LibraryLaw Blog

The Georgia State E-reserves lawsuit: Is Fair Use Dead? Or is it the traditional publishing model?

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 

Is quid quo pro database access for donors acceptable?

Raizel writes:

A colleague sent me this question in my role as a Copyright Scholar for ALA's Copyright Advisory Network, but I felt it touched on too many non-copyright issues (licensing, library management, funds = access) to be discussed exclusively there.

The question is:

I would like any responses to the issue of whether or not a donor to an institution can access electronic databases licensed to the institution.  A typical electronic resource contract contains the following provision: 

"Authorized Users [is defined as]: Staff, faculty, librarians and other professionals who are employed by your organization or who provide professional services at your organization's facilities, any student affiliated with your organization, and, to the extent that your organization includes a public library, individuals otherwise entitled to use your library facilities." 

Fred Administrator wants to encourage donors to donate and has proposed offering donors full Library privileges, including access to licensed e-resources. Does Jane Donor, who is not an alumna, professional, student, librarian, or staff member at Blackacre Professional University, fall within the definition of Authorized User?

Will articles in open archives be available long-term?

In the last issue of RLG DigiNews April 15, 2007, Peter Hirtle tackles the  difference between open archiving and preservation. Copyright Keeps Open Archives and Digital Preservation Separate.

He looks at "green publishers," standard licensing agreements and copyright law, and fast brings us up-to-date on the different alternatives available today, along with analysis as to their longevity. If you care about future scholarship, take a look. 

Hooray - I figured out how to use tags instead of categories in this blog

As I suspected, it's much easier and more flexible.  So if any of you are looking for new posts based on categories, you may not find them. Use the technorati tags at the bottom of a post instead. If it works like I think it will, I'll probably stop using categories altogether.

Update: It looks as if users who click on a technorati tag below will get everyone in the world's posts with those tags. That's useful, but it would be nice to have an option to limit it to this blog, the way flickr does.  Well, there's always the search button in the blog...

Can you prohibit people from taking pictures of Jack Kerouac's On the Road manuscript on display at the library?

William Patry, copyright treatise author, calls our attention to a current dispute over Jack Kerouac's On the Road manuscript currently on tour at the San Francisco Public Library.

According to Thomas Hawk (pen name), a digital media and technology enthusiast, a security guard at the library told him he couldn't take pictures.

It's not really a copyright issue. Patry tells us that he thinks the photographs in question would qualify as news reporting fair use.   

But that's not the only way to control content.  The owner of a manuscript can restrict use by contract.

Patry writes:

Control over a physical manuscript can give you the ability to license people, but the question is, if someone doesn't take a license, and you don't otherwise have a contractual relationship, what right has been violated? In the case of a copyrighted work, the answer is that the Copyright Act makes, by statute, unauthorized reproduction a violation (subject to exceptions like fair use), but for photocopying a physical manuscript the owner of the physical manuscript has no statutory right unless he is also the owner of the copyright, which Irsay isn't.

My take: I see two relationships here. First, the manuscript owner has a contract with the library.  It likely has a clause requiring the library to prohibit photographs.   Second, the library has a relationship with the public.  Although it's unlikely that the library requires the public to sign an agreement before entering the exhibit area, the library has the right to enforce reasonable rules of conduct, related to its mission. Kreimer v. Morristown 958 F. 2d 1241 (3d Cir. 1992).  Assuming the library does a reasonable job putting patrons on notice and enforces the policy equally (i.e. no one takes photographs), I believe it has the right to enforce the policy. 

Then there is the practical aspect - it is a public library, after all, and doesn't have the capacity to require people to check their cameras at the door.  All it can do is post signs and security guards, and then tell someone to leave if they violate the policy. The pictures already taken, by the way, have been set free on flickr.

How much do consortia save when negotiating library licenses?

I can't really get a fix on this group, Primary Research Group, but it just released a study on library licensing August 20th.

Reading it felt like sitting down to eleven cups of coffee with eleven librarians from academic and corporate libraries with strong licensing experience. Casual, honest. It did not feel like reading an $80 report that should be packed with hard data and perhaps more careful editing. (I know my blog entries would surely benefit from an editor - but hey, this blog is free).

Useful specifics are given. For example, the report tells us that Rick Burke of the Statewide California Electronic Library Consortium (SCELC) says that each of its members pays a $750.00 annual fee, and then the modest administrative apparatus is also supported by a 5% contract surcharge (only 1% if the license is arranged through another consortium). To keep costs down SCELC has avoided getting too involved in issues sometimes handled by consortiums that include union catalogs, patron initiated interlibrary loan.

I checked in with Rick since I know him and he's a great guy. He wrote back (quoted with permission):

"We want the threshold to participate in SCELC to be low, because we serve so many smaller private academic institutions that do not have large budgets. They need to add electronic resources in particular, and SCELC benefits them particularly because they are often at a disadvantage financially. At the same time, SCELC needs to be more than just a "buying club," which is why we promote other low-cost cooperative ventures to promote resource sharing, such as ILL or reciprocal borrowing. We also are exploring other means to promote continuing education and professional development for staff at our member institutions."

Licensing Electronic Resources - workshop materials

I taught a copyright workshop for Amigos Library Services last week in Euless, TX. I promised that I'd post a link here to past training materials on licensing electronic materials that I thought were quite good. It was taught by Sybil Boutilier, the Contract Officer for San Francisco Public Library. I know Sybil, and attended this workshop in 2002. She is very savvy about negotiating electronic licenses. I had to negotiate a trainer's contract with her when I did a series of workshops at SFPL. Trust me, it's better to be on the same side of the table with her than agin' her! She's always pleasant, but very very firm.

Click here if you want any of these:
Workshop Agenda
PowerPoint Presentation
Exercises
Exercise 1: Library Licensing Audit
Exercise 2: Editing the Vendor Contract
Exercise 3: License Negotiation Preparation
Exercise 4: Scenarios
Exercise 4a: Roles for Scenario 1 on License Negotiation
Exercise 4b: Roles for Scenario 2 on License Negotiation
Handouts
Library Friendly Provisions
Bibliography for Licensing Electronic Resources Workshop