SPARC Open Access Newsletter

From: Peter Suber <>
Date: Fri, 4 Jul 2003 19:59:47 +0100

      Welcome to the SPARC Open Access Newsletter, issue #63
      [Formerly called the Free Online Scholarship (FOS) Newsletter]

      July 4, 2003

The Free Online Scholarship Newsletter has changed its name to the SPARC
Open Access Newsletter. With this issue, it resumes regular publication.

The new name reflects two welcome changes. First, "open access" is now
widely accepted as the standard term for the barrier-free online
availability of scientific and scholarly literature. My old term for this,
"free online scholarship" or "FOS", is still widely recognized, but has
been steadily eclipsed by "open access" since the launch of the Budapest
Open Access Initiative in February 2002. I now use "open access" instead
of "FOS" in my own writing and see it much more often in the writings of
other researchers, journalists, editors, and publishers. I could continue
to ride on the branding identity that "FOS" has built up, but I decided
that it was time to use the same term that I was encouraging others to
use. (For the same reason, I've changed the name of the FOS News blog to
Open Access News.)

The second welcome change is that SPARC is now publishing the
newsletter. SPARC's support has enabled me to leave full-time teaching for
full-time research and writing on behalf of open access. I'm very grateful.

On a more technical front, SPARC's excellent listserv software (CommuniGate
Pro) means that I'm no longer looking for a new host for the newsletter or
forum. No more advertising in newsletter issues. No more intrusive
questions during sign-up. No more issues blocked by spam filters, I hope.

The newsletter was weekly during the 01-02 academic year, and will now be
monthly. Formerly, my writing time was supported by a sabbatical from
Earlham College and a grant from the Open Society Institute (OSI). Now,
the newsletter will be directly supported by SPARC and the rest of my
writing time will be supported by OSI and Public Knowledge. I hope to say
more on my open-access work for OSI and PK work in a future issue.

I mention my relationships to SPARC, OSI, and PK partly because they
explain my new freedom to write, and partly because I'll inevitably write
about them as important players in the open-access movement. I see no
conflict of interest, but I do want to make a full disclosure. I see no
conflict because these three organizations support true open access, as I
do. They are supporting me because of our convergent interests and
positions, not in order to steer me in a new direction.

When I write about SPARC, OSI, and PK in the future, I'll remind readers of
my connection to them. But I don't plan to bend over backwards to avoid
covering them when they make news or to disguise what I think of them. I
trust you to see whether I start exaggerating or waffling --and to let me know.

One more point that doesn't go without saying: the views I express in the
newsletter are my own and not necessarily SPARC's. I'm pleased to say that
this disclaimer is as important to SPARC as it is to me. I feel free to
say what I wish, and I feel supported in this freedom.


Some housekeeping details about the changes

* The last issue of FOSN came out on September 15, 2002. That's a while
back, in internet time, so you might have forgotten that you
subscribed. You did. Instead of inviting all of you to join the revived
newsletter, I simply transferred your subscriptions. This is the same
publication to which you subscribed; it simply has a new name and
publisher. But if you want out, it's easy to unsubscribe. (Info below.)

* To emphasize that SOAN continues FOSN, I've started numbering the
issues. This is issue #63.

* The FOS Forum is moving to SPARC too, and undergoing an analogous name
change. It will be called the SPARC Open Access Forum (SOAF). All
subscribers to the FOS Forum are automatically subscribed to SOAF. Like
the FOS Forum, SOAF is unmoderated. Like the FOS Forum, subscriptions to
it are separate from newsletter subscriptions, in order to give readers a
choice about how much email to receive. Starting today, the FOS Forum is
closed to further postings, although its archive of past postings will
remain online.

* I thank Dru Mogge of ARL for helping to set up the CommuniGate Pro lists
for both the newsletter and forum.

* I launched the FOS News blog (now called the Open Access News blog)
during the 02-03 school year. It was a way to gather and disseminate news
about the FOS movement that took less time than writing a newsletter. I
count it a big success. It lets me offer other contributors' voices, other
methods of dissemination (including RSS), and daily updates. While the
blog started as a newsletter substitute, it will now be a newsletter
supplement. The two vehicles serve different purposes and I'll keep them
both. In fact, each issue of the newsletter will have a section of news
highlights and new publications since the previous issue, borrowing largely
from the blog.

Open Access News blog

* While the newsletter was dormant, during the past academic year, I
launched a page of information on conferences and workshops related to the
open-access movement. Formerly, I put a couple of months' worth of
conference info at the end of each issue of the newsletter. The web page
is so much easier for users than the newsletter list that I'm keeping it too.

Conferences related to the open-access movement

* If you use a challenge-response (CR) system to block spam, then please
add this newsletter to your whitelist. If you don't, I'll receive a
challenge every time I send you an issue, requiring me to validate my
mailing. I will not have time to respond to challenges and you'll never
get your issues.

Currently the forum is unmoderated, but I may have to moderate it to
prevent spam blockers from broadcasting challenges to all members. Again,
the better and simpler solution is for subscribers to add the forum to
their whitelists. (More on this in the second story below.)

* Finally, here's how to subscribe and unsubscribe and a few other details.

SPARC Open Access Newsletter (SOAN)
--to subscribe, send any message to <>
--to unsubscribe, send any message to <>
--to read and search back issues, go to

SPARC Open Access Forum (SOAF)
--to subscribe, send any message to <>
--to unsubscribe, send any message to <>
--to post, send your message to <> (subscribers only)
--to read and search SOAF postings, go to
--to read and search postings to the FOS Forum (SOAF's predecessor), go to

Newsletter & Forum home page at SPARC
(subscription, posting, archiving info for both the newsletter and forum)

Newsletter & Forum home page at my personal site
(same info and more, including the newsletter editorial position)

Open Access Project at Public Knowledge
(the other job in my post-teaching career)

* Please help the cause by updating your bookmarks and spreading the
word. Many thanks.


Martin Sabo's Public Access to Science Act

On June 26, Rep. Martin Sabo, a Minnesota Democrat with 25 years in the
House, formally introduced H.R. 2613, the Public Access to Science Act (PASA).

PASA is the boldest and most direct legislative proposal ever submitted on
behalf of open access. US Copyright law already holds that "government
works" are not subject to copyright. PASA extends this exemption to works
that are "substantially funded" by the federal government. The preamble to
the bill estimates that the federal government spends $45 billion a year on
scientific and medical research. If all works "substantially" based on
this funding were in the public domain, taxpayers would get a significantly
higher return on their investment in research. These works might be
published in conventional, priced journals, but anyone who wanted to extend
their reach and impact beyond the small set of paying subscribers would be
free to do so. All this literature would suddenly be much more useful.

Sabo aides have told the press that the word "substantially" was not
defined in the bill so that the many federal agencies that fund research
could define it in their own ways. Hence, one agency could say that any
publication based 25% or more on its grant must be in the public domain,
while other agencies could set the threshold at 50% or 75%.

While PASA would be a giant step forward for open access, it may be bigger
than necessary --for open access and for the political realities of
Congress. For example, open access to research articles does not require
open access to all the products of federally funded research, like software
and new physical materials. Moreover, open access to research articles
does not require that the articles be in the public domain. It only
requires that there be no copyright or licensing restrictions (statutory or
contractual barriers) preventing open access. Putting works into the
public domain is a simple and effective way to remove these barriers. But
consent of the copyright holder is equally effective.

The Creative Commons has many good examples of licenses that authorize open
access and yet stop short of transferring works into the public
domain. Since there is no need to jettison copyright in order to achieve
open access, there is no reason to lose the votes of those members of
Congress who would be unwilling to jettison copyright. Copyright also
gives authors the legal basis to block the distribution of mangled or
misattributed copies of their work, although in the real academic world
authors rarely need copyright to preserve the integrity of their work.

The policy argument for exempting government-funded research articles from
copyright is essentially identical to the argument, already embodied in the
statute, for exempting government works from copyright. But if the current
copyright climate makes Congress more likely to rethink this fundamental
policy than to extend it, then PASA could broaden its appeal by allowing
federally funded works to be copyrighted, provided the copyright holder
consented to open access. The result for open access would be the same,
and the move would disarm a host of objections. Copyright holder consent
could be manifest by submitting the work to an open-access journal or
depositing it an open-access archive.

Obtaining copyright holder consent for open access is difficult or hopeless
for works that generate revenue. But scientific research articles earn no
royalties for their authors and never have. Scientists are rewarded by
making advances to knowledge, and to their careers, and would gladly
consent to open access in exchange for research funding. Even in the
absence of research funding, more and more scientists consent to open
access as the best path to a larger audience and increased impact.

Sabo's office has made clear that PASA is a conversation starter. In the
spirit of advancing the conversation, let me suggest a few revisions that
would enhance its political chances and at the same time improve its
effectiveness in providing open access to taxpayer-funded research.

(1) Recognize that copyright-plus-consent works as well as the public
domain in creating the legal conditions for open access. If broadening the
political support for the bill turns out to be necessary, then this is an
easy way to do it that doesn't compromise the bill's commitment to open access.

(2) Limit the scope of PASA to peer-reviewed research articles and their
preprints. This will prevent colliding with Bayh-Dole on software,
machines, materials, processes, and other patentable discoveries. We
should avoid these collisions not because Bayh-Dole is wise legislation,
but simply in order to keep separable issues separate. This limitation
would keep unrelated controversies from slowing progress on open access to
research articles.

(3) Putting works into the public domain and obtaining copyright holder
consent to open access are not themselves open access. They are merely two
ways to clear the legal path to open access. PASA could go further and
require actual open access. It could require funded researchers to submit
their work to open-access journals or deposit it in open-access
archives. OA journals are growing in number and prestige, and OA archives
make open access compatible with publication in a conventional
journal. This would take us all the way to the goal, not just to one of
its important preconditions.

(4) Finally, PASA could require federal research grants to cover the
processing fees charged by open-access journals --that is, could treat
open-access publication as a cost of research. This would not only help
assure open access to articles arising from funded research, but answer the
complaints of journals that they cannot justify the expense of refereeing
and publishing a paper without a revenue stream or an upfront fee to take
its place.

The first two suggestions are aimed at helping the bill gather support in
Congress and with the many stakeholders in scholarly communication. The
last two are aimed at taking the bill further in promoting open access;
they could be incorporated into PASA now or wait for supplemental
legislation at a later time.

Text of the bill

Summary, status, and co-sponsors of the bill

Press release from the Public Library of Science first announcing the bill

News coverage

* PS. Section 105 of the Copyright Act says that "Copyright protection
under this title is not available for any work of the United States
Government...." It does not explicitly extend this exemption to
government-funded works, which creates the need for a bill like
PASA. However, it has been an open question whether Section 105 could be
extended to government-funded works without an explicit amendment.

Here's a passage from the legislative history of Section 105:

>A more difficult and far-reaching problem is whether the definition [of a
>"government work"] should be broadened to prohibit copyright in works
>prepared under U.S. Government contract or grant. As the bill is written,
>the Government agency concerned could determine in each case whether to
>allow an independent contractor or grantee, to secure copyright in works
>prepared in whole or in part with the use of Government funds. The
>argument that has been made against allowing copyright in this situation
>is that the public should not be required to pay a "double subsidy," and
>that it is inconsistent to prohibit copyright in works by Government
>employees while permitting private copyrights in a growing body of works
>created by persons who are paid with Government funds. Those arguing in
>favor of potential copyright protection have stressed the importance of
>copyright as an incentive to creation and dissemination in this situation,
>and the basically different policy considerations, applicable to works
>written by Government employees and those applicable to works prepared by
>private organizations with the use of Federal funds.
>The bill deliberately avoids making any sort of outright, unqualified
>prohibition against copyright in works prepared under Government contract
>or grant....

What's interesting is that Section 105 has always been open to the reading
that PASA makes explicit. PASA would settle a previously unsettled point
of law, or close the open texture of a deliberately flexible statute, not
reverse the effect of a clear rule.

Moreover, in Section 105 Congress acknowledged the important policy
argument that Sabo cites on behalf of PASA. Those who say that PASA is
contrary to US law and policy need to reread the legislative history.

Legislative history of Section 105 of the Copyright Act (U.S. Code, Title 17)


Saving the oodlehood and shebangity of the internet

The internet makes open access possible. Open access wasn't physically or
economically possible in the age of print. These commonplace assertions
are true but slightly out of focus. Let's be more specific. The internet
has many properties (it's digital, it's packet-switched, it has end-to-end
architecture, it has a certain number of nodes, a certain throughput
capacity, a certain level of traffic at a given time, a certain degree of
saturation, and so on), but one property above all others makes open access
possible. It's the capacity to disseminate perfect copies of a digital
file to a worldwide audience at virtually no cost.

Now that this property is in focus, notice that it's the very same property
that makes spam and large-scale digital piracy or mass infringement
possible. I wish this property had a name. That would do a lot to advance
the discussion of open access, spam, and mass infringement. In the absence
of an accepted name for it, and for lack of a better term (like oodlehood?
shebangity?) let me call it the "prodigality" of the internet.

Open access proponents like to focus on the revolutionary potential of the
prodigality of the internet for the public good. But our strategic
thinking must address the fact that the same prodigality also has
revolutionary potential for mass infringement, economic harm, loss of
privacy, and spam hell. The forces at work to curb these harms are
powerful and well-funded --and not especially cautious about the goods they
destroy in order the crush the evils they fear. It's time to realize that
the obstacles to open access don't lie merely in the inertia and ignorance
of scholars, and the dysfunction of the journal market, but include a
coordinated campaign to limit the prodigality of the net itself. We could
be collateral damage in the war against piracy and spam.

I've written often in the past about how the reaction to mass infringement
has given up on surgical responses to online crime and turned to crude
remedies that threaten the prodigality of the internet. For example, we
see this in the denial of the first-sale doctrine to digital content, in
retroactive extensions of copyright, in the hardware mutilations
contemplated by Hollings' SSSCA, and in the DMCA ban on circumvention even
for fair use or other non-infringing purposes. New question: will the
reaction to spam be equally harmful?

It may be. Many spam filters block mass mailings, whether or not they are
spam. Or, they create a presumption that every mass mailing is spam, and
put the responsibility on senders and receivers to rebut the
presumption. This harms newsletters, discussion forums, and the
open-access current-awareness services of free and priced journals.

Many spam filters are too crude to distinguish opt-in services from others,
and many that make this distinction are hard to awaken to the fact that a
wrongly blocked list is really opt-in. Even mailings that are not blocked
because they are addressed to multiple recipients may be blocked because of
their content. Vanilla discussions of breast cancer, safe sex, pedophile
priests, and national security legislation might trigger a
filter. Forthright discussions of sex and political opposition are at even
higher risk. The problem is aggravated when spam filters use secret
criteria, and aggravated further when they are imposed by schools,
employers, ISP's, or governments without user knowledge or consent.

New challenge-response systems for blocking spam may be even more harmful
to open-access mailings. Instead of blocking requested content, so that
recipients never see it, they confront the sender with a challenge that
takes human labor to satisfy. (This is the point; if the validating
responses could be automated, spammers would automate them.) Senders of
newsletters and other email-borne forms of open-access content will be
showered with challenges and never have time to answer them. Either that,
or answering them will create a new cost of doing business that threatens
the open-access business model. This problem can be averted if users of
challenge-response spam blockers put their subscription newsletters and
journals on their whitelists. But it's probably easier to design a perfect
spam filter --impossible to date-- than to educate all their users.

Other spam remedies, like Sen. Charles Schumer's Stop Pornography and
Abusive Marketing (SPAM) Act, could ban anonymous remailers, which are
essential to the free circulation of ideas in repressive parts of the world.

If my keyboard had a key that sent a non-fatal electric shock to the sender
of a piece of spam, then I confess: mine would be worn out. I'm ominously
attracted to a direct, Skinnerian remedy that combines text and
voltage. ("Thanks for the spam. Here are 100 volts just for
you.") People who hate copyright infringement hate it even more than I
hate spam. On June 19, Senator Orrin Hatch said in public what many no
doubt think in private, that the music industry needs a method to destroy
the computers of copyright infringers. If executives at the RIAA and MPAA
had remote detonation keys on their keyboards, they would be worn out.

You may not hate mass infringement, but you probably hate spam, and that's
enough to put you on both sides of this problem. The prodigality of the
net carries the potential for momentous good and the potential for
momentous harm. Those who fight the harm have a bad track record at
limiting themselves to the harm, and a proven tendency to fight the
prodigality of the net itself even at the cost of momentous good.

Watch the campaign against spam and mass infringement. You don't have to
love either one to love the prodigality of the internet that makes them
possible. Fight to defend it and to prevent remedial overreaching. Don't
hastily blame only the defenders of indefensible intellectual property
theories. All of us who hate spam are now implicated. So while watching
others, who might encroach on the prodigality that makes open access
possible, we should also watch ourselves. Can we hate spam surgically?

Finally, let's watch for escalations of mischief and harm that create
excuses to sacrifice the good potential of the net in order to block the
bad. Will the dream of open access live only as long as the internet's
prodigality is endurable, and die when terrorist viruses (let's call them
Hatchlings) can be delivered to every desktop?

On the threat from challenge-response spam systems,1284,59156,00.html

Sen. Charles Schumer's Stop Pornography and Abusive Marketing (SPAM) Act

Orrin Hatch's remote detonation fantasy

* PS. In light of this, it's especially depressing (1) that the Supreme
Court just upheld the Children's Internet Protection Act (CIPA), requiring
federally funded libraries to use internet filters, and (2) that Ben
Edelman and the ACLU lost their suit for permission to circumvent copy
protection in order to learn the blacklist of N2H2, a commercially
available internet filter. There will now be more filtering than ever,
according to secret criteria, against the will of users, blocking much of
what the Supreme Court concedes is constitutionally protected speech.

On the upholding of CIPA

On the Edelman-ACLU defeat


News highlights and bibliography since June 1, 2003

In future issues of SOAN, I'll recap the important news stories, and list
the important publications, appearing since the previous issue. I'll take
most of these from the Open Access News blog, which I write with other
contributors and update daily. I'll give both the item URL and blog entry
URL so that you can read the original story as well as what I or another
blog contributor had to say about it. I'll omit items covered elsewhere in
the newsletter.



* Lawrence Lessig and Lauren Gelman have created an online petition in
support of the Public Domain Enhancement Act. Add your signature today.

Also see this Lessig interview about the petition.

Rep. John Doolittle (R-CA) and Rep. Zoe Lofgren (D-CA) officially
introduced the Public Domain Enhancement Act on June 25.

* The ACRL made webcasts of the sessions of its National Conference
(Charlotte, April 10-12) and is charging $25-160 for access to them. Even
ACRL members must pay for access.

* The Nelson R. Mandela School of Medicine at the University of Natal is
using a grant from Pfizer Pharmaceuticals to build a new, open-access
HIV/Aids Information Gateway.

* The National Library of Medicine announced a freely available standard
content model for the electronic archiving and publishing of journal articles.

News coverage

* Derk Haank said again that he supports journal access that is "free at
the point of use". He means that when universities buy subscriptions,
their faculty needn't pay again.

He also resigned as CEO of Reed Elsevier's science and medical division,
effective immediately, to become the CEO of Springer in early 2004.

* There are two more open-source packages for building OAI-compliant eprint
repositories: Rapid Visual OAI Tool (RVOT), from the Old Dominion
University Digital Library Group, and DLESE from the Digital Library for
Earth System Education group



The other three open-source packages for building OAI-compliant archives
are Eprints (Southampton), DSpace (MIT), and CDSWare (CERN).

* On his last day in office as Director of the OMB, Mitch Daniels gave up
on his attempt to let federal agencies outsource their printing jobs and
bypass the Government Printing Office (GPO) and its open-access policies.

Also see Miriam Drake's review of the controversy.

* This fall the University of California will launch open-access journals
using the tools and framework of its eScholarship Repository.

* JISC has bought institutional memberships in BioMed Central (BMC) for all
180 universities in the UK, a major national initiative for open access and
endorsement of the BMC business model.

News coverage,10577,978753,00.html

* The Bethesda statement on open access publishing was released on June
20. An breakthrough endorsement of open access by a group of foundations,
scientists, editors, publishers, and open-access proponents. Common ground
and momentum are spreading.

* The first impact factors were reported for open-access journals published
by BioMed Central.

* Presses Universitaires de France wants to block Canadian Jean-Michel
Tremblay from posting works to his web site that are in the public domain
under Canadian law but still copyrighted under French law.

* Steve Hitchcock's Core metalist of open access eprint archives has moved,
reorganized, and changed its name to Explore Open Archives. It's now
maintained by the OpCit Project.

* The Supreme Court has refused to hear SBCCI's appeal from the Fifth
Circuit decision letting Veeck post a copyrighted statute (yes, a
copyrighted statute) to his web site.$rec=104449?news


New bibliography

* Alison Buckholtz, Raf Dekeyser, Melissa Hagemann, Thomas Krichel, and
Herbert Van de Sompel, "Open Access: Restoring scientific communication to
its rightful owners", European Science Foundation

* A section of Walt Crawford's July _Cites & Insights_ is devoted to
open-access journals.

* The Council of Europe has issued a "Declaration on Freedom of
Communication on the Internet"

* Elizabeth Gadd, Charles Oppenheim, and Steve Probets, three articles:

"How academics expect to use open-access research papers"

"How academics want to protect their open-access research papers"

"The impact of copyright ownership on academic author self-archiving"

* Stevan Harnad, "Why I Believe That All UK Research Output Should Be
Online," _The Times Higher Education Supplement_, June 6, 2003.

* Elspeth Hyams, "Scholarly publishing on the road to Damascus", _Library
Information Update_, July 2003.

* LibLicense has a good discussion thread on library cataloguing of
open-access journals.

* Farhad Manjoo, "The free research movement", _Salon_, July 1, 2003.

* David Messerschmitt, "Research library responses to the NSF
cyber-infrastructure program", a powerpoint presentation.

* OECD Follow-up Group on Issues of Access to Publicly Funded Research
Data, "Promoting Access to Public Research Data for Scientific, Economic,
and Social Development". From the OECD.

* Some items by and about the Public Library of Science:

Annalee Newitz, "TECHSPLOITATION: Science for Everybody," _AlterNet_, June
16, 2003.

Christoph Droesser interviewed Harold Varmus in _Die Zeit_, June 18, 2003. (in German)
(Google's English)

PLoS produced a TV spot to introduce the concept of open access to the
general public.

* Michelle Romero, "Open Access and the Case for Public Good: The
Scientists' Perspective", _Online_, July/August 2003.

* Thomas Susman and David Carter, "Publisher Mergers: A Consumer-Based
Approach to Antitrust Analysis", white paper from the Information Access

* John Willinsky, "Scholarly Associations and the Economic Viability of
Open Access Publishing", _Journal of Digital Information_, 4, 2 (April 2003).

* The presentations from the recent conference, Electronic Theses and
Dissertations Worldwide (Berlin, May 21-24), are now online.

* Some of the presentations from the workshop, Peer Review in the Age of
Open Archives (Trieste, May 23-24), are now online.

* Vol. 4, issue no. 2 of the _Journal of Digital Information_ is devoted to
the economics of digital libraries.


This is the SPARC Open Access Newsletter (SOAN), written by Peter Suber and
published by SPARC. The views I express in this newsletter are my own and
do not necessarily reflect those of SPARC.

Please feel free to forward any issue of the newsletter to interested
colleagues. If you are reading a forwarded copy of this issue, see the
instructions for subscribing at either of the first two sites below.

SPARC home page for the Open Access Newsletter and Open Access Forum

Peter Suber's page of related information, including the newsletter
editorial position

Newsletter, archived back issues

Forum, archived postings

Conferences Related to the Open Access Movement

Guide to the Open Access Movement

Timeline of the Open Access Movement

Sources for the newsletter and blog

Open Access News blog

Peter Suber

SOAN is licensed under the Creative Commons Attribution License. To view a
copy of this license, visit
or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford,
California 94305, USA.


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