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.

 

14 Responses to A second front

  1. MsAisha says:

    Writers use libraries, conduct research and write books. It has always been interesting to me how these excessive limitations seem to be made to the detriment of future authors who really are the true sustenance of publishers.

  2. [...] to have access to print documents that were not available online or in my local university library. Kevin Smith’s article on the Georgia State copyright infringement case, in which the Association of Scientific, [...]

  3. If they want to lose their businesses, this is the way to do it. The thing about e-publishing is that we can produce peer-reviewed scholarly journals and even peer-reviewed books at even less cost, and do it without big publishers. The entire point of libraries is that they allow people to borrow books that they couldn’t otherwise afford. ILL is functionally no different. It makes it possible for institutions (and people who work at those institutions) to access books they can’t otherwise afford. ILL does not keep me from buying books: it allows me to do my research. I make under $53k a year as an associate professor. There’s no way I can afford to buy every book that I need for my research. My institution’s library certainly can’t, nor could they justify buying them, because no one else on my campus could or would use them.

    Moreover, I am really unsure about how this should be a problem, legally. If I buy a book, I own it. I can lend it to whomever I wish. Surely, once a library owns a book, it is theirs? I can understand the objection to journal articles when they are available by subscription online, and honestly don’t mind paying a few dollars to download from a publisher’s website if I need to. But books?

    Punishing the producers who are also customers seems a really, really bad idea.

  4. TAFishel says:

    Thank you Kevin for keeping us informed. One course of action is to alert our faculty who publish in these journals and/or are members of the associations listed as members of STM just what their association is advocating. It is indeed a “wake-up call to academic authors.”

  5. Mike Cannon says:

    Could it be that the publishers are doing this not because of desperation and dithering about the digital revolution (oh come on), but rather because the business model of getting most subscription revenue from libraries is rapidly going out the window because of library budget cuts? (I’m not saying the libraries are to blame for that–it just is what it is, but let me assure you that dithering about what to do in the digital revolution is the pasttime only of failed publishers. One could argue that being forced into having to cut serials from the collection is because of the libraries’ own dithering about how to survive amid the digital revolution.)

  6. Mary Zachar says:

    Great article Kevin. Wish there were a win-win view here. Certainly if we can see the problem, Publishers can too – do they really believe that staying in a regressive mind-set will prevail?

  7. On one hand publishers, logically, need to stay profitable. But on another hand, so do authors and, honestly, for those of you who have published, how profitable has it been? I think we academics and producers of culture and information need to be bold and simply tell the publishers we just don’t want to use them anymore if they can’t evolve with new technologies. It’s certainly easier than ever to self-publish, especially digitally, and it’s easier than ever to get that information to the market publishers. And, dare we consider an even more radical approach: copy left structures such a GNU and creative commons? How can these new methods be tenable for academic institutions and tenure structures? Great question, but not one without very workable answers. We, as academics, need to evolve with new media as well.

  8. Eric Harbeson says:

    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.

    How does copyright law change without the intervention of Congress? Is this a licensing regime the STM publishers are imposing? De facto abrogation of the law (or, more specifically, the laws exceptions) is a very real problem, obviously, and is one to which I think academic institutions especially need to be paying much more attention, but I don’t see how this involves the actual law until Congress is involved.

  9. ann viera says:

    Kevin Smith’s suggestion about “…..rebelling against these traditional publishing practices” reminds me of a remark by Paul Courant in a Dec. 17, 2009 talk at UMN that I have posted in my office (from my notes: “The thing we (librarians) care about is scholarship, not preserving the institutions that support it.”

    Webcast and notes from the Paul Courant’s talk are at https://wiki.lib.umn.edu/Staff/UniversityLibrariesSpeakerSeries.

  10. Mike Taylor says:

    Absolutely appalling. Vile and self-serving. These corporations may still style themselves “publishers” but they have long-since switched to a business model where they make money not by distributing works but by restricting access to them. The STM’s ironically named “statement of principles” is a grotesquely obvious land-grab that demonstrates once more the contempt in which publishers hold their authors, editors and reviewers.

    We must refuse to keep propping them up by donating our free labour and expertise. On this subject see today’s article in the Times Higher Education, Peers, review your actions, which suggests withdrawing peer-review from non-open journals.

  11. [...] by blocking interlibrary loan. That’s right–for-profit academic publishers are now fighting ILL. Yeah, because faculty and students at small institutions and interested laypeople are such a huge [...]

  12. [...] 2011 / 06: Legal Analysis of why the journals’ copyright claims are wrong [...]