From Raizel:
Though Peter
has just posted on the Georgia State lawsuit on fair use, the AAP’s risk,
and end users, my post will focus more on the difficulty in defining the
boundaries of fair use for libraries and institutions that are attempting to
make owned works available online, the potential options libraries have at this
point, and why moving towards open access might (eventually) help to solve this
impasse.
Fair Use
According to the complaint,
"Georgia State's general copyright primer ...affords "fair use"
parameters -- that is guidelines as to allowable copying without permission --
that plainly exceed legal boundaries." And what are these so-called
illegal policies (so-called because there is no statutory boundary of fair
use)? Georgia State
"endorses up to twenty percent of a work -- a
benchmark that would countenance unlicensed excerpts of dozens or even hundreds
of pages from a given work."
As Peter
points out, Georgia State’s percentage is based on “the state's guide
to understanding copyright - developed by a committee of experienced
lawyers and educators.”
While the percentage allowed under Georgia State's interpretation is larger
than that of more conservative standards at other libraries, as Northwestern
University copyright blog (Claire Stewart) states,
"It is interesting that the publishers [in this lawsuit] are not at all
specific about their thresholds for acceptable use, leaving us to wonder
whether they would consider any reserve use fair."
Some publishers do have
stated guidelines for what they consider to be “fair use” for both e-reserves
and use of materials in the classroom, often with stated percentages. However,
from what I was able to easily discern (corrections are welcome!), the three
publishers involved in this lawsuit do not have stated fair use guidelines
readily accessible on their websites or elsewhere. (“Except as
provided under national law, written permission is required to photocopy all
Cambridge publications” and stated
guidelines for reuse of materials by their own authors)
So what about using more restrictive guidelines than those at Georgia State,
as done by other libraries, say not more than ten percent of a work? While that
would allow for less use, it still doesn't address the elephant in the room --
that the library has already paid a great deal for the materials placed on either
physical or electronic reserve. Either through purchase of usually a physical
book or journal, or through licensing, libraries have paid, are paying, and
will continue to pay publishers for the use of materials. Of course, ownership
of physical copies does not allow for copying without fair use consideration –
but the way libraries have been and continue to buy physical copies demonstrates
their willingness to pay for copyrighted information.
In the case of licensing, often publishers tie the price of licensing a
database to the enrollment numbers for the entire institution -- not just for
those likely to be using the product, increasingly switching from a per-simultaneous
user license to a full-time enrollment (FTE) license. So academic libraries frequently have to
choose to license a database to the entire institution rather than just for the
small number of interested users – or do without. So it is probable that at
least for some of the items in the complaint Georgia State has already licensed
and paid for access to those items for more than those students who are using the e-reserves version
of those articles.
One of the additional complicating issues revolves around who is responsible
for creating and maintaining e-reserves. As my co-blogger Peter Hirtle stated in a
Library Journal article last year,
"Since our AAP agreement, we don't
even have separate e-reserve policies any more,” explains Peter Hirtle,
intellectual property officer for the Cornell University Library. “We have
electronic course content copyright guidelines.” That change, he says, reflects
the recognition that “electronic course content” can reside in a system managed
by the library, or in the Blackboard course management system, or on an
entirely separate system maintained by the faculty, including personal web
sites."
Effect on the market?
The fourth fair use factor is definitely in play here -- the effect of the
use upon the potential market. As these three publishers see it, the market for
academic materials used for classes is student classroom use, and therefore individual
students should purchase any book or journal article that in any part is being
used for a class. And as Peter points out in his blog post on this case, at
present, the market is not seen as being impacted when individual students make
copies of the same chapter in a book during the same semester or over
years. From the perspective of the
publishers, by hosting e-reserves, libraries are acting as the agents of
individual students and professors and therefore the libraries should be
required to purchase licenses for every single individual use of these
materials. As Peter expresses “does fair use really disappear whenever there is
a market that licenses reproductions?”
However, libraries view their “market” differently – to make materials
accessible through being the consumers and collectors of academic materials, to
be used in the short term and the long term, for the benefit of both individual users and for all
possible users. This viewpoint allows libraries to serve both traditional
library roles (purchasing physical items for subsequent theoretically
unlimited loaning) and for newer library roles (licensing of materials for an
entire institution or for a specific class).
If the publishers’ view of the market wins, it will decimate much of
library-based fair use.
Possible Options for libraries
So let's think about where this leaves libraries and institutions before
there is a settlement or decision:
Option 1: Pay for everything posted online through the CCC or some other service. While the upside is that the institution won't likely get
sued, the strong downside is paying again for items owned or licensed by the
library -- and the abandonment of fair use.
Option 2: Have the entire institution carefully redo its entire policy on online
posting of materials. Include information about percentages of material
available to be posted (though that didn't save Georgia State) and how long
materials will be posted (many libraries will only post materials for one
semester/quarter based on fair use before asking for permission).
Option 3: Only have links to online content licensed by the library and limit
information beyond links in e-reserves to public domain materials. Require that
all licenses either explicitly allow or do not forbid the use of links in
course reserves. The upside is that no copyrighted content is copied, but once
again, fair use loses out.
Option 4: And then there's the most difficult option for an academic library
-- saying no to faculty members by not having any e-reserves at all. Dorothea
Salo at Caveat Lector states that
"If I were the Georgia State library, I'd play hardball. No e-reserves for
anybody, and let faculty go whine at the AAP."
She previously posted
in 2005 that libraries should say no to e-reserves until professors and
authors understand the cost of publisher-directed "no fair use":
"Call out the AAP from behind the
curtain, Look faculty in the eye and say, calmly, 'no, we can't put this on
e-reserve, because fair-use is endangered everywhere and the AAP is making lawsuit noises-but why don't you and I contact the article authors
and ask if they'll post a preprint we can link to? And by the way, are you
posting your own preprints for others?" Salo said libraries must
"draw a thick black line connecting what faculty do and what they have
access to, because right now they don't see it." (via
Open Access)
Open Access?
Option 5: The most difficult option of all is to change the dynamic between
libraries, authors, and publishers. This more than the other options is a
dramatic overall policy shift and therefore has little to do with copyright or
fair use, but rather changing the question. Here the question is “How can professor
authors help to make their work available for professors and students to use in
the classroom and for scholarly work?”
One means of making more information accessible is through open access, defined
by Peter Suber as
"Putting peer-reviewed scientific and scholarly literature on the
internet. Making it available free of charge and free of most copyright and
licensing restrictions.” Harvard
University and other
institutions are moving in that direction. In an era where more and more
information is seemingly available for free on the internet, placing
peer-reviewed information where “anyone, anywhere, with access to the
Internet may read, download, copy, and distribute that article” seems like a great idea. But as Peter
Suber states, open access is not a panacea; creating works still takes the
efforts of authors and others.
Open Access leaves the beginnings of changing the dynamic in the hands of
authors, but there is still a role for publishers (who can help with the
selection, peer review, and editorial process), and libraries. Libraries can
serve as institutional repositories for works written by their faculty and
staff, help institution-based publishers, and will continue to purchase works.
As a great example of the possibilities of open access in practice, with a
publisher working with an author and libraries, MIT Press has John Willinsky’s
The Access Principle: The Case for Open Access to Research and Scholarship
published in 2005, available for downloading, purchasing, and has a link for finding in a library. And at
the time I’m writing this, the library copy nearest to me is checked out!
Open Access is not a cure-all, but thinking about access to e-reserves only
as a copyright versus fair use issue obscures the present imbalance in the
world of scholarly publication. The Duke
Scholarly Communications blog puts this issue bluntly:
"The real irony is that [the lawsuit] is justified as an attempt to remedy a
“free-rider” problem — the claim that universities are appropriating the work
of publishers and authors without just compensation. This claim is patently
absurd, given the amount of money university libraries invest in published
resources, but it is downright offensive when the real issue is clarified.
Publishers here are themselves the free-riders, obtaining a huge amount of
academic content from the universities and their faculty without compensation. The
GSU complaint cites as an irony the fact that one of the professors who is
cited as infringing the copyright of Sage Publishing has himself published
three articles in Sage journals. The gall of the man! Nowhere is it mentioned
that he was required to give up those articles without payment for the
privilege of publishing with a company that is now suing his employer to
recover even more money for those freely donated articles." (emphasis added)
The promise of moving into an Open Access system for publishing scholarly
works will take years. However, fair use is designed to be flexible enough to
fit many different types of uses, such as the idea of e-reserves. I hope fair
use continues to be as flexible after this case either settles or is decided.
Cross-posted at the
Copyright Advisory Network blog
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