For obvious reasons there has been a lot of attention paid to the Georgia State copyright infringement case recently. In that litigation three academic publishers are asking a judge to fiercely restrict academic fair use in favor of a pay-per-use system that, in my opinion, disregards the expressed intent of Congress in the 1976 Copyright Act and is foreign to the purposes of that law. The trial was completed yesterday, and a decision from the judge can be expected over the summer. But in our justifiable anxiety about that case, we should not miss the fact that is is only one part of an overall strategy to undermine the educational exceptions to copyright; yesterday the publishing community opened a second front in their attack on education by issuing a statement of principles designed to hobble inter-library loan.
The statement is presented by the Association of Scientific, Technical and Medical Publishers, who have been carrying on a quiet campaign of intimidation regarding ILL, especially ILL between countries, for some time now. The statement of principles seems to have been prompted by a series of documents issued by the Association of Research Libraries that defend current ILL practices (full disclosure — I am one of the authors of a portion of this report). In response, the STM publishers propose a set of rules that would gut section 108, which authorizes ILL, and would once again channel more money to publishers without supporting the creation any new content.
The principles that the STM publishers propose would have several novel effects. First, they would forbid ILL across national borders without specific permission (paid, of course) from the publisher. Second, they would make digital delivery entirely the province of the publishers (for a fee, undoubtedly). Libraries would not be able to e-mail a journal article to a patron, even though nothing in the current law forbids such a practice. Third, it would impose a vague standard of “due diligence” — language not found in the law — on all document delivery for “private, non-commercial use.” Presumably this is the thin end of a wedge to attack all private research use for which permission fees are not paid. It is important to understand that such a standard would give the United States the most restrictive copyright law in the world, and it would do so without the intervention of Congress.
The only document delivery which the STM publish want to allow — and even this would seem to be subject to their new due diligence standard — is printed copies which patrons would be required to physically retrieve from the library.
Distance education students would be out of luck under these proposed principles, as would those who were trying to write doctoral dissertations while working in areas where a research library is not at hand. Once upon a time I was such a doctoral student, and I can testify that such a situation is untenable. But the needs of higher education simply are not the concern for these publishers; they want more money out of us, and they want it every time a scholarly work is used in any way. Never mind that our faculty members are the authors of these works; once the copyright is transferred to the publishers they see that as a resource they can exploit to the maximum regardless of the harmful effects that exploitation has on the very enterprise that supplies them with content.
Increasingly, this seems to be a war for survival. I understand that traditional publishers are getting more and more desperate as the digital revolution proceeds and they continue to dither about how to address it. But academic faculty members are the source of almost all the content these publishers publish, so this behavior is an extreme example of biting the hand that feeds them. It is even more stupid, in my opinion, than the strategy of recording industry who is suing its own customers, because these publishers are attacking a group that is both their customers and those who supply them with a product in the first place.
As these attacks on higher education continue to escalate, it becomes increasingly clear that the economic viability of higher education, already in doubt by some, depends on rebelling against these traditional publishing practices. In the digital age it is simply not necessary to rely on these publishers, and they seem to be doing all they can to make it impossible as well. I wish I did not feel that I have to hope this apparently self-destructive behavior proves to be exactly that. But it must serve as wake-up call to academic authors that traditional practices are now being abused in a way that would make much academic practice impossible. Open access alternatives seem more and more to be not just a nice alternative, but the only path scholarly communications has left to survival.
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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- Dave Fernig on Going all in on GSU
- Gretchen McCord on Going all in on GSU
- 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