I have noticed before that a coincidence of events often drives me to focus on a particular topic in my postings. Last week it was two very different things I read that drew me back to once again consider the inefficiencies of the permissions market for electronic course content.
The first item was an email exchange between our e-reserves staff and Professor Jehanne Gheith, director of the Duke program in International Comparative Studies. Several readings that Dr. Gheith wanted available for her students exceeded our sense of the parameters of fair use, so we attempted to purchase permission for their use. After a long delay from the Copyright Clearance Center, permission was denied and library staff informed Dr. Gheith that the readings would have to be shortened, replaced or removed. Here is Dr. Gheith’s reply, which she gave me permission to quote:
I’m actually taking a lot of these down because of the ungenerous policies of the publishers. In the long run, I think that these policies will do the publishers damage: where students might have later bought the books, they are now angry that they are not allowed to use these selections (this seems particularly crazy to me in the case of the LeFanu book which is out of print and which very few people bought anyway!)
I want to make two points in regard to the Professor’s reaction. First, the problem may not be a lack of generosity on the part of the publishers, at least in this case. The books in question were full of artworks and illustrations, and it is possible that the publishers themselves do not hold sufficient rights to license reuse. But this fact itself is one of the major reasons that academic institutions need a wider berth for fair use if education is not to be hogtied. If the “thicket” of licenses and assignments results in students not having access to resources for their education, no one is winning. Certainly artists whose works cannot be taught in classrooms around the country are as much the losers as are students.
Second, of course, is the fact that Dr. Gheith confirms what many of us have feared regarding the pressure from publishers to limit or eliminate fair use for course content in favor of a “pay per use” system. That system will not work to get content to students or money to publishers. The permissions system is too inefficient and the prices too high for it to function in the current educational climate. Professors like Jehanne Gheith will opt to reduce the content available, not because they are willing to settle for less robust pedagogy (after all, she asked students to buy the LeFanu book when it was available), but simply because neither the money nor the time to navigate the serpentine permissions system is available.
If this were not enough to remind me of the sour taste left whenever I have to try to deal with the permissions market, worse news was waiting. In a footnote to her otherwise encouraging ruling on the summary judgment motions in the publishers’ lawsuit against e-reserves at Georgia State, the judge noted that 50% of the plaintiff’s costs for the litigation were being paid by the Copyright Clearance Center (see fn 2 on page 10 of the ruling). This means that hundreds of thousands of dollars that our institutions have paid for permission to use works (often written by our own faculty members) for teaching are being used against us to try to limit our pedagogical options or reach deeper into our already depleted budgets. In spite of its claim that “CCC serves the interests of those who supply content as well as those who use it,” this little footnote should remind us that collective rights societies do not serve the interests of higher education. The small amount of money that is sometimes returned to a few academic authors is never part of the incentive that motivates them to write. And the push to get ever more fees, for which it appears the CCC will go to court if necessary, will continue to force more professors to make difficult decisions just like that made by Dr. Gheith.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses