There is no clear interpretation of "Fair Use" relating to the amount of material that can be used for such activities as scholarship, teaching, reporting, and review.

In addition to advancing its fair-use argument, the university also says it is protected from federal lawsuits by sovereign immunity protections guaranteed by the 11th Amendment to the U.S. Constitution.

The outcome of this lawsuit will impact the ways in which colleges and universities distribute course materials and provide access to digital materials.

Read more in today's Chronicle of Higher Education.

Five more U.S. partners have joined SCOAP3: three laboratories, the Stanford Linear Accelerator Center, SLAC, the Thomas Jefferson Laboratory, the Lawrence Berkeley National Laboratory - University of California, Berkeley and two universities, the University of Illinois at Urbana-Champaign and the Northwestern University.

SCOAP3 now counts 29 institutions in the U.S., which have pledged to redirect their current subscriptions to High-Energy Physics journals to the initiative. More U.S. partners are expected to join in the near future. SCOAP3 is also supported by partners from 15 European countries, Australia and one international organisation. In total, SCOAP3 has received pledges for about 4 million euros, over 6 million dollars, corresponding to 40% of its budget envelope.

Note: SCOAP3 = Sponsoring Consortium for Open Access Publishing in Particle Physics

The Subprime Solution: How Today’s Global Financial Crisis Happened, and What to Do About It is a promising new title from Princeton University Press. ...

The Princeton press is planning something new for the release: Two weeks before print publication the book will be available as a Kindle e-book. Kindle is Amazon.com’s portable reader that allows for downloading of complete books. Launched in November, ... Kindle has been hailed as potentially opening up a new kind of reading experience. ... Kindle’s Amazon backing has given it a market that is attractive to many publishers — including university presses.

By the beginning of the fall, Princeton plans to have several hundred books available for sale through Kindle. Yale University Press and Oxford University Press already have a similar presence there. The University of California Press recently had about 40 of its volumes placed on Kindle and is ramping up.

... The experimentation with Kindle comes at a time that many experts are urging university presses to try new business models.

Readers would save some on Kindle books, but at least now modestly, and only after recouping the costs of the reader (currently at $359). The Kindle version of an Oxford book called Punishment and Democracy: Three Strikes and You’re Out in California sells for $21.96, compared to $24.40 for the paperback through Amazon. The latter also takes two to four weeks to ship and requires shipping fees. A Yale book, Churchill’s Promised Land: Zionism and Statecraft, is available for $25.20 via Kindle and $28 plus shipping in hardcover.

Read the full article.
Learn more about Kindle.

Read the full announcement.

From the announcement:

The Harvard Law School faculty produces some of the most exciting, groundbreaking scholarship in the world," said Dean Elena Kagan '86. "Our decision to embrace 'open access' means that people everywhere can benefit from the ideas generated here at the Law School....
Under the new policy, HLS will make articles authored by faculty members available in an online repository, whose contents would be searchable and available to other services such as Google Scholar. Authors can also legally distribute the articles on their own websites, and educators here and elsewhere can freely provide the articles to students, so long as the materials are not used for profit. ...

Open Humanities Press, will open it's doors on Monday (May 12) with the publication of seven peer-reviewed journals, which have established track records as open access titles.:
Cosmos and History (2005-)
Culture Machine (1999-)
Fibreculture (2003-)
Film-Philosophy (1997-)
International Journal of Žižek Studies (2007-)
Parrhesia (2006-)
Vectors (2005-)

From the OHP website: "Open Humanities Press journals are fully peer reviewed, scholarly publications that have been chosen by OHP's editorial advisory board for their outstanding contribution to contemporary theory. OHP's journals are independent, published under open access licenses and free of charge to readers and authors alike."

Each journal will retain editorial independence. The press will "provide editorial and technical-development services, using the Open Journal Systems software created by the Public Knowledge Project, and it will help with distribution and promotion". Aside from the editorial boards of the various journals, the Open Humanities Press has, according to the Chronicle, put together a

star-studded lineup of literary critics and theorists as its editorial advisory board. The panel includes Alan Badiou, professor of philosophy emeritus at France's École Normale Supérieure; Jonathan Culler, professor of English and comparative literature at Cornell University; Gayatri Chakravorty Spivak, professor in the humanities at Columbia University; and J. Hillis Miller, professor of English at the University of California at Irvine. Another member is Stephen Greenblatt, professor of the humanities at Harvard University. In 2002, as president of the Modern Language Association, Mr. Greenblatt issued a rallying cry to humanists about the crisis in traditional scholarly publishing.

How is this being paid for? And what is are it's long-term goals? From the Chronicle article:

To begin with, the press will have no operating budget and no formal staff. Internet hosting is being provided gratis by ibiblio, a sort of Internet library—or "conservancy," as they call it—based at the University of North Carolina at Chapel Hill. The founders will draw on their professional networks, and those of the journals, to get things done in the near term.

Those involved with Open Humanities Press hope to expand beyond critical theory, perhaps even beyond journals and into open-access monographs, once the enterprise has a reputation for what Mr. Ottina called "rigorous academic quality."

"Ultimately," he said, "the goal is to get as much academic content into an open-access distribution model as possible."

Excerpts of the editorial:

This permits authors to reuse their own work in any way, as long as they attribute it to the original publication. Third parties may use our published materials under a Creative Commons license, six months after publication...

In 1787, the Copyright Clause of the United States Constitution gave the United States Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." For more than two centuries, however, authors of scientific papers have been giving up that right. ... On the positive side, the publisher defended against improper use of the authors' work; on the negative side, restrictions were placed on authors (and third parties) that limited the reuse of the published work.

In a further step to enhance the utility of scientific content, we have now decided to return copyright to our authors. In return, however, we require authors to make their work available for reuse by the public. Instead of relinquishing copyright, our authors will now provide us with a license to publish their work. This license, however, places no restrictions on how authors can reuse their own work; we only require them to attribute the work to its original publication. Six months after publication, third parties (that is, anyone who is not an author) can use the material we publish under the terms of the Creative Commons Attribution-Noncommercial-Share Alike 3.0 Unported License (http://creativecommons.org/licenses/by-nc-sa/3.0).

The Creative Commons License will apply retroactively to all work published by The Rockefeller University Press before November 1, 2007... Authors who previously assigned their copyright to the Press are now granted the right to use their own work in any way they like, as long as they acknowledge the original publication.

We are pleased to finally comply with the original spirit of copyright in our continuing effort to promote public access to the published biomedical literature.

Full text of our new copyright policy is available here: http://www.jcb.org/misc/terms.shtml.

What this means is that when you submit a journal article for publication in one of nearly 200 BMC titles, you will receive a 15% discount off the article processing charge!

Here's a list of the BMC titles:
http://www.biomedcentral.com/browse/journals/.
This discount also applies to articles submitted to Chemistry Central
http://www.chemistrycentral.com/ and to PhysMath Central http://www.physmathcentral.com/.

Here's a list of the article processing charges for the various BMC journals (before discount):
http://www.biomedcentral.com/info/authors/apcfaq
For most of the journals, the fee is $1690, but may be as high as $2685 or as low as $500. A few are even free.

Many of the BMC journals have already earned quite respectable Impact Factors. See:
http://www.biomedcentral.com/info/about/faq?name=impactfactor
e.g., Genome Biology (7.17); BMC Bioinformatics (3.62); BMC Biology (4.43); BMC Evolutionary Biology (4.46)

Why should you consider publishing in a BMC journal?
First of all, know that all research submitted will receive rigorous and rapid peer review. If the article is accepted:

• It will be accessible to anyone with an Internet connection - open access means no subscriptions or 'pay-per-view' charges for original research articles.
  
• It is more likely to be cited, as it will be freely available to the entire global biological and medical community
  
• It will be listed in PubMed within days of publication
  
• You retain the copyright of your work
  
• You will be able to view your article's access statistics, which average over 200 downloads per month per article
  
• Your articles will be securely and permanently archived in PubMed Central

Papers published by our colleagues:
The University of Illinois' "homepage" lists papers that were published in BMC jouranls by U of I authors in the last year -- at this point 30 research articles, software, protocols, etc:
http://www.biomedcentral.com/inst/11700
For your interest, here's the U of I-Chicago's home page:
http://www.biomedcentral.com/inst/48900

Submitting a paper:
If you are on campus within our recognized IP range when submitting a manuscript you will be identified as belonging to a member institution and automatically granted a 15% discount on article processing charges If you are at home or at an external terminal when submitting your paper, you can still claim this discount by stating that you are a affiliated with the U of I. Papers may be submitted either via a journal home page or via http://www.biomedcentral.com/manuscript/.

Cancer: 13% of the literature in PubMed on cancer links to Free Fulltext.

By publication date range:
7% - within last 30 days
10% - within the last year
17% - within the last two years
21% - within the last 10 years

Data on other topics indicates a range of percentages of literature that is Free Fulltext. Of the topics selected, the highest percentage was for genetics, with 30% Free Fulltext, and the lowest was dentistry, with 4% fulltext. Most topics appear to be close to the 13% range.

Please refer to the blog entry for a link to the data, which Heather has made freely available via Google's Spreadsheets.

Congress reportedly will try to pass orphan works legislation again this session, introducing a bill as early as this week. After its March 13 hearing, at which 6 interested parties presented testimony (including the Register of Copyrights, Marybeth Peters, and representatives of the 2006 bill's most vehement opponents, free-lance photographers), the stage appears set for another try.

Georgia voices doubts about the value of the legislation to non-profits, but time will tell if the legislation is passed. Stay tuned for the next act.

... barriers to the spread of information are bad for capitalism. The dissemination of knowledge is almost as crucial as the production of it for the creation of wealth, and knowledge (like people) can't reproduce in isolation...In fact, open access might help to moderate some of the worst forms of academic hokum, if only by holding them up to the light of day -- and perhaps by making taxpayers, parents and college donors more careful about where they send their money ...

Keeping knowledge bottled up is also bad for the world's poor; indeed, opening up the research produced on America's campuses via the Internet is probably among the most cost-effective ways of helping underdeveloped countries rise from poverty ...

The context for these quotes was an article, Information Liberation, in the March 7, 2008 issue of the Wall Street Journal. (Currently available for all to read.)

The focus of the article is on the problems that the current barriers to research findings cause to the citizenry. The blame is placed on the rising serials costs. However, it is noted that there are signs that the barriers to access are falling with the advent of open access mandates. The recent NIH mandate is applauded

Congress has mandated that by April 7 papers arising from NIH-sponsored research -- roughly 80,000 of them a year -- be made freely available in the federal PubMed database, which can be read by anyone with an Internet connection. Alas, the new NIH policy will allow a 12-month lag between publication and posting on PubMed.

As is the recent mandate by the Harvard Arts & Sciences faculty

hose members voted to publish on the Internet for all to see -- gratis. These professors will give Harvard world-wide nonexclusive license to their work, and the university will exercise it by posting their papers. The journals won't have much choice if they want the work of Harvard professors. The faculty members will still publish in expensive journals, but the move to put the same materials on the Internet is a stake poised at the heart of a vampire that has been sucking dollars out of academic institutions for years through the ever-sharper bite of subscription prices.

This kind of requirement is becoming more common in Europe and at a few institutions in the UK and Australia, but this is close to the first - if not the first - such requirement in the United States. Alongside the new NIH requirement for deposit into PubMed Central, this may indicate the beginnings of a real sea change.

The full text of the Harvard motion is below:

The Faculty of Arts and Sciences of Harvard University is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles. In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean's designate will waive application of the policy for a particular article upon written request by a Faculty member explaining the need.

To assist the University in distributing the articles, each Faculty member will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Provost's Office in an appropriate format (such as PDF) specified by the Provost's Office. The Provost's Office may make the article available to the public in an open-access repository.

The Office of the Dean will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty from time to time. The policy will be reviewed after three years and a report presented to the Faculty.

See also the Chronicle of Higher Education's entry
and Peter Suber's comments.

• NIH is not offering grantees additional money to make their articles open access, but will allow grantees to use their grant money for this purpose.
  
• "To give scientists a nudge, NIH will require them to include the PMC number when they cite their own papers in grant applications and progress reports. Other possible ways of forcing scofflaws to comply range from having a program director call with a reminder to "the most extreme: suspending funds," says NIH Deputy Director for Extramural Research Norka Ruiz Bravo. "We hope we're not going to get there," she says."
  
• "The new law puts NIH in line with some other funding agencies that require grantees to send their papers to PMC or a U.K. version of the archive; these include the U.K.'s Medical Research Council and Wellcome Trust, which adopted such policies in 2006, and the Howard Hughes Medical Institute (HHMI) in Bethesda, Maryland, whose rule goes into effect this month. All three institutions require that papers be posted within 6 months of publication in a journal" whereas the NIH mandate requires access within 12 months of publication.
  

Not surprisingly, publishers will be (and have been) monitoring what their authors put in PubMed Central:

...some publishers say they will need to police the site for articles mistakenly posted, such as those not yet released from the journal's embargo or those published before 2005. Martin Frank, executive director of the American Physiological Society, says APS asked NIH to remove 78 papers last year, and he expects "hundreds" of similar errors when the mandatory policy kicks in. Lipman acknowledges that NIH had to remove some papers. But complying with copyright, he says, is not NIH's responsibility; it's "between the author and the publisher."

For a growing list of other funder-mandates, take a look at ROARMAP (Registry of Open Access Repository Material Archiving Policies).

The ERC requires that all peer-reviewed publications from ERC-funded research projects be deposited on publication into an appropriate research repository where available, such as PubMed Central, ArXiv or an institutional repository, and subsequently made Open Access within 6 months of publication.

This news is especially exciting as the ERC will shortly be announcing (PDF) it's first round of grant recipients, some 300 up-and-coming scientists from 21 countries and 170 institutions. Together they will share around 6 billion Euros over the next six years. Grant sizes will be for up to 2 million Euros per 5 year period.

The ERC joins a growing list of granting agencies that are requiring that publications resulting from their funds be made openly accessible within 6-12 months of publication.

The NIH has now filled in many implementation details concerning the mandate and they may be found on the NIH Public Access site, FAQ, and Guide Notice for Public Access.

Details that will be of interest to the University of Illinois community:

TIMING
The policy applies to all peer-reviewed articles that are accepted for publication on or after April 7, 2008.

PUBLISHER AGREEMENTS & COPYRIGHT
From the FAQ:
“Authors should work with the publisher before any rights are transferred to ensure that all conditions of the NIH Public Access Policy can be met. Authors should avoid signing any agreements with publishers that do not allow the author to comply with the NIH Public Access Policy.”

A publisher’s compliance with the NIH policy can be checked by reviewing the SHERPA site. For example, from Sherpa one learns that both Nature and Science allow authors to comply with the NIH mandate, subject to restrictions, with just a 6 month embargo. In neither publication can the author archive the publisher's PDF (though it should be referenced); rather the author's final peer-reviewed version should be posted to PubMed Central. (The most convenient time to do this would be at the same that you send in the final version to the publisher.)

In our experience, authors are having some success with modifying the copyright transfer agreements when they strike through the objectionable portions of copyright transfer forms and write in the rights that they wish to maintain. The new NIH policy does not change the author’s copyrights’ status. The author can still “assign [copyrights] to journals, subject to the limited right that must be retained…to post the works in accordance with the Policy” in PubMed Central.

The NIH suggests some possible language that can be used to modify a publisher’s agreement: "Journal acknowledges that Author retains the right to provide a copy of the final manuscript to the NIH upon acceptance for Journal publication, for public archiving in PubMed Central as soon as possible but no later than 12 months after publication by Journal.”

Additionally, the University of Illinois provides authors with a copyright amendment form to publisher agreements that is supported by the provosts of the CIC, and was developed to support authors who wanted to retain some rights over the works that they produce. The amendment language, if accepted by the publisher, would allow authors to comply with the NIH mandate. Download the CIC amendment. To use the addendum, authors need only to fill in the form and staple it to the publisher's agreement form that they return to publishers prior to the publication of their article.

PUBLICATION COSTS
NIH will reimburse for publication costs, including author fees. (Some journals charge article processing fees for articles that will be made openly available. NIH’s policy is to cover such costs.)

POSTING TO PUBMED CENTRAL
Posting is required even if you publish in an open access journal, or if the article is freely accessible on the publisher’s website.

CITING NIH-FUNDED RESEARCH
"Beginning May 25, 2008, anyone submitting an application, proposal or progress report to the NIH must include the PMC or the NIH Manuscript Submission reference number when citing applicable articles that arise from their NIH-funded research. This policy includes applications submitted to the NIH for the May 25, 2008 due date and subsequent due dates."

QUESTIONS?
Be sure to read the NIH Public Access site, FAQ, and Guide Notice for Public Access.

Send questions concerning the mandate or other aspects of the NIH Public Access Policy to:
Office of Extramural Research
National Institutes of Health
1 Center Drive, Room 144
Bethesda, MD 20892-0152
Email: PublicAccess@nih.gov
Website: http://publicaccess.nih.gov

For local assistance, please contact Katie Newman, University of Illinois Library Scholarly Communication Officer. florador@uiuc.edu or 217-265-5386

With thanks to the MIT Libraries for some of the organization of this message.