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Gavin Baker correctly notes that the FOIA is inoperative for state-funded institutions, although many states have "sunshine laws" that may be relevant. Regardless, since public funding (NEH, IMLS, NHPRC, et al) has subsdized preservation, microfilming, cataloging, and otherwise maintaining holdings in many libraries, state and private, it seems only fair that the agreements governing digitization projects should be published.

Most of the OCA contributors are contributing public domain works with the understanding that there will be no contractual limitations above and beyond their PD status. Granted, there are many shades of "open," but we are seeing many libraries coalescing around this flavor of openness.

Although they may not happen across this request on a blog, I expect the OCA would be willing to share the terms of their MoU unless their is some reason their partners might object.

As for royalties on public domain works: For works in the public domain, anyone can use the work however they like, even commercially. I can take the text of any book scanned by OCA -- or even Google or Microsoft -- that is in the public domain, typeset it, and sell copies; nobody can stop me, and I don't have to pay royalties to anyone.

The Sunday Times article doesn't explain the nature of the relationship between OCA and On Demand. It might be something like "For texts scanned by OCA, OCA will format the texts for the Espresso, and On Demand will pay for that service." I would consider that harmless: OCA uses its own resources to provide extra value for a certain partner; I see no reason why they should be obliged to share that revenue with their digitization partners.

On the other hand, I'm not sure whether OCA makes any claim to the images of their scans of public domain works. (I'm not sure how much validity such a claim would have, either.) So while the text itself is in the public domain, theoretically OCA could claim copyright on (or apply DRM to) the page images. In this unlikely situation, they could then have a pay-to-play deal where they provide unformatted (i.e. the original formatting) scans to On Demand for the Espresso. This seems very unlikely, since the Espresso almost certainly would prefer formatted text to print rather than bitmap images (you couldn't re-format it to fit a different page dimension, etc.). In this ever-unlikelier situation, I agree it would seem a bit unfair for universities to foot the digitization bill while OCA reaps the profits.

Maybe there's answers to these questions in some nook of the Web; I haven't stumbled across them in some cursory searching. I expect an email to OCA would provide satisfactory answers. I wouldn't worry too much until at least asking.

BTW, on the list of OCA contributors, I don't see any institutions of the federal government, so there's no FOIA-regulated organizations participating, i.e. nobody against whom to file a FOIA request. There are some state institutions, however, which may be subject to state public records laws, not necessarily congruent with FOIA.

There seems a misunderstanding of "open": Open means free of cost and maybe permission barriers or public domain but not transparent according democratic principles or the principles of "freedom of information".

Therefore it is absolutely normal that e.g.
* the Bayerische Staatsbibliothek Munich denies to make open its Google contract
* that Göttingen University denies to make open its contract with Springer on the "Open Access" choice.

Great questions, Peter. Thanks for the tip on the Times article. I had actually started a blog post on the Espresso back in June, but never finished it. You provided the motivation for me to wrap mine up ;-)

Please let us know if you find copies of those OCA agreements, as I am quite curious myself.



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