Copyright in the Classroom, Copyright Issues and Legislation

Stuck in the middle

It was with both a sense of resignation and a deep awareness of the irony of the situation that I read this short article in the Chronicle of Higher Education (and the comments that follow it) titled “Free our Libraries, Cry University Presidents.”  Such a brief report cannot convey (I hope!) all that actually went on during this ‘summit” of university presidents, but the article certainly implies that one aspect of the event was assigning blame to university libraries for our inability to make everything free for all on the Internet.  The presidents in attendance, we are told, “urged libraries to halt what they described as an assault on the public’s right to knowledge, done in the name of copyright.”

It is, of course, both ironic and ill-informed to blame libraries for an assault on the public’s right to know.  Our professional organizations, after all, have an official and highly visible commitment to that right that is, as far as I know, unmatched by any other such group.  To assign that blame because of libraries’ regard for copyright deepens the injustice of the position, if that really is the stance that was taken.  Copyright, of course, is a legal fact.  It is also, at its core, a system designed to support “the public’s right to knowledge.”  Librarians often believe, as these university presidents apparently do, that that system has become badly out of balance and is no longer serving the purpose for which it was created.  But neither group may simply disregard it because they find it inconvenient.

What I find most interesting about the position, as it is presented in the article, is how accurately it reflects the uncomfortable space librarians and others who are concerned about copyright currently occupy in higher education.  Many faculty members and administrators press us to tell them that what they want to do with copyrighted material is legal.  Often they hold the simplistic view that anything done in the name of education is acceptable.  Sometimes the sense of entitlement is more visceral than this, reflecting what I occasionally call (based on my background as a theological librarian) the “The Lord has need of it” syndrome.  Librarians are often the ones who have to say “no” in many of this instances; we are the ones who usually have at least some training in copyright issues, and we are also the ones who sign the licenses for access to so many campus resources.  Undoubtedly there are librarians who are overly cautious, as well as a few who adopt the same insouciant attitude they find in others on their campuses.  But by and large, it is librarians who try to instill respect for copyright, at least as a good idea if not as a successful implementation of that idea, and who explain its limitations to our colleagues.  And yet, from the other side, librarians are sometimes vilified by the major copyright holders as willful scofflaws; Pat Schroeder’s remark, in her role as President and CEO of the Association of American Publishers, that all librarians are pirates is justly infamous.  All this makes it difficult for librarians, committed as we are to access for all and to continuous learning and creativity, to know where to stand.  The old saying that if you are making both sides angry at you, you are probably doing something right, may be true, but it is not very comforting for a profession founded on public service.

To be fair to the meeting that was held last week, however, it is important to recognize that the “cry” of “free our libraries” comes from a paper prepared for the event by Richard Johnson, founding Executive Director of SPARC and a consultant for a major organization of academic librarians.  His point in this short paper is not the overly simplistic one implied by the Chronicle article, but the more complex and nuanced argument that library partnerships with commercial interests need to be examined carefully and negotiated to promoted a balanced set of interests that does not shortchange the public, especially in terms of access to public domain works.  Johnson does not call for librarians simply to free themselves from the “bonds” of copyright at all; instead, he suggests quite rightly that:

we need new funding strategies, coordinated library action, and
forward-looking principles to guide us. It’s time to sort out the right roles and
responsibilities for companies, libraries, governments, and private funders and to get
about the work of building an Internet public library that puts the public first.

If this was the real focus of discussion at the Boston Libraries Consortium summit, even poor, abused librarians, caught, as they are, in the “no man’s land” of the “copyfight,” surely can agree.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Technologies

Copyright creep?

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When I first became aware of the lawsuit filed by publishing giant Thomson Reuters against George Mason University to stop the release of the open source citation management program Zotero (hat tip to my colleague Paolo Mangiafico for directing me to this story), I wasn’t sure how it was relevant to issues of copyright and scholarly communications.  After all, this is essentially a licensing dispute; Thomson alleges that, in order to develop the newest version of Zotero, software developers at GMU “reverse-engineered” the proprietary .ens file format used by Thomson product Endnote in violation of a licensing agreement. Endnote, of course, is a very popular tool in academia, and it is alleged that GMU is marketing its new version of Zotero with the specific boast that it now allows users to convert EndNote files into its own open source and freely-sharable file format

I cannot comment on the merits of the breach of contract claim, and I have no argument with the right of Thomson Reuters to use a licensing agreement to protect its intellectual property.  Nevertheless, the idea of protecting these files, which simply organize data about books, journal articles and web sites into a form that can then be mapped into different citation styles, raises interesting questions about the scope of copyright law and where new and troubling developments might take it.

At least since the Supreme Court decided Feist v. Rural Telephone in 1991, we have known that facts and data are not themselves protected by copyright, and that collections of facts must meet a minimum standard of originality (greater than that found in the phone books that were at issue) in order to be protectable.  I do not know if the file format EndNote has created to store citation data is such an original arrangement of data and, apparently, neither do they.  Rather than rely on copyright law, they wrote a license agreement to try to prevent what they allege took place at GMU.  But two questions still bother me.

First, should universities agree to licenses that prevent reverse engineering?  In today’s high-tech environment, reverse engineering is a fundamental way in which innovation proceeds.  Our copyright law, in fact, recognizes the importance of such activities, providing specific exceptions to certain prohibitions in the law for cases of reverse engineering that have potential social benefits, such as encryption research or making materials available to handicapped persons.  So one could legitimately ask if a court should consider the benefits of the research being done when deciding whether and how strictly to enforce a contractual provision against reverse engineering.  In general, open source software is a gift that many universities like George Mason give to the academic community as a whole, and the value of that gift is increased if it is possible for scholars who have been using a costly commercial product to move their research resources from the latter into the former.  That increased value (an “externality” in economic jargon) could be weighed against Thomson’s loss (which they allege is around $10 million per year) in reaching a reasonable decision about contract enforcement.

Second, will we see a movement to cover databases under some kind of database protection law, potentially separate from copyright, if corporate database verdors are unsatisfied with even the low bar necessary for copyright protection and with the need to use licensing provisions where that protection is unavailable?  It is this kind of extension of intellectual property protection to subject matter that has traditionally not been protected that I mean by the phrase “copyright creep.” Such sui generis protection (not rooted in copyright principles) has been adopted in the European Union, and it is common these days to hear complaints about it from scholars in EU countries.  At a minimum, such protection would raise costs for obtaining access to commercial databases and, as is shown by the Zotero lawsuit, could be used to stifle innovation and cooperation.  The last attempts to introduce legislation for database protection in the US were several years ago — there is a nice summary of those efforts and the issues they raised here — but it is a topic that keeps coming back and about which higher education needs to be vigilent.  In many ways our interests would cut both ways in any database protection debate, so it is a case where careful thought and balance would be needed.

Scholarly Publishing, Technologies

Power, error and a “cruel historian”

There was a short but fascinating article posted on the Association of College and Research Libraries’ blog earlier in the month called “Information is Power — Even When it is Wrong.”  Starting with a truly frightening story about how easily misinformation is spread on the web, librarian Amy Fry discusses some important lessons that we not only can, but must, learn about information in the digital age.

Misinformation is not new, of course, and in an election year we are reminded that it is probably most often distributed intentionally.  But good, old-fashioned error can also account for much mistaken information, and Fry’s article is a reminder of the tremendous and irreversible power that such errors gain; they quite literally take on a life of their own, and become, is some sense, as influential as truth.

Fry’s lessons are deceptive in their simplicity; but they remind us that simple rules are often the best guide to practice.  Her first rule — “Metadata is important” — codifies what librarians have know all along; information is only as good as its source, date and application.  Two other rules remind us that the Web is a different, and frightening, place in many ways.  That aggregators can mislead and that Google possesses enormous power to shape thoughts and beliefs on a massive scale are lessons too important for us to forget.  And finally, there is the powerful truth that there is no substitute for critical thinking.  If we all ever really learn that lesson, the world will be a much better place.

Fry’s article reminds me of a book I have been reading lately, “The Future of Reputation” by Daniel Solove.  His analysis of how easy it is to be subject to a viral attack is another example of the new conditions we have to adjust to as scholarship, and so much else in our lives, begins to move at the speed of digital.  Solove posits a fundamental tension, in the digital world of instant mass communication, blogs and social networking site, between freedom and privacy.  We now have the means to express ourselves more freely and fully than ever before, and to make a potentially permanent record of the things we say about ourselves and others.  The danger, of course, is that “the Internet is a cruel historian” that allows others to easily discover all the things we have written about ourselves or that others have written about us, whether they are true or not.  Privacy and reputation are in jeopardy from this new expressive freedom.

Solove’s book is sobering from many perspectives, including as a reminder of the world in which scholarship is carried out today.  With so much preliminary work on scholarly ideas being done by e-mail, in GoogleDocs, or on blogs, we need to remember that our tentative ideas and first drafts, our wild proposals and our silly comments, may not ever really be completely gone.  Errors and misstatements may live forever, and they may spread around the world in seconds; it will now require a special effort to ensure that there is a final “version of record” of any piece of scholarship, something that has not been much of a concern in the past.  There are tremendous opportunities for collaboration and more open commentary and correction in digital scholarship, but it is also an environment that requires a new level of awareness and attention.

Open Access and Institutional Repositories, Scholarly Publishing

Open Access Day @ Duke

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Mark your calendars for world-wide Open Access Day!  October 14, 2008 is being marked as Open Access day by three important organizations in the fight for more openness in scholarship and research — SPARC, the Public Library of Science, and Students for FreeCulture.

The big international event will be a webcast feature Noble Prize Laureate Sir Richard Roberts and Prof. Philip Bourne, the founding editor of “PLoS Computational Biology.”  This will be a wonderful opportunity to learn about the benefits of, and opportunities for open access, especially in the area of health and medical information and scholarship.  More information about the webcast, and the celebration of Open Access Day in general, is available at this website.

At Duke we also have some special events planned.  The webcast will be received in two locations — in the Medical Center Library and in the Perkins/Bostock Library.  Both opportunities will be a 7 pm, and participants will be able to ask questions of the presenters and also discuss the issues raised amongst themselves.  There will also be an event focused on local efforts — OA @ Duke — in the afternoon of October 14.  From 2 pm until 3:30 we will gather in Perkins Library 217 to here about what is being done at Duke and what opportunities are available for scholars.  Our keynote address will be by Prof. Jamie Boyle of Duke law school, and there will also be short presentations by Law Librarian Dick Danner, Dr. Ricardo Pietrobon of the Medical School faculty and Duke student Josh Sommer, a passionate and articulate spokesman for patients’ rights.  Tables will be set up in both libraries throughout the day to distribute literature and to allow view of several videos about the important role of open access to scholarship.

If you are in the vicinity of Duke on Oct. 14, please join us to learn and celebrate Open Access, at Duke and around the globe.

Copyright Issues and Legislation, Scholarly Publishing

Rough Week, legislatively

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The other troubling developments last week involved legislative proposals to amend the copyright law.  It is surprising that Congress should be so interested in copyright right now, what with an election coming up.  Nevertheless, as Public Knowledge phrased it on their website, there was a “perfect storm” of [bad] copyright activity last week.

First was the approval, on Sept. 11, in the Senate Judiciary Committee of a bill to (again) increase enforcement of intellectual property rights.  This is mostly a big gift to the major content companies, especially in its provisions to allow the government to prosecute civil suits for IP infringement, with the damages going to the content owners.  The taxpayer gets to foot the bill, in other words, for Hollywood and the recording industry, something that is rather a recurring theme in these bills.  The Enforcement of Intellectual Property Act of 2008 would also increase the number of cases in which civil forfeiture is possible — that means that property implicated in infringement could be seized, even if it belonged to innocent parties and even if it contained private data — and it would create more bureaucracy to oversee enforcement of what is, after all, supposed to be a civil action in which the plaintiffs traditionally have been responsible to enforce their own rights.  This bill, which has incorporated much of the “PRO IP” bill about which I have written before, reverses that tradition and gets the government to do much of the work for private industry.

Also moving forward are the Orphan Works proposals.  While it is still not clear if any definitive action will be taken, it does seem that the direction of amendments to the bill are more and more tending to render it useless for its purported purpose.  As it becomes more freighted with burdensome requirements and limitations, it is increasingly likely that users of orphan works will continue to rely on fair use, just as they must do now.  Thus passage of the bill will not likely accomplish its stated purpose of freeing up the huge amount of cultural material for which there is no rights holder to be found and no market to be harmed.  For the sake of calming some very unrealistic fears, those who want to make culture and scholarship more widely available and usable will be left to make the fair use gamble that currently chills so much teaching and learning.

Finally, the winner for bad idea of the week was the poorly-named “Fair Copyright in Research Works Act,” which could be more aptly called the “Taxpayer Pays Twice Act.”  This bill is intend to reverse the NIH Public Access policy, about which I have written a good deal.  Its intent, then, is to make sure that taxpayer funded research stays behind toll barriers so the those who paid to have the research done must pay again to read the results of their investment.  Accountability is reduced, and nobody wins except the special interests who insist on uncompensated transfers of copyright before they will publish these works, then sometimes charge tens of thousands of dollars for subscriptions.  There is a story about the bill here on Ars Technica, and a summery of comments is available on the Open Access News site here.

Perhaps the best news one can find about the “Fair Copyright” bill is that it is quite unlikely to be adopted this term, as “Library Journal” reports here.  The impact of this bill on scientific and medical research would certainly be regressive, denying research and taxpayers the chance to take advantage of the new opportunities offered by the digital environment.  But it is also bad policy because it would enact into law an unnecessary and potentially damaging limitation on how the government can spend its money.  The bill is structured to make it illegal for the government to place, as a condition of government funding, any provision that would require the transfer or licensing of a copyrighted work.  The potential unintended consequences here are considerable, as are the opportunities to force the government to spend tax money over and over again to gain the use of material paid for by taxpayers in the first place.  Conditions on the grant of money is a major way Congress enacts policy, and no one seems to have examined how many contracts and grants might be invalidated, nor what the impact could be, if this legislation were adopted.  Indeed, some of the impetus behind the bill seems to be a “turf war” over what policies can or should be pursued via appropriations; sponsor John Conyers explicitly referred to the need to defend what he called “sacred turf.”  This bill is an object lesson in the harm that can be done when legislators listen only to the demands of a narrow group of special interests and to their own parochial prerogatives instead of the broader need to serve the public interest.

As with the judicial decision reported earlier, these bills, with the exception of the last one, will not do much direct harm to academia.  They would leave us where we are, while doing most of their damage to the public interest in general.  But the “Fair Copyright in Research Works Act” is both terrible policy and potentially devistating to the progress of scholarly research.  The positive impact of the NIH Public Access policy is beginning to be felt; choking it off at this point would be the height of foolishness.  We seem to be able to relax for the remainder of this Congressional term, if the speculation is correct, but we should remain ready to fight tooth and nail if this poorly-conceived bill ever develops any real legs.

Copyright Issues and Legislation, Fair Use

Rough Week, judicially

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This past week has seen at least three developments in copyright law and legislation that all bode badly for higher education and user’s rights.  Each however, need to be seen in context, since none may actually pose the imminent threat that initially appears.  This post will address the case decided during the week, the next will deal with some legislative developments.

There was a decision last week at the district court level in the case of the Harry Potter Lexicon that found that, even though the Lexicon is a transformative use that creates a new work with a different purpose than the novels on which it is based, it is not a fair use.  The court enjoined the publication of the Lexicon and awarded the minimum possible damages (less than $7000) to J.K. Rowling and Paramount Pictures in a decision that is really very carefully reasoned and that hews closely to the facts in the particular matter.

The director of the Fair Use Project at Stanford discusses the decision here.

The court rejected a fair use defense based on this (abbreviated) analysis of the fair use factors:

  1. The purpose of the use is mostly transformative, creating a reference guide to the the series of novels, but this factor does not wholly favor defendants because of nearly complete, verbatim copying of two short reference guides that Rowling had already published (on fantastic creatures and quidditch) and because  more of the novels are quoted verbatim that is reasonable necessary for the transformative purpose.
  2. The original works are highly creative and deserving of the fullest protection permitted by copyright law.
  3. The amount used, and its substantiality, is greater than is necessary for the transformative purpose.  The judge explicitly declined, however, to find bad faith or to endorse Rowling’s reference to “plundering,” writing instead that the Lexicon author seemed to be carried away by his enthusiasm for the books.
  4. While noting that Rowling is not allowed to corner the market for reference guides to her novels, the court held that there was substantial impairment of her market opportunities in two senses.  First, the Lexicon would directly compete for sales with the two previously-published guides mentioned above (but not with the novels).  Also, Rowling is entitled to license derivative works such as a musical production based on Harry Potter, and the reproduction of songs and poems in the Lexicon could harm this opportunity.

In many ways the decision reads sympathetically toward the Lexicon author and is critical of Rowling and her overreaching claims to absolute control over any writing about the Harry Potter series.  I was especially pleased to see the judge single out the language used by plaitiffs of piracy and theft for criticism.  In the end this decision is not as harmful as it could be.  The potential in this case was for a broad decision that would severly limit the scope offered in many recent decisions for transformative uses within the fair use analysis.  Instead this is a thoughtful decision that sticks very closely to the specific facts and does not do to much damage to the kinds of transformative uses that are important in higher education.  It is a reminder that scholars should be careful not to appropriate more of an original work than is reasonably necessary to accomplish a legitimate purpose — criticism, commentary or organization for reference.  It is certainly a limitation on the freedom to copy even for such purposes, but it has not created the mine field for such works that could have resulted from a less considered opinion.

Copyright Information Notes, Copyright Issues and Legislation

Copyright in laws

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While it could be said that trademark and patent are close cousins to copyright law, there is no such thing as copyright’s in-laws.  The real question is, should there be copyright in laws?

Most people know at least vaguely that government works in the US are not subject to copyright protection.  Of course, nothing is ever that simple.  First, section 105 of the copyright law says that there is no copyright protection in works of the United States government, meaning only works created wholly by government employees in the course of their employment are unprotected; works created by others on behalf of the govenrnment may still have copyright (as I noted a few days ago here).  Second, section 105 says there is no copyright in works of the United States government, meaning that the law is silent about works created by state and local governments.  And that, apparently, is the rub.

Some time ago, the state of Oregon tried to assert that it held copyright in its state code of laws.  After a brief skirmish with some advocates of open government, Oregon backed down from this claim, saying that, at least, it would not enforce any claim it had.

Now comes news that the same person who took on Oregon has been told to stop posting the legal code of the State of California — there are reports from Slashdot here, Techdirt here (with lots of generally unenlighting comments), and the Santa Rosa Press-Democrat here.

The argument against states and local governments asserting copyright in their laws and regulations is pretty straightforward — people should be able to access the rules of communal living that they are expected to follow.  California, on the other hand, has an interesting reason for making its copyright claim; the $800,000 it raises by selling print copies and digital access to its state code benefits the California taxpayer.  And no matter what our vague intuitions might tell us, the federal copyright law does not prevent such a claim.

In fact, copyright claims even in national laws are not unusual; most countries with roots in the British empire, other than the US, have some version of “Crown Copyright.”  But in the United States, at least, it is clear that the Copyright Office does not look kindly on these claims for protection in state and local laws, even if they are not excluded by statute.  The Compendium of Copyright Office Practices informs examiners in the Office that:

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

So the Copyright Office would decline to register such works as a matter of public policy, which would complicate any attempt by Oregon or California to sue to enforce the copyright claim.  It also speaks volumes about the claim that copyright claims in public laws are intended to serve the interests of the public themselves; the Copyright Office apparently doesn’t buy it.

The bottom line here is that anyone relying on the absence of copyright in government works has to be careful.  Contractors who work for the government but are not federal employees may hold copyright even in US works, and the possibility of claims by state and local governments is very real indeed.

Copyright Information Notes

Copyright use case on a Grecian Urn

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A colleague recently asked my opinion about an interesting question.  Would there be any copyright interest held by a museum that was displaying a classical vase for the first time?  The root of the question was the idea that if the museum was displaying an object that had recently been unearthed (quite literally), it might be said to be publishing a previously unpublished work.

My opinion was primarily based on the inapplicability of the terms published and unpublished to this situation, but the question offers a broader opportunity to review an aspect of copyright law that seems to confuse a great many people.

One of the characteristics of intellectual property rights ownership is that it is entirely independent from the ownership of a physical object that embodies intellectual property.  If I purchase a painting by a contemporary artist, I do not automatically get the intellectual property rights — the right to make copies or to distribute those copies, for example — along with the ownership of the object; I must contract for the transfer of the intellectual property rights, if I can, separately from the purchase of the object.

Likewise, owning an object in the public domain, like a classical vase, does not create any intellectual property rights.  Simply by owning and displaying the vase the museum does not gain a copyright interest where there was no such interest before.

Displaying the vase will not have any affect on the nonexistence of copyright and probably would not meet the (vague) definition of publication.  In any case, publication no longer makes much difference under our law.  By current U.S. standards, an anonymous, unpublished work is protected for 120 years from creation and an anonymous work that is considered published would be protected for 95 years from creation; in either scenario, an object from classical antiquity would be well past any possible copyright protection.

3 quick caveats to this point:

1.  A photograph of the vase could well have copyright protection, if it was sufficiently original to vest copyright in the photographer.  Artistic decisions about lighting, angle, exposure and such probably do invest a photograph of a 3D object with the requisite level of originality.
2.  Museums often charge for images of public domain objects in their collections.  Even when the images do not have sufficient, separable originality to provide copyright protection, such charges can be based on the ability of the museum to restrict access to the unique physical object.  For this reason many museums prohibit photography, in order to be the sole source of images of a public domain object on display.
3.  There many be restrictions on the ownership of a vase from classical antiquity based on laws in the country of origin about protecting that country’s cultural patrimony, as well as international treaty obligations to which the US is a party.

More generally, this question is a variation of one I hear quite often, about whether a republication of a public domain text or image somehow revives a copyright interest in that work.  Except for a small window of unpublished works that were created before 1978 and then published during the five years between 1997 and 2003, the answer is always no, not if the regular term of copyright protection has run or the work is otherwise in the public domain.

Copyright Information Notes, Copyright Issues and Legislation

Copyright FAQ for government works.

There is a nice website, just updated in August, that addresses a great many copyright questions as they relate to works created by the U.S. federal government, under contract with the government, or using government funding.  The site is created by CENDI (the Commerce, Energy, NASA, Defense Information Managers Group), and also provides brief answers to more general copyright questions under the categories of “Glossary of Terms,” “Copyright Basics,” and Use of Copyrighted Works.”

For scholarly authors, however, the biggest value of the site is the section answering questions about copyright in works created under a federal grant.  As the website explains, copyright in works created using government grant money does not automatically belong to the government, but contract terms may place some restrictions on the use of those rights by the author.  This is exactly the case with the NIH Public Access policy, where copyright is owned by the author of each article that is based on funded research, but it is subject to a contractual requirement that a non-exclusive license be given to the NIH for inclusion of the work in PubMed Central.

Also, the site offers some guidance about using government works, an issue that often arises for scholars around everything from government survey maps to census data to photographs taken by active military personnel.  This is not really the place to gain all of one’s knowledge about copyright, but it is an excellent source for understanding the complexities of using government works and creating works under various agreements with the government.

Authors' Rights, Copyright Information Notes, Digital Rights Management, Open Access and Institutional Repositories, Scholarly Publishing, Technologies

E-textbooks: the state of play

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As the new school year begins there has been lots of reporting about E-textbooks, and the welter of stories offers an opportunity to assess the overall state of play.

This story from Inside Higher Ed outlines some of the “next steps” for E-texts, as well as the “remaining obstacles,” which are substantial. The article focuses most of its attention on two initiatives – a highly speculative report that Amazon wants to introduce E-texts for its Kindle e-book reader, and a description of the progress being made by CourseSmart in partnering with higher education. It is worth looking at these two projects, along with some other business models for e-texts, in light of some recently articulated needs and concerns.

A recent study done by a coalition of student groups expresses some doubts about digital textbooks that are worth considering as we look at different possible business models. The report raises three potential problems with digital versions: their alleged failure to reduce costs, limitations on how much of an e-text a student is allowed to print, and the short duration of access provided by some licensing arrangements. These latter two concerns, obviously, support the contention that print textbooks are still serving student needs better than e-texts, especially if the digital versions are nor significantly less expensive. To these concerns we might add one more – students like to be able to highlight and annotate textbooks, and digital versions that do not support this activity will be disfavored.

So how do the different business models fare in addressing these concerns?

One model is simply the distribution of electronic versions of traditional textbooks by traditional publishers. This seems like the least promising of the models, since it likely solves none of the issues raised by the student groups. It is interesting that the representative of traditional publishers quoted in the Inside higher Ed story made no reference at all to cost concerns but stressed the potential for e-texts to shut down the market for used textbooks. Unsurprisingly, the focus here is on preventing competition and protecting income, not serving the needs of the student-consumers.

CourseSmart offers a business model that is very little different from that the traditional publishers might undertake themselves. There is some dispute about the issue of cost, however, with CourseSmart arguing not only that its digital versions of traditional textbooks are significantly cheaper, but that they remain so even when the income that students might usually expect by reselling their print texts is taken into account. It remains the case that that lower payment only purchases temporary access for the students and a restricted ability to print. Nevertheless, CourseSmart has been successful in arranging partnerships with San Diego State University and the state university system in Ohio, so it will be worth watching to see how those experiments develop, particularly in regard to student usage and satisfaction.

Amazon’s Kindle is yet another possibility for distributing e-texts. We know very little about how such texts would be priced or what features they would have, but we do know that the desire of students to be able to print would not be fulfilled. This is an important issue for students, apparently, since the student report on e-texts found that 60% of students surveyed would be willing to pay for a low-cost print copy of a textbook even if a free digital version was available to them.

This latter fact is precisely what Flat World Publishing is counting on with their plan to make free digital textbooks available and also sell print-on-demand copies to those who want a paper version. As I described this model a few weeks ago, Flat World is hoping to show that over the long-term, print on demand can prove a sustainable business model. Since this accords better with the expressed needs of student users than any of the above models, they might just be right.

The last model for distributing digital textbooks, one often overlooked in the debates (although endorsed by the student report mentioned above) but given some attention in this article from the LA Times, is open-access. Frustrated faculty members are increasingly considering creating digital textbooks that they will distribute for free. Supporting such work, with grants of up to $50,000, is another part of the initiative undertaken by the university system in Ohio. Ohio has long been a leader in supporting libraries in higher education, and this support for open access textbook offers a new avenue for leadership. The real “costs” we should be considering when we discuss e-texts ainclude reasonable support for the work of creating such resources, as well as credit for the scholarly product of that work when tenure reviews come around. So much of the expense of textbooks comes from the profit claimed by the “middlemen” who distribute them that real efforts to reduce the cost of education must focus on ways to encourage in-house creation of digital texts (which is little different from how textbooks have always been written) and to distribute them directly to students, as the Internet now makes possible.

Discussions about the changing world of scholarly communications and copyright