In a prior post, I directed your attention to the Georgia State lawsuit and its implications for higher education, particularly digitally delivered resources. As has been noted elsewhere, a decision on the single remaining claim - indirect infringement, may come as early as the next two months.
Meanwhile, other rather chilling efforts have begun to appear in the form of unusual "statements", "guidelines", contract language in licenses, and the emergence of additional methods to pay for nearly any use of any amount of copyrighted materials, all generally targeted at activities occurring within the higher education setting. Of course, the primary driver is money - who has it and who wants it. Hopefully, somewhere in the mix is the goal of providing accessing to the best quality materials for our current mature level researchers as well as those just entering academe who will need every ounce of scholarly materials and thinking/processing skills to enter the world we've left them, survive, and maybe even "fix" it, huh?
Money, more than any other single factor, puts enormous pressure on already stressed and dysfunctional systems. Worry over money, jobs, staying in business, watching your business model decay and fade with advances in technology seem to me to have polarized buyers and sellers, creators and users of the same valuable intellectual property output almost past the point of reasonable and civil discourse.
Why do I say this? Because I think there has been a recent uptick in the stringency of publisher promoted fair use guidelines, ILL guidelines, and, now, the offering to license "reuse rights" for entire books that are no longer "available". (Most of that last service leaves me with a great many questions.) Words like "legitimate copyright owners" are tossed about to inject some sort of moral flavor into what should be an intellectual and mutually beneficial conversation - because I can easily take issue with exactly who is the "legitimate copyright holder" at the drop of a pin.
So, the publishers, fearing extinction or at least marginalization, are spewing out strange guidelines and suing their customers.
The "customers", who are also the suppliers for the publishers, are also reaching the "I've had enough" phase. Why are prices constantly going up? Appropriations money for all universities is being slashed or taken back, our salaries remain constant despite increase in our costs of living, our positions are being taken - and this has been going on for years and years. Do you think these customers have an ounce of sympathy for publishers who want more money each year? THE MONEY IS NOT THERE. It is not a matter of choosing between an assistant football coach and buying books. Now even conferences of those closest to the money and resources are also becoming sources of polarization. The librarians. They are hit from all directions. The librarians are tasked to try to buy their users a silk purse with a sow's ear.
But it's not a "war" between librarians and publishers. If it is a war at all, it is the publisher's struggle with technology and current copyright law. Both of which threaten the publishing industry. It's a great deal easier to challenge librarians although not the faculty they represent - because the faculty are the source of the content for the publications. Get on the wrong side of faculty, and there goes the golden goose.
International Association of Scientific, Technical, and Medical Publishers: Statement on Document Delivery, 31 May 2011.
If you haven't read this statement, you should do so. It is, in fact, the provocation for this blog. But rather than just critique it and, therefore, appear as yet another librarian attacking a publisher, I wanted you to question the current environment for scholarly publishing and why such strange backward retrenchments are becoming more frequent and more severe.
This "statement" concerns another well-established key library activity known as Inter-Library Loan (ILL). ILL, for any non-librarians in the crowd, is the practice, specifically authorized in Sections 108(d) and (e), that recognizes that all libraries cannot possibly have, in their own collection, EVERYTHING ever published. So, the law allows a library that does not have something a user wants or needs to locate another library that does have it. The first library is specifically authorized by copyright law to ask the second library for the desired item, in whole or in part, (if it is an article or small contribution) or to borrow the item itself. That is the basic premise of ILL. It makes a great deal of sense and has become increasingly relied upon as the buying power of libraries is inexorably being diverted to satisfy the constantly increasing licensing fees coming from this very group - STM (science, technology, and medical) publishers. ILL has been the primary method of bridging the gap in materials no longer available as a direct result of these constant price increases in licensing.
What does this statement say? Well, it pretty much expresses the opinion that all ILL requests should be paid for and that since the materials filling the ILL request cross international boundaries, the whole operation is beyond the ken of universities and libraries - therefore, the control and payment for ILL requests should rest with the "legitimate rights-holder". [When you hear the phrase "legitimate" rights-holder somehow it makes you believe the rights holder earned that right, either by creating the material or purchasing the rights, neither of which is the case for most STM publishing; rather the publisher is simply given the right, without being the creator or having paid for it]
In fact, these journal articles cross borders frequently during their life span - should the publisher be paying every time the article crosses a border to a peer reviewer or the original author? These same STM publishers don't seem worried about international laws or potential differences when they license materials to libraries; no mention of international law is ever found in their own licenses. Why now? The fact is U.S. copyright law governs U.S. libraries - period.
Furthermore, ILL is a particularly poor choice of library practices to target.
• First, it rests solidly on a specific copyright law provision.
• Secondly, the 1976 Copyright Act established a National Commission on New Technological Uses of Copyrighted Works (CONTU) to deal with the inevitable questions that would arise with continued technological evolution.
The CONTU Guidelines issued explain and define the scope of ILL and have been almost religiously followed by libraries ever since. They have come to be known as the "Rule of Five" and basically allow:
• There is no limit, and, therefore, no permission fees, required for articles published more than five years before the ILL request.
• If the requested article comes from a periodical published within the past five years, the requesting library may request and obtain five articles per annum, without permission fees. Once the library reaches the need for a sixth article from the same periodical within the year, practice has been to either subscribe to the journal (if, for example, the requests are coming from multiple individuals demonstrating a wide need for the periodical) or pay a permission fee. (perhaps if all the requests are coming from a single individual). The payment and tracking onus is on the requesting library, not the responding library.
To my knowledge, this practice has been stable and noncontroversial since 1979. Why would publishers now challenge this practice, specifically authorized by law? Especially since, if anything, the challenge should come from the libraries concerning the rather low number of five articles? There are undoubtedly hundreds more journals for libraries to spend their limited budgets subscribing to than there was in the 1970's, when the CONTU Guidelines were first generated. That fact alone should support a call to raise the number of articles permitted far above the number of five. Instead, we have a statement that would essentially have us ignore Section 108 that specifically allows ILL. What in the world is going on? Should libraries simply stop using their ILL right? That's what would have to happen should we all ignore the law and pay for every borrowed article.
If there is to be civil and responsible discourse between publishers and the universities that keep them in business, we all need to curb the rhetoric, stay reality-based, and refrain from statements that stray so far from the law.
I welcome your comments - talk to me -
Peggy
