Academic Publishers Attempting To Eliminate Fair Use At Universities [Updated]
from the you-kind-of-don't-get-to-call-yourselves-academic-publishers-anymore dept
There are stories about legal battles over copyright that make you shake your head in bewilderment. There are some that make you chuckle. And then there are some that simply infuriate, such as this one sent in by Chris ODonnell.For those who may not be aware, e-reserves are a practice by which universities can share course materials with students, relying heavily on fair use. Basically, it used to be that professors would have to reserve printed materials in the university library for students, the school paying permission fees for each printed copy. In the digital world, of course, this is wholly unnecessary. Professors more often put a single copy of the reading material up on a school server, slap some password protections on it to make sure only students of the class have access, and all of that dead tree copying suddenly becomes antiquated. This, of course, is great for education, as students who are already paying rising costs for course material and tuition suddenly don't have to share in the materials cost for digital goods now protected under fair use. It's a huge win for higher education, something every good citizen realizes is of rising importance in the global economy.
So, of course the content creators are suing. Specifically in what reeks of a test case, Cambridge, Oxford, & Sage publishers are filing against Georgia State University and asking the court to issue one of the all-time-detrimental-to-education injunctions in the modern era.
Some quick background is probably in order. E-reserves have long been a contentious issue for academic publishers. Publishers Weekly has been following the long history of so-called academic publishers using strong-arm tactics to get institutions to limit what can be done with e-reserves:
"Indeed, there has been mounting concern over e-reserve practices since the early 1990s, when publishers predicted that e-reserves could erode revenue from printed coursepacks. In 1994 publishers sought to deal with e-reserves at the Conference on Fair Use (CONFU), but the issue proved so contentious that the participants could not agree on a recommendation for the final report. Since then, the threat of litigation has loomed over a number of universities concerning their e-reserves, as publishers' reproduction revenues dipped."Read carefully, and you can immediately see what's going on here. Basically, the digital world has made sharing educational documents more efficient, such that reproducing printed copies of material is no longer a necessity. And academic publishers are freaking out because a revenue stream is threatened. This, of course, is where fair use should come into play as a protection for those seeking to share and enhance knowledge for our nation's young people, something which virtually everyone would agree is important. But not so-called academic publishers. For them, it's that revenue stream that's important, and the progress of the nation's knowledge be damned.
That would be bad enough, but the injunction the publishers are seeking against Georgia State is even worse. This is outlined by Kevin Smith, Duke University's first Scholarly Communications Officer, in a piece entitled "A Nightmare Scenario For Higher Education". Smith notes several revelations about the injunction, which would first seek to make Georgia State University responsible for everything that is copied within their grounds and associated web spaces. It does this by enjoining university students and professors to the injunction. It includes not only e-reserves, but also faculty web pages and LMS systems, effecitively encompassing the entire educational institution under Georgia State's responsibility to monitor materials available to anyone anywhere. Smith notes:
"In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page. Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done without permission."The whole concept of higher education revolves around the ability of an institution's professors to share and expound upon knowledge. The very label of "a free exchange of ideas" now goes out the window, as the injunction results in the giving up of fair use by not only university staff, but students as they try to learn. Let's be clear: students are attempting to use this material to further knowledge while "academic" publishers are putting up roadblocks.
But it gets even worse. Smith discusses how permission fees are the real goal here, as well as the obliteration of fair use for all of Georgia State, before noting:
"Added to these rules from the Guidelines is a new restriction, that no more than 10% of the total reading for any particular class could be provided through non-permissive copying. The point of this rule is nakedly obvious. If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees. Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were."I'll paraphrase in case there are others like me, because when I read the above my brain immediately began attacking my eyeballs for exposing it to something so utterly ridiculous. Publishers are attempting to require universities to pay more in permission fees for using their content
To summarize, we've got "academic" publishers threatening litigation upon universities that are sharing educational material, under clear fair use protections, in a more efficient manner to further knowledge, while at the same time attempting to codify rules demanding that they use such material. All while education costs rise and the United States continues its hand-wringing over its slipping education system.
To summarize more succinctly, I have to go throw up now.
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* Rolls wheel *
Ok, let's see what we've got:
"But Mike, making these publications costs money! Are you saying that copyright holders shouldn't get paid!?! Your sick!"
Ah! A classic. Fire away trolls!
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If so....that was awesome!
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I just don't get it.
I just don't see it.
You must be a pirate.
You are anti choice.
You can't compete with free.
That's a bad analogy (because I don't like it). Try an analogy that involves law breaking (even though law breaking is irrelevant).
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The time has come!
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Re: The time has come!
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...
To promote the progress:
"To begin only using freely available open-source ;-) educational materials which are available entirely on the interwebs and lack dead-tree protectionist companies to bitch and moan about their lost business models..."
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stupidity or opportunity
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Re: stupidity or opportunity
Ah but that's the REAL problem w/this. They're trying to make it a rule that 90% of the reading material in any given class MUST be paid-for material. So no going elsewhere, no creating your own material. You have to use "theirs", or someone similar (which there isn't much else out there).
It's actually fucking disgusting....
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There are other interpretations which would make more sense. What they are saying is you can only use up to 10% without getting permissions. So CC material is ok since permission is granted. Your own material is ok since permission is granted. So the only things that this would limit are: Public domain and fair use. It's illegal and bastardly, but not quite as much as you make it sound.
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Option 2: every single prof. does the exact opposite of what these trolls are mandating and let the publishers haul every university into court. I'd love to see that one.
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Wow... so in, say, a philosophy class, where students are reading the full text of ancient books like The Republic, would that mean they are barred from treating such works as public domain? It seems like this contract would basically give the textbook publishers a new copyright over millenia-old works within campus walls.
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It's absolute nonsense....
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Odds are they go fat and happy on textbook royalties and are at least indirectly connected to the publishes filing suit.
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"You want to know about the Periodic Table of elements? We'd be happy to tell you for $400. And if you forget, we'd be even happer to come back and tell you again for the new low price of $250!
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Another publisher needs to -- wait for it -- patent the periodic table of the elements.
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This, of course, is where fair use should come into play as a protection for those seeking to share and enhance knowledge for our nation's young people, something which virtually everyone would agree is important. But not so-called academic publishers. For them, it's that revenue stream that's important, and the progress of the nation's knowledge be damned.
It is the revenue steam that is important to them, and maybe that is how it should be. Treating patients is seen as important too, but that doesn’t mean doctors should not care about their revenue stream. They have to care about how they will get paid, or at least some of this material would never be written. It may not be wrong that publishers are very concerned about their revenue stream. But this concern could manifest itself in different ways. The publishers could ask themselves why they can’t seem to compete with e-reserves. Maybe it has something to do with the price they set. The price publishers charge for this material is often more than most students feel they can afford. If publishers would fix that problem, maybe people would not feel the need to turn to e-reserves. Having used e-reserves myself, I would much rather have my own copy, and I would pay for the privilege. I just don’t want to pay $150 for a book that was really written in 1989 and has only been updated with a few sections since. It is possible the publishers overvalue what they produce.
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Are we sure...
The rule says only 10% of a given course's material could be from non-permissive copying. It seems like if a textbook was released under CC-BY-SA or something, it would fall under "permissive copying" to even use it in an e-reserve (provided attribution). Public domain seems at odds with this interpretation as well.
Where they'd get you in a philosophy degree (disclosure: I was a philosophy major and did a year in grad school) is possibly with copyrighted translations of major works (cf. Plato's Republic). Even then, it seems that the translators like Reeve and others would actually own their respective copyright, and even if they've licensed specific uses of it for various publications (which they certainly have), there may not be a strong legal position for stating that they have a pre-existing copyright stance on all of it. They are perhaps only relying on case law to establish that, were it ever challenged. Thus, they could perhaps "revise" their translation according to some minimum legal standard and re-release it CC-BY-SA or similar to dodge this.
I do not think this strongly implies that you would be forced to accept a major publisher's content, as worrisome as that would be if it did. That said, it does continue the "make others police my copyright for me" stance, which is bothersome in and of itself.
On an unrelated note, it would be very interesting to see the SCOTUS or legislature strike this specifically from law, namely, to bar having others police your own copyrights. I think something similar is already implied by trademark law, where you have to aggressively defend your trademark or risk losing it. Shifting the costs back onto the IP maximalists (as opposed to ISPs, governments, universities, and whomever else they want to try to saddle with the responsibility) might go as far as anything to shut them up or put them out of business. They'd quickly find out how unsustainable their recommended policing is.
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Please don't confuse 'content creators' with 'publishers'. Two separate entities.
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"Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were.""
I read that to mean that where permission is required, then 90 percent of the readings would be required to be provided through purchased works, regardless of how short those works are. The later seems to be the point of disagreement.
In cases that permission is not required (ie: CC licenses) then it would not be the case. Your "It's classic monopolistic behavior: you have to pay for our stuff and you have to use our stuff by rule, therefore you must pay no matter what."
doesn't seem to hold.
No offense, but posts should go through some sort of editing process before being posted, I thought Techdirt has an editorial staff. Bad reporting can easily damage Techdirt's reputation, and Techdirt has had a good reputation so far of keeping their facts straight (and correcting mistakes that it does make because no one is perfect).
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To be fair, I'm relying a bit on the commentary revolving around this issue by others, such as Kevin Smith who I named in the piece.
In addition, your interpretation wouldn't be much better, because you're still talking about a contract that goes out of its way to erode fair use, and not just for the university, but for the student body as well.
Even in this "nicer" possible interpretation, it's still crazy....
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What I'm reading is Kevin Smiths interpretation and it doesn't look like you interpretation of his interpretation is correct. and the commentary around the issue, at least in the comments section on that site, doesn't seem to support your interpretation either. In fact, on that link
Mary E. says:
"Perhaps it’s time to switch to mostly texts that have creative commons permissions?"
"Even in this "nicer" possible interpretation, it's still crazy...."
I agree.
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Note the update in the post. See, that's the beauty of blogs like Techdirt - you get to see and participate in the editing process, instead of waiting until tomorrow for the story.
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There have been guidelines since the late 70's concerning use of copyrighted works in classroom settings. Are you saying that the uses involved here are clearly within those guidelines, or are you trying to make a different point?
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I'm saying that the Universities are declaring that their use is fair, and the contract is attempting to route around fair use with it's 10%/90% directive.
But, from all available reading, the kind of e-reserves this particular school were providing would be covered under Fair Use.
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An even darker issue...
That's excerpted from the Kevin Smith article. Now, what that says to me, is that the publishers are attempting to require an unheard of (and, as Smith rightly points out, beyond infeasible) level of collaboration between professors in totally unrelated departments to make sure they're not excerpting from the same works. That could conceivably require the creation of an entire new department in many universities, existing solely to deal with licensing issues so that professors could properly teach without the burden falling to them. It would also potentially censor a lot of material (i.e., "You can't teach using that text: it's too popular/expensive and we can't afford to have people learning it.").
Another clearly troubling issue of this requirement would be that many professors would be unable to cope with survey classes. Imagine, as a commenter above stated, a philosophy class, in this case a 100-level survey course. The licensing fees to teach a class composed mainly of short excerpts read every day would be staggering.
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Publish or Perish
So, all in all, there is time and $$ invested in writing, editing, and publishing academic tomes. Somehow, that investment needs to be recouped. The question is just what is fair given the ease of disseminating electronic volumes? I personally purchase a fair number of ebooks, but I refuse to pay more than $5-$6 for them. They should not be any more expensive than a paperback book was 30-40 years ago, IMHO. After all, there is no need to pay for printing, paper, ink, bindings, shipping, warehousing... The value is in the content, not in the covering (or lack thereof).
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Easy Workarounds
a) Writers who want to publish copyleft licenses can add a clause to their creative commons (or whatever) that says educational facilities can license their entire collection indefinitely for $10 paid to the school's favourite charity. Therefore, it was bought and paid.
b) Teachers who want to get around the 10 percent number could simply make a "reading list" that is significantly larger than they normally would make, but set it up so that only 10 percent of that larger list is testable.
Of course, it would be best if we didn't have to work around such silly monopolistic laws in the first place.
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Re: Easy Workarounds
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Now you don't even need to go to the library, just head on over to Project Gutenberg and read the Harvard Classics for free.
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academic publishers and their ilk
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about text books
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what i know
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