Over on Boing Boing, Cory Doctorow has posted an entry entitled, "Human rights worker: JFK's secondary screening procedures are "human rights abuses" (the post is dated 18/08/08).

In order comment effectively, I am reproducing the post in full:

An American human-rights worker was detained by the DHS at JFK when she returned from her holiday in Syria. She found herself in a Kafka-esque nightmare room crammed like a cattle-car with Americans and foreigners seething as they were abused, ignored, insulted (and sometimes deported) by the US government's representatives. So much for public diplomacy.

No one who had been detained knew precisely why they were there. A few people were led into private rooms; others were questioned out in the open at desks a few feet from the crowd and then allowed to pass through customs. Some were sent to another section of the holding area with large computer screens and cameras, and then brought back. The uninformed consensus among the detainees was that some people would be fingerprinted, have their irises scanned and be sent back to the countries from which they had disembarked, regardless of citizenship status; others would be fingerprinted and allowed to stay; and the unlucky ones would be detained indefinitely and moved to a more permanent facility.

There was one British tourist in the group. Paul (also not his real name) was traveling with three friends who had passed through customs soon after their plane landed and were waiting for him on the other side of the metal barrier; he suspected he had been detained because of his dark skin. When he asked if he could go to the bathroom, one of the guards said, "I wouldn't." "What if someone has to?" I asked. "They will just have to hold it," the guard responded with a smile. Paul began to cry. I watched as he, over the course of four hours, went from feeling exuberant about his trip to New York to despising the entire country. "I speak the Queen's English," he said to me. "I'm third-generation British. I came to America because I've always wanted to come here, and now they've got me so scared that all I want to do is go home. We're paying for your stupid war anyway."

I once got pulled out for secondary screening at the Australian border. They brought my pregnant wife a chair and a glass of water, were friendly and professional and prompt, and never made me feel anything other than welcome. They thoroughly investigated me without ever making me feel like a crook. It took all of 10 minutes. It doesn't have to be this way.

I can report a similar experience dealing with airport security in the United States. While I was never required to wait in a crammed room where I was not permitted to go to the toilet, I did have to suffer through an extraordinary amount of security procedures every time I passed through a US airport.

I spent the first half of 2008 travelling through Europe, Canada and America. There were no troubles in Europe. But America was a different story altogether. I was travelling on an around-the-world ticket, a condition of which was that I could not fly into the same airport twice. This meant that I was essentially travelling on a one-way ticket, as far as US airport security was concerned. And apparently, foreigner + one-way ticket = terrorist.

I passed through, I think, six airports while I was in the US. And without fail, every time I was required to endure secondary screening procedures. These procedures involved:

• having airport security search through all of my personal belongings (very roughly, I might add, and the one time I tried to catch one of my belongings before it fell off the table after the security officer had cast it aside, I was loudly and harshly berated for touching my own property);
  
• being required to answer a series of intrusive questions;
  
• being fingerprinting;
  
• having my irises scanned;
• being patted down by security personnel (I was asked if I wanted this done in a private room, but I refused, preferring to have witnesses while I was touched); and
• standing in a little glass cubicle where air was blasted on me to see if I had any explosive substances on my clothes or person (it felt like a gas chamber).

I was treated like a criminal, and like "Paul" from the UK, it completely turned me off future visits to the US. After the first airport screening procedure, I found that I became extremely nervous each time I had to go to the airport, which probably just made me look even more suspicious.

But probably the most insulting thing, was that each time I was told that the process by which I was selected for secondary screening procedures was "random". Please - six times in a row? My partner, who was travelling on the same type of ticket but on an American passport (he was born in Hawaii) was not subject to the same treatment. And whenever I ventured to ask the other people waiting in line to be security screened whether they were American, there was never a single American person in line.

My relief upon returning to an Australian airport, where the security personnel are friendly (they even crack jokes), respectful and efficient, was immense. My experience in the Australian and NZ airports has always been pleasant (mirroring Cory's own experience), and I can only hope that this is because Australian security personnel treat travellors better in general, and not just because I was travelling on an Australian passport.

APSR Workshop – The Data Management Plan: Putting Policy into Practice

On Friday 8 August 2008, I attended the Australian Partnership for Sustainable Repositories (APSR) Workshop, “The Data Management Plan: Putting Policy into Practice” at the University of Melbourne.

Professor Anne Fitzgerald, with whom I work at QUT, gave an excellent and very well received presentation on the legal issues surrounding data management. Her slides can be viewed here.


Here are my notes from the workshop (made roughly during the day):


Data management plans: from idea to reality (10:15am – 10:45am)

Dr Markus Buchhorn (ANU) for Karen Visser

• We need enduring systems that outlive projects and programs
• Individuals are human – seven deadly fears:

1. fear of missed “nuggets” in their data – milk it for everything, for ever and veer
2. fear of missed errors
3. fear of unknown custodians/stewards
4. fear inappropriate leaks (privacy/ethics) – can ruin trust relationships with others
5. fear the cost of effort
6. fear lack of recognition
7. fear trusting someone else's data

Plan ahead – help researchers to help themselves as far as possible
Build relationships of trust with researchers – engage with researchers as early as possible


Mark Euston (ANU – Information Literacy Program)

• tasked with developing a training course, workshop and online, for early to mid career researchers, on Data Management Plans (DMP)
• Objectives of the course -

1. what is Data Management (DM)?
2. benefits and requirements
3. raising awareness of DM services
4. DMP

• Manual based on Guidance on Data Management (UK) and Guide to Social Science Data Preparation and Archiving
• get researchers in by stressing how they can work with their data more effectively and efficiently

What's happening at... (11:10am – 12:30pm)

Belinda Weaver (UQ)

Issues for the data survey:

• no 'joined up' services
• no help
• inequity – not fair – nothing works etc.
• costs
• lack of training (people felt insecure about what they were doing)
• uncertainty
• no incentive, no rewards

Recommendations from focus group:

• standardised DM template for funding applications
• legal advice centralised and accessible
• service focused support teams for research projects – specific to the discipline
• survey of all existing data
• central data storage system
• develop a clear UQ data management policy
• templates

Central management of research data - issues:

• trust
• data integrity
• accidental disclosure
• control
• sharing
• re-use (want to know what use has been made of their data – auditing – and if they give data to a person for a particular purpose, they want to know if the person doesn't end up using the data or not using it for the particular purpose)
• the long term

Wish-lists:

• clear policy and guidelines
• account manager
• specialists on teams (want to know who to go to for advice)
• career path?
• rewards
• templates for everything
• funding to do it properly
• advice and consultancy
• institutional support
• tools (but they want to be told only when they want to be told, and be told how they want to be told)

presentations from workshop available at: http://www.library.uq.edu.au/escholarship/orca.html
UQ developing a expert curation advice service


Lyle Winton (Uni of Melbourne)

• Uni of Melbourne have a research DMP template
• looking at training for undergrad students
• looking at how to keep this up to date
• possible data management registries
• from 500 charges of research misconduct, 40% could have been avoided by good data management

http://www.esrc.unimelb.edu.ay/dmp/references.html


Suzanne Clarke (Monash)

• Monash has a Data Management Committee
• Research Data Management Toolkit for librarians so they know what to talk about to researchers
• Identified needs: more education required for researchers on statutory requirements for data, IP and the ownership of research data

Gillian Elliot (University of Otago – NZ)

• As far as she is aware, NZ has no policies surrounding data management
• so NZ in quite a different position to Australia
• Survey in 2007 - researchers in NZ had a lot of data and a lot of stuff loosely stuck together that were unpublished and hard to classify – need help with data management
• data management and copyright concerned researchers – 48% of survey respondents
• Atlas of Living Australia; Convention on Biological Diversity; Department of Conservation and Land Information New Zealand; Land Care NZ; National Vegetation Survey Databank

Dr Ashley Buckle (TARDIS – Monash University)

• TARDIS is a multi-institutional collaborative venture that aims to facilitate the arching and sharing of raw X-ray diffraction images
• Protein Data Bank – growing exponentially – too much data?
• Benefits to making raw data available – experiment reproducability/validation

Discussion Groups: Group 2 – Processes for Data Management Planning (1:15pm-2:45pm)

How do we make DM part of the usual research practice?

How can we make raw data count as a citation? - for funding etc. - this is very important, if there is greater recognition of the value data in itself as a citable object then researchers will be more willing to manage their data properly.

Ashley Buckle – we need “data journals” - essentially the same as a database but greater recognition

DM needs to give you a reward at the end that is at the same level as rewards from publication

Better tools – build the researchers tools that are so good that they do not actually realise that they are managing their data.


Reporting back to main group and discussion (2:45pm-4:00pm)

1. Roles, rights and responsibilities

• Anne Fitzgerald's domains of responsibility
• Policy plus principles
• disseminate research data as widely as possible
• develop practical toolkits
• risk management for universities
• simple for universities to completing
• ongoing legal and policy advice
• insert data management requirements into research proposals and grants
• get recognition via NHMRC, ARC and ERA to provide regulatory and reward structure
• need for national centre for legal policy and advice in regard to the data lifecycle including reuse
• universities to incorporate data management into risk management strategies
• provide pragmatic family of licences/responsibility statements (like CC) to identify roles and policies
• DMPs to be built into research project formulation and management

2. Processes for data management planningbetter tools and incentives: build better workflows

• allowing data management in their modelling: harness tools onto repositories
• citation: make sure that citation of datasets happens and is rewarded, as incentive for researchers to create good data
• persuade ARC to make explicit expression of intent in ERA eventually to credit data citation (at least down the road). This as formal submission from this workshop
• infrastructure: development of a COHERENT NATIONAL NETWORK of repositories, emphasis on discipline specific repositories (though institutionally supported) as a centre for research activity

3. Making it work

• know what you don't know
• each institution needs to:

1. identify the needs of its researchers (possible role for ANDS here)
2. map the available services (needs to happen locally)
3. strategically target the gaps
4. identify candidate services to drop to fund this

• Make it easy
• provide a visible point of contact for the users
• not necessarily through one channel only
• not necessarily a one size fits all solution
• embed regular formal training in how to use services
• needs to be as easy to use as “MyFlickBook”
• outreach, marketing, publicity
• Start small and scale

1. seed the service and gradual expand it as understanding grows
2. start with young researchers and use peer group pressure over tie
3. get good examples going first to generate some quick wins
4. use growth in tandem with policy

• Reward innovators in shared services

1. provide annual performance incentives for going beyond meeting strategic goals
2. encourage shared services staff to learn new skills
3. create new job descriptions for new people in management

Interesting post (and comments) on women's Olympic uniforms

See Hoyden About Town here.

Update: Remix My Lit

In July, I wrote about Remix My Lit, the new project by the Creative Commons Australia team.

Well, Remix My Lit has proclaimed August to be "Remix Month".

There are now 9 new short stories on the Remix My Lit website, licensed under Creative Commons Attribution Non-Commercial ShareAlike licences. New authors to contribute include Kim Wilkins, Phillip Neilsen, James Phelan and Danielle Wood.

It’s now up to you to remix these stories, making sure to acknowledge the author, that your remix is not for commercial use, and your new work is available for others to remix.

Email your remixes to anthology@creativecommons.org.au before 31 August to have your story posted on the website and for the chance to be published in the hard copy anthology alongside your favourite author.

Book Launch: Legal Framework for e-Research: Realising the Potential

On Thursday night 7 August 2008, I attended the book launch of Legal Framework for e-Research: Realising the Potential, edited by Professor Brian Fitzgerald and published by the Sydney University Press (SUP).

The book was launched in the new University of Sydney SciTech Library (with a delightfully space-age interior in all shades of green) by Dr Michael Spence, who has recently returned to Australia from Oxford University (where he was the Head of the Social Sciences Division of the University of Oxford, Fellow and Tutor in Law at St Catherine's College Oxford, and CUF Lecturer at the University of Oxford.) as the new Vice-Chancellor of the University of Sydney. The book launch itself was quite lively and was attended by some prominent figures in the legal and e-Research space, including Professor Brian Fitzgerald and Professor Anne Fitzgerald, Dr Richard Jefferson of CAMBIA, Graham Greenleaf of AustLII, Professor Gillian Triggs of the University of Sydney Law School and Christoph Antons.

The book is a compilation of conference papers from the Legal Framework for e-Research conference that the Legal Framework for e-Research Project at QUT ran last year (2007) on the Gold Coast. It's essentially a who's who of experts in the issues surrounding e-Research and includes chapters from:

• Dr Terry Cutler (who is currently chairing the Australian Government Innovation Review);
• Dr Chris Greer (NSF);
• Professor John Unsworth;
• Paul F Uhlir and Peter Schroder;
• Professor Paul David and Dr Michael Spence;
• Claire Driscoll (NIH);
• John Wilbanks (Science Commons);
• Fred Friend (JISC);
• Professor Fiona Stanley AC;
• Dr Richard Jefferson (CAMBIA);
• Andrew Hayne (Privacy Commissioner);
• David Ruschena; and
• Gaye Middleton.

I have two chapters in the book – one with Professor Brian Fitzgerald titled, “The Law as Cyberinfrastructure”, which also appears as an article in CTWatch Quarterly (Volume 3, Number 3, August 2007: The Coming Revolution in Scholarly Communications & Cyberinfrastructure) and can be accessed here, and one with Professor Anne Fitzgerald and Anthony Austin titled, “Understanding the Legal Implications of Data Sharing Access and Reuse in the Australian Research Landscape”, which is derived from our 2007 report, Building the Infrastructure for Data Access and Use in Collaborative Research: An Analysis of the Legal Context.

The book is highly comprehensive, coming in at over 500 pages, and looks fantastic – SUP has done an incredible job in putting it together. Hard copies can be obtained from SUP at cost (AU $59.95). A digital version will soon be available online under a Creative Commons licence, which means it can be downloaded and used for free. It is not up yet, but I will post a link when it is.

On unequal bargaining powers in contracts...

There is a problem with our profession. It is a problem that is now difficult to address, due to the long line of case law that has entrenched the following concepts into our system and our understanding of contract law:

• parties to a contract deal at arms length; and
• parties to a contract are generally assumed to have equal bargaining power, or at the very least, equal ability to seek legal advice.

But we know that in reality this is certainly not the case. Lawyer's fees are expensive; they are beyond the capacity of many people to pay. The result is that often, in contract negotiations, there will be one party that is in a significant position of power in relation to the other party.

Lawyers know this. And here's where the problem gets aggravated.

Big companies (or big enough companies) employ big firm solicitors. These solicitors then draft contracts that are overwhelmingly in the interests of their clients and are on no level fair.

Now I understand that the lawyers themselves are to a large extent subject to the system – to a system that makes them liable if they do not fully protect their client's interests, to the extent that they feel that it is necessary to draft these overly conservative, imbalanced agreements.

It would be one thing if the other party had lawyers who were also strongly pushing their clients interests, and who would then counter-offer, and negotiations could proceed until a reasonably balanced position was reached. That is how the contract law system was conceived.

But when the other party is an individual with no legal representation, the entire system becomes skewed.

I deal quite frequently with authors who are faced with publishing agreements that take all of their IP rights for an insubstantial or no fee. And I am sure that this occurrence is not limited to the publishing environment – musicians face the same deal with many recording contracts, and there are many other individuals out there in the same boat. The authors I speak to are usually very reluctant to request any changes to the publishing contract in their favour. Why? Because of the unequal bargaining power. Because they are scared. They are scared that their publisher will object to their objections, and then they can kiss their publishing deal good bye. So they don't ask for the changes.

But my thoughts are that the opposite is really the case. I, as a person with legal training and who understands what the contract is purporting to do, am not afraid to say what I don't agree with and why. And for the most part, this gets the results I want, or at least brings me closer to them. The other party rarely slams the door in my face.

I think this happens because I know what I am reading, I know my legal rights and I make it clear to the other party that I know. And unlike what their contract would lead you to believe, the other party is not actually reluctant to budge from their initial position. They are just not expecting you to ask for changes, because they are expecting you to not know what you are reading and not know what your rights should be.

So they draft contracts that:

• transfer all or most of your rights (in the case of IP-related contracts);
• give you very little in return; and
• contain indemnity clauses that basically require you to pay for everything and anything that could possible go wrong (and that includes paying legal fees, which seems absurd for a person who can't afford a lawyer to read the contract for them in the first place).

And they do this expecting that you will just sign, not fully understanding the ramifications.

I believe that it is time that professional ethics standards developed in line with social reality. It is time for the legal profession to cease pretending that all other parties are represented, and to begin to consider the unfairness that results where a contract is oppressively drafted against the interests of a smaller party.

Comments about my most recent publication

Sanford Thatcher, Past President and on the Board of Directors of the Association of American University Presses (AAUP) provided the following feedback about Understanding Open Access in the Academic Environment - A Guide for Authors (2008 OAK Law Project) to the directors of university presses that are members of AAUP:

Thanks to Stevan Harnad for drawing our attention to this important new guide. I have just finished reading all 150 pages of it and can highly recommend it to all of you as an authoritative overview of the landscape of open access publishing as it applies to journal articles. (The guide does not say anything about books, or even contributions to edited volumes.) Among other useful features, it contains a brief but helpful history of the OA movement, a summary (with quotations) from the principal OA statements (Budapest, Berlin, et al.), a survey of OA journals and various business models by which they operate, a discussion of the role of institutional repositories and funding agencies, and a very helpful discussion of the interconnected licenses (including the author's addendum and Creative Commons licenses) that authors get involved in negotiating with publishers, funding bodies, institutional repositories, etc. I applaud its conservative stance on how to deal with the kind of author's addendum that claims to be valid even if the publisher does not sign it (see page 109). CIC press directors should see what is said about CIC policies on page 111. If you read nothing else, I urge you to read at least chapters 8 and 9, which discuss how authors can negotiate contracts with publishers. The guide concludes with a Copyright Toolkit, which is a wonderful condensation of a lot of relevant information--and also dramatizes how complex this terrain is getting for authors, who are faced with multiple and possibly conflicting licenses. As a comprehensive tutorial for your staff on the state of OA today, I don't think there is anything out there that is better than this--though it is limited to the domain of journal articles and clearly has a pro-OA bias (reflected in the numerous quotations from people like Peter Suber and Stevan Harnad).

P.S. Although this is produced by an Australian group, most of what is contained in it is universally applicable. The exception is the short section on Australian copyright law, which differs in a number of respects from U.S. law (including the "moral rights" provisions that Australian law incorporates but U.S. law doesn't).

Thanks to Sandy for permitting me to republish this feedback on my blog.