Kevin Smith’s Scholarly Communications @ Duke blog is my go-to site for unpacking the meaning of recent court decisions relating to copyright and fair use and their implications for academic communities, especially libraries. His post on Judge Harold Baer, Jr.’s October 10, 2012 ruling in favor of HathiTrust in The Authors Guild v. HathiTrust copyright infringement lawsuit is an excellent and encouraging read.
Discussion on a listserv I frequent following the HathiTrust ruling included this comment from one participant:
I read this story last night and an argument can be made for either side, but it reminded me of one of my pet peeves in this area. I find this whole thing of putting whole books (minus pieces here and there) at Google Books or other places really problematic. I can readily understand journal articles being open-access but not books. I don’t know what the financial realities are for a big publisher like Macmillan, but the publishers whose books I mostly buy, and which publish projects that I have been involved in, like dictionary articles or book chapters, such as Zondervan, Baker, Eerdmans, InterVarsity Press, etc., are not, based upon what I’ve read, exactly rolling in money from huge revenues. Here’s one example. I can go to Google Books and find John Nolland’s New International Greek Testament Commentary on Matthew. There are bits omitted but there is enough there that if a student asks me where to find a good commentary on Matthew I can point the student to this work. He/she doesn’t need to buy it. A library doesn’t need to buy it. The student can read the lion’s share of the book without it costing him/her anything. This means that groups that put (mostly) full-text books on the web are essentially contributing to the potential bankruptcy of various publishers, and that would serve no one.
More than the HathiTrust case, the commenter may be thinking about the other lawsuit brought by The Authors Guild in 2005 (and still unresolved) against Google over the later’s alleged infringement through its massive book digitization project, which includes scanning of books still in copyright. In any event, the commenter contends that “putting whole books (minus pieces here and there) at Google Books or other places” is harmful to publishers because “there is enough [of the full text provided in the preview]” that a library or student doesn’t really need to buy the book.
The commenter is referring to “limited previews” of books still in copyright in Google Books. According to Goggle’s documentation (PDF), a “limited preview” can show “from 20 percent to 100 percent” of the full text content. However, it is the copyright holder (author or publisher) that grants permission to Google as to the the amount of text that is displayed. This is not something Google is doing of its own accord. The copyright holder may only grant permission for Google to display “snippets”— “two or three sentences surrounding the search term,” or it may not allow any preview at all.
In the example referred to by the commenter, John Nolland’s The Gospel of Matthew from The New International Greek Testament Commentary (Wm. B. Eerdmans, 2005), it is true that a significant percentage of the book’s 1,500 or so pages is included in the preview. However, the preview page also includes these words: “Pages displayed by permission of Wm. B. Eerdmans Publishing.” In addition, there is a very prominently displayed red button with the words: “Buy Ebook – $68.” Responding to this commenter, Kevin Smith correctly assesses that publisher motivation in allowing this preview is calculated to actually encourage sales:
Publishers make such agreements because they believe that Google Books will drive traffic to purchase the book. The link to buy Nolland’s book is prominent on the page. So the publishers obviously do not believe, or do not universally believe, that allowing access of a substantial number of pages on Google Books will lead to their bankruptcy.
The basis for the commenter’s concern appears to be related to the fact that the Google Books limited preview is providing useful information—and in the case of John Nolland’s book, a significant amount of useful information—for free. “[T]here is enough there that if a student asks me where to find a good commentary on Matthew I can point the student to [Nolland's work on Google Books]. He/she doesn’t need to buy it.”
The commenter is overstating the case, though I confess that I have on more than one occasion gleaned useful information for research from a preview in Google Books instead of buying the book (or working with my library to secure a copy). But this, as we have discussed, is essentially beside the point. The purpose of the preview is to drive sales not provide access to content. It is a marketing decision, and the copyright holder can amend preview terms with Google at any time. The above documentation from Google makes this point explicitly:
Think of [Google Book Search] as a free worldwide sales and marketing program that includes your books in Google search results. Your participation in the program makes it possible for anyone searching for information on Google to discover and buy your books – even when they have no previous information to guide them. …
Prospective customers can browse sample pages as a preview, just as they can page through a book in a bookstore. If they like what they see, they can follow the purchasing links to buy the book – either directly from the publisher site or though popular online retailers.
A free preview is not open access
What I especially wanted to focus on is this statement the commenter made a few sentences earlier: “I can readily understand journal articles being open-access but not books” (emphasis added). I won’t here engage in the commenter’s suggestion that academic books should not be open access. I disagree, though I certainly understand there are many challenges. More important to me here is to push back against the notion that the availability of free content in any form (e.g., from Google Books) makes that content open access.
In attacking this notion I realize that I am attacking the keen and frugal sensibility of librarians in seeing the availability of free content from any credible source as a good thing. I also realize that I am running contrary to a proposal put forward by open access advocate John Willinsky in his book The Access Principle: The Case for Open Access to Research and Scholarship (MIT Press, 2006; available as an open access download here). In the book Willinsky identifies “ten flavors” of open access (he is focusing on academic journal articles). Among the “flavors” is what he calls partial open access, which is based on an economic model where “open access is provided to a small selection of articles in each issue—serving as a marketing tool—whereas access to the rest of the issue requires subscription” (Table A.1, p. 212).
This would appear to be exactly what we are seeing in Google Books: a limited preview—serving as a marketing tool—whereas access to the rest of the book requires that it be purchased. So why am I unwilling to recognize this as a viable form (flavor) of open access?
I do not know what Willinsky’s current view regarding “partial open access” might be. But I read the inclusion of it in his 2006 book as a concession to what he called “opening access” to knowledge—by which he means “increasing access and improving access to the journal literature, largely through the use of the Internet. It is about ways of making a greater part of this literature accessible to more people.” (p. 27, emphasis his). From this perspective, a free preview in Google Books or free access to an article or two on a toll journal’s website does technically increase access—at least as long as it is available. And this is really my overriding point. Because the preview or article is intended as a marketing tool to sell access to content, the commitment to openness is suspect. I would insist this “flavor” doesn’t really improve access because that access might be pulled tomorrow.
Speaking of flavors, the Google Books documentation puts it like this: “[Through the limited preview or snippet view] people get a taste of your book—but only a taste” (emphasis added). The list commenter felt Google Books, or rather, Wm. B. Eerdmans was giving away too much of John Nolland’s commentary. Though it isn’t actually the whole book, even the amount of content currently available in the preview might change if the publisher suddenly concurred with the commenter’s assessment. This is not open access because the access is limited and because the access is unreliable. I cannot imagine any library actually deciding it didn’t need to buy this book (in print or e-book format) because it felt it could just link to the free limited preview on Google Books.
As I write this post, and throughout the month of October, SAGE Publications is providing free access to all its online content. This is more than a taste for sure, and I know some scholars who might be apt to binge on this buffet! (I’m pretty sure, however, that “all” doesn’t mean the wholesale downloading of book essays or journal articles from SAGE’s site.) I do not dispute that this is a generous offer from a commercial publishing business model perspective. However, it is a limited offer specifically designed to sell reliable and continuing access to SAGE’s content. Come November 1 the buffet goes back behind the paywall.
I recognize the legitimacy of other “flavors,” or economic models designed to support open access as an intended goal (e.g, delayed access, subsidized, value-added formats, etc.). Open access is not about giving away too little or too much where behind that snippet, preview, or limited time “all you can eat” is an intention to sell information, useful or otherwise. Associating such activities with open access undermines the concept, which is committed to facilitating the free unimpeded, unlimited, and reliable flow of information for the cause of knowledge.