The Librarian of Congress Rules

Carla Hayden has served as the Librarian of Congress since 2016 – picture taken from the Library of Congress official website.

Every three years, the Librarian of Congress, with the recommendation of the Register of Copyrights, releases a regulation detailing exemptions to the Digital Millennium Copyright Act (DMCA) of 1998. The latest exemptions were released at the end of October.

The DMCA is a complicated law. It bars people from “circumventing a technological measure that effectively controls access” to a copyrighted work. 17 USC 1201(a)(1)(A). This includes decrypting an encrypted work, but it includes things one does not necessarily think of as encrypted, like a DVD of a movie. This is also independent of the right to use the work; even if something would be fine under fair use, violating the DMCA is a separate problem. The Librarian of Congress issues exceptions where people are allowed to circumvent technical measures. These exemptions are reviewed, and new ones considered, every three years.

This year, we saw almost all of the prior exemptions renewed. For libraries, this included important and often-used exemptions for using short portions of motion pictures for educational purposes, criticism, and comment, and for motion pictures for accessibility and preservation purposes.

The Librarian added to the exemption for text and data mining, allowing researchers at non-profit colleges and universities to access corpora, either of motion pictures or literary works, hosted at other institutions, if certain security thresholds are met. These researchers do not even have to be collaborating with researchers at the host university. I think that we will see institutions hosting corpora for the good of researchers everywhere, although it might take grant funding to bring that to fruition.

Two new exemptions were denied. The Librarian did not expand an exemption for video games, which would allow for more individuals to use copies at a time. She also rejected an exemption for AI models for trustworthiness research. Also of note, there was an exemption added for the software that runs retail ice cream machines, so they will be more repairable.

International Open Access Week

International Open Access Week returns this year, from October 21st – October 27th. The theme is once again “Community over Commercialization.” Open Access as a mode of publishing is more successful than ever. According to the Association of Scientific, Technical and Medical Publishers, in the last ten years, the share of publications available only to subscribers has fallen from 70% to 52%, meaning many more people are able to read scholarship at no cost.

But within that success is also a story of commercialization. Gold OA, where the author or research funder pays the Article Processing Charge, has more than tripled as a percentage of publishing, while Green OA, which is a version of open publishing that does not cost extra, is now half of what it was. With APCs averaging nearly $1,400, and large publishers like Elsevier averaging $2,100 for Gold OA, and $3,440 for publishing Open Access in a hybrid journal, Open Access is coming at quite a cost.

The Budapest Open Access Initiative Declaration, one of the guiding documents of the Open Access movement, was issued in 2002, at a time when print still dominated scholarly publishing. One of its big ideas is that the move to the Internet for publishing would make it much cheaper. This has not proven to be the case. As we enter this Open Access Week, it is a time to reflect on how we can better balance the need to compensate all parts of the scholarly communications ecosystem for the work they do, while keeping the dissemination of knowledge and the betterment of society as the goal we hope to achieve.

This year at the Boston College Libraries, we have put together a display on the third floor lobby of O’Neill and in the Theology and Ministry Library, highlighting works from our collection having to do with access to scholarly materials and the push for open models. Boston College Libraries also publish a number of undergraduate journals, and will be holding an editors forum October 24th at 3pm where editors can learn how to use tools like OJS and Tableau to help kickstart a new publication or highlight journal statistics. To find out more about the movement toward fuller open access, check out Peter Suber’s book on the subject, Open Access, which is available in print – and also fully free online, (an open access version!)

New Open Access Display at the TML

Recently, the staff of the Theology and Ministry Library added a new permanent display to its current periodical reading area promoting the discovery of open-access publications.  They made the new addition to both highlight the importance of this form of publishing and to support the particular research needs of the students of the Clough School of Theology and Ministry (CSTM).  Many key international publications in theology are now being made available open-access, and this helps students from the CSTM, 32% of whom are international and from 24 different countries.  To complement the physical display, the staff also created an online guide to provide direct links to publications.

Open Access Publishing Around the World

While open access publishing is gaining popularity in the United States, global developments in adopting open access policies and building infrastructure generally outpace the rate of developments in the United States. Of course, it is not a competition, and learning about open access publications and presses from all over the world will help contribute to a more thoroughly connected, diverse, and complete scholarly record. In recent decades, different organizations are working to consolidate different open access policies, publications statistics, and trends in one place or dashboard.

One of these is the Curtin Open Knowledge Initiative, which has compiled statistics on open access output by country and by institution. And while the United States has the highest quantity of open publications between 2000 and 2024 at 7,269,454, this represents only 44% of total domestic publications – while countries like Indonesia (1,487,632 total open access pubs) and Peru (97,881 open pubs) publish 91% and 82% open access, respectively. Dashboards and initiatives like these help to track progress – or comparative lack of progress, over the years as it relates to the actual publication of open materials. Studying the examples of countries that have quickly transitioned to producing a much higher percentage of open access publications is an important part of the work of open access advocates.

Another excellent tool for the tracking of open access projects is OpenAPC, which attempts to track where Article Processing Charges (APCs) are being paid from and which publishers are being paid. While the project does not have enough data from the United States institutions to suggest any sort of narrative domestically, many European (especially German) institutions have contributed data to the project – and the site is very useful at understanding all the differing pieces that make open access publishing work across the world.

The top funder of APCs in OpenAPC, rather unsurprisingly, is listed as the Bill and Melinda Gates Foundation. Having contributed over 31 million euro in APCs, the foundation alone has funded over 7% of all APCs on the site itself – and that is just what IS recorded by OpenAPC. The site also usefully tracks to increased prevalence of Transformative Agreements and expenditure on processing charges for open access monographs.

While the landscape around open access changes rapidly depending on the discipline, country, and institutional attitude, having a sense of what policies exist and what publications can supplement or compliment collections with low cost can help open access advocates and librarians fight for more equitable access for our students.

JSTOR Path to Open

For the second year since the beginning of the initiative, JSTOR has produced its 2024 list of open titles. While some of these titles are still yet to be made available fully Open Access, JSTOR’s Path to Open initiative promises to deliver 300 titles being published annually over the course of the pilot from 2024-2026. Unfortunately, while access has been expanded, there is a de facto embargo on these titles, as the thousand-odd titles that are too be released each year would only be accessible for participating institutions in the Path to Open platform – and the full release of the titles would not take place until three years after the release to the subscribing university presses or libraries. The good news, however, is that Boston College is indeed a participating institution, so Boston College affiliated students and faculty will have the opportunity to access JSTOR’s Path to Open collections as soon they are made available.

Despite the “embargo,” this initiative will continue to push the conversation in the direction of full open access – as subscription based platforms like JSTOR continue adapt models that allow for more openness. Additionally, these titles are not selected at random, rather, JSTOR’s Path to Open is clearly prioritizing diverse voices that can have the largest impact on the discourse:

“The collection features peer-reviewed monographs in disciplines across the humanities and social sciences, with an emphasis on works that bring forward diverse perspectives and ideas.

To help in identifying titles that would be most impactful for libraries and scholars, titles were selected that were associated to disciplines with the highest overall usage and were associated to the highest used search terms on JSTOR.”

JSTOR has provided title lists of resources that are currently available to members via the 2023 title list – and also have provided links to some of what is, or will be, released in 2024.