One of the most disheartening things about the ongoing lawsuit against Georgia State University by three large publishers is the support the plaintiffs are getting from the university press community. Presses, of course, rely on fair use all the time, and smaller presses need it even more, since neither they nor their authors can usually afford lots of permission fees. So supporting this lawsuit seems to be contrary to the interests of smaller academic presses.
As I have said before, if the CCC and these three large presses (including the two that have the word “university” in their names) succeed in forcing libraries to spend more of their budgets on licensing fees (that are unnecessary under the current state of the law), it is presses themselves that will suffer. That money will come out of most libraries’ collection funds, so there will be less money available to buy new monographs. That undoubted fact will disproportionately harm university presses, many of which depend on publishing specialized monographs, which will be the first things cut (as they usually are). Unfortunately, this is an area, often the only one, where libraries have some flexibility to adjust expenditures, and cutting highly-specialized monographs results in much less wide-spread complaints from campus communities.
It may well be that large operations like Oxford and Cambridge University Presses can rest assured that the net gain from forcing more permission fees will offset any losses in sales for new works. But I doubt that Small State University Press can be as sanguine. The fee income they will gain will be much smaller, and the sales losses will have a much greater impact. One way to look at this case is as a side-long attempt by some big players in academic publishing to force smaller competitors out of business. Yet many academic presses (but almost certainly not all) are cheering Oxford and Cambridge on from the sidelines, apparently out of the forlorn hope that someday SSUP might become as rich as they are. Instead, they are being led off a cliff.
This all was brought home to me the other day, when a friend forwarded an e-mail to me that had been sent to the directors e-mail list of the American Association of University Presses. In it, a university press director (I won’t say which one) encouraged colleagues who support the appeal in the case and disagree with the original decision to express that opinion by commenting on stories about the appeal in the higher ed press. It is interesting that only those who support the appeal were asked to comment; I can’t say if there are no university press directors with a different opinion or if they were just being told to keep their thoughts to themselves. But here is the line that first made me laugh, for obvious reasons, and then got me thinking:
So far it’s the Kevin Smiths and Paul Courants who have yelled the loudest from the library side, with a deafening silence from our side
It was rather unsettling to be identified in this way as a depersonalized representative of “the enemy” whose voice needs to be countered. I certainly do not object to having other people, with many different opinions, encouraged to join the debate. But two things do trouble me about this quotation.
First, there is the clear assumption that university presses and university libraries are on opposite “sides.” It did not have to be this way. Most libraries are not engaged in large-scale infringement, just reasoned and reasonable fair use, in spite of the plaintiffs’ rhetoric in the heat of litigation. And libraries did not institute this suit. So how did we get here?
For me, part of the answer lies in the evocation of Paul Courant as the other representative of the “other side.” Paul is in rather a different position than I am; he is the former Provost of the University of Michigan, and now, as the University Librarian, he is the person to whom the University of Michigan Press reports. When he is made into the archetype of the enemy by a university press director, it seems clear to me that some presses, at least, have drifted a long way from their fundamental anchor in the scholarly mission(s) of their parent institutions.
One aspect of this lawsuit, and perhaps a key factor that brought it about, is this disconnect we are seeing between some university presses and the academic values of their parent institutions. Libraries are at the heart of the university mission, and the continuing recognition by academic administrators that a great library is a sine qua non for a great university is one reason why so many of them seem disappointed by the decision of publishers to sue libraries. By electing to treat libraries as adversaries instead of allies, some presses demonstrate how far they have traveled from the core purpose of supporting the research and teaching mission of their universities. Instead of dismissing or disputing the point of view of a provost or a university librarian, perhaps these presses should spend more time talking with those officials. At many places those conversations are well underway and quite fruitful. Where they are not, it may be time for the academic administrators to insist.
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