guaranteed.

Reversion can also occur at any time, whereas a work must be at least 35 years old in order for termination of transfers to apply. Thus, if your work is relatively new, reversion may be your best option for regaining rights in your work.

How can I determine if termination is an option for a given work?

Authors Alliance and Creative Commons have collaborated on a free and easy Termination of Transfer Tool, located at righstback.org, which educates users about termination of transfer and roughly estimates whether and when a work may be eligible for termination based on hypothetical scenarios. This tool is not legal advice, but may be helpful in an author’s initial information gathering before deciding whether termination is an option they are interested in pursuing. If you are not sure whether termination of transfer provisions apply to your work, you may want to seek legal advice from a licensed attorney.

What role does Authors Alliance play in this? Can Authors Alliance help me get my rights back?

Authors Alliance collaborated with Creative Commons to create the Termination of Transfer Tool which can be a useful resource for authors researching termination of transfer for the first time. Authors Alliance also provides guidance and templates for submitting a notice of termination. While Authors Alliance cannot represent any individual authors seeking termination rights, we will continue to educate authors about their options regarding their copyrights. Our mission is to assist authors who want to reach wider audiences by disseminating their work more broadly, and termination of transfer is just one of the tools in an author’s toolbox to achieve that goal.

Where can I learn more?

More in-depth resources about termination of transfer can be found at Rightsback.org, including detailed information about how to calculate notice windows, what types of contracts are covered by this statute, who can terminate, and where you can gather the information needed to use the tool. If you have any additional questions about termination, you can send them to info@rightsback.org.

For more information about what to do once you have successfully gained your rights back, we encourage you to visit our Open Access Portal or our Rights Reversion Portal, which discuss how to use your copyright effectively to maximize your readership.

Authors Alliance Welcomes Allison Davenport

Posted September 20, 2017

Headshot of Allison DavenportWe are delighted to announce that Allison Davenport has joined the Authors Alliance team as a legal research assistant. Allison comes to us with a solid background in copyright and intellectual property law, having previously worked as a Legal Fellow at the Wikimedia Foundation and as a law clerk at the U.S. Copyright Office, where she focused on the Digital Millennium Copyright Act, fair use analyses, and other IP issues. We look forward to working with Allison to further our legal research, writing, and policy goals, and wish her a warm welcome to Authors Alliance!

 

David Hansen on Proposed Changes to Section 108 of the Copyright Act

Posted September 18, 2017

On September 15, the U.S. Copyright Office released a Discussion Document outlining proposed changes to Section 108 of the U.S. Copyright Act, which would update and expand on limited exceptions to copyright for libraries and archives. David Hansen, Director of Copyright & Scholarly Communications at Duke, has written a thoughtful consideration of the proposed changes. We’re grateful to him for his careful attention to the topic and for granting permission for us to reprint the following post, which originally appeared on the Scholarly Communications @ Duke blog.

DavidHansenEarlier today the U.S. Copyright Office released its long-awaited review of improvements to Section 108 of the Copyright Act, the section which grants limited, specific exceptions to copyright for libraries and archives. Over a decade ago the Office convened the Section 108 Study Group* to assess improvements to this section, and in 2008 that group produced its report. Since then (and with recent inquiries from the Office to stakeholders) we’ve been waiting to hear from the Copyright Office about its views on updates to Section 108. This Section 108 “Discussion Document” does just that.

Before getting into the document I want to start with two observations. The first is that Section 108 is horribly outdated. Most of its text is exactly the same as enacted in 1976. The piecemeal updates that have been added to address modern library and archives practices, including online uses, haven’t worked well and are awkward additions. I–and many others–have written about the need to update Section 108.

The second is that I’m leery of asking Congress to revise any part of the Copyright Act, including Section 108. From someone who thinks that copyright law already unnecessarily restricts access to lots of information in ways that have no positive effect on the copyright system’s underlying purpose–encouraging the creation and dissemination of new creative works–I don’t think Congress has a great track record on legislative revisions. Since the 1970s Congress has consistently made copyright terms longer, dramatically expanded the number of works protected, and has made using those works riskier. Asking Congress to revisit Section 108 could mean that it gets much worse, rather than better.

All that said, I think many of the Office’s suggestions are pretty good. I can’t go into every detail in this blog post–the Discussion Document is around 60 pages long, and it needs every one of those pages–so, for now, I thought I’d point out the top three positives I see in this document:

1) The Office suggests in a number of places removing hard numerical limits on the number of copies allowed. For preservation purposes, for example, the proposal would allow libraries, archives, and museums to reproduce works “as many times as is reasonably necessary for preservation and security.” This is a major problem under the current statute, which generally only allows for making three preservation copies. Perhaps more significantly, the proposal would also low eligible institutions to make incidental, temporary copies that are needed for making resulting preservation copies and for copies made for users. This is important when thinking about digital access because it would eliminate concerns about whether 108 can apply at all when incidental copies are made in the course of transfer from one machine to another.

2) It would expand the categories of works to which Section 108 applies. The current statute makes several Section 108 exceptions inapplicable to musical works, pictorial, graphic or sculptural works, and to motion picture or other audiovisual works. That restriction currently limits 108’s usefulness–and makes it all the more difficult to understand and apply–without providing a clear benefit for rightsholders of those kinds of works. This document also reframes how the Section 108 exceptions would apply to “published” versus “unpublished” works (the current Section 108 treats unpublished works differently, with the idea that unlike published works, there generally isn’t a commercial market to be harmed by the use of those materials ). The new proposal opts instead to make distinctions based on whether the work was ever “disseminated to the public” by the copyright owner. “Publication” is a notoriously difficult concept, so the move away from it to something a bit broader is welcome, though I’m not sure the concept of “disseminated to the public” is going to be easier to apply in practice.

3) It suggests that institutions should be able to provide remote digital access to users, albeit in some cases limited to one user at a time, for a limited time. This most directly applies to works “not disseminated to the public,” (i.e. unpublished works). For archives, this enhancement could be significant when thinking about how to provide access to preservation copies. Would an online reading room, with technology to allow for controlled digital lending, be permissible under these terms?

The Office’s 108 document also has parts that are likely to cause some controversy. One big one is a suggestion that eligible libraries, archives, and museums could be exempt from copyright liability for violating non-negotiable contract terms that prohibit institutions from engaging in preservation activities otherwise permitted under Section 108. I think this is an incredibly important suggestion, given the number of click-wrap, consumer-oriented license agreements that libraries enter into so they can provide electronic access to their patrons. Many of those contracts prohibit making copies necessary for preservation purposes, but if libraries aren’t saving copies there is a great risk that in the long term, those works may one day become entirely inaccessible to everyone.

Another part of the document likely to cause some controversy is the requirement that eligible institutions implement reasonable digital security measures. I understand the desire for such a limitation, but this is an area where the devil is going to be in the details. Who decides what is reasonable is an open question, and how compliance with that provision is monitored and assessed could be extremely burdensome for some institutions.

Overall, I have to say that I’m impressed. I think the Office did good work in pulling together the results of the Section 108 Study Group report as well as feedback from stakeholders in creating this document. As proposed, the Section 108 envisioned in this document still wouldn’t provide all or even most of what libraries, archives, and museums need to fulfill their missions,  and fair use would remain an important and probably overriding consideration when making uses of copyrighted works. But, as a sort of safe harbor for institutions seeking certainty for activities that they commonly engage in, the types of improvements outlined in this document would be welcome and a great help in facilitating modern (as opposed to 1970s-era) libraries, archives, and museums.

___________

* The 108 study group was jointly convened by the The National Digital Information Infrastructure and Preservation program of the Library of Congress and the Copyright Office.

Authors Alliance Petitions for New Exemption to Section 1201 of the DMCA

Posted September 14, 2017
photo of CD with padlock

photo by 422737 |CC0

Last month, we reported in detail on our petition to the U.S. Copyright Office to renew exemptions to the DMCA for lawful uses in multimedia e-books. Now, together with Professor Bobette Buster and the Organization for Transformative Works, we have also filed a petition to modify the exemption to Section 1201 as part of the Copyright Office’s seventh triennial rulemaking process.

The new petition, filed today, requests the following:

  • Lawful circumvention of DRM for use in fiction multimedia e-books (the current exemption is restricted to nonfiction multimedia e-books);
  • Allowing circumvention of DRM for use in multimedia e-books on other subjects besides film analysis (the current exemption allows for uses in film analysis only);
  • Removing limitations that refer to screen-capture technology.

We’re grateful to law students from legal clinics at the UC Irvine and the University of Colorado, Boulder for their work preparing the petition.

Further details can be found in the full text of our petition. Hover over the document below to view the petition in your browser, or download here.) Authors Alliance believes that multimedia e-books are an important form of authorship and wants to see authors empowered to fully realize their promise. We will continue to track the progress of the 2017-2018 rulemaking and provide updates as they become available.

Authors Petition for Modification

Spotlight on Open Access and Academic Publishing:
Barton Beebe

Posted September 12, 2017

Head shot of Barton Beebe

In the third part of our series on innovative academic publishing models—which has also featured Q&As with Eric von Hippel and James Boyle and Jennifer Jenkins—we asked Professor Barton Beebe of NYU Law School to tell us a bit about his decision to publish Trademark Law: An Open Source Casebook as an open access work. Now in version 4.0, this Creative Commons-licensed work for intellectual property law students was updated in July 2017 with updates and new statutory examples. The book is freely available for download, and is being used in over 30 law schools nationwide, with additional professors adopting it each year.

Authors Alliance: Given the many incentives to publish textbooks via traditional channels, why did you choose open access for Trademark Law: An Open Source Casebook (TLOSC)?

Barton Beebe: I chose online open access for a bunch of reasons. First, it’s just much easier to reach readers through open access. Even micropayments can be an insurmountable barrier for students without credit cards (which describes most students around the world). Instructors are also predisposed to assign the book if they know that students can easily access it and at no cost. This helps with adoptions.

Second, my experience has been that traditional for-profit textbook publishers in law offer almost no value added. They provide no editorial advice and often rely on authors to format and proofread the book. Meanwhile, they set ridiculously high prices, typically very little of which flows through to their authors.

Third, I really like the idea of giving the book away, especially since it’s a book for students, and it seems like classroom materials are what I already get paid to produce. TLOSC is already being used in something like thirty law schools around the world, with three or four added each year (which I think is not bad for a book about a little topic like trademark law). I sort of love that so many students are using my book and that they didn’t have to pay for it. That’s worth more to me than whatever royalties I would get through the for-profit model.

AuAll: How did you select which Creative Commons license to apply?

BB: Though TLOSC is available without charge, I do care about attribution, so insisted on that in the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license. I also like the viral nature of the ShareAlike provision, which means that anyone may adapt my book, but their adaptation must also be made available under the same CC license. For purposes of this book, I also see the noncommercial provision as basically viral in nature. It encourages others to use the book only in noncommercial ways.

AuAll: What results do you see from publishing your books openly? What do you see as the pros and cons of embracing this model?

BB: I think the main result of using the open access model is that a lot more people have used the book and so maybe it has had more influence than it otherwise might have. Another result is that the open access model seems to create a different relationship between authors and their readers. The book is offered as a kind of gift (it’s not exactly a birthday present!—but still it’s something human-made, meaningful, and useful that is happily given away). Readers are maybe a little more gentle in their attitude to the book, and maybe a little more prone to write me with corrections, suggestions, and kind words of thanks.

More generally, I hope that publishing the book openly is part of a broader trend in academics towards open access. I very much support the adoption of the principle that if a book or other work of scholarship is not made available through open access, it should not be considered a “publication” for purposes of things like academic tenure or promotion. If royalties were a significant part of how academics support themselves, I’d think differently, but they’re not. It’s especially weird (and disheartening) to see so many academic books in the humanities that advance strongly progressive views but that the author publishes under a traditional closed-access (and even for-profit) model—with the result that at best 1% of the world will have any real access to the book. There are definitely institutional pressures to distribute one’s work in this way, but already we’re seeing academic institutions shifting towards emphasizing open access.

AuAll: Could you share some lessons learned and/or other suggestions for authors on how they can make their works available in the ways that they want?

Even if a book author goes with a traditional closed-access publisher, it might be worthwhile to try to bargain for a contract provision in which the author can make the book available in a digital open access format at some point after the book goes out of print. This seems particularly important for scholarly works. For journal articles, try to bargain for a provision allowing the author to post a manuscript version of the article to their personal website or some equivalent repository.

Barton Beebe is the John M. Desmarais Professor of Intellectual Property Law at NYU. He specializes in the doctrinal, empirical, and cultural analysis of intellectual property law.

Spotlight on Open Access and Academic Publishing:
James Boyle & Jennifer Jenkins’ Open IP Casebook

Posted August 29, 2017
“The 1950’s distribution mechanism for the casebook…
needs to go the way of the whale oil merchant,
the typing pool and the travel agent.”
— James Boyle and Jennifer Jenkins

Cover of IP textbookThis summer, Authors Alliance founding members James Boyle and Jennifer Jenkins released the latest legal supplement to the third edition of their law school casebook, Intellectual Property: Law & the Information Society – Cases & Materials. As part of our series on innovative publishing models, we are featuring their insightful examination of the pros and cons of their model, and why they ultimately chose to forgo traditional textbook publishing.

Boyle and Jenkins have written extensively about their experience with writing a casebook and distributing it freely online under a Creative Commons license, and in 2015, when the book was first released, they co-authored a law review article of FAQs on open legal educational materials:

“Why do we do this? Partly, we do it because we think the price of legal casebooks and materials is obscene. Law students, who are already facing large debt burdens, are required to buy casebooks that cost $150–$200, and “statutory supplements” that consist mainly of unedited, public domain, Federal statutes for $40 or $50. The total textbook bill for a year can be over $1500. This is not a criticism of casebook authors, but rather of the casebook publishing system. […] Legal education is already expensive; we want to play a small part in diminishing the costs of the materials involved.”

“This is a broken market and one that reflects troubling pedagogical and, to be quite frank, moral choices on the part of both authors and publishers.”

We highly recommend the entire FAQ article for its thoughtful approach to an alternative publishing model, and—thanks to open access—it is available to read in full. We recently caught up with Boyle and Jenkins to ask specifically about their experiences from the authors’ perspective; here’s what they had to tell us:

Authors Alliance: What kind of feedback have you received from your students?

Boyle & Jenkins: They have generally been very positive. Obviously the price is nicer, particularly if it is free, but the benefits of openness come out in other surprising ways.  For example, visually impaired students have told us they really appreciate an open electronic text that can be customized using their favorite programs—to produce a machine-generated audiobook, for example, in whatever format they choose.  Other students like the ability to grab chunks of the textbook and paste directly into their notes.  For law students who often can’t get electronic versions of their—very heavy—casebooks, being able to take the casebook home for Thanksgiving is a plus.

AuAll: Do you have a key piece of advice or encouragement for other authors looking to follow your example? Anything you wish you’d known before you started?

Boyle: Just do it! As far as things we learned—I’d been doing open publishing since I was part of the founding of Creative Commons, so I probably had a head start—but we were surprised and delighted by the way in which openness changes the adoption of a textbook from a 0/1 decision—you do or you don’t—to something in which someone can grab our chapter on the history of copyright, or the economics of intellectual property, and pop it into their class without disrupting anything else.  As we say in the article, it is the shift from the “album” version of textbooks, in which you must by all or none, to the iTunes version where you can take a single track.

AuAll: Are there any other comments/insights that you would like to share with your fellow Authors Alliance members?

B&J: Both of us would say that we believe in Authors Alliance because we think open access to scholarly work is a moral imperative wherever it is reasonably possible.  But in our own lives, it is striking how much tangible benefit in terms of citation, influence, and so on that strategy has yielded.  When it comes to open access to scholarship, doing good can be very compatible with doing well.

James Boyle is William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke Law School. Jennifer Jenkins is a Clinical Professor of Law and Director of Duke’s Center for the Study of the Public Domain.

 

 

NAFTA Negotiations: Authors Alliance Joins Public Interest Groups in Support of Transparency and Balanced Copyright Policy

Posted August 18, 2017
Photo of open sign

Photo by James Sutton | CC0

Today, Authors Alliance joins with other public interest advocates such as Creative Commons, SPARC, Internet Archive, OpenMedia, and Public Knowledge to sign on to a statement in support of transparency and balanced copyright policy in the renegotiation of the North American Free Trade Agreement (NAFTA). The statement was sent to the trade ministries of Mexico, the U.S. and Canada, urging all three countries to make trade negotiation processes more transparent, inclusive, and accountable.

Closed-door trade agreements are not the right forum to create intellectual property policy, particularly when negotiations lack transparency. It is critically important that drafts of international agreements that address intellectual property issues be publicly available for comment so that authors and other stakeholders can weigh in on the proposed rules that will bind all member states. Moreover, such agreements are not flexible enough to account for rapid changes in technology.

Authors Alliance is particularly concerned that by shoehorning intellectual property issues in trade agreements without broad consultation, the resulting rules tend to favor longer copyright terms, increased enforcement measures, and harsh infringement penalties—without corresponding attention focused on appropriate limitations, such as robust fair use rights and other reasonable exceptions.

This imbalance does not serve the interest of authors and is out of step with our founding statement on Principles & Proposals for Copyright Reform. As both creators and users of content, authors depend upon balanced copyright policy that provides reasonable protection while not getting in the way of onward distribution and creation. Long copyright terms, for example, make it more likely that authors’ works will become unavailable or orphans. Lack of robust fair use exceptions, combined with harsh penalties, similarly make it more likely that authors’ works will go unused in subsequent works, limiting the original author’s reach and impeding the advancement of knowledge and culture. What’s more, users’ rights are authors’ rights. For example, authors rely on fair use in every phase of the creative process, and may need to circumvent digital rights management to create new works.

For these reasons, if NAFTA addresses intellectual property rights, “there must be active and enforceable mechanisms to protect exceptions and limitations regimes, fair use/fair dealing and the public domain, parties should resist extensions in copyright terms that punish new artists and creators, and there should be no increased criminalization for digital rights management circumvention.”

Further details can be found in the full text of the statement. Hover over the document below to view the statement in your browser, or download here.

Transparency_Digital_Rights_and_NAFTA_Aug_18_2017

 

 

Spotlight on Open Access and Academic Publishing:
A Q&A With Eric von Hippel

Posted August 15, 2017

headshot of Eric von Hippel

Just in time for the 2017 back-to-school season, we’re featuring a series of posts on alternatives to traditional publishing models. Earlier this year, Authors Alliance advisory board member and MIT professor Eric von Hippel released his book Free Innovation under a Creative Commons license—the newest addition to his online collection of freely available works. We asked him about his experiences with rights reversion, open access, and how academic authors and publishers can help to make books openly available.

Authors Alliance: You successfully regained the rights to your 1988 book The Sources of Innovation from Oxford University Press (OUP). How did you secure a reversion of rights? What have you been able to do with your book since reversion?

Eric von Hippel: When I contracted with OUP for my first book in the 1980s, I was not aware of open access as a possibility, so I simply signed a standard contract giving all rights to OUP. About 20 years later, I had become very interested in open access. I therefore asked OUP to allow me to conduct an experiment. OUP would allow me to post a free electronic version on my MIT website. If hard copy sales declined in the next period, I would pay OUP $1,000 as compensation for lost sales. If they went up, OUP would keep the profits and allow me to keep posting the free version. OUP agreed to these terms. Happily, sales of printed copies went up, so I was able to keep posting the free version from then on.

With respect to actually getting back the copyright for Sources of Innovation so I could go fully open access: About 5 years ago, my excellent activist OA colleagues (thanks especially to Ellen Finnie Duranceau of MIT) told me that I had a window of time in which I could get the copyright returned to me. That window was fast-approaching in the case of my 1988 book, so I simply wrote to my editor at OUP, asking him to give me back the copyright without my having to go through the formal process as dictated by the law. Sales were low at that point, so he simply said “fine,” and wrote me a letter transferring all rights back to me.

AuAll: We’ve written previously about MIT Press’ pioneering approach to open access. To date, you’ve published two books with MIT: Democratizing Innovation and Free Innovation. Your publication contract with MIT gave you the right to post free ebooks from the very beginning, ensuring that both books were “born open access.” Based on your experience, can you offer some advice to other authors—and publishers—who want to embrace this model?

EvH: In response to your question, I talked to my editor at MIT Press to see if they had by now evolved a standard set of OA practices. Turns out they have not. They are still experimenting. Sometimes, depending on specifics of a book—for example, is it a textbook?—their experiments result in negative financial consequences for the Press relative to their sales projections. Sometimes the consequences are financially quite acceptable. Things are also changing quite rapidly in terms of book-reading behaviors. Specifically with respect to my own books with MIT Press, the 2005 book had very acceptable print sales despite the availability of a free eBook version. The jury is still out on my new 2017 book.

Frankly, these days authors have to insist on an open access eBook option if they are to have a hope of getting a publisher to agree. And, they very well might be turned down even if they do insist. As we know, academic presses are not hugely profitable, and they cannot afford to take big risks. I have a feeling that a standard OA option that may emerge in the end will be something like the model now increasingly offered by publishers of academic articles: If authors want open access, they may increasingly have to agree to pay a fee to compensate publishers for (possibly) lower print copy sales.

AuAll: How did you select which Creative Commons license to apply to these books?

EvH: I really did not know which one to use—I just sort of chose the license others seemed to be using without really understanding the pros and cons. I will be able to make a more informed choice using information supplied by Authors Alliance by the time decision-making for my next book comes around. [Chapter Four of Authors Alliance’s guide to Understanding Open Access has additional information about selecting an open access license.]

AuAll: What results do you see from publishing your books openly? What do you see as the pros and cons of embracing this model?

Like most academic authors, I write books to have them read, not to earn royalties. The increase in readership I have experienced by going OA is really worth it to me—it makes me very happy. Evidence to date is that about 10 times more eBooks are downloaded than print copies are sold, so I guesstimate that I am reaching about 10 times more people with the ideas I find exciting than I could have done in the pre-OA era. It especially makes me happy that now teachers can assign even a single chapter of one of my books in a class in a developing country if they wish, without worrying about burdening students with any purchase costs.

Personally, I don’t see any negatives with respect to going OA—only positives. I actually feel very proud that I can contribute to my colleagues and to scholarship in this enhanced way. I am very grateful to the Authors Alliance for making it easier for me and many others to accomplish an Open Access outcome.

AuAll: Do you have any other suggestions for authors on how they can make their works available in the ways that they want?

EvH: Open Access is a wonderful goal—but as a young academic, please don’t feel guilt or failure if you cannot negotiate open access agreements right from the start. At the beginning of an academic career, very few of us have much leverage with publishers to negotiate for open access. Certainly, in the case of my first book I was at the start of my academic work and had zero leverage. In fact I was just very happy to get published by a good academic press like OUP, and would have signed pretty much any “standard terms” they asked for.

If this is your case too, I would urge you not to feel badly if you have to sign a traditional contract assigning all rights to your publisher. Better to survive the academic rites of passage. You will have a long academic career, and will have increasing abilities to demand and negotiate open access for your work as your reputation grows.

AuAll: We are honored to count you among the advisory board members of Authors Alliance. Thank you for sharing your experiences with our readers!

EvH: I am totally proud to serve on the Advisory Board. Pam Samuelson, as we all know, was a crucial founding member of Authors Alliance. She was the one who asked me to join. In my experience, Pam has wonderful instincts about what will help scholars and scholarship with respect to openness, and I signed on to support both her and this wonderful idea.

(As a side story in closing—I should mention that I tend to regard Pam Samuelson as akin to an unstoppable force of nature when she gets behind something she believes in. I still remember hearing about and worrying about the (ultimately defeated) proposed settlement between Google and commercial publishers a few years back. At a certain point, Google felt the agreement was in the bag. They then began sending lawyers around around the country to inform academic authors and others about how we could expect to function in the new world they envisioned. Indeed, they said, they were sure we would learn to love that new world over time. In fact, many academics were strongly against that proposed settlement for very good reasons, but things looked very bleak for the resistance at that time.

Then one day I heard that Pam had taken up the cause and was working hard against it with a few others. To the inexperienced eye, Pam and her colleagues were a small and lonely academic crew against mighty Google legal phalanxes that extended to the horizon like an endless sea of Orcs. However, as soon as I heard Pam was in the fight I immediately relaxed. Indeed, I remember thinking as I listened to a talk at the Boston Public Library by the very confident Google lawyers: Can’t they see what is coming next? Don’t they know they are now the walking (actually, limousine-riding) dead—about to experience the equivalent of the Lord of the Rings Ghost Army?)

So, in sum: Right on Pam, and right on, Authors Alliance! Keep it up! We are proud to be in this battle for Open Access with you!

Eric von Hippel is T. Wilson Professor of Innovation Management at the MIT Sloan School of Management, and is also Professor of Engineering Systems at MIT.  von Hippel graduated from Harvard College (BA), MIT (MS), and Carnegie Mellon University.  He is the recipient of three honorary doctorates, and numerous honors and academic prizes, such as the Humboldt Foundation Research Prize (2013), and the EU “Innovation Luminary” Award in 2015. 

von Hippel is known for his research into the sources of and economics of innovation. He has written three books on these topics, and also has published many articles in innovation management, ranging from the theoretical to the very practical.  Digital copies of all his books can be downloaded for free online from his MIT website at https://evhippel.mit.edu/books/

Authors Alliance Welcomes Advisory Board Members
Amy Brand and Alison Mudditt

Posted August 10, 2017

We are very pleased to welcome the two newest members of the Authors Alliance Advisory Board: Amy Brand and Alison Mudditt. They join a distinguished group of advisors who contribute valuable expertise and perspectives on academia, authorship, scholarly communication, legal matters, and publishing. In their roles at MIT Press and PLOS, respectively, Brand and Mudditt bring extensive knowledge of open science, scholarship, and innovative publishing models. We look forward to working with them and our other advisory board members to create, refine, and improve the tools and services we offer to authors in the digital age.

Amy Brand headshot

Amy Brand, Director of the MIT Press

Amy Brand was named Director of the MIT Press in July 2015. Previously, she served as VP Academic and Research Relations and VP North America at Digital Science. Brand serves on the DuraSpace Board of Directors, the Board on Research Data and Information of the National Academies of Science, Engineering and Medicine, and was a founding member of the ORCID Board, and regularly advises on key community initiatives in digital scholarship. She holds a B.A. in linguistics from Barnard College and a PhD in cognitive science from MIT.

Headshot of Alison Mudditt

Alison Mudditt, CEO of PLOS

Alison Mudditt is Chief Executive Officer of PLOS, a global leader in the transformation of scientific communication. Previously, she was Director of the University of California Press and has also held senior positions with SAGE Publications, Taylor & Francis, and Blackwell Publishers. She currently serves on the Board of Directors of the Association of Learned and Professional Society Publishers and has served on the Scientific Publications Committee and the Open Science Committee of the American Heart Association; the Dean’s Leadership Council at California State University Channel Islands; and the Executive Council of the Professional and Scholarly Publishing Division of the American Association of Publishers, as well as a number of other volunteer boards. She holds an MBA in addition to a Bachelor of Arts degree from the University of Bath.