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A Call to Focus on Copyright

October 21, 2013

ANAHEIM, Calif. -- When academics hear that Congress might consider changes in copyright law, those who think about the issue tend to feel of lawmakers that "anything they do will be bad. They will do what Hollywood wants," and generally restrict access to materials, not ease it. That was the assessment here Friday of Pamela Samuelson, a leading expert on intellectual property issues, in a speech to attendees at the Educause annual meeting.

While that academic skepticism of Congress may be understandable, higher education (leaders and rank and file academics) need to get more involved in copyright questions, said Samuelson, the Richard M. Sherman Distinguished Professor of Law at the University of California at Berkeley and co-director of the Berkeley Center for Law and Technology. Several recent wins for universities in copyright disputes, she said, are being appealed. And Congress may be about to launch a major overhaul of copyright law. The interests of higher education in copyright are too great -- especially in the digital era -- for colleges and universities to be on the sidelines, Samuelson said.

The wins of late have been significant and have strengthened the concept of "fair use," under which students and faculty members can in certain situations use portions of copyrighted materials in teaching and research. Last year, a federal judge rejected the vast majority of the claims made against Georgia State University by publishers who objected to the way the university used electronic reserves for supplementary course materials. Also last year, an authors' organization lost a lawsuit against the Hathi Trust, an electronic repository based at the University of Michigan.

If the universities prevail in the appeals, Samuelson said, academic copyright interests could be significantly strengthened. But that's not certain, and there is also the possibility of significant changes in copyright law. In March, Maria A. Pallante, the U.S. registrar of copyrights, proposed a Congressional review of the law. Pallante said that the last major revisions were 15 years ago, but that many elements of copyright law date to a 1976 revision of the law. Congressional leaders have indicated that they plan to start hearings next year.

Samuelson noted that several of the issues Pallante raised for review directly affect higher education. Among the topics cited by Pallante: "revising exceptions and limitations for libraries and archives, addressing orphan works [those lacking current copyright protection], accommodating persons who have print disabilities, [and] providing guidance to educational institutions."

The first thing higher education needs to do, she said, is reposition itself so that it is not just viewed as a consumer of copyrighted materials but as a major producer of them. Too often in these discussions, she said, higher education isn't given credit for "universities as authorial communities."

Where higher education may differ from other producers of content is in the large numbers of people who want their work disseminated as broadly as possible, without an emphasis on denying access. Samuelson is in the process of creating a new organization, called the Authors Alliance, for academics "who want our works available."

Along these lines, Samuelson also said it was important for more academics to "push back" and to refuse to sign over copyright to publishers, or to impose limits on any rights they turn over. She said that universities that have been creating repositories for the work of their faculty members have allowed faculty authors to have a stronger negotiating position with publishers.

When publishers accept work, she said, the initial proposal is typically "assign all copyright" to the publisher, with a tone of "I demand this." But she said that more and more faculty are learning that they do have leverage. "If you say, 'That doesn't work for me,' they have another policy."

And when faculty members find journals that have reasonable policies about use by authors and for educational purposes, Samuelson said, they should favor such outlets and share their enthusiasm with colleagues. (She did just that by noting that she regularly publishes in the access-friendly technology journal Communications of the ACM.)

Even as academics take such steps, however, they must participate in in the political debates over copyright, she argued

Many leaders and experts in higher education "want to hide" when people talk about the possibility of Congress reopening copyright legislation, Samuelson. "While it is sensible to be somewhat concerned about what would happen if Congress decided to reopen" the legislation, Samuelson said, "it would be a mistake for higher ed not to say, 'If we want to do this, these things need to be on the agenda.' " Generally, she said, higher education needs to be sure the fair use victories of the courts are preserved.

Further, she said some copyright law has been based on classroom use meaning a physical classroom. So it's very important for higher education to have copyright law that works in online (or hybrid) courses.

Jarret S. Cummings, director of external relations for Educause, said via e-mail after the session that the organization hasn't taken a position on overhauling copyright law. "We plan to align with the general higher ed community response as it takes shape. I believe we'll see that come together as actual legislation is introduced in Congress, which will give the relevant higher ed associations a clearer basis around which to organize," he said.

The American Council on Education is also waiting until the copyright ideas that have been proposed become an "actionable proposal," said Ada Meloy, general counsel of the American Council on Education. But she noted that the association (along with other associations) has filed briefs in the Georgia State and Hathi Trust appeals cases, backing the universities.

 

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