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Open Excess

The ongoing fight in Germany to "dispossess the dispossessors" Google and Open Access is delusioned and dangerous, argues Matthias Spielkamp

Roland Reuß is on a run. On 11 February the philologist and professor for modern German Literature at the University of Heidelberg, published a polemic in the Frankfurter Allgemeine Zeitung, in which he accused Germany's major scientific organisations, in particular the German Council of Science and Humanities and the German Research Foundation (DFG) of a "secret technocratic coup".

What happened, he claims, is that the German Council of Science and Humanites and the (DFG) had boxed through Open Access (Berlin declaration here in English) in a perversion of justice, casting copyrights aside, shattering the German publishing world and blackmailing and dispossessing unsuspecting academics of their rights. Our expert on Kafka, Hölderlin, Kleist, German Romanticism - and oh yes, digital media – is most partial to superlatives. The fact that all Germany's leading research institutions from the Fraunhofer Society to the Max Plank and the Leibniz Society, all support Open Access, along with several hundred of the world's leading scientific organisations, was obviously irrelevant to our author.

Before long Reuß's article had attracted a storm of response from the otherwise rather untalkative readership of the online edition of the FAZ although it steered well clear of polemic and kept to the list of facts that revealed holes in his argument. Even Gudrun Gersmann, head of the German Historical Institute in Paris and chairman of the committee for "Electronic Publications" at the German Council of Science and Humanities, felt obliged to write a reply, outlining the benefits of Open Access: improved access to information and research could only benefit the general good.

Anyone who hoped that Reuß would then do as would would have befitted any academic in his situation, went disappointed. On his website he ridiculed Gersmann for wanting to resolve their differences, and for not responding with a counter-polemic. And then he hit on the ingenious idea of throwing Open Access, a year-old empirically stable movement, into the same pot as the current panic over Google's digitalisation programme "Google Books", giving it a good stir and forming the mixture into a hideous bogeyman which could be knocked down with one good kick – although the two things have absolutely nothing in common.

Then on March 12, it was the turn of the Frankfurter Rundschau to offer Reuß a platform. Whether the paper was hungry for spectacle or plain ignorant is debatable, but which ever it was, Reuß was up there again, rattling his dispossession sabre, declaring Google and Open Access the double-headed fiend. This time his battle cry was "Dispossess the shameless dispossessors!"

Reuß's one man fight for author's rights started a ball rolling. On March 20, the taz printed an article by Rudolf Walther on "Open Dispossession by Google Books", which not only cited all Reuß's allegations without checking them, it also went one well-phrased but terrifying step further by claiming that "Google piracy and the 'Open access' scam are more dangerous than piracy on the Somalian coast". The fifty or so commentaries that his article provoked, all of them slating his arguments, were not enough to prompt Walther into responding. Journalism as conversation is obviously as foreign to Walther as the state of affairs involving Google and Open Access.

Walther is in good company. On Sunday 22 March Reuß looked invincible. His appeal "For Freedom of Publication and the Protection of Copyright" was publishes at the, signed by such illustrious names as Michael Naumann, the publisher of Die Zeit and former Minister for Culture, bestseller author Daniel Kehlmann and Klaus Reichert, the president of the German Academy for Language and Poetry. And let's not forget Dominik Schaaf, school pupil, Cologne. By Sunday night the signatories numbered 139. [ The list has since reached 2487 - ed.]

The appeal (here in English) said: "Currently the fundamental right of authors vouched for in the constitution to publish freely and of their own volition is under considerable attack and sustained threat. At the international level, intellectual property is being stolen from its producers to an unimagined degree and without criminalisation through the illegal publication of works protected by German copyright law on platforms such as GoogleBooks and YouTube. At national level, the so-called "Alliance of German Scientific Organisations" (members: Wissenschaftsrat, Deutsche Forschungsgemeinschaft, Leibniz-Gesellschaft, Max Planck-Institute etc.) is propagandising for wide-ranging interference with the freedom of the press and the freedom to publish, the consequences of which are contrary to the basic law."

It is certainly correct that copyright is being violated on a massive scale globally. Digitalisation and Internet mean that most copyright violators generally know they can act with impunity if they take enough precautions, because although the framework for "criminalisation" is in place in most countries, it is rarely implemented. The fact that few people will side with an artist like Prince if he tries to sue a mother for uploading a videos of her dancing kid just because one of his songs is blaring tinnily out of a loudspeaker in the background, is secondary. And Reuß, Naumann and Kehlman are hardly going to have sleepless nights if someone uploads the best jokes by some comedian on German TV the night before onto a video portal.

What they are up in arms about is Google's book programme, which is digitalising books on a massive scale and making them publicly accessible to all and sundry. This is indeed problematic, because by scanning millions of books, Google has created a fait accompli, and will build on this by pumping millions of dollars of worth of legal fees into reaching a settlement with US publishing houses and writers associations. All publishers and authors will have to submit to this settlement because this is a class action suit which affects all members of one group – should the relevant US court which has to approve the various elements of the settlement do so. This approval is expected in May.

Google will then allow readers to browse as deeply into these deliverable books as their rights owners – the authors or publishers – see fit, and commercialise out-of-print books by letting users see the books, print them or buy them as print-on-demand versions – as long as the rights owners don't object. Generally the profits will be split so that the rights owners get 63 percent and Google 37.

With all respect Google's critics, the publishers in particular, 63 percent is hardly dispossession. If you sign a contract with a publisher today and your name's not Daniel Kehmann, you will be lucky if you get 10 percent of the sales price. If you're less lucky, and have to publish a dissertation for example, you will have to pay the publisher a down payment of several thousands of euros for printing. Whether it's a good idea for authors to share the anxieties of the publishers and threaten to sue Google, knowing they would have to foot the bill themselves (via the copyright association VG Wort) is a therefore a moot point. What the real effects of the Google settlement will be is the subject of much heated debate among publishers, academics and authors at symposia and conferences round the world. Perhaps they should ask Roland Reuß who knows exactly what the future holds: the dispossession of the author.

The same fate, says Reuß in his hair-raisingly dangerous campaign, which awaits us with Open Access. I should make it clear now that the Open Access movement was born of necessity in the academic world – and of a paradoxical situation which had and has nothing to do with authorial rights. Scholars and scientists, particularly those from the so-called STM disciplines (science, technology, medicine) can only make a name for themselves by publishing in science journals. These journals are published in partly globally-operational, often stock-market listed publishers, such as the Springer Wissenschaftsverlag in Heidelberg (nothing to do with Axel Springer) or Reed Elsevier, a British-Dutch company.

By publishing with these companies, scientists often have to surrender exclusive usage rights to their articles. This means that their own articles cannot be published anywhere else, neither on their own websites, nor on the website of their university. They get no payment for their articles; to the contrary, and scientists also write peer reviews voluntarily, at the expense of their employees in most cases. In other words, at the expense of the tax payer if they work in publicly funded institutions such as universities. The tax payer pays, the companies profit. So who is dispossessing whom?

This situation then gets completely absurd when the universities, where the scholars and scientists work, can no longer afford the magazine subscriptions. But this is precisely what has been increasingly happening since the 1990s. Since then, the price for many scientific journals has risen by up to 30 percent a year. Most observers put this down to ever fewer, ever larger publishers on the market who are dictating prices. Scientists cannot just swap to other products, in other words move to cheaper magazines, because their reputations stem from these publications and the peer reviews in these journals and because they need the information contained in them. At the same time the budgets of universities and libraries have stagnated or even shrunk in many countries.

So scientists are increasingly moving in the direction of making their articles "open access" through the Internet. The benefits are twofold: they can get their research out to their colleagues and access more publications in return. It is no surprise that the publishers are not welcoming the development, because their own business model consists of getting exclusive licences for free from scientists who are refunded by the state, and then selling them back to publicly financed libraries. At astronomical prices. A year's subscription, for instance, to the the "Journal of Applied Polymer Science" costs over 21,000 US dollars (plus VAT), an increase of over 30 percent since 2002.

Reuß, obviously incensed by the poor quality scan of his Kafka book on Google Books, naturally has no time for such trifles. He would rather drive a bulldozer over everything the scientists and librarians have so painstakingly constructed in recent years, by lobbying to get Open Access understood, not only among politicians, but also among fellow scientists. To this end Reuß cites his colleague Uwe Jochum, a librarian in the University of Constance. Who "made the effort to get to the bottom of things," as Reuß writes.

What he supposedly unearthed is that in 2007 Yale University had to cut the funding for "those authors who wanted to publish on the medical Open Access Internet platform Biomed Central" because "publication costs had started sky-rocketing so dramatically that even the financial might of Yale was insufficient to cover them." It is true that Yale's science and medicine libraries cancelled their membership to Biomed Central, one of the leading Open Access publishers, but that doesn't make a half lie a half truth. For one thing, the cancellation followed when the university transferred all responsibility for paying for open access publications onto the library. Secondly, in the period between 2004 and 2005 alone, Yale had paid over seven million US dollars for nearly 70,000 subscriptions to "classical" magazines, which is probably the more important reason why the university was strapped for cash when the 29.635 dollar membership fee for Biomed Central was paid in 2007.

107 other US institutions retained their membership in 2007, among them the MIT and Berkeley, to mention just a few better known institutions. So Jochum and Reuß hadn't got very close to the bottom of things after all. More like casting about in muddy water. And just because the FAZ, the FR and the taz published their claim that Open Access charged exorbitant prices without checking the facts, does not them them any more right.

Rudolf Walther only added to the disinformation in the taz, by claiming that the Yale university library had had to pay thousands of dollars to Biomed Central for "open access" to a single article: "In 2005, it cost Yale University a further 4,648 dollars to make a single article from a highly specialised digital bio-medical journal available to their researchers. A year later the quasi-monopolists were demanding 31,425 dollars per article." This is utter nonsense. Walther is confusing the prices of what it cost Yale to publish an entire year's worth of articles at Biomed Central with the price of access to these articles in libraries and globally over the Internet, which by definition at "open access", is free.

A group of scientists working with the Australian John Houghton recently conducted a study into the social and economic benefits of the scientific publishing world in Britain. Their results match the conclusions reached by other studies carried out by the EU and the OECD: the national economic benefits of Open Access far outweigh the costs. But are Michael Naumann, Daniel Kehlmann and all the other signatories of Reuß's petition interested in such empirical trifles?

The appeal closes with the words: "The freedom of literature, art and science is a major constitutional asset. If we lose it, we lose our future." If the signatories do not know Aesop's fable about the boy who cried wolf, they should look it up on Google Books.


Matthias Spielkamp is columnist and project manager of - copyright in the digital world, and he runs the Immateriblog
This article orignially appeared in German at perlentaucher.

Translation: lp

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