What are we paying for?

As the lawsuit brought by three publishers against Georgia State University claiming copyright infringement in GSU’s e-reserves and course management systems wends its way toward what seems to be an increasingly likely trial, it has had an unexpected benefit for academic librarians who manage electronic reserves.

As many people already know, academic copyright expert Dr. Kenneth Crews from Columbia University was named as an expert witness in the case this past Spring.  His report on e-reserve practices and argument for broad latitude for fair use is one of the best documents on this subject I have ever seen.  Peter Hirtle, of Cornell University and the LibraryLaw blog, performed a tremendous service by posting this report and some other documents from the case on the Scribd web site.  I have been reading the documents in the case on the Justia web site, but locating the documents attached to filings there is very cumbersome, so I have never considered linking to them here.  Peter showed much more ingenuity and determination than I can muster by providing this easier access to these public documents.

Peter’s post, with links to the various documents, can be found here.

In addition to the expert report, which the plaintiffs tried to exclude from the case, there is also some fascinating material in the “rebuttal expert report” that Dr. Crews filed after the plaintiff’s own experts had filed their reports.  One of the most interesting discussions in this second document, to me, is Crews’ comments on the inadequacy of the licensing market for electronic course readings as it currently exists.  In one amazing section, Crews recounts locating an offer to license permission to two of his own works on the Copyright Clearance Center’s website.  The only problem is that these were works for which Crews had retained the copyright himself, and he never authorized CCC to sell licenses for them.  From this small example, he raises the question of how secure those of us who purchase permission for at least some of our digital course content can feel about what we are buying.

I think many librarians rely on the idea that they are purchasing specific licenses for individual works from the Copyright Clearance Center, but I also know that an increasing number of us are concerned that what we are really buying is insurance.  As a colleague from another institution put this idea to me, “if we are spending enough money with CCC, it would be a horrible business decision for a publisher to sue us.”  The real question, of course, is how much money is enough.  But in any case, this notion of buying insurance for our e-reserves has never appealed to me, and I am pretty sure it is not the way CCC itself sees the licensing transactions it facilitates; everyone would be happier, I think, to believe we are purchasing legitimate copyright permissions.  But by raising the question of whether CCC actually has the right to sell some of the licenses it does sell, Crews makes the situation look more like we are, at least some of the time, paying “protection money” rather than effective licensing fees.