February 17, 2018

Taming a Wild Country | Peer to Peer Review

Kevin L. SmithLooking back, the irony is so heavy-handed that it seems contrived. As my colleagues and I were preparing for our MOOC on Copyright for Educators and Librarians, which launched for the first time last week, the only resource that we wanted to use but could not successfully negotiate the permission for was Susan Bielstein’s book about negotiating permissions. Bielstein’s book—Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property (University of Chicago Press, 2006)—is a humorous and enjoyable read that is packed with useful information. It would have been great for us and, I am convinced, for the Press if we could have offered a single chapter of it for our over 8,000 MOOC participants to read. In the event, however, we rediscovered the fear and lack of sound business sense that grips the publishing industry, but also discovered the richness of the free resources that were available to us.

To be fair, the University of Chicago Press tried to be helpful, within their narrow view of how to do business. First, they did respond to our initial request, which is more than many publishers do; for another similar permission request from a different press, I got a reply asking for “more” information which simply showed that the representative had not read my first email, then nothing at all for three weeks. The Press, on the other hand, was prompt. The staff apparently discussed our request a great deal in-house, and finally offered us permission at a reduced fee. The money was nominal, but the difficulty was that the permission was for one time only. We would be able to offer the MOOC just once with a chapter from Bielstein’s book as one of our resources; after that we would need to find substitute materials. Since we were designing a course that can be offered repeatedly if demand is there, this did not make sense. Our best choice was simply to find other materials upon which to build the class from the start.

After having dozens of these interactions with publishers, I am convinced that a profound fear and lack of imagination has gripped the publishing industry. If they can get their heads around the idea of a MOOC—as some do—they see a great marketing opportunity, where a small portion of their book is freely offered to a large group that has self-identified its interest, recommended by a recognized authority. Because of the course’s focus on U.S. law and is deliberately designed as a professional development opportunity, a larger percentage of our MOOC participants than usual are from the U.S. and many are librarians, so the market was probably even more robust than usual, if the Press had been willing to make the experiment. But over and over, I observe that the Internet is treated as a wild and untamed country that strikes fear in publishers’ hearts. The only way they can imagine dealing with this wilderness is by reproducing the limitations of print publication as closely as they can, locking down access through restrictive contracts, proprietary platforms, DRM, and the like. This allows them to, they hope, make money the way they always have, with no risky experiments into new business models.

The problem here is that the nature of the new technology resists these efforts. By their nature, digital networks are endlessly linked and accessible. Restricted access was natural in the print world, but it is difficult and costly in this new territory we now occupy. Publishers want to stay in their digital bunkers and not venture out into the vastness of the Internet, but keeping those bunkers impregnable is a lost cause, and they waste a lot of money trying. They would be better served by a recognition that content is a gateway; it is no longer the principal product. Giving away samples, especially through MOOCs, in order to sell books is not really revolutionary—many businesses have used this technique for years—but publishers are often blinded by their reactive fear of the Internet and the loss of control it entails. Over time, successful publishers will realize that they need to sell services around content and focus less on locking up the content itself.

Once we realized that we would not be able to use a chapter from Bielstein’s Permissions because of the limitations it would require, we were free to explore the undiscovered country of the Internet, and we realized how much useful material was available to us. There are publishers who do exactly what I suggest above. NOLO Press is a publisher of self-help law books that makes numerous chapters available on the Internet in order to convince readers of the utility of their publications. We included several such NOLO chapters in the materials for our course, so those will be the books our participants will be most likely to consider buying when they want additional resources instead of the University of Chicago Press book. Academic institutions, of course, have many excellent copyright resources, and we built quite a few of them into our course. We also found that law firms often offer short essays about selected topics on their websites to give prospective clients a sense of certain issues; they clearly believe that this supports rather than undermines their business, and several of those essays helped us make up the gap we were facing. And a different publisher, the American Library Association, has allowed us to use several chapters about fair use from Dr. Kenneth Crews’ book on Copyright Law for Librarians and Educators in the MOOC. It was not surprising to encounter a more sensible approach from Dr. Crews and the ALA. We were not hobbled at all by that one exclusion from our initially desired reading list; we were able to fill the gap and develop a complete, even a heavy, reading list with virtually all free sources.

So while our experience with the Press was disappointing, it was also liberating. It reminded us how much there is out there, and in the long run it will be more beneficial to our MOOC participants. It also, I think, offers a path for librarians as we try to navigate the digital environment. The commercial publishers we have relied on for so long will almost certainly not be the best guides. Even when they say they support open access and are digital pioneers, they really are stuck in structures that will inevitably hamper scholarship and learning in the Internet era. As librarians, the best use of our energy and our resources is to support the development of open educational resources of all kinds in order to make the digital environment a richer, more robust place for students and scholars. We should be what most traditional publishers are not in a position to be—guides through the digital wilderness, of course, but also the homesteaders who will build new structures for digital learning and publishing that simultaneously tame part of that wilderness and use its possibilities and potential to the fullest.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

The Latest Trends in Library Design
Hosted in partnership with Salt Lake County Library and The City Library—at SLCo’s Viridian Center—the newest installment of our library building and design event will let you dig deep with architects, librarians, and vendors to explore building, renovating, and retrofitting spaces to better engage your community.
Diversity and Cultural Competency Training: Collections & RA

Do you want to ensure that your library’s collections are diverse, equitable, inclusive, and well-read?

Do you want to become a more culturally literate librarian and a more effective advocate for your community?

We've developed a foundational online course—with live sessions on February 28 & March 14—that will explore key concepts essential to cultivating and promoting inclusive and equitable collections.


  1. All the same, Bielstein’s Permissions is a delightful book. Highly recommended.