In the past few weeks I have seen several news reports and other actions that seem to form a pattern, where the traditional publishing industry has set out to break digital technologies in order to preserve their traditional business models.
Of course, the most radical effort to break the Internet so that it does not threaten the legacy content industries is the Stop Online Piracy Act, about which much has been written. I was disheartened by the plausible suggestion that the decision to suspend the House’s hearings on SOPA last year and renew a push for it in 2012 was not due to real objections but was merely a ploy to solicit more donations from the movie and recording industries. Unfortunately, this is often the way the legislative “sausage-making” process works. But I want to look at some other attempts to hobble digital technologies that strike closer to the publishing that is the most common form of dissemination on our campuses.
On Christmas Day the New York Times ran this story about the “tug of war” between publishers and libraries over e-books. The writer is very sympathetic to publishers’ efforts to maintain exactly the revenue streams they have been accustomed to in the pre-digital era, but what struck me most is the language used. Repeatedly the article talks about “inconvenience” and “friction,” stressing that “borrowing an e-book… has been too easy.” As the author says “to keep their overall revenue from taking a hit… publishers need to reintroduce more inconvenience for the borrower.” This librarian commentator makes the key point: it isn’t that the technology does not work, but that publishers do not want it to work as well as it does. They want to break the technology that is available, so that user experiences are less seamless. They only see a role for themselves if they can offer assistance overcoming inconveniences that they have introduced in the first place! And perhaps they are right about that.
Another example of this failure to do what digital technologies allows you to do can be found in this article from the Chronicle of Higher Education, which reports on a study about textbook choices that found that e-textbooks offered little savings. The problem, the authors acknowledge, is not the technology but “publisher pricing decisions.” It seems we cannot really take advantage of the benefits offered by these new technologies until we free ourselves of ties to publishers who cannot imagine any other way of doing business than the way, and at the price, that it always has been done.
Last week Bloomberg News reported on a lawsuit brought by HarperCollins to prevent the publication of an apparently unauthorized e-version of a popular children’s book. The suit will turn on the language of the contract between the author and HarperCollins, about which I cannot comment. But it is striking to me that the publisher is not complaining about competition with their own e-version of the book because they do not offer one. They simply want to stop anyone else from creating an e-book unless and until they figure it out (presumably when they decide how to introduce sufficient inconvenience). They may have the legal right to do that, but they are clearly not interested in responding to consumer demand. Indeed, it seems that the author of the book is interested in providing a digital version, but the publisher has told her that they have that right and she does not. The lesson is that authors who do not want their readers to be burdened with artificial inconvenience should negotiate more carefully with their publishers. It may often be in the best interests of authors to withhold the right to offer an electronic version of the work in an initial publication agreement and consider seeking another platform or publisher, one perhaps less wedded to inconvenience, for the e-book version.
This, of course, is a process increasingly familiar to academic authors. For years scholarly authors of journal articles have engaged in a tug-of-war with publishers over how best to exploit digital technology to serve the best interests of scholars and scholarship, rather than just the profit motives of publishers. Once again the publishing community has resorted to legislative attempts to try to dictate what scholarly authors can and cannot do with their own copyrights. Over the holidays the “Copyright in Research Works act,” a re-tread from the last legislative session, was introduced again. The bill would reverse public access programs like that of the National Institute of Health and make other such programs illegal, essentially telling taxpayers that they have to pay twice to see the research they have funded. The publishers are clearly asking Congress to break the Internet legislatively so that their toll-access sites are the only source for scholarly information.
What I find most astonishing is the immediate expression of support for the bill that came from the Association of American Publishers, and this sentence in particular:
The Research Works Act will prohibit federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding.
I am stunned by the audacity of the claim that research articles are “produced” by private sector publishers! I think the producers of these works are sitting at desks and labs scattered around my campus, and thousands of other college and university campuses. They are not paid by publishers either to do the research or to write their articles. And I do not believe that the journals that publish those articles actually add any copyrightable expression to what has been written and revised by our faculty members. If they do, the scholarly authors have a right to complain, since such additions without the author’s cooperation would compromise the integrity of the scholarly record.
We cannot say it often enough. The intellectual work for scholarly publications is done by academics, not publishers. They own the copyright in those works up until they are asked to transfer it to the publisher as a condition of publication. And if publishers persist in interfering with that copyright ownership and insisting that scholars cannot take advantage of the tremendous opportunities that digital technologies offer, the solution is to stop giving them those copyrights.
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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