I am sorry to say that I was not surprised when I read this article in Inside Higher Ed last week about “Pirates v. University Presses.” I had been vlissfully unaware until recently of the existence of the kinds of websites it discusses, where unauthorized scans of the full text of many books, including academic books, are made available for free. But only a short while ago, a colleague from another institution called one such site to my attention (following the lead of the IHE article, I won’t mention the site’s name) and asked me what I thought about faculty linking to such sites as an alternative to using a university’s e-reserves system. It did not take me long to find the full text for some of the most frequently read titles in contemporary classrooms.
I told my colleague that I would discourage faculty from linking to such sites whenever I was asked, both because they so clearly infringe copyright and because they are inherently unstable; what is there today may not be available tomorrow. I would love to see much more scholarly content available for free on the Internet, but the way to accomplish this is for faculty authors to retain their rights to post and license their own work, not to encourage these kinds of pirate sites. Unfortunately, this approach puts me once more in the position of saying no to instructors who want to take illicit advantage of the benefits of the digital realm because our out-dated approaches to copyright have not caught up with that potential.
Why should we discourage piracy of academic work? One contributor to an e-list discussion of the article asked a legitimate question — “Is it the same crime to spread knowledge by illegally making university press books available as to offer Harry Potter for download?” I am inclined to respond that it is not the same, since the interests of academic authors are more in being read than in making money; they seldom profit from academic publication, and profit is almost never the incentive that gets them to write in the first place. This is why our copyright system, and a publishing structure built on the transfer of exclusive rights, serves the academy so poorly. But authors are interested in controlling the texts of their writings that are available, making sure the readings they assign are stable, and getting appropriate credit for their work. For all these concerns, responsible rights negotiation and licensing, not pirate havens, are the right solution.
Moving beyond mere condemnatory hand-wringing, I am inclined to think there is a lesson to be learned in the fuss around these sites. One of the reasons faculty are tempted by such things is that libraries are increasingly unable to meet their demands for online resources, either because the resources are too expensive (either for subscription or for permission), the libraries simply cannot get permission to place materials online, or the publisher does not offer an online version of the work. The Association of Research Libraries has recently addressed these concerns about declining budgets in a document aimed at starting a conversation with publishers to preserve as much access as possible in a time when massive cancellations are inevitable. This document is a good start, but it only addresses one of the three problems listed above.
In many cases, it is the universities that are creating the digital files that students will use, because publishers have failed to do so. Several of the texts I found on the pirate site I looked at are simply not available as e-books. But libraries’ ability to fill this demand is severely limited by a narrow interpretation of fair use and extremely high permission costs for digitization that exceeds that interpretation. One thing that must be understood is that the money an institution spends on permission fees in all likelihood comes out of its collection budget. So even as those budgets are being slashed, the buying power of what remains is further reduced as permission fees go up. Education suffers, and so, in the long run, do the publishers, from whom we can buy fewer and fewer new works. Certainly the purpose of copyright law — to provide an incentive for new creativity — is left in the dust.
I wonder if there is room for a separate agreement between universities and university presses that would look more realistically at fair use for those works produced by the very faculty authors who want to make use of them and also at the cost of permission when the uses involved really are not within a reasonable understanding of fair use. The interests of both the scholars and the university presses are very different from those of J.K. Rowling or Disney or Random House; our conversations together ought not to be burdened by the perceived needs of the entertainment industries.
Why should the university publishers agree to even discuss this idea? Because library e-reserves and permission services are a bulwark against piracy, and the risk of piracy is increased when those services frequently must refuse requests made by faculty, either because they cannot obtain permission or cannot afford it. It is not that libraries would resort to intentional infringment, but that students will find what they need wherever they can, and their instructors may not be inclined to make fine distinctions about the sources of material. Academic presses also need to recognize that faculty authors feel a legitimate sense of ownership over the products of scholarly publishing, even when they have not retained legal ownership. It is simply difficult to convince some scholars that obvious academic uses of academic work are not permitted, so it may be hard to discourage all use of pirate sites unless we can provide higher education with a legal alternative that is at least as useful. This, of course, is what the music industry waited too long to do. In the long run, then, it is in the best interests of all parties to negotiate the contours of both legal ownership and legal use, and it is the presses that are likely to suffer most if we fail to do so.