E-first and copyright: a discussion with Chris Morrison and Jane Secker

Jane Secker, a Senior Lecturer in Educational Development, at City, University of London and Chris Morrison, Copyright, Licensing & Policy Manager at the University of Kent are experts in copyright and licensing in UK universities. They sit on the UUK/GuildHE Copyright Negotiation and Advisory Committee (CNAC) and together run the blog copyrightliteracy.org. We wanted to find out more about a recent report they had published “Understanding the value of the CLA Licence to UK higher education”.

The following article is based on a conversation between Chris and Jane, with Ian Corns from Talis. It was especially created for The Talis Informer.

Ian: Thank you both for joining me for this discussion. To start off, could you give me an introduction to the report which you have just published?

Jane: We first decided to commission the study because we were in the run-up to negotiating with the Copyright Licensing Agency (CLA) over the terms of the higher education licence in the summer of 2018. The new licence came out in August 2019 and ahead of that we wanted to do some research into trying to understand more about the value of the licence and how universities were using it, and what the differences might be in how they were using the CLA licence, so that was our quite narrow brief in some ways.

At that point we started discussing with Elizabeth Gadd, at Loughborough [University]. She was very interested in whether some of the content that might be being used for teaching was available on Open Access (OA), so she suggested she might get involved. We also decided to approach SCONUL, JISC collections and RLUK, to see if they were interested in collaborating with us.

Chris: We wanted to take a step back from just that question about price and understand the value of the licence. Part of this, as well, is to understand how the current licence and scanning fits into the recent changes in technology and the rise of open access publishing. It was for our group to understand what is it that universities are doing with this content and to give us a bit of a steer on what we should be doing, asking where should our group be focusing on in terms of our discussions with the CLA, and doing that in quite a transparent way. We were entering into dialogue with the CLA but also with other organisations that are involved in that wider ecosystem of creating and sharing materials that are being used in teaching. Institutions are obviously paying far more for access to primary content than they are for the CLA licence, but the CLA licence is costing the sector £15.5 million a year.

Ian, I know you will have questions about e-first policies also… and that seemed to us to be quite an interesting area to investigate. Although we’ve got institutions with e-first policies, the data indicates a need to take print collections and digitise them to put them online. I’m interested in understanding what is happening to make that necessary on such a large scale.

Ian: Yes, the one area around reading lists that I wanted to focus on was around the e-first policy. You talked within the report about the role reading lists played around streamlining acquisition processes. One of the things we’ve noticed over the last 5 years is not just a swing towards more electronic content appearing on those lists, but we now have lists that are 100% available ‘e’. When I speak to library directors they talk about reading lists supporting their e-first policy, but in your report you talk about very few institutions having a true e-first policy… So what are the characteristics those e-first institutions are exhibiting?

Jane: One of the things we did, in addition to analysing this large data set that we got from the CLA, was 10 case studies of institutions. We selected 5 institutions that were scanning a lot under the CLA licence, and then we selected 5 that were scanning very little.  I did interviews with those institutions to talk about the decision that they might make, and one of my questions was “Do you have an e-first policy?” I was aware from institutions where I’ve worked and people that I’ve talked to that they’ve been talked about ‘e-first’ for quite some time. Most of them said to me ‘technically we do have an e-first policy’, however the reality of e-first is that, in fact, it’s more complicated. 

Ian: Why do you think that is?

Jane: Students are quite varied in the way they want to read content. They say they want electronic access, but if you look at habits they have, they will want to print things out and read things on paper as well, if they’ve got to make notes on it, and I think institutions are quite aware of this… 

Just saying “we are always going to buy in electronic format” doesn’t work. In some cases, it’s slightly backfired, so they’ve had experiences where they’ve discovered either that they can’t get all the content they need, or they’ve had issues where when they do provide all content in electronic format but there are any students that need accessible texts that might not be supported through some of the platforms they’re using. Sometimes there are lecturers who say “I need my students to have this material printed out and in front of them” and so an e-version doesn’t work. 

Most [institutions] are still saying we will look at e-first as they don’t want to build up large collections of multiple texts in their libraries if we can provide the readings electronically for students, but they are taking a more nuanced approach to it, and actually talking to academic staff and students to make sure that is always the right way of providing access. 

Chris: I think the reality is that it’s not always possible to get all digital content. That’s one of the things we’ve identified in the report, and it is part of the reason the CLA licence is being used. In a way, technically speaking, that’s what e-first is – you try to get the e-content, and start with the born digital and then use the CLA licence if that’s possible. What we’ve found is that there’s quite a lot involved for those trying to find the content, trying to source the content and there’s not just a one size fits all, really.

Jane: It surprised me! Everyone, pretty much, when I said “Do you have an e-first policy?” said “Yes…but…”. There were always exceptions.

Chris: That might, in a way, be a reflection of people doing the job. The policy says one thing, but the people doing the job say ‘yes… but in practice…’. It’s not quite as neat as it sounds on paper. The workflows aren’t quite as straightforward as they appear to be, and they [the library staff] do whatever they can to get the readings to the students in the best way possible.

Ian: So it’s about student choice depending on the learning mode they’re in?

Jane: Yes. People were also talking about where they are supporting distance learners, so that would be a case where they want electronic access, and for students who are dispersed on various campuses where it’s not practical to maintain a print collection. 

Ian: What changes do you see happening to e-first policies over the coming years?

Jane: I get the impression that most institutions will have them for practical reasons, but I think there is a sense that they will always want to give academics and students some choice in the matter, and will want to make sure that it’s always the right solution for those groups of students and will need to be flexible. We all know that you just have so many differences, especially in big universities, between the way subjects want to teach.

Chris: I think that electronic information for learning purposes is here to stay, and that’s the direction that we are going in. Jane is absolutely right that there are reasons why people still want to have [physical] books, and our libraries are still going to be full of books for some time to come. What we are seeing in this report is that the e-first policies are there, but there’s a still a place, for practical reasons, why print copies are still purchased and why extracts from them are scanned and why print copies are available in the library.

Ian: Moving on to the research you did in the area of OA – what was the most interesting thing you found out in this research?

Chris: For the research into the OA side of things, we were primarily looking at the journal content. When we were looking into the number of scanning records, the vast majority were books. 87% of the material scanned under the licence were books, and 13% were journals. 38% of the journal content was available under OA, although on further investigation in fact only 3% of the journal content was available under clear re-use terms. Despite the difference between the two figures it still suggests a lot of material could be being copied under the license unnecessarily as it is available under OA. This indicated to us that perhaps OA hadn’t been incorporated into acquisitions workflows.

Ian: is there a role there do you think for vendors? Library Management Systems, or Reading List systems, these are points that potentially cross over these workflows. Is it the role of the suppliers of these systems to expose OA more effectively?

Chris: I would think so…

Jane: I would agree. I think what was interesting was that out of all the 10 institutions that I spoke to, when I asked them if they would routinely look for OA material when they were supplying for teaching, everybody actually said ‘no, I hadn’t really thought of doing that’. Partly, because they didn’t actually think it would be available and it would add in an extra step into what is already quite a complex acquisition process. Also, there are lots of decisions that have to be made; how many students are on this course, when do they need this reading by, what’s the preferred format, who’s got the books, where do we need to go to get them… all these kinds of things. For many people, it hadn’t occurred to them to introduce that, but quite a lot of them when I mentioned it said they were going to look into how it could be added into the process. 

In a part of the study that Lizzie did, we as a group took a sample of data and searched for the articles to see if they were available on OA. Lizzie devised the procedure that we followed, but it revealed that there were a number of times where it just wasn’t possible to say clearly if it was or not. We would find an article sometimes that appeared to be on the Open Web, and we understood entirely what the confusion was – “Can I add it to the reading list? Is this is a legitimate copy? Is this on a publisher website that’s just been made temporarily OA?”. It’s quite confusing to understand and there’s quite a lot of nervousness around adding content to reading lists that either might be up on the web illegally, or might just be there and then at a later stage disappears off the list. 

Ian: Ultimately, is there a role here for the library, institution, whoever, in educating academics in putting more OA content on lists originally, before it gets to the library? Or are we saying that the issue is that if librarians are struggling to understand whether they can put it on the list, that is then an even bigger problem for academics?

Jane: It touches on other areas of research Chris and I have done in the past, the idea that when you are a librarian and you want to provide access to material, how much responsibility do you have to ensure content is available? If you know something is available if a student Googles it and could find it for free, but you know it’s on a site that potentially is infringing, what is your role there? 

We had an article on our blog recently about the librarian’s role in relation to Sci-Hub. It puts librarians in quite a difficult position because they feel they want to give access to content, but they are aware of the licensing issues and they want to do it in legitimate ways. Especially if they’ve purchased lots of content, they certainly don’t want reading lists populated with rogue content that is not making best use of what they’ve paid for but also potentially infringing and may disappear. That will just lead to students being massively frustrated when they click on the links and the reading has gone.

Chris: The more that can be put into workflows [the better], so reading list systems, or putting in metadata from authoritative sources, which is a collaborative piece of work. One of the benefits of OA is that it can be reused, but we haven’t seen a lot about how that works as part of the workflow and process. It’s a big and contentious area and much of it is focused on the funding and research and once something is made OA it’s ‘job done’, but then how does that come back and get reused by the institutions? We were pleased to be able to raise awareness, there was a paper recently published (Gadd, E.; Morrison, C.; Secker, J. The Impact of Open Access on Teaching—How Far Have We Come? Publications 2019, 7, 56.) that draws on that OA question. We really want that to be part of the OA discussion on how that relates to teaching materials so we can work together to streamline the process and accelerate the use of OA material for teaching.

Ian: How do we change the domain so that anyone can be comfortable and confident when they find OA material that they are using it appropriately with the right licence?

Chris: I think we have to accept that it’s going to be quite a long process because there’s an awful lot of material out there. We’ve got a long history of licence choices not being clear, lots of institutions taking their own approach, people interpreting the condition of funding and what licence they should add to any particular output. Often when people are unclear they choose not to put any licence on it at all.

Where we are at the moment is a lot of contention around what type of licence should be applied to things, that are non-commercial and with no derivative clauses, that will take a long time to work through. You can’t just blanketly go and apply licences to material that’s been put up there, as that’s a legacy issue. What we can do, I think, is to try to put the systems and processes in place at an institutional level where we are consistently doing that, and thinking through the consequences of making something ‘so-called’ open and then not making it truly open, eg. open and free ‘libre’ not just free ‘gratis’. So a lot of work to do, no instant fix. I think there’s an important part of vendors and reading list system suppliers to play in that.

Jane: It is an opportunity to get different bits of the library community to be more joined-up, e.g. librarians involved in Teaching & Learning to talk a bit more to those who are dealing with OA and to see what we can come up with. 

Ian: The recommendations for library directors that you included in the report were especially interesting – the first one is how library directors are ensuring they are aware of how their CLA licence is being used and reviewing how it supports Teaching & Learning. What would be your advice for a library director who wanted to action that? Where would they start?

Chris: I would advise them to talk to the people within their teams who manage their CLA licence and their scanning coordinators. They also have the data themselves on how much they are using it, so they can review that. We (the CNAC) are also plugged into the community of people using the licence. We’d be happy to talk to any director or their teams who wanted to look at this area because we’ve got some insights on doing this research. The data set itself is anonymous, so we don’t share that or put it out publicly, but we have some insights from that and we’d be keen to talk to any institution who wants to understand how it fits into their broader context of how it supports Teaching & Learning more generally.

Jane: One of the things that we did suggest was that the data that is supplied to the CLA is perhaps part of something like the SCONUL data return, because that would then allow institutions to do the benchmarking that they do in other areas, as the data supplied to SCONUL is available to other SCONUL members. The issue with the CLA data return, because of it being supplied to the CLA as part of their royalties process, was that we had to agree to keep it anonymous. We can obviously point to an institution where they sit in the data, but we can’t show them a full data set because of the anonymised protocol we get it from. 

Ian: That certainly seems an area to explore and consider…

Jane: I think it is definitely. We have recommended that the data is collected in an independent way and we’ve started conversations with SCONUL. We’ve highlighted in our recommendations that the data about how much is spent is one of the fields in the SCONUL return that I believe isn’t mandatory to fill it in. The most accurate figure we could get was that there’s £192 million, being spent on electronic resources across the sector, but that data is not up to date because you’ve got at least a third of institutions that don’t fill that in. We are not doing ourselves any favours as a sector of being able to look at how much we are spending because we aren’t collecting accurate data, which I found worrying. I understand it can be a pain to have to fill in all these fields for data, but if we don’t do it, we are not getting a really comprehensive view of what is going on at a sector level.

Ian: There are a lot of systems that can capture that type of information, it doesn’t necessarily need to be a manual form fill, whether it’s CLA-DCS, or Talis Aspire. There’s a lot of data being captured there but of course, you need to have the requirement first and you need to sector to define the need for that. 

Chris: We were very pleased to have created a benchmark where we’ve been able to dig into the data that we do have access to, draw out some conclusions, be able to publish that and perhaps have people challenge some of the conclusions that we’ve drawn. So it’s a movement towards transparency. 

Have we done an interpretation that helps library directors to make decisions? We’d love for library directors to engage with it and see if what we think is relevant to you is actually relevant. This could be of importance to library directors because we are negotiating this licence on behalf of the sector and we want this to be done as openly and as transparently as we possibly can. What we think we’ve done here is a contribution to that, but it’s not where it ends. 

We had an event yesterday with our group talking to representatives from the sector and getting contributions from others (CNAC summer event 9 September). We are going to continue to do that. We would say to library directors, please if you aren’t able to come to that, we support you sending members of your team to be part of that and we’ll engage with them.

Ian: We’ve already talked about one of the recommendations earlier, where you’ve said if there’s high use of the CLA licence to look at alternative routes. Something we can briefly dig into is institutions with low use. What do you think the reasons are for their low use?

Jane: The reasons are often related to the size of the institution. We did find that the bigger well-funded institutions who could set up a team who could manage reading lists and as part of that do scanning under the CLA licence, they obviously made higher use of the licence. The institutions that we spoke to (5 of the institutions in the case studies with lower use) most of those said that they didn’t have a reading list system, so that is clearly a factor. 

But I also think its to do with the fact that they’re smaller institutions so they’ve got fewer resources. They haven’t been able to set aside a dedicated team to manage this. What you don’t want to do is create a big demand for a service if you haven’t got the staff in place to support and you haven’t got a system.

Ian: Looking at your other recommendations, you suggest acquisitions teams build closer relationships with support and research teams. I’m seeing this already happening from conversations in my own meetings with universities, and I find it a really interesting change.

Jane: That is really interesting. A lot of institutions are essentially creating functional teams where someone is supporting research and OA and someone else is supporting Teaching & Learning. It’s something I saw happening in lots of institutions over the last 10 years and I think that it might be that there has been a recognition that it’s not that simple. 

You can’t just completely separate these things, as there’s a direct relationship between teaching and research, and even if you don’t have that sitting in one person that has to try and do both things, what you need is really good communication. What we hope is that the report will highlight that OA is about fundamentally making sure our students can get access to this content and that it’s available for anyone who needs it.

The creation of functional teams has created a bit of a division in certain areas so perhaps we need to look at how we bring them back together again. It’s always really good when you have librarians that specialise in certain areas but for me, it’s the role of the library director to not be a specialist and to see how all the different bits of their library needs to work together and to make sure the teams they have don’t just work in silos. 

Ian: If there’s one thing then that you could say to library directors that they could do today that would make a difference, what would you say?

Chris: I think I would say talk to the team that is running the CLA scanning service and make sure they really understand what they are doing and how it fits into the bigger picture. I think this goes back to where you were talking about high use and low use. We aren’t saying that people should be using the CLA licence less, or that an institution should be using it more. It’s clearly something that has value and institutions do rely on it, but they need to optimise their use of it. It takes up a lot of resources within the library to manage it, and that may be a perfectly sensible and rational use of the resource, but it should be thought about holistically.

Jane: It’s a significant point that most of the books that are being used on reading lists are written by UK academics, so essentially we are still in this same loop that academics are writing textbooks or content for teaching that’s going on a reading list that’s having to be bought, and potentially they could have conversations with academics about more open solutions.

We should say to these academics “you’re employed by UK universities, your content should be open”, and we should ask if there is a more open way that we could provide access to this content. There are a couple of authors that came up that you could go and have a conversation with and say ‘your book is really heavily used across universities, could there be another way? How much money are you actually getting in reality for publishing that book?’ and ‘could there be another way that that content could be made available?’. I’m not saying open it up and give it away for free, but there are different approaches aren’t there for open books? It just feels like we all know our academics write content that they put on their reading list, and then the library has to go and buy it back again.

A huge thanks to Jane and Chris for their and efforts put towards the creation of this article. Visit their blog here: copyrightliteracy.org

The information literacy group are having an event on the 2nd December on the relationship between information literacy and supporting teaching with OA. Find out more here.

This post was created exclusively for the Talis Informer, a quarterly newsletter from Talis aimed at those leading and influencing Higher Education libraries. If you’d like to receive the newsletter, please get in touch at info@talis.com. For even more content and discussion, join the Talis Informer mailing group here.