Academic Publishers Attempting To Eliminate Fair Use At Universities [Updated]

Copyright

from the you-kind-of-don't-get-to-call-yourselves-academic-publishers-anymore dept

There are stories about legal battles over copyright that make you shake your head in bewilderment.  There are some that make you chuckle.  And then there are some that simply infuriate, such as this one sent in by Chris ODonnell.

For those who may not be aware, e-reserves are a practice by which universities can share course materials with students, relying heavily on fair use.  Basically, it used to be that professors would have to reserve printed materials in the university library for students, the school paying permission fees for each printed copy.  In the digital world, of course, this is wholly unnecessary.  Professors more often put a single copy of the reading material up on a school server, slap some password protections on it to make sure only students of the class have access, and all of that dead tree copying suddenly becomes antiquated.  This, of course, is great for education, as students who are already paying rising costs for course material and tuition suddenly don’t have to share in the materials cost for digital goods now protected under fair use.  It’s a huge win for higher education, something every good citizen realizes is of rising importance in the global economy.

So, of course the content creators are suing.  Specifically in what reeks of a test case, Cambridge, Oxford, & Sage publishers are filing against Georgia State University and asking the court to issue one of the all-time-detrimental-to-education injunctions in the modern era.

Some quick background is probably in order.  E-reserves have long been a contentious issue for academic publishers.  Publishers Weekly has been following the long history of so-called academic publishers using strong-arm tactics to get institutions to limit what can be done with e-reserves:

"Indeed, there has been mounting concern over e-reserve practices since the early 1990s, when publishers predicted that e-reserves could erode revenue from printed coursepacks. In 1994 publishers sought to deal with e-reserves at the Conference on Fair Use (CONFU), but the issue proved so contentious that the participants could not agree on a recommendation for the final report. Since then, the threat of litigation has loomed over a number of universities concerning their e-reserves, as publishers’ reproduction revenues dipped."

Read carefully, and you can immediately see what’s going on here.  Basically, the digital world has made sharing educational documents more efficient, such that reproducing printed copies of material is no longer a necessity.  And academic publishers are freaking out because a revenue stream is threatened.  This, of course, is where fair use should come into play as a protection for those seeking to share and enhance knowledge for our nation’s young people, something which virtually everyone would agree is important.  But not so-called academic publishers.  For them, it’s that revenue stream that’s important, and the progress of the nation’s knowledge be damned.

That would be bad enough, but the injunction the publishers are seeking against Georgia State is even worse.  This is outlined by Kevin Smith, Duke University’s first Scholarly Communications Officer, in a piece entitled "A Nightmare Scenario For Higher Education".  Smith notes several revelations about the injunction, which would first seek to make Georgia State University responsible for everything that is copied within their grounds and associated web spaces.  It does this by enjoining university students and professors to the injunction.  It includes not only e-reserves, but also faculty web pages and LMS systems, effecitively encompassing the entire educational institution under Georgia State’s responsibility to monitor materials available to anyone anywhere.  Smith notes:

"In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page.  Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done without permission."

The whole concept of higher education revolves around the ability of an institution’s professors to share and expound upon knowledge.  The very label of "a free exchange of ideas" now goes out the window, as the injunction results in the giving up of fair use by not only university staff, but students as they try to learn.  Let’s be clear: students are attempting to use this material to further knowledge while "academic" publishers are putting up roadblocks.

But it gets even worse.  Smith discusses how permission fees are the real goal here, as well as the obliteration of fair use for all of Georgia State, before noting:

"Added to these rules from the Guidelines is a new restriction, that no more than 10% of the total reading for any particular class could be provided through non-permissive copying.  The point of this rule is nakedly obvious.  If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees.  Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were."

I’ll paraphrase in case there are others like me, because when I read the above my brain immediately began attacking my eyeballs for exposing it to something so utterly ridiculous.  Publishers are attempting to require universities to pay more in permission fees for using their content and they want to make it a rule that no more than 10% of course material may be material that was acquired without payment.  It’s classic monopolistic behavior: you have to pay for our stuff and you have to use our stuff by rule, therefore you must pay no matter what.  If this sounds familiar, it’s because music publishers have tried this on high school radio stations in the past. Update: A bunch of commenters make the convincing point that we may have read too much into the 10% limit, and that it does not forbid other types of licenses… though the agreement is still highly questionable on almost every other point.

To summarize, we’ve got "academic" publishers threatening litigation upon universities that are sharing educational material, under clear fair use protections, in a more efficient manner to further knowledge, while at the same time attempting to codify rules demanding that they use such material.  All while education costs rise and the United States continues its hand-wringing over its slipping education system.

To summarize more succinctly, I have to go throw up now.

Filed Under: copyright, education, fair use, learning