Legislation and Government Regulation – Page 15

"Keeping Up With… Net Neutrality"

ACRL has released "Keeping Up With… Net Neutrality".

Network neutrality, a term coined by Columbia Law School professor Tim Wu in 2003[1], is the idea that an internet service provider (ISP) should treat all the data that travels through its network equally, regardless of the source, destination, or content of that data. In practice, this means that the data packets that make up streaming video, images from a digital archive, massively multiplayer online games, and class material in a course management system are all delivered from server to user indiscriminately, with minor modifications for network optimization. Discriminating against or blocking content from reaching an end user (e.g. slowing down certain websites like Netflix or blocking access to a service like Apple's FaceTime) violates the principle of net neutrality.

Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

Digital Legal Deposit, An IPA Special Report

The International Publishers Association has released Digital Legal Deposit, An IPA Special Report.

Here's an excerpt from the press release:

A new IPA report reveals how policies and processes are being developed and implemented which allow digital content, whether in the form of e-books, journals, blogs or website content, to be collected and archived. It contains in-depth analysis of schemes in Germany, the Netherlands, the UK, France and Italy, as well as details from Japan, China, Brazil, the United States, Australia and Canada.

Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

Judiciary Committee Hearing on Moral Rights, Termination Rights, Resale Royalty, and Copyright Term

The U.S. House Judiciary Committee is holding a hearing on moral rights, termination rights, resale royalty, and copyright term.

Here's an excerpt from "Congress Takes On Copyright Term, Moral Rights, and More":

How is this going to work? It's hard to say. Probably not very well. The hearing structure allows a handful of witnesses to give very brief explanations of their views, but the question-and-answer format hasn't always been very productive. In the past, we've seen lawmakers in the committee raise pet issues instead of focusing on the topics on the agenda—take for example last month's hearing on the first sale doctrine, which included numerous questions about the unrelated issue of "piracy."

Moreover, in the absence of real public feedback during these hearings, the committee has sought to represent the public interest by inviting testimony from "both" sides of an imagined dichotomy. Hearings include witnesses from, say, a big company and a small company, a telecom and a publisher, or a copyright licensor and a licensee. This sometimes provides a good impression of balance, but on a panel addressing four separate issues, the odds seem long. It is also often the case that these "sides" don't include anyone who represents the public interest.

But let's not pass judgment before the hearing even takes place. For those who are watching the hearing, here is a primer on the four issues up for discussion:

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Open Access: Markup of Innovation, Research, Science, and Technology Act Reduces Embargo Period

The House Committee on Science, Space, and Technology has marked up the Frontiers in Innovation, Research, Science and Technology Act (FIRST Act), significantly reducing the embargo period for making works open access.

Here's an excerpt from "FIRST Act Amended to Make Open Access Provision Actually Pretty Good":

Calling this [Section 303 in the prior version of the bill] a "public access" section is a charitable reading: it extended embargo periods to up to three years, it allowed for simple linking to articles rather than the creation of an archive, and it delayed implementation unnecessarily long. (We've ranted about this bill time and again.)

But a glimmer of hope appeared at yesterday's markup. Reps. Jim Sensenbrenner and Zoe Lofgren, introduced an amendment that radically changed Section 303. The new amendment [pdf] maps closely onto Sensenbrenner's Public Access to Public Science Act (H.R. 3157). It sets the embargo period at 12 months (like the NIH's current policy), though it allows stakeholders to extend this by 6 months if they can show a "substantial and unique harm." The amendment was also designed to facilitate long-term preservation, broad analysis of works, and closer investigation of broad copyright licenses. The current version is not perfect, but it is much improved—huge kudos to Sensenbrenner and Lofgren for standing up for open access.

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HEFCE and Three Other UK Funding Bodies Enact Open Access Mandate

The Higher Education Funding Council for England and three other UK funding bodies (the Scottish Funding Council, the Higher Education Funding Council for Wales and the Department for Employment and Learning) have enacted an open access mandate.

Here's an excerpt:

5. The core of this policy is as follows: to be eligible for submission to the post-2014 REF, outputs must have been deposited in an institutional or subject repository on acceptance for publication, and made open-access within a specified time period. This requirement applies to journal articles and conference proceedings only; monographs and other long-form publications, research data and creative and practice-based research outputs are out of scope. Only articles and proceedings accepted for publication after 1 April 2016 will need to fulfil these requirements, but we would strongly urge institutions to implement the policy now. The policy gives a further list of cases where outputs will not need to fulfil the requirements.

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"Finch 18 Months On: A Review of Progress"

Michael Jubb has published "Finch 18 Months On: A Review of Progress: Based on a Paper Presented at the UKSG One-Day Conference, 'Open Access Realities', London, November 2013" in Insights: the UKSG Journal.

Here's an excerpt:

When the Finch Report was published in June 2012, it represented for me the culmination of nine months of intensive work as secretary to the Finch Group. But I was not allowed to rest on my laurels. The Group recognized that the task of implementation would be complex, involving work from many different stakeholders, and it pointed to the need for an implementation strategy that would involve all of them. Perhaps it should have been firmer in recommending how such a strategy should be developed and implemented. Nevertheless, the Group decided that it should as its final act meet in a year's time to assess progress. I was slightly apprehensive when I was asked to prepare a report for the Group to consider at that meeting. This paper—based on a presentation made at the UKSG conference in November 2013—considers the findings of that report, which was published the following week.

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Open Access: SPARC Opposes Frontiers in Innovation, Research, Science and Technology Act

SPARC has released a statement opposing the Frontiers in Innovation, Research, Science and Technology Act.

Here's an excerpt:

Specifically, Section 303 would:

Slow the pace of scientific discovery by restricting public access to articles reporting on federally funded research for up to three years after initial publication. This stands in stark contrast to the policies in use around the world, which call for maximum embargo periods of no more than six to 12 months.

Fail to support provisions that allow for shorter embargo periods to publicly funded research results. This provision ignores the potential harm to stakeholders that can accrue through unnecessarily long delays.

Fail to ensure that federal agencies have full text copies of their funded research articles to archive and provide to the public for full use, and for long-term archiving. By condoning a link to an article on a publisher's website as an acceptable compliance mechanism, this provision puts the long term accessibility and utility of federally funded research articles at serious risk.

Stifle researchers' ability to share their own research and to access the works of others, slowing progress towards scientific discoveries, medical breakthroughs, treatments, and cures.

Make it harder for U.S. companies — especially small businesses and start-ups — to access cutting-edge research, thereby slowing their ability to innovate, create new products and services, and generate new jobs.

Waste further time and taxpayer dollars by calling for a needless, additional 18-month delay while agencies "develop plans for" policies. This is a duplication of federal agency work that was required by the White House Directive and has, in large part, already been completed.

Impose unnecessary costs on federal agency public access programs by conflating access and preservation policies as applied to articles and data. The legislation does not make clear enough what data must be made accessible, nor adequately articulate the location of where such data would reside, or its terms of use.

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Copyright Office Seeks Comments on Orphan Works and Mass Digitization

The US Copyright Office is seeking comments on orphan works and mass digitization and it will hold public roundtable discussions on these topics.

Here's an excerpt from the announcement:

The United States Copyright Office will host public roundtable discussions on potential legislative solutions for orphan works and mass digitization under U.S. copyright law on March 10-11, 2014, in Washington, D.C. Requests to participate should be submitted by February 24, 2014. For a participation request form, go to http://www.copyright.gov/orphan/participation-request-form.html.

The Office is also seeking public comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law. A comment form will be posted on the Copyright Office website at http://www.copyright.gov/orphan/ no later than March 12, 2014. Comments are due by April 14, 2014, and will be posted on the Copyright Office website.

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Net Neutrality: FCC Chairman Tom Wheeler Issues Statement on FCC’s Open Internet Rules

FCC Chairman Tom Wheeler has issued a statement on the FCC's open internet rules.

Here's an excerpt from Public Knowledge's Sherwin Siy's analysis:

In short, the FCC is keeping all of its possible tools in play. From a legal standpoint, the obvious answer would be to follow the roadmap laid out by the D.C. Circuit's opinion and reclassify broadband as a telecommunications service. That would give the FCC all the authority it needs to preserve net neutrality. But the D.C. Circuit also acknowledged that section 706 gives the FCC broad power to do lots of other things, so long as they will encourage the deployment of broadband. . . .

Speaking of what you can do with section 706, the D.C. Circuit's opinion makes it pretty clear that, while you might not be able to do something that looks too much like traditional common carrier regulation with it, there's a heck of a lot you can do with it. For instance, Wheeler notes, the FCC would seem to have the power overturn state laws that ban communities from setting up their own broadband networks—laws passed with the lobbying muscle of ISPs that don't want the competition. The outer bounds of section 706 are now open for discussion—and they may provide a scope of regulatory power as broad as Title II might have (in some ways, potentially broader). That's another reason to have proceedings on section—ensuring that its authority is used to encourage deployment and competition, and not stray into more troubling areas like censorship or copyright filtering. This, too, should be a clue to the path ahead—one where Title II isn't a political polarizer, but instead a simple, direct application of the FCC's job to protect an open internet.

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"The Open Internet Preservation Act"

Several Democratic Senators have introduced "The Open Internet Preservation Act" in the House.

Here's an excerpt from the announcement:

Today, Senators Edward J. Markey (D-Mass.), Richard Blumenthal (D-Ct.), Al Franken (D-Minn.), Tom Udall (D-N.M.), Ron Wyden (D-Ore.), and Jeff Merkley (D-Ore.) introduced S. 1981, "The Open Internet Preservation Act", with House Energy and Commerce Committee Ranking Member Henry A. Waxman (D-Calif.) and Communications and Technology Subcommittee Ranking Member Anna Eshoo (D-Calif.) introducing companion legislation H.R. 3982, to protect consumers and innovation online. Last month, the D.C. Circuit struck down the Federal Communications Commission's (FCC) Open Internet rules preventing broadband providers from blocking or discriminating against content online. The bill would restore these rules until the FCC takes new, final action in the Open Internet proceeding.

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Congress Madates Open Access for Labor, Health, and Human Services, Education and Related Agencies

The passage of the Consolidated Appropriations Act of 2014 mandates open access for federal agencies under the Labor, Health, and Human Services, Education and Related Agencies Senate subcommittee with research budgets of $100 million or more.

Here's an excerpt from the bill:

SEC. 527. Each Federal agency, or in the case of an agency with multiple bureaus, each bureau (or operating division) funded under this Act that has research and development expenditures in excess of $100,000,000 per year shall develop a Federal research public access policy that provides for—

the submission to the agency, agency bureau, or designated entity acting on behalf of the agency, a machine-readable version of the author's final peer-reviewed manuscripts that have been accepted for publication in peer-reviewed journals describing research supported, in whole or in part, from funding by the Federal Government;

free online public access to such final peer-reviewed manuscripts or published versions not later than 12 months after the official date of publication; and

compliance with all relevant copyright laws.

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Net Neutrality, RIP?

While it could be appealed, the U.S. Court of Appeals for the D.C. Circuit's Verizon v. FCC ruling may well be the death knell of net neutrality given that an unfavorable Supreme Court ruling could make the situation worse by eliminating its last legal vestiges.

What now? In my 1996 "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper, I had this to say about the prospects of net neutrality's demise:

There are many unknowns surrounding the issue of Net neutrality, but what is clear is that it is under assault. It is also clear that Internet services are more likely to require more, not less, bandwidth in the future as digital media and other high-bandwidth applications become more commonplace, complex, and interwoven into a larger number of Internet systems.

One would imagine that if a corporation such as Google had to pay for a high-speed digital lane, it would want it to reach as many consumers as possible. So, it may well be that libraries' Google access would be unaffected or possibly improved by a two-tier (or multi-tier) Internet "speed-lane" service model. Would the same be true for library-oriented publishers and vendors? That may depend on their size and relative affluence. If so, the ability of smaller publishers and vendors to offer innovative bandwidth-intensive products and services may be curtailed.

Unless they are affluent, libraries may also find that they are confined to slower Internet speed lanes when they act as information providers. For libraries engaged in digital library, electronic publishing, and institutional repository projects, this may be problematic, especially as they increasingly add more digital media, large-data-set, or other bandwidth-intensive applications.

It's important to keep in mind that Net neutrality impacts are tied to where the choke points are, with the most serious potential impacts being at choke points that affect large numbers of users, such as local ISPs that are part of large corporations, national/international backbone networks, and major Internet information services (e.g.,Yahoo!).

It is also important to realize that the problem may be partitioned to particular network segments. For example, on-campus network users may not experience any speed issues associated with the delivery of bandwidth-intensive information from local library servers because that network segment is under university control. Remote users, however, including affiliated home users, may experience throttled-down performance beyond what would normally be expected due to speed-lane enforcement by backbone providers or local ISPs controlled by large corporations. Likewise, users at two universities connected by a special research network may experience no issues related to accessing the other university's bandwidth-intensive library applications from on-campus computers because the backbone provider is under a contractual obligation to deliver specific network performance levels.

Although the example of speed lanes has been used in this examination of potential Net neutrality impacts on libraries, the problem is more complex than this, because network services, such as peer-to-peer networking protocols, can be completely blocked, digital information can be blocked or filtered, and other types of fine-grained network control can be exerted.

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Net Neutrality: ALA Issues Statement on U.S. Court of Appeals for the D.C. Circuit Verizon v. FCC Ruling

ALA has issued a statement by Barbara Stripling on the U.S. Court of Appeals for the D.C. Circuit Verizon v. FCC ruling.

Here's an excerpt:

The court's decision gives commercial companies the astounding legal authority to block Internet traffic, give preferential treatment to certain Internet services or applications, and steer users to or away from certain web sites based on their own commercial interests. This ruling, if it stands, will adversely affect the daily lives of Americans and fundamentally change the open nature of the Internet, where uncensored access to information has been a hallmark of the communication medium since its inception.

Public libraries have become leading providers of public Internet access, providing service to millions of students, elderly citizens, people seeking employment and many others every single day. Approximately 77 million people use public library Internet access every year. These users of libraries' Internet services, and people all across the country, deserve equal access to online information and services.

The ability of the Internet to spread and share ideas is only getting better. With modern technology, individuals and small groups can produce rich audio and video resources that used to be the exclusive domain of large companies. We must work to ensure that these resources are not relegated to second-class delivery on the Internet—or else the intellectual freedoms fostered by the Internet will be seriously constrained. ALA will work with policy-makers and explore every avenue possible to restore the long-standing principle of nondiscrimination to all forms of broadband access to the Internet.

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"Supporting Public Access to Research Results"

P. Scott Lapinski, David Osterbur, Joshua Parker and Alexa T. McCray have published "Supporting Public Access to Research Results" in College & Research Libraries.

Here's an excerpt:

We posed the question of what services an academic library can best provide to support the NIH Public Access Policy. We approached the answer to this question through education, collaboration, and tool-building. As a result, over the last four years we have engaged over 1,500 participants in discussions of public access to research results, forged alliances with dozens of partners, and built online tools to ease the process of complying with the NIH policy. We conclude that librarians working in collaboration with other key constituencies can have a positive impact on improving access to the results of scientific research.

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"The Political Economy of Federally Sponsored Data"

Bart Ragon has published "The Political Economy of Federally Sponsored Data" in the latest issue of the Journal of eScience Librarianship.

Here's an excerpt:

Librarian involvement in the Open Access (OA) movement has traditionally focused on access to scholarly publications. Recent actions by the White House have focused attention on access on the data produced from federally sponsored research. Questions have emerged concerning access to the output of federally sponsored research and whether it is a public or private good. Understanding the political battle over access to federally funded research is closely tied to the ownership of the peer review process in higher education and associated revenue streams, and as a result, interest groups seeking to influence government regulation have politicized the issues. As a major funder of research in higher education, policies from the federal government are likely to drive change in research practices at higher education institutions and impact library services. The political economy of federally sponsored research data will shape research enterprises in higher education and inspire a number of new services distributed throughout the research life cycle.

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Public Access to Public Science Act

The Public Access to Public Science Act has been introduced in the House of Representatives.

Here's an excerpt from the announcement:

Congressman Jim Sensenbrenner (R-WI) and Committee on Science, Space, and Technology Ranking Member Eddie Bernice Johnson (D-TX) today introduced the Public Access to Public Science (PAPS) Act. This legislation would ensure public access to published materials concerning scientific research and development activities funded by federal science agencies, including the National Aeronautics and Space Administration (NASA), the National Science Foundation (NSF), the National Institute of Standards and Technology (NIST) and the National Weather Service (NWS). An embargo period is included to help balance publishers' needs with public access goals. PAPS builds on efforts by the Office of Science and Technology Policy (OSTP).

Read more about it at the Harvard Open Access Project's "Notes on the Public Access to Public Science Act."

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"Federal Research Data Requirements Set to Change"

Abigail Goben and Dorothea Salo have published "Federal Research Data Requirements Set to Change" in the latest issue of College & Research Libraries News.

Here's an excerpt from:

FERPA, HIPAA, FOIA, and other sunshine laws, National Science Foundation data-management plans—grant-funded research data has had compliance strings attached for some time. Attention to research data is now even more heightened following the responses of the federal agencies in August to the Obama Administration's Office for Science and Technology Policy (OSTP) directive from February 2013.2 Research libraries will need to educate and partner with researchers to improve understanding and compliance, promote proper archiving of digital data, and expand discovery and reuse of research datasets

.

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Science-Metrix Releases Three Reports on Open Access

Science-Metrix has released three reports on open access: Proportion of Open Access Peer-Reviewed Papers at the European and World Levels—2004-2011, Open Data Access Policies and Strategies in the European Research Area and Beyond, and Open Access Strategies in the European Research Area.

Here's an excerpt from the announcement:

The first report measures the availability of scholarly publications in 22 fields of knowledge across the European Research Area, Brazil, Canada, Japan, and the United States, between 2004 and 2011. . . .

The second report, focusing on open access policies, showed a growing trend in the adoption of such policies by governments and other funding bodies. . . .

The third report found that open access to scientific data is less developed and more difficult to implement than open access to scholarly publications, both in terms of policies and infrastructure.

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SPARC Call to Action for California Taxpayer Access to Publicly Funded Research Act (AB 609)

SPARC has issued a call to action for the California Taxpayer Access to Publicly Funded Research Act (AB 609).

Here's an excerpt:

The California Taxpayer Access to Publicly Funded Research Legislation (AB 609) was introduced into the California State Legislature in April of 2013 by Assembly Member Brian Nestande. On May 30th, AB 609 was passed by the California State Assembly by a wide, bipartisan 71-7 margin. It will be heard in the California State Senate Committee on Governmental Organization on Tuesday, May 25th at 9:30am PST.

If you are a California resident, visit our Legislative Action Center to write your state representatives in support of AB 609.

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"Expanded Public Access: A New Era with New Challenges"

The Association of American Universities, the Association of Public and Land-grant Universities, and the Association of Research Libraries have released "Expanded Public Access: A New Era with New Challenges."

Here's an excerpt:

During a short six-month period, agencies will develop draft plans for how this long-term preservation and access will occur ["Increasing Access to the Results of Federally Funded Scientific Research"]. Research universities have a significant stake in the plans the Director ultimately approves—universities are responsible to federal research funding agencies for compliance with the regulations attendant to the grants received by their researchers. If we are faced with different deposit requirements for manuscripts and data by each of the 15 and possibly more agencies subject to the directive, the compliance bill could be very expensive and might not reflect the interests of the academy. Given that PubMed Central has established a useful model for deposit of and access to research manuscripts, we can hope that the example of good practice established by them will be drawn upon by other funding agencies as they establish their own public access policies, and that the resultant products interconnect across and between agencies and external stakeholders that promote effective, seamless public access.

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Fair Access to Science and Technology Research Bill Introduced

The Fair Access to Science and Technology Research bill has been introduced in the House and the Senate.

Here's an excerpt from Peter Suber's analysis how the bill compares to the Federal Research Public Access Act :

Here's how FASTR differs from FRPAA:

FASTR contains a provision on coordinating agency policies (4.a 2): "To the extent practicable, Federal agencies required to develop a policy…shall follow common procedures for the collection and depositing of research papers." This will reduce the burden on universities that need to comply with procedures at all the covered agencies, and should have no detrimental effect on OA. Indeed, it should improve compliance with agency OA policies.

FASTR contains three provisions calling for libre OA or open licensing:

FASTR includes a new "finding" in its preamble (2.3): "the United States has a substantial interest in maximizing the impact and utility of the research it funds by enabling a wide range of reuses of the peer-reviewed literature that reports the results of such research, including by enabling computational analysis by state-of-the-art technologies."

FASTR includes a formatting and licensing provision (4.b.5): the versions deposited in repositories and made OA shall be distributed "in formats and under terms that enable productive reuse, including computational analysis by state-of-the-art technologies."

FASTR requires that the annual report from each covered agency include a statement from the agency on "whether the terms of use applicable to such research papers are effective in enabling productive reuse and computational analysis by state-of-the-art technologies" (4.f.2.B.i) and the results of the agency's "examination of whether such research papers should include a royalty-free copyright license that is available to the public and that permits the reuse of those research papers, on the condition that attribution is given to the author or authors of the research and any others designated by the copyright owner" (4.f.2.B.ii).

The Alliance for Taxpayer Access has issued a call to action to support the bill.

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"The U.S. Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership Agreement"

Sean M. Flynn et al. have self-archived "The U.S. Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership Agreement" in SSRN.

Here's an excerpt:

Our ultimate conclusion is that the U.S. proposal, if adopted, would upset the current international framework balancing the interests of rights holders and the public. It would heighten standards of protection for rights holders well beyond that which the best available evidence or inclusive democratic processes support. It contains insufficient balancing provisions for users, consumers, and the public interest.

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"Green or Gold? Open Access after Finch"

Martin Hall has published "Green or Gold? Open Access after Finch" in the latest issue of Insights.

Here's an excerpt:

he Working Group on Expanding Access to Published Research Findings reported to the UK's Minister of Universities and Science in mid-2012. This was followed by a new policy for open access (OA) publishing by Research Councils UK (RCUK) as well as a commitment from the Higher Education Funding Council for England (HEFCE) to require that research submitted to future research evaluation exercises—after the 2014 Research Excellence Framework (REF)—be open access. These initiatives build on a broad consensus, that includes for-profit publishers, that open access is the way of the future. Here, I give a perspective on these issues, both as the head of an institution with particular interests in the future of scholarly publication and also as a member of the Working Group on Expanding Access. The continuing development of informed debate will be critical for the future of the scholarly publishing system.

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Open Access: "The Rapid Rout of RWA"

Walt Crawford has published "The Rapid Rout of RWA" in the latest issue of Cites & Insights: Crawford at Large.

Here's an excerpt:

Seven weeks—from January 5, 2012 to February 27, 2012. That's all it took to get from AAP/PSP endorsing HR 3699, the Research Works Act, to Elsevier withdrawing its support and the bill disappearing. By today's legislative standards, it was all over before it started and scarcely worthy of a story here (except maybe a paragraph in The Back).

But it's not that simple, and I'd like to believe it's not really over—that this rapid rout is one in a series of events that will eventually change the landscape of scholarly publishing for the better. That makes the story worth telling. Well, that and my personal sense that it leads into a story that's not directly related but has similar resonances.

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Research Councils UK Announces Open Access Funding Plan

The Research Councils UK has announced its open access funding plan.

Here's an excerpt from the press release:

Research Councils UK has today, 8th November, announced the details of the block grant funding mechanism that it is introducing to aid implementation of its policy on Open Access that was announced in July and is due to come into effect in April 2013. . . .

In the first year (2013/14), RCUK will provide funding to enable around 45% of Research Council funded research papers to be published using Gold Open Access growing to over 50% in the second year. By the fifth year (2017/18) funding is expected to be provided to enable approximately 75% of Research Council funded research papers to be published using Gold Open Access. The remaining 25% of Research Council funded papers, it is expected will be delivered via the Green Open Access model. The same compliance expectation applies to Research Council institutes, and separate funding arrangements are being put in place to facilitate this.

Universities will receive APC publication funding in proportion to the amount of direct labour costs awarded on grants that they have received over the three years from April 2009 to March 2012. Direct labour costs have been used as a proxy of research effort leading to the generation of publications.

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