Ok, it's the market's turn now... Once the players are back on their feet.
September 2008 Archives
As I discussed last week in my blog post, UT Austin and the CCC's annual subscription license, I have been thinking over these issues of what's fair use in the delivery of digital course materials, and how to identify and pay for what isn't, for a long time. Almost 5 years to be more (but not completely) precise. It all started with that little irritating idea of market substitution, that is, the idea that making copies for educational purposes could be interpreted by a court to substitute for a market-ready service or product, a service or product that we should be purchasing. Oh, the circularity of it all...
But several courts developed the argument in rather quick (by court case standards) succession. By now most people know the three (Kinko's, Michigan Document Services, and Texaco). Many other much better fair use cases have come along since then (better with respect to the outcome for fair users, despite the presence of a real or simply alleged market for the use), but there's still this nagging question about how a court will see University copying and distributing in the context of these three cases, as well as the more recent cases that for the most part deal with transformative (creative) uses. To tell you the truth, I pretty much got to a stalemate position when I tried to balance what I thought was the likely result legally with what it was actually possible to accomplish on real campuses. I was poised to publish an article on the subject, but I just couldn't sign my name to something so depressingly negative, so pessimistic, so, well, hopeless. I truly judged the situation to be a mess but couldn't see the point in just proclaiming it so.
So, instead I posted the article on the Web where I knew fewer than 12 people would see it, began developing a workshop on the subject for the University of Maryland University College's Center for Intellectual Property, taught the workshop last winter, headed up task forces and work groups to examine the issues as I described in last week's post, and boy, did I learn a lot from this effort. I am reworking the article! It will still describe the difficult situations that educational institutions find themselves in, but it's going to reflect as well what I have learned about the process that we can undertake to manage our risk of infringement.
And, more immediately, I have revised the workshop and am hosting it again at the end of October (see the CIP's announcement). If you are interested in exploring these issues on your campus, I urge you to sign up for the workshop. It lasts 2 weeks, during which time we'll share and discuss readings, discussion questions, we'll have live chats, and lots of suggestions for what you can do on your own campus to get the ball rolling. Outcomes might be very different from campus to campus, as I've noted before, but the process is the same, the process of examining 1) what your faculty are using, 2) what licenses you have, 3) how you deliver what you deliver, and 4) the options for narrowing the gap, if you find one, between what you use and what you're authorized by law (fair use) or license (express or implied) to use. So, I hope you'll join me! It's not so hopeless, after all.
As CCC announces today, the University of Texas at Austin has subscribed to the CCC's new annual license for the academic year '08-'09. We added this source of authority to our existing legal (fair use) and contractual (databases and transactional) permissions after a year-long exploration of our usage patterns, those existing authorizations, and the cost of the various options for obtaining permission where we need it. For an institution UT Austin's size, the license is a good fit with our current approaches to making course materials available to our faculty and students. Faculty use coursepacks, electronic reserves and, predominantly, Blackboard and other course management systems. Our guiding principle is that whatever we do to facilitate authorization to use course materials, we must not impose unrealistic barriers to teaching and research. So the Libraries license extensive collections of digital journals and a similarly broad array of e-books. Of course, our faculty rely on the wealth of materials whose owners make them available over the open Web for free (open access materials) and on fair use. Even with all these sources for digital course materials, in our case we still need permission for some uses. In keeping with our mandate to impose as little as possible on faculty and students, the annual license was a good choice for meeting our needs. Our focus over this upcoming year will be to evaluate its growth, which is critical to its effectiveness, and to compare its costs with transaction-based permissioning, which we will continue to pursue in our coursepack operation (when other sources of authority fall short). Overall, our strategy is to narrow the gap between what the sources cumulatively authorize, and what our faculty and students need.
Some of my copyright colleagues around the country will be dismayed to hear this news. I already know that among their concerns is that our decision somehow pressures them to do the same. But I have talked with many of my friends about the nature of their campuses, their use patterns and existing sources of authority including but not limited to fair use, library databases and transactional permission, and it will come as no surprise that most campuses are as different from each other as night from day. What seems cost-effective to one will seem an extravagant and unnecessary use of resources to another, and what one sees as too labor intensive will be the ideal solution for a different type of campus. There are campuses that license nearly all their needs through library database subscriptions and lots of them (believe it or not) have no course management system. Some channel all their coursepacks through commercial entities; some do not use coursepacks at all. We all know that there is no "one size fits all" when it comes to university services. So, while I know without a doubt that no one approach will be uniformly better than another, what I recommend without qualification is going through the process of looking over usage patterns -- go see what your faculty are giving their students to read, how they make their readings accessible to their students, what your library licenses, how your faculty know what options you provide them, how they learn what the scope of fair use is, and what it costs (both for overhead and for actual permissions) for the permissions you currently pay transactionally. Then you can come up with your own strategy to narrow the gap, if any, as I described above.
I feel like there's a herd of big elephants in the room, however, and I am generally not one to ignore big elephants in rooms. What if all this use of course materials, no matter how extensive, no matter how repetitive, is fair use? That seems to be the position that Georgia State is taking in its response to the suit by three publishers, filed earlier this year regarding its course management, ereserves and Website posting of course materials. Georgia State contested many allegations in the publisher's lawsuit, but it did not dispute the extent of the alleged use of others' materials, which included large parts of textbooks, and use of the same materials semester after semester. I have written extensively on educational fair use, and I've studied the issues involved in distributing digital course materials, and, as most people do, I have the utmost respect for the fact that reasonable people can disagree on the subject. While I think that the case would make a fascinating study were it to go to trial (hmmm... Maybe there's a dissertation topic in there somewhere), and might even have the benefit of clarifying the law in this area, for it deals head-on with a matter that I would characterize both sides as having avoided confronting, I find it very hard to believe that there won't be a settlement. On the other hand the parties are very far apart indeed. The idea of common ground is hard to imagine with that big a gap. The publishers seem to want a declaration that electronic reserves and course management use for delivering digital course materials are flatly not fair use and Georgia State seems to want a declaration that, au contraire, they are entirely fair use. Wow.
I think it's somewhere in between (surprise!). And just about everyone I know thinks so too. We differ in where we would draw the line. We also differ in how we approach the task of figuring it all out and paying for what needs to be paid for (assuming you agree that there's anything that needs paying for). The problem has always been that it should not cost more than you owe to figure out what you owe. That, in a nutshell, is the "high transaction costs" issue that, in fact, figures into fair use in the fourth factor (efficient markets issues). Ah, but I could go off on this, and I won't. Another big elephant.
And price is a big elephant. One of the first things people want to know about the license is not just how much it costs and how we'll pay for it, but what we are going to do when we are "stuck" and CCC raises the price to something we can't afford. They are the only game in town when it comes to this type of license, aren't they? I have thought about this quite a bit, actually. And I have several answers. First, having represented libraries for 17 years now, I can pretty frankly say that just about everything libraries purchase is subject to market pricing and monopolistic effects that are integrally a part of copyright law. Ever hear of Elsevier? Of Harvard Business? Of Sage Publications? These are all non-fungible "must have" book and journal publishers. We have been at their mercy for decades and we've had to accept and deal with mega-mergers and double-digit price increases year after year after year. We scream, we cry, we complain, but the bottom line is ALWAYS that if our faculty need these publications, we have to buy them. Voila. End of discussion. So what's new with the question of monopolistic pricing for access to and use of scholarly and educational materials? Nothing. Second, look back at the first paragraph above about what I indicated were our priorities for the upcoming year. All of us have the ability to compare the price for the Annual license, over time, to the price for obtaining the same authorizations one transaction at a time. It's not rocket science.
The place I plan to keep my eye on is the part of our usage pattern where items are freely available over the open Web -- open access. Just as the coverage of the Annual grows each month, and the coverage of our Libraries' databases grows as we acquire new licenses, our open access licenses are expanding too. As I have indicated many times before, I believe open access is an alternative business model that some day will effectively compete head on with pay per view, pay per use and pay - period. In fact, it already is. It's a very respectable percentage of our great mix of authority, along with fair use and our licensed databases and permissions.
It will be an interesting year (or two, or three), as we see where all this goes. Never a dull moment, is there?
CIP's Intellectual Property Handbook, which you can peruse at, Research Initiatives and Publications - Center for Intellectual Property - UMUC, includes as Chapter 9 a talk that Cliff Lynch gave as keynote at one of the CIP annual symposia a few years back. CIP recently posted Lynch's chapter online so that anyone can read it. It's a very easy read -- if you've heard Lynch speak, you know what a melodious voice he has, and as I read the talk, I could hear his voice in my head! It was almost like I was there at the keynote.
The talk is well worth your time and I heartily recommend reading it. His overall point is that the university must clarify its values regarding our role in the dissemination and preservation of scholarly communication, not just its production and providing access to it. As he does so well, Lynch weaves together discussion of fair use, orphan works, scholarly publishing and museum and library digitization projects (among other topics) and the choices we have in the digital environment to play more consistently on the same team. Take this passage, for example, where he reminds us that we theoretically have the ability to control every aspect from beginning to end (and repeat) of the scholarly communication cycle:
With regard to building upon the scholarly record, let me simply state at this point that, to a first approximation, the academy controls the scholarly record: it creates it, it represents the primary market for this record, and despite concerns about the current behaviors of scholarly publishers, at a very fundamental and long-term level, the rules surrounding the disposition and use of the scholarly record can, must, and will be under the control of the academy--though it must exercise the will to reassert this control in some very critical areas--and, ultimately, I believe that the values and practices surrounding the use of this scholarly record will be congruent with academic missions and values. This is a problem of values, of policy, and of will. It is not in essence a legal problem (other than to the extent that overcoming some past policy mistakes is made much more difficult by the legal impediments to undoing these choices).
He also speaks about the need to communicate with university counsel and university presses about being less risk-averse, to be more conscious of the need for congruence between our missions and the actions we take day-to-day. Of course, he acknowledges that there are stellar examples of campuses, presses, museums and libraries that are all pulling in the same direction, but he also notes there are some glaring examples of downright values conflict. Go have a look!