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Just noticed an interesting entry at the Institute for the Future of the Book (if:book), if:book: chromograms: visualizing an individual's editing history in wikipedia that connected up for me with an article I had read earlier at Peter Brantely's blog, shimenewa, Recontracting authors' rights.

Peter was commenting upon the marvelous possibilities for research that open access provides -- not merely access to results, but access to a rich data treasure that can be mined for connections, where the value is in the collection rather than the individual work. The if:book note is about just that kind of mining: researchers at IBM are mining the very open Wikipedia for information about how editors work, how they manage a peer production project.

Open access is not an end in itself. It is instrumental. It admits possibilities that no one has thought of today. These possibilities are the heart and soul of research. Open access enables the heart and soul of research. Freely accessing others' writings is not the payoff for open access, it is a small, first step, a door through which creativity enters. It is worth pursuing. It is worth spending scarce resources to make it possible, not so an article can park itself in an institutional repository, but so that someone who isn't yet born can connect up some dots some day because the article and a gazillion other things were there for her to ponder, search, mine, analyze, ...

I don't often lose sleep over copyright issues anymore. But last night I could not stop thinking about the Copyright Office's new resource for *children.* Please have a look if you haven't already: Taking the Mystery Out of Copyright. There's a text only version if you want to skip the cartoons and the music (assuming you are not 13). This bothers me on so many levels, but I'm only going to address one level here, the most obvious. My experienced, calm, collected voice is telling me to wait a few days before I write this. Ok, at least wait a few days before I publish it. Clearly, I am ignoring that voice. I should at least acknowledge that I'm probably overreacting. I no doubt will feel differently about it after I have thought about it for awhile. Maybe I'll write about it again after a few days.

That said, do children really need to know about copyright? Well, I reluctantly must admit that yes, they do. Should they need to know about copyright registration, copyright history, and the role copyright plays in protecting film, music, art and literature? Well, it's not like they need to be protected from this, like it was senseless death, war violence or something cruel and ugly. So, it is commendable that the Library of Congress offers a well-done, straightforward, and fairly neutral informational piece. What would we expect the Library to talk about, other than what it does, which is, in this case, copyright registration. A narrow slice of the copyright pie, to be sure, but again, that's one of the things the Library does that no one else does.

But on the other hand, remember what it was like to be 13? Was registering your copyrights something you were all that concerned about? Should you have been? Have things changed that much with respect to how likely it is that the metaphorical box of things you created during your 13th or 14th year of life needs protection? From what? From becoming part of the stream of creativity (my metaphors are all over the place) from which you yourself borrowed to create?

If I had one opportunity to tell kids about copyright, I suppose I would mention its role in protecting the commercial interests of creators and distributors like the film, music, art and publishing industries, but in the next breath I would appeal to their own sense of how most things we all create are not meant for commercial exploitation, but instead are meant to be shared, reused, remixed and borrowed from. I'd say, "Look inside that box of things you created last year. Let's look at where all your things came from. Let's see how borrowing and modifying and adding your own ideas works in real life, and what we all need to keep that going."

The lesson I would teach is about the fact that *YOU HAVE TO DO SOMETHING* if you want your own creativity to be added to and be a part of a flowing, lively stream, rather than be caught up in a little eddy that goes nowhere. Congress (something here about infinite wisdom) has created a set of rules that, without your doing anything beyond the mere act of creating (tangible things, of course), keeps everything you create in that box, locked away, maybe forever, but at least for, let's see, you're 13? Let's say you'll live to 78, your box of stuff stays locked away for the rest of your life (65 years) plus 70 more years. Yes, in 135 years your box of stuff will possibly join the stream of creativity. If the box is still around then. And somebody finds it. And they know you and only you created it, and when you died. And they know about copyrights. If that doesn't fit your idea of what you want, then YOU HAVE TO DO SOMETHING. You have to let people know that you have something else in mind for your box of stuff. Fade to Creative Commons logo/website.

The assumption that everything needs "protection" for 1 1/3 centuries is so out of step with the reality of how we all create and most importantly, *why* we all create (overwhelming, not to make a living from our creations), and the serious consequences of being out of step with reality makes me very sad, and angry. The waste, the untapped creativity, and the criminalizing of creativity cannot be defended in my opinion. One size does not fit all. Given the enormity of the explosion of creativity enabled by the networked environment, to say nothing of creativity in the real world, the lessons we need to teach are about taking responsibility to do individually what Congress cannot seem to do for us as a nation -- create a copyright that fits our widely divergent needs, rather than one that both stifles us creatively and turns us into criminals (or potential civil litigants -- there's another interesting copyright lesson for kids) if we ignore it. We need to tag our creative works with simple statements that express how we feel about their place in the creative stream. I would recommend Creative Commons licenses for many reasons, but any statement about sharing is better than doing nothing and thereby consigning your work to copyright's centuries-long holding bin, or perhaps appropriately named, wastebasket.

I read a press release on the Liblicense listserve this morning from Wiley-Blackwell announcing a new series of journals: "Wiley-Blackwell Launches Review Journals in Social Sciences and Humanities -- Cutting-edge functionality added to Compass journals," the title read. I went to visit the site (Compass Journals and glimpsed the future of publishing in a world of open access (OA). Many people still vigorously debate whether OA will result at some point in library cancellations of journal subscriptions. Theoretically, if all journal articles are freely available on the Web, why would a library subscribe to a database containing them? Sounds rational enough, enough to cause any thoughtful publisher to 1) resist OA or 2) accept OA and find a way to build a business on its back with customers you already have ...

Publishers are doing both. In addressing their admittedly different but pretty much parallel challenges to copyright control, so is Hollywood (see Lawrence Lessig's OpEd piece in the Washington Post. At last, so it the music biz.

I don't believe that resistance will thwart OA (or remixing, or p2p file sharing). OA has such obvious advantages for the "progress of science and the useful arts" to borrow a line from the Constitution. Nevertheless, resistance slows it down long enough for the new business models to start to take shape. Far from saving libraries money, however, OA is going to be a gold mine for publishers who can offer brave new services built on the treasure trove of high-value articles that are going to be out there free for the taking.

Is this a bad thing? Certainly not. It's the American Way (at least), and libraries will buy the services (rent the services actually), and prices will continue to spiral like they always have because that too is the American Way. If you are not growing (profits) you are dying.

Debate about this seems academic at this point. While I'm not that concerned about the future of Hollywood or the music biz, I do care deeply about the future of scholarly publishing and I applaud those at the helm of our University Presses who spend as much of their time as possible concentrating on new business models, not just debating whether OA will cause subscription cancellations (or whatever else it might cause). We have to figure out, like Wiley-Blackwell (and Lucasfilm and EMS in their worlds), what we can do to take advantage of this new OA, socially networked world of digital scholarship, either as businesses, or as more integrated parts of the institutional framework -- whichever works.

I am very proud to announce the launch of the Texas Digital Library's (TDL) blog, The Scholar’s Space , featuring a team of four contributors, including me, two of my colleagues at the University of Texas at Austin, and a colleague at University of North Texas, with more to come over the next few months. The Scholar’s Space joins scholarly communications blogs sponsored by friends at other colleges and universities, and national and international organizations. We’ll be providing commentary on newsworthy items related to TDL participants’ local and global interests.

If you have an interest in scholarly communications issues, I encourage you to visit and subscribe to our RSS feed to keep up to date on the news and become active participants yourselves, either by commenting or contributing. If you’d like to be a regular or a guest contributor, please contact Georgia Harper. If you visit, let us know what you think!

Peter Brantley and Carl Malamud have just asked the Copyright Office to make its retrospective database of registrations of copyright freely available to the public: Carl Malamud Tackles the Copyright Office. The claim is that the information is public domain (the Copyright Office apparently claims copyright on it) and that it is a valuable dataset that, if publicly available for research activities, could yield improvements to the search process itself as well as other information about the registration process.

It is rather remarkable that the massive numbers of registrations and renewals are only searchable back to 1978. Stanford made headlines when it provided access to the "determinator," its database of earlier records that are proving indispensable to determining which of the works registered during the period 1923 - 1963 are in the public domain because their owners did not renew their copyrights as was required during that time.

University of Texas is joining this effort to determine the copyright status of works that have been digitized by Google, but not just for the purpose of making those works that are found to be in the public domain more accessible, but also to further the research efforts of others along these same lines. We plan to document in detail the process we go through to make our determinations, the resources we find indispensable to our work, and when we are unable to make a determination, all the evidence that we were able to bring to bear on the question of copyright status so that others might be able to pick up where we left off. This is the kind of work that requires a "knowledge community" to further it. I know that the Copyright Office is a part of that knowledge community. Contributing its records to the research community is a special step that only it can take, a unique contribution I hope it will make.

Lessig' gave a talk about remix culture back in March at TED: How Creativity is Being Strangled by the Law. His talk was just posted this month. For anyone who has seen him give a talk in the last 1 - 2 years, this won't be new, but it's very streamlined and very succinct. The video only runs about 18 minutes and it's excellent -- watch this!

Lessig emphasizes the importance of competition, that "more free" can compete with "less free," that artists' choice (to distribute differently, for example, to make their own works more freely available) is the key to defeating monopoly, and that laws that criminalize our children's creativity are corrosive -- and we can do better.

I have been developing an argument that touches on these same themes at Mass digitization ~ changing copyright law and policy, and in fact I had just posted this new segment last weekend that talks about how the sheer availability of so much good free content online inevitably puts pressure on even Hollywood and the music industries to stop making it hard for people to get to their content (DRM and subscription barriers, among others). Check it out.

Lessig announced today that Carl Malamud had accomplished a coup: Building the Legal Commons (Lessig Blog). He purchased a huge collection of federal case reports and is making them completely pd -- not just CC licensed for some but not all purposes, but CC licensed for *all* purposes through a new CC license that commits the licensed work to the public domain. I feel like I'm watching one of those amazing movie final scenes where people who have been stunned into submission over the course of the entire movie, one-by-one stand up and finally refuse to go along with atrocity anymore. They just say no. Or, rather, they just say yes -- yes to the protection and promotion of the public domain, not just for some, but for all.

Tears and cheers (the audience is reacting).

Peter Suber has a very interesting write-up on a new Google initiative, OA knols from Google. For a more thorough explanation visit Google's blog where the subject is set out in more detail. What I found interesting about Suber's commentary was that he noted right away the obvious potential competition with Wikipedia and other forms of collective knowledge, but he also realizes that what Google is proposing has the potential to compete with open access as it is currently conceived, that is, as connected to institutional and discipline-specific repositories.

Siva Vaidhyanathan has also noticed the announcement, and will be commenting on other aspects of the new Google initiative in keeping with his focus.

The idea of Google hosting a collection of pieces written by experts on subjects does drift pretty far afield from advertising and searching, doesn't it? What's up with this? What do *you* think?

The ARL has published a very helpful report for universities and colleges that receive NIH funding regarding their options for facilitating their authors' compliance with the requirements of the new NIH Open Access Mandate: Complying with the NIH Public Access Policy - Copyright Considerations and Options (SPARC).

I would note that even without this mandate, many publishers had already established policies that permitted public access posting (about 60% according to stats available from SherpaRomeo). The interaction between these policies, typical publisher contracts, and the new Mandate's requirements that authors retain sufficient rights to grant the NIH the public access rights necessary for grant compliance would make an interesting addendum to this report. The report 's author does not explore this option, perhaps believing that to leave it up to authors to wade through such contract/policy/regulation interaction subtleties is probably not the best risk management strategy. Or, he may not realize that a large percentage of publishers have these policies. I certainly think it's worth having a look at. If the combination of the policy and the contract properly referencing the policy were sufficient to meet the requirements of the mandate, it might reduce the administrative burden in many, though not all cases. But that might be the rub right there: depending on the institution's size, the strategy that requires the least case-by-case might be a better choice even if it isn't technically necessary in all cases.

Last year I was not able to attend the CIP's annual conference, but I've caught quite a few of them over the years. This one is special for me, however, because as the Center's Virtual Scholar, I have had the honor of participating in the planning. Kim Bonner, the Center's Executive Director, is at the helm of the planning process and has put together a great lineup of events and speakers. At the top of the list is Jamie Boyle, Duke law professor and advocate of the public domain. I am looking forward to meeting him and hearing what he has to say.

I, too, am speaking at the conference. I plan to discuss an idea I am working on as a possible dissertation topic that fits well with this year's CIP theme: Copyright Monopoly.

The lineup is widely diverse, including speakers representing content industries (Copyright Alliance, CCC), law professors and practicing lawyers, librarians and lawyer librarians, and intermediaries like OCLC and Google, among others.

The conference also features a new format for day three -- a series of roundtable discussion groups focused on what you can take back home with you to put what you have learned into practice.

Hope to see you there!

I have taken nearly a week to mull over this case that has been buzzing around the blogosphere, around email and even in real life, and I'm glad I did. I think I see it more clearly now than I did a week ago when the news first hit. I managed with a little time to connect it up with everything else in my life, well, my copyright life.

I guess it was reading Claire Stewart's post at the Northwestern University Library Blog (NUL Copyright: What does the lawsuit against Georgia State mean?) that pushed the last little piece into place. OA.

Yes. OA.

It all started at an AAUP/ARL Scholarly Publishing Symposium in the early 90's. I was lucky to be invited, and I made a speech about Texaco (the case) or something like that. I don't really have a lot of memories from this event (hearing Jean-Claude Guedon speak is one of them, however), but my memory of a conversation with Ann Okerson, now at Yale University, is still very fresh. The lead in must have been about market failure as the driver for fair use and she contrasted L. Ray Patterson's point of view, as expressed in his book, Copyright: A Law of Users' Rights. She talked about it fondly, but she agreed it wasn't the way things were, rather, it was how they ought to be.

Second piece: That idea of "how things ought to be" contrasting with "how they are" is a constant of fair use discussion because fair use is so open to interpretation. It can mean so many things. But we get our "how it is" meanings about fair use from the courts' interpretations. We have to draw that distinction, if we represent real clients, between how it could be or even should be, and how it is.

And that's what I've been doing for years as copyright counsel for the UT System. I'm grateful to have this task. It keeps me grounded. You have to know what your absolutely best arguments are, the law, and policy, but you also have to be realistic about the likelihood of winning those arguments, so your client can be realistic too, and make his or her risk assessment and go forward.

Which brings me to the third piece. Many people have spoken eloquently about why we as a society need to provide educators with a broader scope of fair use than just the "high transactions cost market failure" approach would allow for the kind of copying at issue in the suit against GSU. I rounded them up in an article I blogged at Lifelong learning a year or so ago. See for example, this section on Market Failure, and this one about market dysfunction. I can add Claire's comments to the list. I cannot believe that these arguments were not made on behalf of educational fair use in the cases about classroom and research copies. And they did not win the day. Maybe it was because of the profit aspect of the defendants in all those cases. Maybe the result would be different today with GSU a nonprofit educational institution as the defendant.

But my money is not on that proposition. And that brings me to my 4th piece. Losing in Congress and losing in courts -- happens all the time. Even when you win, you lose. The so-called compromises hashed out between stakeholders in congressional statutory marathon negotiation sessions read like some of the worst contracts I've ever had to review. And this is law for teachers and students to follow. Uh-huh. Right. All we've managed to effect with Congress is a stalemate. Oh, that's no small accomplishment. Keeping things from passing has become the best we can do. Think about that.

Many are optimistic about the string of fair use cases coming out of the "transformative" field lately, and I am too, but I don't think they offer the life saver to digital course materials distribution that others hope for. I don't think courts will go that far.

So, 5th piece: what's left if you really, really, really believe that educators ought to be able to use whatever they need to and want to use in their classrooms without worrying about what it costs or whether it's fair use?

Consumer resistance, or OA.

I don't have to advocate consumer resistance. We can get there without infringing people's copyrights. The very same arguments that Claire makes on behalf of educators and students being able to just read others works even if they can't afford to pay are turning the corner on OA for scholarly publishing. The battle for OA in journals is far from over, but the outcome is pretty clear. Now read anything about OA for the scholarly literature and substitute educational materials and see if you don't agree. It makes perfect sense. The same struggles the industry is going through to figure out how to make the economics of OA work for journals are going to come to monographs next and then why not educational publishing. If journals can figure out how to charge for other things besides digital copies, so can monographs, and monographs are, well, books with longer names. Books can be freely accessible without authorship, editing, peer review and distribution falling into the gutter. Do we know how right this minute? Maybe not. Is it impossible? Absolutely not. Do we need to figure it out? Absolutely. Will we. Absolutely.

It's funny how things connect up. Since I returned home from the CIP annual Symposium on UMUC's campus, I've been reading the copyright news with little enthusiasm. I see important things going on (like the brewing ACTA storm), but I am not inspired to comment. I just seem to bounce from one discouraging topic to another. Then this morning I was clearing out some email and noticed a message with a link to an Atlantic article, The Atlantic Online | July/August 2008 | Is Google Making Us Stupid? | Nicholas Carr. The article is about the way technology can affect the actual wiring of our brains. It is fascinating reading. I really enjoyed it and I'm sure you will too. About half way through, I came across this paragraph:

When the Net absorbs a medium, that medium is re-created in the Net's image. It injects the medium's content with hyperlinks, blinking ads, and other digital gewgaws, and it surrounds the content with the content of all the other media it has absorbed. A new e-mail message, for instance, may announce its arrival as we're glancing over the latest headlines at a newspaper's site. The result is to scatter our attention and diffuse our concentration.

Google Book Search is about absorbing the medium of books into the Internet. I was just talking with the new Deputy General Counsel at UT System Monday, Dan Sharphorn, about the future of books (one of my favorite topics) and especially, how that future will be funded if books are available for free on the Internet (that is, digital copies are free, but people pay for something else, such as a print copy, or maybe a subscription to a book service (like music subscriptions), or who knows what). That part of the discussion is very much about the subject of the talk I just gave at the CIP Symposium (Mass Digitization's Effect on Copyright Law, Policy and Practice), about the economics of copyright. But an equally interesting part of the discussion is recognizing that when you think about the future, it's not the assumptions about what new things (like new business models) will be there that are the hardest. Rather, the really hard part or tricky part is examining your assumptions about old things, specifically what old things won't be there.

If (well, when) the Web absorbs the medium of books, books are not going to stay the same. The idea of an e-book is pretty limited (and even that is overwhelming for some of our publishing friends). The idea of an e-book reader is pretty limited. If you eliminate the idea of a book as we know it from the possibilities for communicating with others, and then try to imagine how you would weave a story if all you had were the Web, just try that for a momentary thought experiment... How would you tell a story? And how would you relate the results of research if all you had were the Web and no idea about a thing called a journal article. (And don't just "invent" the journal article and the book all over again -- that's not what the experiment is about!)

I have been thinking about this in the context of expressing whatever research I do for my dissertation. I can't really think in terms of writing a formal 5 chapter paper thing that resides between two harder paper things called covers. On the other hand, I am very inspired thinking about how to make my research a part of the conversation on the Web, how to take advantage of what the tools offer, what the possibilities present. At some point, if I really want the PhD, all indications are that the profession (information studies) will require me to cull some small part of that and sandwich it between those covers. I am spending the summer thinking long and hard about that.

And what of copyright? How else might we encourage creativity if we just put aside entirely the idea that we "need" government intervention to encourage it in a world with friction-less world-wide distribution, where each of us helps to pay for the distribution system by our purchases of computers, software and Internet connectivity? James Boyle gave our opening keynote at the CIP Symposium, and enumerated and evaluated five criticisms of copyright law as it exists now, how badly it "fits" the Web 2.0 world. Keeping in mind how the Internet is changing the media it absorbs, is copyright likely to fit better in 10 -20 years or much, much worse?

The Atlantic article ends on a sort of cautionary note: "as we come to rely on computers to mediate our understanding of the world, it is our own intelligence that flattens into artificial intelligence." Author Nicholas Carr is trying to see the future of our minds in a world dominated by the ideas that are shaping the Internet experience, in particular, Google's ideas of science applied to efficient information organization. A very scary undertaking, seeing into the future, but one that we've never been able to resist.

Open Access business models are numerous. There's no magic path to OA. But some high-profile efforts have been around long enough to warrant analysis. So Declan Butler writes an article about PLoS (Public Library of Science), which he calls the "poster child for open-access, that appears in Nature News, ironically not open to anyone who does not have a subscription: Access : PLoS stays afloat with bulk publishing : Nature News.

BUT, the comments are open access and they tell a fairly interesting story of their own! It does seem rather odd that Nature would close off the story and leave the comments open, so that those outside the very limited number of people in the world who have a subscription only see one side of the story. In this case, the comments are almost uniformly critical of the article, calling it an attempt to smear a competitor, without the disclaimers of conflict of interest one would expect from a journal associated with scientific publishing (and its attempt to at least seem to be objective).

Well, I will leave it to all of you to figure out if you have sufficient "rights" to read the article itself, but do go read the comments. Too bad about whatever data supports the whole conversation. We pobrecitos don't have access to that, just to the rants about the results. Ah, transitions.

Of course, I could spend some of my very limited time today clicking my way through the variety of screens I must click through to get to my library's walled garden where I suspect this article is cached away. Maybe it's worth it. Maybe not. Today it's not. It's summer, I'm on vacation. Only minimally attentive to tedious things like journal article search interfaces. And why is it that publishers do this to libraries? Oh, yes, I'm so sure they have their very good reasons. And I have mine for ignoring authors and their writings whose publishers make their work hard to find and read. So much to read, watch, listen to. So little time. There's the basic fundamental of Open Access. The business models will follow.

Speaking of the future, here's a glimpse: Doctorow: First CC-Licensed Work on NYT Best Sellers List/New Graphic Novel - Creative Commons. Hooray for Cory Doctorow, showing the world (again) that free digital can sell (lots of) paper. Mmm. Smell that coffee.

In an article in USA Today, Svetlana Shkolnikova describes the emerging trend towards faculty-authored "open textbooks" that hold out at least a glimmer of hope that there could be real competition in the textbook market that would have the effect of moderating prices.

Publishers have complained for decades (decades?) that their inability to profit from the used book market is the reason that they issue new releases every few years, and bundle things nobody wants with textbooks to drive up prices. If only they could have a cut of the used book market, or cut out the used book market, they wouldn't be driven to these harsh business practices. Two possible explanations (probably more): 1) They just can't make an honest living creating and selling textbooks with our Copyright Act's first sale doctrine undermining their right to reap all the profit they should be entitled to. 2) They have a captured audience and they know it and they'll extract as much as they possibly can from it.

From what I've read on the subject, it is a complex bunch of factors keeping the textbook market frozen in the 20th century, but it's likely to thaw out eventually. And when it does, I don't expect publishers to walk away with less of the students' and their parents' money than they already walk away with. They just haven't figured it out yet, but they will.

Ultimately, smart business people figure out how to play in the new sandbox. They take risks, they try things. Some work, some don't. They learn. They adapt. At least some do, and that's all it takes to put pressure on the others.

Open access is just one part of a much bigger and more complex picture. I am very optimistic that open access will find its way into the book market (or what we call books today), but again, it's not like that will cut off the flow of revenues. Quite the contrary. It just makes it possible for a lot more people to benefit from the work of authors while authors and those who help them ready their works for public consumption still reap sufficient financial rewards to make creating worthwhile. Maybe the biggest stumbling block is understanding that as a copyright owner, you don't have to appropriate every cent of public benefit from your work. There's viability in skimming off the top and letting some of the benefit go to those who never would have been able to buy your book anyway. That concept seems really counter-intuitive to many authors and publishers, but I think it's what makes open access a successful competitor -- authors and publishers can still get paid (if that's what they want) but people who would not have had access also derive benefit.

So, back to copyright law: we make and distribute copies of others' works; we license others' works; we buy others' works. We (educators) are very big consumers of and producers of educational, research and scholarly materials. This is big, big business. And it's got copyright as a major component of its engine. But a bundle of copyrights, no matter how big, becomes worth less and less over time. New works get created every single day. And every single new author has choices today about how to distribute, market and benefit from his or her work that were simply not available even a decade ago. That's what makes authoring and creating so exciting today: the chance to reach an audience of any size is within reach for many more of us than in the past. How will you handle your copyrights? Open access has an awful lot to recommend it. Look into it! Creative Commons licensing is a good example of how you can make your work widely and freely available while still maintaining the degree of control that fits with your overall goals in writing or creating in the first place.

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!

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.