UNT Libraries

In light of the University of North Texas Open Access symposium titled “Futures of Academic Publishing: UNT's 4th Symposium on Open Access,” which will occur May 30-31st, it is apropos to mention a couple of recent developments in open access publishing and dissemination models. EThOS, for example, is an open access electronic theses online service operated by the British Library. This service recently announced it will retain its open access model and be operated by the British Library, but also it will no longer charge any United Kingdom University for subscriptions to have its theses included. This is an economic boon for academic United Kingdom libraries, and it would be nice if such a free open access model could be developed in the United States.

Also, various gold models of open access journals continue to emerge. For example, some open access journals are charging thousands of dollars to publish one article. However, if an institution subscribes to a certain amount of content published by an open access publisher, often that publisher will allot a specific number of vouchers to that subscribing institution. Academics at the subscribing institution may then redeem one of these vouchers for a waiver (or receive a reduced fee) of the publishing fee to publish in the open access journal.

Whereas, PeerJ is now experimenting with a lifetime-membership model that permits one to pay once and publish in the journal for life. Their basic individual membership begins at $99 and entitles an author to publish one article per year in PeerJ (if the fee is paid prior to a manuscript being accepted).  PeerJ also offers an Enhanced membership ($199 one-time fee), an Investigator membership ($299 one-time fee), and institutional agreements that can be negotiated with PeerJ.

So, next week, it will be interesting to hear the opinions, views, and advocacy of various members in the academic and publishing professions regarding green open access models, gold open access models, and where each individual envisions open access publishing five years from now regarding peer reviewed articles, theses and dissertations, less scrutinized works such as courseware, and any other type of works.

A federal district court recently dismissed a copyright infringement case against UCLA. This case was styled Association for Information Media and Equipment v. Regents of the University of California. The suit alleged that UCLA was infringing copyright and violating the anti-circumvention provisions of the DMCA by ripping DVDs and then streaming their content to students in-class.  Access to the streamed content was password protected. However, although this dismissal was a positive result for UCLA, this case did not really resolve the issue of academic streaming. Instead, the case was decided on procedural grounds. The judge dismissed the case due to UCLA’s sovereign immunity as a state school. The authority to dismiss such a case due to sovereign immunity stems from the Eleventh Amendment of the United States Constitution, which has been construed to convey that state institutions and employees of such institutions are immune to suit in federal court. In other words, the federal government cannot haul a state into court.

Some recent precedent does exist for this court ruling. For example, in Florida Prepaid Postsecondary Education Expense Board v. Savings Bank, 527 U.S. 627 (1999), the Court held that Congress did not have the necessary authority under the Patent Clause, the Commerce Clause, or the Fourteenth Amendment to abolish state sovereign immunity in the Patent Act. The Court was examining this issue because language in the Patent Act suggested that states, their officers, and their employees are not immune to suit under the said Act. Section 511 of the United States Copyright Act also specifically conveys that states, their officers, and their employees are not immune to suit under Section 511. However, in the case at issue involving UCLA, the district court judge followed this line of reasoning that conveyed state institutions had some sovereign immunity protection, and thus dismissed the case on lack of standing grounds. It is important to remember this was a federal district court case. On appeal, this case could be overturned by a federal court of appeals, or by the United States Supreme Court. It is also important for the broader University of North Texas community to be cognizant that this was a federal district court decision in the Ninth Circuit. Texas is located in the Fifth Circuit, thus this case’s findings are only persuasive for any federal court in Texas, and not binding. It is also relevant to consider that in the 1990s the Rehnquist Court once ruled that states can be sued by states for trademark and patent offenses. Therefore, the pendulum can and does swing, and libraries should be careful in solely relying upon sovereign immunity.

That said, this case represents another judicial victory for libraries. After all, UCLA is, at least for now, being permitted to digitize materials and stream them to students for educational purposes. Also, it is interesting to ponder section 110(1), and whether it applies to such an action of streaming owned content to students. Section 110(1) allows for the performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution. Thus, if the libraries own these VHS tapes and DVDs they are streaming, such streaming to face-to-face classes may be kosher under section 110(1), as long as a licensing agreement has not been signed by the libraries that prevents such streaming. A library may also be able to fit this streaming practice into fair use. After all, if they are streaming the films for an educational purpose, and perhaps the films are of an educational nature to begin with, and such use probably does not affect a potential market. Thus, fair use is a possible means of streaming such content as well. The point is, library streaming of content for educational use is a potentially permissible tool within the legal guise of copyright law, and for now, UCLA is demonstrating how such content may be effectively disseminated to students.