I haven't posted my thoughts yet on the CCC's introduction of an Annual Copyright License for academic institutions - and now I don't really need to. James Boyle has written an absolutely first-rate article in the Financial Times that lays out the potential dangers in the CCC approach. (Thanks to Kevin Smith's blog for bringing it to my attention.)
There are a number of major problems with the annual license approach. First, there are in this country radically different interpretations of what constitutes fair use for educational purposes. If the CCC based its pricing on the most liberal interpretation of fair use - namely that making "multiple copies for classroom use" is permitted, as the Fair Use section of Copyright law indicates - then the license might be acceptable. The CCC, however, seems to endorse a different perspective - namely that most copying in an educational institution requires permission - and charges accordingly.
Furthermore, as Boyle notes in the article, the annual license's implicit endorsement of a culture of permission weakens future fair use arguments. By volunteering to pay permissions now, academic institutions may be placing themselves in a position where it is required that they pay permissions in the future. Once a permission culture is in place, there will be few checks on the amount that publishers could demand in fees. How high can they go? Well, according to the CCC's web site, the Journal of Nanoscience and Nanotechnology is charging $150 per page per student for handouts for classroom use!
This example highlights another problem with the CCC's annual license - namely that this particular journal is not covered by the license. The bookstore manager at Cornell has told me that CCC can provide fewer than 50% of the permissions he needs for course packs, and the annual license covers only a subset of CCC publishers. To be fair to the CCC, I would bet that even without 100% coverage in the academic license, the likelihood that an academic license subscriber would be sued by a non-CCC-registered publisher is low. How many publishers care enough about permission fees to be wiling to sue - but are not willing to belong to the CCC? But paying up in order to placate the most litigious publishers sounds an awful lot like paying "protection money" to me. Is the CCC making us an offer we can't refuse?
I have an additional concern with the CCC's annual license that Boyle doesn't raise. Academic institutions do not rely solely on an assertion of fair use in order to make copies on campus; they also pay groups other than the CCC for permission. It could be through paying an institutional subscription rate for a journal (with its implicit license to make copies for users), or it could be through an access license negotiated by the library. Will the CCC's annual license fees take into account the permissions a library has already acquired?
The CCC is a terrific resource when permission is required, and the annual academic license might simplify securing permission - but only if the academic institution and the CCC share the same vision of when permission is required, and only if the basis for the license fee is transparent (and relatively fixed).