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Copyright and the University Community |
Traditionally, copyright law was the domain of a very limited number of people, which was just as well because legal scholars, including at least one Supreme Court Justice, admitted that fair use was one of the most difficult areas of the law to understand. But then most people really didn't need to understand it since it affected so few.
Technological advances earlier this century began to change the picture, however, just as the invention of the printing press dramatically changed the picture many centuries before. The photocopy machine in particular seemed to upset "gentlemen's agreements" between publishers and consumers of printed works about the scope of the vaguely defined fair use. Amendments to copyright law in the mid-70's ostensibly addressed these changes, but then everything seemed to fall apart in the 90's.
Suddenly, ordinary people can copy others' works with incredible ease, become publishers, and use others' works as the basis for new works, incorporating things here and there. These potential creators and publishers work for or attend our universities so we need to understand copyright law. But, if copyright law was hard to understand in the print environment, it now borders on inscrutable. This means that we must identify copyright issues, apply 200 year old law to cutting edge technologies and create guidelines that real people will follow. No small order.
The situtation is very nearly critical. To some it hardly matters which way it goes, just so long as it goes. But to most stakeholders, including the university community, it matters alot, or it should matter alot, for we have alot to lose if our interests aren't considered in the resolution of the problems presented by new technologies.
Eventually, these problems will recede into the background once again, because intellectual property and information are becoming much too important to leave in limbo. They are staples of industry, and industry needs more certainty to do business than academia has been willing to tolerate. Between now and then, however, there is much work to be done.
I hope to demonstrate the importance of understanding and applying copyright law in the university community and most importantly, of providing more guidance for faculty and staff. Because these issues are all interrelated, the best way to provide that guidance is to develop comprehensive copyright management policies. Such policies should address not only issues of use, such as licensing, fair use and performance rights, but policies of ownership and management as well so that we take care to protect and exploit that which we help to create.
We can be held liable for infringements of faculty and staff, and perhaps even of students (unrelated third parties).
Potential litigation presents one cost, but it is really just a risk of cost. More real to most of us are the costs we absorb through the inflated prices we pay for books and journals that incorporate a substantial mark-up for campus and library copying that the publishing community believes is infringing.
Costs for subscriptions to scientific, medical and technical journals have been spiraling out of control. Many universities have cut back on monograph acquisition to purchase journals. Some cancel subscriptions and rely upon interlibrary loan, a practice that many publishers complain is illegal in itself. Even then, costs of interlibrary loan are escalating as well.
Most importantly, the university must recognize that to a large extent, it has helped to create the circumstances that fostered the explosion of these costs.
The electronic medium offers a unique opportunity for universities to take a more active role in the management of our copyright properties, to more efficiently and more effectively facilitate our research and educational mission.
Most universities recognize the value of patents and have carefully developed clearly articulated patent policies. Most universities have not, on the other hand, recognized that significant sums are lost because we don't have thoughtful copyright policies. We may save significantly if we don't give copyrights away and then have to buy them back. Further, using others' copyrights illegally has hidden costs that we are just beginning to understand, and could well have catastrophic costs if we were sued for infringement.
Universities must be involved in this debate. Since we are both owners and users of copyright works, we have important interests at stake. Our needs will not be addressed if we are not there. The White Paper recommendations make clear that we should be considering right now such issues as how to best obtain broad clearances from the rights holders whose works we depend so heavily upon on a daily basis; how to better protect our interests in scholarly works created at our institutions; and how to minimize the risk of university liability for employee and third party wrongful acts in cyberspace.
17 USC Section 201(a) vests ownership of copyright in a work with the author of the work. Section 201(b) provides that the employer or other person for whom a work-for-hire is prepared will be considered the author for copyright purposes. Works for hire are works created by employees within the scope of their employment, or by others pursuant to written contract, if the work created falls into one of the nine categories set out in the definition of work-for-hire in Section 101.
Universities have for the most part altered the statutory scheme either through tradition or through policies that permit faculty ownership of their scholarly writings. It is unclear whether the law would compel the conclusion that faculty writings are works within the scope of employment, but resolving the issue seemed of little consequence until recently. As we will discuss in a moment, this policy has contributed to the escalating prices universities must now pay to buy back scholarly works, creation of which their own funds have supported.
The allocation of ownership interests in the end products of university research is just the tip of the iceberg. Today there are more subtly nuanced variations on this once-straightforward theme:
More often than not, the university does not own copyright in the works its faculty and students need to read. In the print world, this means the library must buy books and subscribe to journals. It also means that universities may need to acquire additional rights as well:
But when is permission required and when does fair use apply? The simple answers, "never" and "always" are unfortunately, not the right answers. Learning to analyze a use to determine whether it's a fair use, while not impossibly difficult, does require some effort. Workable guidelines are most helpful, but they tend to be more restrictive than truly necessary. Nevertheless, they are preferable to no help at all.
Ultimately, universities must focus upon licensing for those uses that go beyond fair use. We must learn more about transactionally based and blanket licenses, assess their strengths and weaknesses, and know when to exploit each type to most efficiently promote copyright compliance.
We also must move quickly to support staff who must negotiate license agreements for initial access to electronic works, for to the extent we can acquire sufficient access upfront, we may not need additional permissions for the uses that we know we'll need to make of electronic works.
In considering our alternatives, it is very important to acknowledge that so long as universities are using others' works, they are obliged by copyright law to pay whatever the copyright owner asks. Even if the price seems to be too much or seems like paying twice for the same thing, universities are not currently paying as much as publishers want them to pay, or as much as publishers are entitled to under law. The existence or scope of fair use does not alter or affect this basic fact.
As a further corollary, it would be reasonable to assume that ultimately there may be little difference between the cost of comprehensive access and the cost of bare access plus permission fees for all additional uses since copyright owners have the right to their price whether collected entirely upfront or collected partly upfront and partly after the fact of access.
On one level, we may argue that the scope of fair use is relevant to the discussion of costs: to the extent that fair use adequately covers most every educational use in the electronic environment, theoretically universities would have no need for permission at an additional cost. Further, since licenses usually acknowledge the right of fair use, theoretically the price of access should not increase if fair use turns out to cover all additional uses not spelled out in an access license.
But, if publishers determine that they need more money to make their products available to universities and libraries, there is nothing save the market and what it will bear to prevent their increasing the price of access. Thus, ultimately, fair use at any scope may be irrelevant.
But we shall put aside that perplexing possibility for the moment and proceed to consider the strategies we might undertake to reduce our need for permissions:
So long as universities use others' works, they are bound to pay the owners their price. To the extent universities can retain the right to electronically distribute faculty-authored scholarly works, they should be able to cut costs of both access and use.
The internet has existed for years and has been utilized by the research community for a variety of purposes with little dramatic effect, but now it seems possible that electronic publishing could potentially and drastically alter the dynamic among authors, publishers and consumers of scholarly works, offering the various "stakeholders" new alternatives that could satisfy their respective needs more effeciently. Users want wide, affordable access and publishers and authors want reasonable remuneration. Since the university community includes authors, publishers and users under the same roof, we ought to be able to take advantage of this situation.
We owe it to ourselves to examine some of the premises underlying the way we do business in the print environment, especially since the balance we have achieved between the rights of owners and users may in truth be more like a stalemate. The escalation in journal prices 1 illustrates this point: users believe publishers charge a price that reflects what publishers think they are losing because users make fair use (and interlibrary loan) copies; users cancel subscriptions and make more copies because they cannot afford the journals and then publishers charge more because they perceive that fair use and interlibrary loan copies are further displacing subscriptions. 2
We should also look at the costs of making interlibrary loan copies. The Association of Research Libraries ("ARL") conducted a survey that had surprising results. "Extrapolating the results of the cost survey to these figures suggests that in 1991-92 all ARL libraries spent well over $71 million on interlibrary loan operations: $26 million on operations to borrow materials for local users and $45 million to loan materials to other libraries." 3 We can only assume that these costs are continuing to rise.
Although solutions may not be particularly easy because they involve rather fundamental changes in our perspectives on the problems, the electronic environment does offer us an opportunity to break through considerable entrenchment. 4
Part of the problem is that university users and authors have limited publishing options in the print environment. But, the electronic environment offers a unique opportunity to change the dynamic. The university community can create publishing alternatives, transact business with more user-friendly publishers, and publish its works in fields dominated by the most problematic, over-priced publications with publishers who are a part of our community or who are in any event willing to deal with users in a reasonable manner. 5 Competition is a powerful tool to bring down prices; canceling subscriptions and making copies has the opposite effect. We should capitalize on the strength that we have naturally because we are all part of the same enterprise. 6
The AAU/IP Report suggests that an alternative scholarly works database shared by university faculty, libraries and presses would assure the community access to precisely the kinds of materials threatened by spiraling prices. One member of the Task Force suggested that "[w]here scholars are writing primarily for other scholars, the process will arguably be managed directly by faculty involved and conducted outside the "money economy" of conventional publishing." Whether alternative distribution systems develop by conscious design or simply naturally evolve from practical use of the medium, it seems clear that there could be multiple "tiers" of scholarly publication, and with respect to the greater body of copyright works, multiple tiers of publication generally.
This is the premise of a new ARL publication, "Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing," edited by Ann Okerson and James O'Donnell. The book captures an internet discussion on the future of the scholarly journal, engaged in by scholars, librarians, and publishing experts. It examines a fascinating proposal, well worth consideration. The raw materials (the internet discussion) from which the book is derived are posted on the Internet as well.
Many universities are exploring scholarly electronic publishing as an adjunct to or in lieu of other forms of scholarly communication. The development of this resource is one of the most exciting aspects of the digital revolution. 7
Examples include:
The web of interdependencies between universities and publishers may be rewoven by this process, but it is not likely to entirely disappear. Thus, there is some risk of harm to the relationship between libraries and university presses, certainly to the relationship between universities and for-profit publishers. If libraries and university presses focus on the goal of facilitating scholarly communication, rather than on preserving traditional roles and institutions, they will be better able to find solutions within which they can be partners rather than adversaries.
1 Nicola Daval, Rising Prices Continue to Plague ARL Libraries, ARL Newsletter, May, 1994, pp. 1-2. Serials purchased in ARL libraries over the period 1986-1993 were down 5% while expenditures were up 92%; monographs purchased were down 23% while expenditures for same were up 16%. Id. at 1.
2 The Clinton Administration's Working Group noted that legitimate users of copyrighted works pay higher prices to cover infringing uses (Green Paper at p. 115). To the extent that fair use and interlibrary loan copies are perceived as infringing, this principle applies here as well; Texaco, Jacobs, J., dissenting, notes as well that serials prices for institutional subscriptions are twice those for individuals. Texaco, Jacobs, J. dissenting at __. The "fuzzy" boundaries of fair use and interlibrary loan contribute to the perception of infringement: indeed, fuzzy boundaries give those on each side much reason to believe that the other side's activities near the boundary are actually "over" the boundary.
3 G. Jaia Barrett, The Cost of Interlibrary Loan, ARL Newsletter, January, 1993, pp. 1-2.
4 For example, many commentators have suggested that it is appropriate at this time for universities to take more control over copyrights in scholarly works; for faculty to utilize electronic networks to communicate directly with their colleagues; and for university presses, libraries and computer science departments to collaborate to offer alternatives to for-profit publication of scholarly works. Where subscribing and photocopying are irreplaceable, broadly negotiated blanket license agreements may be more cost effective than transactionally based permissions fees. See Will We Need Fair Use in the Twenty-First Century? from Filling the Pipeline and Paying the Piper, Proceedings of the Fourth Symposium on Scholarly Publishing on the Electronic Networks, Spring, 1995, and Copyright in the Library: Scholarly Electronic Publishing, both available electronically at the Copyright Crash Course.
5 There is an undeniable irony in the cries of the university community that science, technical and medical journals are overpriced: it is by many accounts the university system of faculty rewards and incentives that has helped to put certain publishers in control. The Report of the Association of American Universities' Task Force on Intellectual Property Rights in an Electronic Environment (April, 1994) (hereafter, "AAU/IP Report") recommends that the university community begin to take advantage of the opportunity the electronic environment offers it, take some control over its copyrights and better manage the process of scholarly publication.
6 See generally, Colin Day, The Economics of Electronic Publishing: Some Preliminary Thoughts, from Gateways, Gatekeepers and Roles in the Information Omniverse; Proceedings from the Third Symposium, November 1993; AAU/IP Report.
Jean-Claude Guedon, in remarks before the 4th Symposium on Scholarly Publishing on the Electronic Networks (November 1994) suggested that since the public funds most research at one end of the research activity continuum and subsidizes libraries to purchase the results at the other end, scholarly publication and library functions could theoretically merge and eliminate the transaction that seems to interfere with the unity of an essentially public undertaking.
7 For more information on scholarly publication, see Copyright in the Library: Scholarly Publication.
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