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A Press Revolt Against E-Packet Practices

A Press Revolt Against E-Packet Practices
April 17, 2008

For all the talk of textbooks with their hefty price tags, professors have always included other sources in their teaching material, whether in the form of journal articles, newspaper clippings, individual chapters or other media. For years, such disparate resources have come packaged in bound course packets. More recently, electronic reserves have in large part taken their place, allowing students to access digital copies of the same material through course management systems or their library Web sites.

Professors looking to save their students money on textbooks have often relied on packets or e-reserves since it's usually cheaper to pay individual publishers for the right to use the content than to purchase entire textbooks, not all of whose content is relevant in a particular course to begin with. Copy shops and professors were sometimes willing to look the other way when it came to obtaining copyright clearance for printed packets, a practice that ended in litigation resulting in many of the fair-use standards colleges use in the classroom today. Now, with electronic collections taking their place, a similar change in practices around digital permissions may be on its way.

On Tuesday, three major academic presses backed by the Association of American Publishers sued Georgia State University, alleging that it systematically facilitated access to a significant volume of copyrighted works online without paying the proper licensing fees or even seeking to do so. A university spokeswoman said it could not issue a comment because as of Wednesday, the four named defendants -- the president, provost, dean of libraries and associate provost for information systems and technology -- had not been served with the complaint (which is online here).

The lawsuit, on behalf of Oxford University Press, Cambridge University Press and Sage Publications, appears to be the first to raise copyright issues over the way a college handles online course reserves. It seeks to end Georgia State's practices and doesn't demand monetary damages. Other industries, notably music and TV, have gone or are still going through a transition to new business models birthed by the Internet and changing demands from consumers. The question on many people's minds in academe is whether such upheavals will have a parallel in academic publishing, and what, if anything, a new distribution model would look like.

Publishers argue that copyright laws must be rigorously applied in order to properly compensate their authors and uphold the tenure-and-publishing model on which much of peer review depends. "We’re so integrated into the university world, if we were to have difficulty operating, they would ultimately feel it as well, since so many hiring and promotion decisions turn generally on publications," said Frank Smith, editorial director at Cambridge University Press.

If the allegations are true, Georgia State wouldn't be the first university where professors distribute materials -- whether in print or online -- without obtaining the proper permissions first. According to the plaintiffs, its mistake was in declining to participate in a discussion with the publishers over its digital copyright policies. "For me, it’s just been all about a dialogue," said Niko Pfund, vice president and publisher of the academic and trade division of Oxford University Press in New York, adding that he's "generally not in the business of quarreling with librarians. My particular issue with this instance, looking at the history of it, is that there seems to be no willingness to factor that history in."

Indeed, academic presses have strong ties to the universities they serve and operate under, and even report to the chief librarian or dean of libraries at some institutions, adding to the affront some publishers felt when Georgia State allegedly failed to engage them on digital copyright practices. R. Bruce Rich, a partner at the law firm Weil, Gotshal & Manges, which is representing the plaintiffs, said he had contacted the Georgia State counsel's office last year -- other publishers suggested it was about nine months ago -- with "very detailed" concerns and outlining specific instances that were "troublesome from the standpoint of our clients." Rich said it was months until he received a short response from the university, stating that it had reviewed its practices and concluded that they fell under fair use.

"You’ve got to make almost a sweeping conclusion about the use of the fair use doctrine," he said, calling the university's claim "scary."

The complaint alleges "systematic, widespread, and unauthorized copying and distribution" at the university through the library electronic course reserve system, Blackboard, departmental Web sites and individual course syllabi posted online. According to the suit, "hundreds" of Georgia State professors have posted "thousands of copyrighted works" without permission. In a February count of the university's course reserves, the lawsuit asserts, over 6,700 works were available for over 600 courses, with "much (and likely most)" posted without proper copyright authorization.

In one example cited by the lawsuit, a digital coursepack for a Qualitative Research class contained "five unlicensed digital excerpts" from the second edition of Handbook of Qualitative Research (Sage Publications, 2000), amounting to over 130 pages. The suit notes that anyone, not just a student or faculty member at Georgia State, can access the university's course reserves search page. It said that when the plaintiffs first investigated the issue, no password was required to access digitized documents, although after an initial complaint to the university, a layer of protection was added.

For a bound course packet, most colleges today would have a procedure already in place: Professors collect the documents, assemble them and usually go through the campus store or another entity which handles copyright concerns, printing and binding. That's partially a result of the 1991 court decision in Basic Books v. Kinko's, which found against copy shops that were producing packets of material without first obtaining the proper copyright permissions. A similar case the next year between Princeton University Press and Michigan Document Services solidified the consensus.

The new lawsuit suggests that at some colleges, such standards are not in place for the packets' digital equivalents, even though copyright law doesn't distinguish between online and print. The Copyright Clearance Center, which allows individuals or entities to fairly efficiently pay licensing fees and obtain permission to reprint material from most major publishers, offers the same services for digital distribution as well. J-STOR offers similar functionality for journal articles available online.

Still, some critics of the existing business model among university presses think it's time they were nudged to overhaul the way they distribute content and adapt to 21st-century realities, much like the way traditional music stores gave way to downloading -- a practice that was first largely illegal and that was ultimately adopted by most labels.

What campuses need, suggested Kenneth C. Green, director of the Campus Computing Project, "is something akin to an iTunes for traditional print content that would foster online access to documents, journal articles, and book chapters and let users pay for the content in a way that provides fair compensation and an additional revenue stream for publishers and authors.”

Publishers have bristled at any comparisons to Mac-happy iTunes downloaders, however, and argue that the metaphor -- implying that publishers should "disaggregate" their content into components that can be individually distributed, like songs -- doesn't work. (Is a university administration, in this case, equivalent to a teenager downloading illegal mp3s?, they ask.) In fact, said Patricia Schroeder, president of the Association of American Publishers, university presses have been “disaggregat[ing] materials” for decades: “Have they heard about course packs?”

“When I was in college, they were disaggregating ... that was back when we were reading with kerosene lamps,” she noted dryly.

Meanwhile, the publishers have been citing success when dealing with other institutions -- such as Cornell, Hofstra, Marquette and Syracuse Universities -- that were willing to work jointly. Cornell's fair use policy, for example, was drafted with input from the AAP and makes clear its commitment to copyright for online documents: "The copyright principles that apply to instructional use of copyrighted works in electronic environments are the same as those that apply to such use in paper environments. Any use of copyrighted electronic course content that would require permission from the copyright owner if the materials were part of a printed coursepack likewise requires the copyright owner's permission when made available in electronic format."

In light of such successes, “It feels like suing a member of the family,” said Peter Givler, executive director of the Association of American University Presses. “Unfortunately, the alleged infringement is like stealing from a member of the family.”

 

 

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