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The Impact of Copyright on the Resource Sharing Practices of ASERL Libraries

I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The final of these four papers is posted below and at the ASERL website.

 

Introduction

Resource sharing emerged as a common library service in the mid-1960s as library automation and telecommunication technologies developed. These developments allowed library networks to grow from an already-established tradition of cooperation among American libraries. The two primary forms of resource sharing in the early days were interlibrary loan and cooperative acquisitions.[1] When resource sharing involving only delivery of physical objects, libraries were only concerned with complying with the Copyright Act, primarily Section 108(g)(2), which states that libraries are not prevented from entering into sharing arrangements so long as the receiving library does not receive copies in such quantities as to substitute for a subscription of the work. As resource sharing grew and electronic access arose as a means of quick and efficient delivery, a group of libraries and publishers known as the National Commission on New Technological Uses of Copyrighted Works – or CONTU – convened in 1976 to develop agreed-upon guidelines for what was acceptable under the newly enacted Copyright Act.  The essential component of these guidelines is the “Rule of 5.”  That is, within a single calendar year a library should not borrow more than five articles from the most recent five years of publication of a journal. Needing more than five articles from the five most recent years of publications would indicate a subscription to that publication is warranted and permission from the journal is required for further reproduction and sharing.[2]

Today, as libraries engage in a variety of resource sharing activities involving the sharing and acquisition of both print and electronic resources domestically and abroad, and within local and global consortia of libraries, questions arise whether the nearly 40-year old CONTU guidelines reflect current assumptions about copyright law, fair use, and  the scholarly communication system as it presently exists.  More directly, what impact does copyright law have on the various modes of resource sharing in which libraries are engaged? What about license agreements? With libraries now collecting more digital content than print, how are libraries protecting copyright and fair use, observing the Rule of 5, and also fulfilling patron expectations for access and use of electronic content? The problem with guidelines is that they have a tendency to both narrowly construe the law and create rigidity in its application. This comes out of a need for the guidelines to be acceptable to many diverse groups with competing interests.[3]

ASERL Survey Results

To gauge current practices and attitudes about these issues among ASERL members, a survey was devised in February 2014 to determine what types of resource sharing practices were in use, what  policies govern their resource sharing practices, and how copyright considerations impact lending or acquiring materials through resource sharing.[4] Twenty-six libraries of ASERL’s 38 member libraries responded. Their responses reflect a wide range of resource sharing activities across a wide geographic area and a mix of attitudes and practices regarding the application of copyright law and negotiation of e-resource licenses to their resource sharing activities.

Not surprisingly, all the survey respondents indicated that they regularly share print books via physical delivery (e.g., U.S. Mail), as well as articles or other scanned, non-returnable materials via both physical and electronic delivery. When sharing resources by these means, most members did not discriminate by library type, lending within the state, across the country or across the globe. However, most libraries indicated that they are not presently engaged in sharing of electronic books in any way, and the few that are currently loaning electronic books indicated that only a single chapter or limited excerpts are shared. The small number of libraries loaning electronic books is likely due to license restrictions. Only three ASERL libraries indicated that they regularly include provisions to permit resource sharing when they negotiate the terms of electronic book licenses, even though nearly all other respondents regularly negotiate resource or scholarly sharing rights in licenses for electronic journals and databases.

Currently, only about 1/3 of the libraries that responded to the survey employ a system for tracking these electronic resource license terms. Sample license terms provided by respondents indicate an adherence to Section 108 of the Copyright Act and the CONTU guidelines but do not reflect fair use considerations being made in resource sharing decisions. A few of these examples are below:

  • “Under the terms of this Site License, the Licensee is granted the non-exclusive right to supply (whether by post, fax or secure electronic transmission, using Ariel or its equivalent, whereby the electronic file is deleted immediately after print) to an authorized user of another USA library for the purposes of research or private study and not for commercial use, a single paper copy of an electronic original or an individual document from a journal for which a subscription has been paid at the full current subscription rate, in compliance with Section 108 of the United State Copyright Law and with guidelines developed by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines).”
  • “The Institutions shall be permitted to use Reasonable Amounts of the Licensed Materials to fulfill occasional requests from other, non participating institutions, a practice commonly called Inter-Library Loan. Customer agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC §108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and the Guidelines for the Proviso of Subsection 108(2g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU).”
  • “Licensee may fulfill a reasonable number of requests for Interlibrary Loan of the Licensed Materials from institutions not participating in this Agreement, provided such requests comply with Section 108 of the United States Copyright Law (17 USC §108) and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines). Licensee may use print or electronic copies derived directly or indirectly from the Licensed Materials for the purpose of Interlibrary Loan with the same limitations that prevail for paper copies for that purpose made from print journals.”

All of the responding libraries indicated that they employ the CONTU guidelines when making resource sharing decisions. Sixteen of the responding libraries indicated that their resource sharing practices have been codified into a formal written policy. Eleven of those policies specifically address copyright compliance in resource sharing. Most of the respondents have designated someone within the library to handle questions of copyright compliance as pertains to resource sharing:

 

Title of Person Responsible for Copyright Compliance in Resource Sharing Number of Schools
Borrowing Services/ILL Librarian 15
Access Services Librarian 1
Dean or Director 2
Library Assistant 2
Scholarly Communications Librarian 2

 

In assuring copyright compliance, almost all responding ASERL libraries indicated that they use the Copyright Clearance Center for processing copyright permissions and fees. And although not reflected in the sample license terms provided above, almost all respondents indicated that they consider the principles of fair use when making decisions related to resource sharing. Further, about half of the respondents stated that their staff checks for an open access equivalent – whether it be in an institutional repository, HathiTrust, Internet Archive or some other OA resource – when responding to patron requests for items not owned by the library.

At the conclusion of the survey, respondents were asked to share any final thoughts they had on copyright and resource sharing. One respondent highlighted the growing complexities of international copyright laws and restrictions on interlibrary loan. This is an issue that has come up in the literature and in the news in recent years and will likely continue to cause libraries headaches as US universities establish campuses overseas, the number of online students in other countries expands, and the willingness to lend items to institutions in other countries grows. Other respondents commented on the restrictions in licenses with regard to sharing e-book content with persons outside the subscribing institution. Finally, technological hurdles were also cited as an impediment to lending electronic books.

 Conclusion

Resource sharing as a library service has grown exponentially since its advent 50 years ago. Changes in technology have expanded the ability of libraries to share and acquire more information efficiently and quickly, but the failure of copyright law to similarly adapt and change has complicated policy and decision making. As a result, libraries have continued to rely on outdated guidelines and encountered difficulties in negotiating license terms that have raised questions and challenges about the future of resource sharing as a service. The experiences and practices of ASERL libraries demonstrates that the issue of copyright compliance and best practices in resource sharing requires further examination, discussion, and revision in order to meet patrons needs for ready access to scholarly information and assure the principles of fair use are preserved.

Fair use has become increasingly important to the way libraries provide information as evidenced by not only court cases testing the boundaries of fair use in libraries but also the development and promotion of best practices for fair use in libraries. However, reliance upon the outdated “Rule of 5” may hinder utilization of fair use by restricting libraries to numerical guidelines where a broader view of the principles of fair use may be, in application, more equitable to the rights of users and  the rights of copyright holders as well. Further, ASERL members’ experiences demonstrate that licensing practices do not always allow libraries to utilize fair use for purposes of resource sharing. Finally, the growing availability of open access resources demands a need for staff training and workflow revision.

 

[1] Norman D. Stevens. “Library Networks and Resource Sharing in the United States: An Historical and Philosophical Overview.” Journal of the American Society for Information Science, vol. 31, no. 6 (1980): 405-412.

[2] William Gray Potter. “Scholarly Publishing, Copyright and the Future of Resource Sharing.” Journal of Library Administration. Vol. 21, no. 1-2 (1995): 49-66.

[3] Kenneth Crews. “The Law of Fair Use and the Illusion of Fair Use Guidelines.” Ohio State Law Journal, vol. 62, no. 2 (2001): 599-702.

[4] See the full survey results at http://www.aserl.org/?attachment_id=4118.

Putting Money Where Our Mouths Are: Libraries Funding Open Access Publishing

I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The first of these four papers is posted below and at the ASERL web site.

 

Like research libraries around the world, members of the Association of Southeastern Research Libraries (ASERL) have seen the growth of open access (OA) as a mode of scholarly communication and a resulting rise in the number of open access journals. Today there are nearly 9,000 open access journals published worldwide.[1] A common business model adopted by open access journals for funding their operations is collection of Article Processing Charges (APC) from authors. As a means of supporting the open access movement and encouraging their faculty to publish in open access journals, many universities have established campus-based open access funds. In a 2012 survey[2] of ASERL members about their open access advocacy activities, more than 1/3 of the responding libraries indicated that they currently administer an open access fund, and several additional libraries indicated plans to launch funds in the near future. I recently chatted with several ASERL members[3] about the status of the open access fund at their university. The conversations revealed similarities and differences with respect to management and use of open access funds, which are likely reflective of experiences at other universities.

Fund Structure

Conversations with open access fund administrators revealed the multiple ways in which campus-based open access funds are funded. For most, a combination of sources supplies the monies to the fund. A common funding scenario features equal contributions from the library, the provost, and the university’s office of research. Libraries are also committing portions of their central collections budgets to supporting open access publishing. The collective hope is that diversion of funds from subscriptions to support of open access will encourage publishers to adopt open access as a model and reduce subscription costs. At the same time, universities should be educating their faculty on the cost of publishing and the values of open access. Until there is such a level of awareness to bring about the desired shift in publishing economics, libraries will be faced with the decision of potentially canceling subscriptions in order to continue financially supporting open access publishing activities of the faculty.[4]

Interestingly, ASERL libraries have experienced some very different levels of use of the OA funds. One of the funds is still operating with its initial allocation dating from 2008, while a couple funds have run out of monies several times during their lives, leaving faculty waiting for notice regarding the funds’ uncertain future. Libraries have capitalized on this by presenting evidence about the utilization of the fund by faculty and graduate students from diverse disciplines and the growing support within the greater academy for open access, oftentimes leading to recurring support for the OA funds across multiple years. The funds represented in this report allocated from $12,000-$75,000 annually for support of open access publishing.

Eligibility of Applicants and Publications

ASERL libraries are using their OA publication fund as a “fund of last resort,” that is, researchers with grant monies must use grant funds to pay APC charges. Additionally, all librarians I interviewed noted that the failure to include publication costs in a grant application was “not an excuse” for waiver of this eligibility criterion, and all had denied awards on the basis of available grant funding. There were differences in processes used to verify an applicant’s grant status. While some fund administrators regularly verified the availability of grant funds to the applicant through the university’s office managing sponsored research, others simply took applicants at their word regarding the availability of other monies to cover open access publication costs.

All fund administrators permitted applications from faculty, students and staff. One fund administrator reported no difference in the number of tenured versus untenured faculty applying for assistance. This is interesting because a common argument against open access is the reliance of tenure and promotion upon publication of articles in journals with high impact factors or rankings, both of which may not be assigned to or measured for many open access publications. That untenured faculty are publishing in open access journals at the same rate as tenured faculty may discredit this perceived weakness of publishing in open access journals. Additionally, two fund administrators indicated that the faculty at the medical colleges affiliated with their universities were not eligible for support through their campus-based open access fund. Interestingly, these same two funds experienced slower rates of fund depletion experienced at universities that provided APC funds for medical faculty. This supports the common perception that open access is most prevalent and accepted within medical and other life sciences.

There was some variance in practice regarding support of APC charges in “hybrid” open access journals. Hybrid open access journals are those that charge a subscription for access to journal content but also permit open access to those articles where the author has paid an open access fee. Most OA fund administrators believe publishers have added to their revenue stream by collecting the additional dollars from authors willing to pay to make their work openly accessible. As a result, most OA fund administrators in ASERL do not provide funding for hybrid journal articles. However, one fund administrator supports hybrid journals as their library did not want to close any avenue to making research available through open access; if an author was interested in making his/her article available open access, even if through a subscription journal, the library felt fund should support it.

Perceived Quality of OA Journals

There was also much discussion of the quality of open access publications. Most administrators reported that they had rejected applications on the basis of poor journal quality. Quality decisions were typically based upon a listing in the Directory of Open Access Journals (DOAJ) and adherence to OASPA’s Code of Conduct[5]. The use of Beall’s List of Predatory Publishers[6] for determining eligibility was also discussed. While all admired the thought and work that is put into maintenance of Beall’s List, many believed it should not be relied upon exclusively as an arbiter of quality or ethical practice. Some administrators believe the criteria of Beall’s List, if applied, could potentially exclude high-ranking traditional, subscription-based scholarly journals on account of their business and editorial practices. Others felt the criteria also have the potential of mislabeling good quality journals that are too new to be fully tested as predatory, or those that focus on such niche or specialized topics that their coverage and appeal to a narrow group of scholars matters more than adherence to potentially arbitrary criteria.

Fund Usage

The usage of the campus-based funds within ASERL libraries mirrored the national trend of open access prevalence in the sciences. Administrators reported that the departments most often using their funds came from medicine, nursing, veterinary medicine, and engineering. All funds had applications from the social sciences and humanities, and one fund administrator indicated that support through the fund of publication of open access books would likely encourage usage in those disciplines. The fund administrators also concurred that faculty and students from business related disciplines had not applied for funds. It is unclear whether a paucity of open access business journals, attitudes of business colleges, or availability of other funds has led to the lack of participation from these disciplines in open access publishing.

Related to the usage of the fund, we discussed how our campus-based funds had been marketed. Typical marketing venues were reported – websites, brochures, and targeted emails. However, the most effective marketing tactic appeared to be word of mouth; most applicants learned about the fund through other applicants. Further, despite their marketing efforts, administrators were still dismayed by how many faculty had never heard of the fund, even after it had been in place for a few years. Through this discussion, administrators indicated a desire that library liaisons or subject experts engage more with faculty and students about scholarly communication issues and inform them of the resources available for publication support.

A few administrators noted spikes in the number of applications submitted at various times during the year. There was no clear correlation between the timing of these spikes and the academic calendar nor discernible publishing cycles. This was a point of considerable curiosity, and we determined this may be worth investigating on a larger scale.

Future of Open Access Funds

The conversation about campus-based open access funds concluded with a discussion of their sustainability. While all agreed that the availability of open access publishing funds was an important part of a university’s overall open access advocacy plan (“it’s putting money where our mouth is”), most fund administrators agreed that the business model of authors paying APCs was not sustainable in the long-term. The administrators were intrigued by emerging business models adopted by the journals eLife[7] and PeerJ[8], and the success of these new models will be watched closely. The outcomes of the directive from the White House Office of Science and Technology Policy[9] and the proposed Fair Access to Science and Technology Research Act[10] will also greatly impact the future of funding open access publishing and will be closely monitored. The group pondered whether libraries should be diverting funds used to pay subscriptions to large, expensive bundles of largely low-use journals into support of open access, and how libraries could better advocate the many open access journals that do not charge any APCs. Regardless, the APC model of funding open access is likely here to stay for the foreseeable future; if universities want to support open access in more than words alone, the administrators believe universities – not just libraries – should plan to sustain campus-based open access funds through recurring funding.

Conclusion

The Fall 2012 survey of ASERL member libraries regarding their open access activities revealed a keen awareness of and a high percentage of participation in open access advocacy and support. Distribution of funds to support open access publishing is just one of the ways ASERL members promote open access to research. In order to facilitate further conversation and collaboration in open access and other scholarly communication initiatives, ASERL has undertaken development of a scholarly communications program. Through presentations on scholarly communications topics such as altmetrics and library publishing, an in-person event on the role of open access in liaison activities, and the appointment of a visiting program officer for scholarly communications, ASERL hopes to inspire its members to continued advocacy and leadership in the area of scholarly communications

[1] See Heather Morrison’s “Dramatic Growth of Open Access” for quarterly updates on the increasing number of open access articles and journals. http://poeticeconomics.blogspot.ca/2006/08/dramatic-growth-of-open-access-series.html

[2] For a summary of the full survey, please visit http://www.aserl.org/wp-content/uploads/2013/06/ OA_Survey_Exec_Summary.pdf.

[3] I interviewed Gail McMillan (Virginia Tech), Lisa Macklin (Emory University), Claudia Holland (George Mason University), Kevin Smith (Duke University), Molly Keener (Wake Forest University), and Robin Sinn (John Hopkins University). I also administer the Open Access Fund at University of Florida Libraries and have included my experiences in this reflection on campus-based open access funds.

[4] For more on the cost of open access publishing see Richard VanNoorden’s article “Open access: The true cost of science publishing.” Nature, v. 495, Issue 7442, March 27, 2013. http://www.nature.com/news/open-access-the-true-cost-of-science-publishing-1.12676

[5]http://oaspa.org/membership/code-of-conduct/

[6]http://scholarlyoa.com/2012/12/06/bealls-list-of-predatory-publishers-2013/

[7] http://www.elifesciences.org/

[8] https://peerj.com/

[9] “Increasing Access to the Results of Federally Funded Scientific Research,” Memorandum of the White House Office of Science and Technology Policy, February 22, 2013. http://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf

[10] Sen. 350, 113th Cong. (Feb. 13, 2013). H.R. 708, 113th Cong. (Feb. 13, 2013).

Third Time is a Real Charm! Another win for fair use.

On Thursday, a judgment was rendered in the long-running copyright infringement action filed by Authors Guild against Google for its Google Books search service wherein in-copyright books, many of which were lent to Google by participating academic libraries, were digitally scanned and snippets of scanned pages displayed to searchers.  Judge Chin, who has presided over much of this eight year roller legal roller coaster, rendered summary judgment in favor of Google, declaring its book scanning and text display fair use.  This judgment is the third in so many months that is overwhelmingly in favor of fair use and the work of libraries, both on their own and in partnership with other entities. In all three cases, similar themes emerged, as demonstrated below, as the trial courts in each case conducted their fair use analyses: educational and research uses are important to promote, providing access to materials to underserved populations is critical, and preservation of at-risk materials is an important social benefit.

Four Factors of Fair Use
In order to invoke fair use, the use or reproduction of a copyrighted work must be for the purpose of criticism, comment, news reporting, scholarship, research or education. Further, there are four factors of fair use, and the balance of these must weigh in favor of such use.  Consideration of all of the fair use factors is required; however, all four factors do not have to weigh equally in favor of the proposed use.

The four factors of fair use are: (1) why is the work being used, (2) what is the nature of the work being used, (2) how much of the work is being used, and (3) what effect does the use of the work have on the market for that work.

Fair Use in Google
Judge Chin found three of the four factors of fair use in favor of Google and thus rendered judgment on its behalf. His determinations on each factor were as follows:

Factor One – In many fair use cases of the last 20 years, a determination of transformative use has been dispositive of the first fair use factor. And here, Judge Chin determined that Google’s use of the digital book scans is highly transformative. The use of snippets of text to facilitate researcher, reader and scholar identification of relevant works as well as the the facilitation of text and data mining for research were deemed by Chin to be new purposes lending toward a finding of transformative use. He also determined that these uses had high educational and research value worthy of protection.

Factor Two – Although the works scanned by Google were of all types (fiction, non-fiction, out of print), Judge Chin found in favor of Google on this factor, determining that the majority of the corpus of works scanned were non-fiction or informational works.

Factor Three – Judge Chin concluded that his analysis of this factor weighed “slightly” against fair use due to the fact that entire books were scanned. However, he also acknowledges that scanning of the entire works was necessary to accomplish the transformative uses of those whole work scans.

Factor Four – Because the search of books on Google was likely to lead to the commercial purchase of the book, Judge Chin found no market harm. The scans would not be used to replace purchase of the original.

Fair Use in HathiTrust
In addition to suing Google, Authors Guild has also filed a copyright infringement lawsuit against HathiTrust and several of its partner university libraries. Author’s Guild alleged that HathiTrust’s digitization of books for the purposes of making preservation copies, to allow for full text searching, to provide access to persons with print disabilities, and to allow access to orphan works violated their members’ rights under copyright law. The trial court granted summary judgment in favor of HathiTrust and the universities last fall. The trial court declined to rule on the orphan works question on the ground the issue was not ripe for adjudication because the program was still in development and not yet active. Notably, the judge wrote “I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants.”

Factor One – The trial court found that the overarching purpose for HathiTrust’s activities is to promote scholarly and research activities, which are squarely within fair use. Scanning works to preserve them, though not transformative, is fair use on account of the overriding public interest in preservation of knowledge. Scanning of works for the purpose of enabling full text searching as a means of identifying works relevant to one’s research is a highly transformative use and thus qualifying as fair use. Digitization for the purpose of providing access to persons with print disabilities is also a highly transformative use qualifying as fair use.

Factor Two – Given the overwhelming transformative nature of the HathiTrust’s uses of the copyrighted works, the court determined that whether or not the works were informational or creative in nature was not dispositive of the fair use question.

Factor Three – The trial court held that even though entire books were scanned, this amount is necessary to the transformative uses made by HathiTrust.

Factor Four – Stating an intention to license the works at a later time for digital access cannot trump the transformative uses already being employed. A copyright holder will not be permitted to preempt a transformative market, particularly where, as here, there is no demonstration of market harm as a result of these noncommercial uses.

Fair Use in Georgia State
In 2008 publishers Sage, Oxford and Cambridge, filed suit against officials at Georgia State University for alleged copyright infringement arising as a result of the posting of book chapters reproduced from handbooks and other books published by them in GSU’s course management system and electronic course reserve system. The case when to trial and in May 2012 the trial court rendered judgment in favor of GSU.

Factor One – Judge Evans found that GSU’s educational purpose was clearly fair use. Significant time was spent distinguishing provision of course reserves by libraries to students enrolled in a course from the for-profit activity deemed infringing in the Kinkos coursepack case. The trial court did find, however, that mere reproduction of scholarly works for course reserves was not a transformative use.

Factor Two – The trial court found that the content of the works copied were largely informational as opposed to creative or artistic and use of informational or factual works was generally considered to be fair use. The court dismissed the “sweat of the brow” argument that the work entailed in producing scholarly works was entitled to greater protection. The court found that permitting reproduction of excerpts of scholarly works had zero effect upon an author’s incentive to create scholarly works. There was no negative impact upon the incentives of prestige, advancement of knowledge or acquiring a positive result in tenure and promotion decisions.

Factor Three – Most important in the discussion of factor three, Judge Evans rejected the Classroom Guidelines both as to amount and repetitive use. The low ceilings imposed in the outdated Classroom Guidelines and advocated by the publishers were rejected by the trial court as inconsistent with fair use as was the suggestion that fair use did not permit repetitive use of works in course reserves. The trial court held that the amount of a work reproduced has to be “decidedly small” and narrowly tailored to the express pedagogical purpose. The trial court also articulated some of its own guidelines, which it did not strictly adhere to when reviewing each of the alleged incidents of infringement committed by GSU. The trial court stated that it is generally to be considered fair use if 10% of a work less than 10 chapters or a single chapter of a work greater than 10 chapters was reproduced.

Factor Four – The publishers failed to demonstrate to the trial court’s satisfaction any harm to their bottom line. The trial court stated that the publishers argument that e-reserves would put them out of business was glib and that any revenues received from academic licensing were at best miniscule. And the recent press release from CCC that it paid out a record $188.7 million in royalties to publishers in 2013 is evidence that they are not hurting.

All three of these cases will be decided on appeal. Oral argument in the HathiTrust case occurred October 30, 2013, and oral arguments are scheduled Tuesday (November 19th) in the Georgia State case. Authors Guild announced its intention to appeal the Google case shortly after the judgment was rendered. Hopefully the appellate courts hearing these cases will further support and strengthen the well-reasoned judgments of their lower court brethren, for as Judge Chin so aptly states, uses such as the ones at issue in the Google case:

Advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

At Long Last…a Decision in Georgia

Four years since the filing, one year since the trial, and 350 pages of opinion later…we have an opinion in the closely watched copyright infringement action against Georgia State University.  The case pitted prolific academic publishers Sage, Cambridge and Oxford against the GSU provost, Library Dean and others, with the publishers claiming that the policy and practice of GSU’s Library allowed faculty to post, in violation of the publishers’ copyrights, scans of book chapters in the University’s e-reserve and course management systems.  In response, GSU contended that its actions fell within the Fair Use provision of the Copyright Act, which the publishers contended that the postings, in the absence of permission or payment of license fees, far exceeded the bounds of fair use, which they argued were defined by outdated guidelines.  In the end, the judge found largely in favor of GSU, and in doing so, she crafted a fair use framework (although for the time-being is only legally binding upon persons living in the Northern District of Georgia) that libraries and publishers alike will be analyzing and implementing in the months to come.

The Fair Use Framework of the GSU Case

Under §107 of the Copyright Act, a use of a copyrighted work without permission of the copyright holder is permissible when such use is for the purposes of teaching, research, commentary, news reporting, parody, or criticism, and the balance of four enumerated factors weighs in favor of a finding of fair use.  Those four factors as set forth in the statute are: (1) the purpose and nature of the use, (2) the nature of the copyrighted work being used, (3) the quantity of the copyright work being used, and (4) the effect of the use upon the potential market. The application of these four factors to the posting of copyrighted works to electronic reserves systems has long been the subject of scholarly debate; however, this case is the first time that a court has undertaken to apply the fair use factors to such use. The judge’s application of the fair use factors in the context of e-reserves can be summarized as follows:

Purpose and Nature of Use – Because a college or university’s library is a non-profit and educational user, the court found that this factor weighed heavily in favor of a finding of fair use.

Nature of the Copyrighted Work: Because the works at issue in the case were all scholarly, non-fiction works (and many of them reference-type handbooks), the court found that this factor also weighed in favor of a finding fair use.

Quantity of the Copyrighted Work Being Used: Most of the excerpts posted in GSU’s course reserves were 10% or less of the book. The court held that this factor weighs in favor of fair use where no more than 10% of a work with less than 10 chapters or no more than one single chapter in works of more than 10 chapters is used.  In amounts greater than this, this factor weighs in favor of the copyright holders. The court also reiterated that where the portion used represents the “heart of the work,” the balance tips in favor of the copyright holder.

Effect Upon the Potential Market for the Work – Where there is a reasonably priced and readily available license for a digital excerpt of the copyrighted work, this factor tips in favor of the copyright holder. This factor also weighs in favor of the copyright holder where the amount used is so great that it substitutes purchase of the entire work.

Answers, Yes, but Also More Questions

Through her careful reasoning and explanation, the judge in the GSU case answered many questions that have been pondered by copyright scholars and academic library practitioners. In particular, she held:

- The posting of copyrighted works in an electronic reserve or course management system is not analogous to the production of print course packs by a copy shop or other commercial entity.  Thus, many points in the Kinkos case are not applicable to e-reserves.

- The posting of copyrighted materials in an e-reserve system is not a transformative use.  In recent years, a finding of transformativeness has been key to deciding fair use cases.

- The 1976 Classroom Photocopying Guidelines are too restrictive and thus inconsistent with fair use. Further, the judge expressly rejected the “subsequent semester” rule that is an outgrowth of the Classroom Guidelines. Thus, use of the same excerpts for a course from one semester to the next does not mitigate against a finding of fair use.

- No or minimal use can mean no infringement. Where items posted to course reserves are never accessed by students, there is no infringement.

- When calculating the number of pages in a work (for purposes of determining what constitutes 10%), the entire work is counted, including the table of contents, foreword, and index pages.

However, the decision also left scholars and librarians with more questions to ponder:

- What about journal articles, images, videos, etc?  The decision in GSU only dealt with monographs; however, many faculty utilize these other categories of works in their courses and request their institution’s library to post these materials in the course reserve system.

- What constitutes a “readily available and reasonably priced” license? And, if the copyright holder does not have a license or permission system available for the work or its excerpts, does this mean its fair use to use it anyway? In the wake of this decision, more publishers will likely either contract with Copyright Clearance Center or invest in devising their own license and permission systems. Does this mean libraries will end up paying more for less?

It will be interesting to see what answers folks on all sides off these issues will propose in the weeks to come and what the next moves of the publishers and their litigation funders will be in response to the judgment.

Open Access – The Power of Knowledge

Open Access Week 2011 draws to a close. This was my first open access week at the University of Florida, an active and vocal supporter of open access, as its new scholarly communications librarian. On Wednesday, the Libraries commemorated Open Access Week with an afternoon of presentations and round table discussions. Entitled “Scholarship Unbound,” the event provided an opportunity for faculty, students and librarians to discus ways in which open access supports research, teaching and learning. This week was also the one year anniversary of this blog. I hope that you have found the posts here instructive and informative.

Events during the year 2011 demonstrate why the concept of open access is so important. The failure of the Google Book Settlement, the lawsuit against HathiTrust and its university partners, and the attempts to restrict international interlibrary loan practices represent attempts, without evidence of commercial harm, to control access to and sharing of large repositories of the modern world’s literary and scientific output. Even more alarming were stories from the Middle East and beyond of governments interrupting their citizens’ access to cell phones and internet in an attempt to thwart the sharing of information crucial to their fight for democracy. Even in our own country we peacefully demand openness and honesty in the fiscal and political decisions being made by those in power. In all these struggles, the creators and curators of our intellectual history, even history that is in the making, must answer to those entrusted to act in our interests and promote dissemination and democracy.

The phrase “knowledge is power,” the origin of which has never been conclusively determined, is a fitting motto for the open access movement. Those in positions of power, whether it be political power or greater bargaining power, seek to hold on to it — while those who create and curate it, seek to share it and empower the world.

Our Best Defense: Open Access

Is academia at war with the publishing industry? Today, University of Michigan Dean of Libraries Paul Courant wrote that publishers have declared war upon us. Columbia University’s James Neal claimed at this Spring’s ACRL conference that the academic library community is, in fact, at the center of this war. In recent months, with actions being taken that chip away at fair use and other copyright exemptions allowed libraries and educators, it is starting to feel that we may be losing the war; and with shrinking budgets and governmental affronts to our existence, we may even feel powerless to fight for our survival.

However, we may have a viable defense that could very well preserve our place as conduits to learning and knowledge. “Open access alternatives seem more and more to be not just a nice alternative, but the only path scholarly communications has left to survival,” wrote Duke University Scholarly Communications Officer Kevin Smith this morning in response to the latest attack (an STM publishers’ association issued guidelines whose underlying purpose is to undermine international interlibrary loan practices) on educational use of copyrighted works. Open access has been touted for several years as the vehicle for revolutionary change in scholarly communications, and it still stands as our best chance for radically changing the economic climate that is leading to assaults upon barrier-free sharing of knowledge and information.  However, for us to win this war, we all need to participate: librarians and faculty alike. And our efforts need to be consistent and persistent.

In this month’s Bulletin of the American Society for Information Science and Technology, the open access movement is lauded for single, albeit sporadic, milestones; but “these single events that showed the potential to cause a sudden, radical or complete reform of the entire [scholarly communications] system have failed to precipitate a complete transformation.”  The authors of the Bulletin piece claim that librarians can be the most victorious soldiers in this war that we are in. However, it will take a widespread and collective movement to not only survive but even win. There are many libraries and universities out there who are to be commended for their efforts – who have established open journal publishing systems, who have adopted open access mandates, and who regularly promote open access through Open Access Week and other public events. Librarians at Duke University Medical Center Library, in a recent article in Serials Review, offer even more ways of how librarians can successfully incorporate open access into their work and bolster our defense against the war that is waging against us. In addition, legislation such as the Federal Research Public Access Act needs to be revitalized in Congress as further shoring up of our defenses. With this concentrated, widespread, and united drive for open access, I do have hope that we can survive the war.

Scholasticus: When is showing a film a public performance?

I have asked my university’s library to purchase a film that I intend to show and discuss in my class. The company selling the DVD indicates that the library must purchase the more expensive “college/university” copy so that public performance rights are secured. Is showing a film in my class a public performance?

Any librarian who has worked in acquisitions or who has been a selector for their institution’s library has encountered the ethical dilemma of whether to purchase the institutional copy of a DVD. Most distributors of documentary films will list in their catalogs or on their web sites tiered pricing for individuals, public libraries, primary and secondary schools, and colleges or universities. An explanation typically accompanies the pricing scheme that the higher price charged to the various institutions accounts for the inclusion of a public performance license. Most college or university libraries, without question or challenge, pay the higher price – and often the only group viewing of the film occurs in class.  So, must the library pay the public performance license price if the only intended viewing of the film is by patrons in private viewing session (even if in the library) or in the physical classroom by a class and its instructor during a regular class session? The answer is: No.

Nothing in the Copyright Act prohibits a library from purchasing DVDs (even those labeled for Home Viewing Only, as is often the case with Hollywood-produced films released on DVD) and lending or renting them to their patrons for personal viewing. Further, under § 110(1) of the Act, educators are permitted to perform or display audiovisual works in a physical classroom setting as part of instructional activities. Thus, purchase of a public performance license is not required for DVDs purchased for and used for these purposes. A public performance license is necessary, however, when a DVD in a library’s collection is going to be screened in a public location on campus by a club or other group or if the library itself is going to show the film. Only if the library knows when purchasing the DVD that these latter uses are intended should it feel compelled to pay the higher price charged. Otherwise, a college or university library is not in violation of copyright law, and shouldn’t be threatened into paying the higher purchase price,when acquiring a DVD without a public performance license for its collection.

 

(A special thanks to my former Graduate Assistant (who is also a lawyer and now an academic librarian) for inspiring this edition of Scholasticus.)

Is a Code of Best Practices Enough?

Just before the holidays, a team of investigators featuring representatives of the Association of Research Libraries (ARL), the Center for Social Media, and the Program on Information Justice and Intellectual Property (PIJIP) released a report detailing the results of Phase One of their progress toward drafting an academic and research librarians’ code of best practices for interpreting and applying copyright doctrine. These same individuals have previously collaborated on best practice codes for media literacy educators and for documentary filmmakers. Phase One of their research for development of this particular code of best practices entailed interviewing sixty-five librarians. Interviewees were asked about their personal understanding as well as their institutions’ policies and practices with respect to fair use and other exemptions under copyright law. The report summarizes the responses in five categories of librarianship practice: support for teaching and learning, support for scholarship, preservation, exhibition and public outreach, and serving disabled communities. Not surprisingly, the responses greatly vary, which accurately reflects the present (mis)understanding of fair use across academia. Most respondents expressed a lack of institutional support, namely time and expertise from legal counsel offices, and an increasing demand from faculty and researchers for fair use determinations. Without ready and well-versed support from administration, and a fear of retribution levied by publishers of content, librarians have, as concluded by the investigative team, clung to outdated guidelines, hesitated to employ fair use to the fullest, and failed to promote access to information, which is the librarians’ duty and charge.

At the end of the report, the investigators offer a list of suggestions aimed toward improving the situation that academic and research librarians find themselves in. Naturally, the first suggestion is the adoption and employment of the code of best practices, which the team aims to publicly disseminate by 2012. Assumedly, this Code of Best Practices will replace the outmoded guidelines that most libraries still use in one modified form or another. The remaining suggestions address the issues with institutional support and publisher threat. Institutional support, the investigators propose, should take the form of the creation of a dedicated copyright office in the Library or through the campus legal office. Publisher threat should be addressed at the time of license negotiation. While these suggestions are all material and useful, their are not novel or unheard of. A Code of Best Practices is a collective understanding of how fair use applies — same as the outdated CONTU guidelines, which are still used in one modified form or another, and other organizationally prepared suggestions (e.g. ALA, CCC, AAUP) for application of fair use in libraries. The Code of Best Practices may be a statement of the currently agreed-to understanding by librarians as to the application of fair use but what still lacks is a judicial or legislative clarification of fair use as applied to the ever-evolving  modes of publishing and content delivery. Institutional buy-in is also universally desired and needed. However, as long as libraries are viewed by administrations as a cost center rather than as an asset to be supported and supplied, devotion of resources to development of copyright offices or dedicated personnel will not come easily.

I applaud the work of the investigative team. I have had the pleasure of being taught by two of its members. I look forward to the completion and publication of the Code of Best Practices. However, I do not feel that this will be the answer that we in the field are needing. Faculty and students need to be encouraged to become copyright aware. The requirement of the HEOA that universities distribute to students copyright information targeted toward anti-piracy is one way that this tactic is in force. Department chairs and deans should invite librarians or campus counsel to departmental or college meetings to discuss copyright and fair use. Faculty should assume greater responsibility for making fair use determinations and work in greater concert with librarians. As one of the interviewees stated, faculty have a greater understanding of their educational goals and curriculum. Administrative or institutional support is important; however, education and responsibilities amongst faculty and students are also key.

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