Antho-Logic: Information Wants to be Curated

We are all, in some sense, curators of our cultural lives, and always have been. Commonplace books were a popular means of arranging nuggets of valuable material selected by the compiler. Marginalia is another time-honored form of highlighting and annotating texts, personalizing them and noting the most meaningful bits. In a digital era, this activity is social. But "anthological copying" that libraries claim can be a fair use is something three major book publishers find illegal and indefensible.

February 7, 2013

We are all, in some sense, curators of our cultural lives, and always have been. Commonplace books were a popular means of arranging nuggets of valuable material selected by the compiler. Marginalia is another time-honored form of highlighting and annotating texts, personalizing them and noting the most meaningful bits. In a digital era, this activity is social. You might have noticed dots under lines in Kindle texts. Those are traces of what other readers noted. (You can turn off this feature, but the default is to show them.) Oprah’s latest foray into social reading – Oprah’s Book Club 2.0 – encourages its members to read in whatever format they prefer, but if you decide to purchase the Oprah-authorized Kindle edition, you can see what passages club members - and Oprah herself - have highlighted.

Overwhelmed with choice, we have gotten in the habit of curating personally-meaningful digital things. Social bookmarking sites were an early way of letting others know what you are reading online. We shared our photos online via Flickr, which cultural institutions have used to crowdsource information about their collections. Citation management tools, once a way to store, sort, and format hand-picked bibliographic information, have gone social. This makes all kinds of sense. Works cited lists have always been a particularly fruitful way to share related sources; now we can peer into one another’s personal collections and can form groups to share useful citations and annotations on a topic of shared interest. These "trails of association" are rather like what Vannevar Bush envisioned when he described his hypothetical Memex machine in 1945.

New tools are making it easier than ever to make copies of selected works and reformat them for easier reading, online or off. Instapaper was an early entry into this field, with a public launch in 2008. See something online, but too busy to read it right now? Push a button and it’s stored for reading later, reformatted into clear, advertising-free text - or export your selected works to a Kindle device. More recently, Readlists has made it possible to create and share your own anthologies of web-based material effortlessly. This week, I was introduced to a new anthology-building tool from a company based in Berlin, Dotdotdot. This one, still in beta, is designed to allow saving, tagging, annotating, and sharing both ebooks (if they are in a DRM-free ePub format) and web content, making it easy to read and share your selected content without distractions on an iPhone, iPad, or laptop.

This reminded of a new phrase – “anthological copying” - introduced in an appeal filed by Oxford, Cambridge, and Sage publishers in their case against defendants at Georgia State University, who posted digital copies of book excerpts in the university’s e-reserves system. GSU claimed they were fair uses; the publishers claimed they infringed their copyrights. A lower court, after a year-long  exhaustive analysis of 99 alleged infringements, found GSU had infringed in five instances. Over a third of the alleged infringements were excluded from consideration because the publishers could not prove to the court's satisfaction that they owned the rights supposedly infringed. The lower court added insult to injury by instructing the publishers to pay GSU’s court costs. After a great deal of money spent in litigation, the court found the publishers had lost around $750 in permission fees.  

This is a case that has been anxiously watched by academic libraries because if the publishers win their appeal, someone – most likely students or libraries – will have to pay publishers a great deal of money every semester for permission to include excerpts from books in course reserves. Libraries have had reserves for . . . well, let’s just say it was standard practice back when I was an undergrad, dodging the dinosaurs that roamed the earth. The plaintiffs claim in their appeal that libraries are illegally creating coursepacks, rather than simply translating into a digital era the reserves they have provided all along, evaluating reserve requests using the four factors fair use test and flagging those that might be in violation of copyright. I’m sure my library is no different than others in that we have to say no quite often. No, actually, we can’t scan an entire book merely because it’s out of print; no, being an educational institution doesn’t mean we can copy whatever we want; no, your request is too extensive and fails the four factors test, so requires permission. In most cases faculty simply drop those readings from their syllabus, since we have no fund set aside for paying such permissions.

If a higher court agrees with the publishers that there is no such thing as a fair use of anything that might in some circumstances have been included in a bookstore or copy shop coursepack, or which might someday be exploitable as “custom made-to-order textbooks or other innovative products,” as publishers state in their appeal, then faculty who want students to read selections of books will find it prohibitively expensive and will favor assigning material that’s available for free on the web or articles published in journals already paid for through the library’s licenses.  

To a large extent, planning a course in the humanities or social sciences is an anthological act. In the case of literature, the readings on a syllabus hopscotch across the course's themes, chosen to introduce students to ideas using the literature itself. Those giant Norton Anthologies are a kind of all-you-can-eat buffet of choices, useful in multiple courses. But if the literature you are studying is the record of scholarship itself, faculty are likely to act “anthologically” because they want to introduce students to a scholarship in the words of scholars.

It may be that in future we’ll have to pay for each book-based reading act, out of the pockets of students or out of library budgets. If we fund this through student fees, students will have fewer alternatives than they currently have for pricey textbooks: no used copies, no sharing, no option of simply not buying the text and hoping whatever is really important will be covered in class. They’ll have to pay publishers for the permission to read in advance, whether they actually read the assigned material or not.  

If the library budget has to cover these fees, guess what line it will come out of? The one that has been used to buy books. (It’s much harder to negotiate canceling subscriptions that it is to not buy a book.) Permission to read will take the place of having actual collections. Publishers will have a new revenue stream, but an old one that’s already dwindled to a trickle could dry up altogether.

We could, of course, simply go back to putting single copies of books on reserve in the library. Students will then do what they used to do – check it out long enough to copy what they need. That will be inconvenient, but it could work. Or faculty could substitute more readily available readings. When doing research, publications are non-substitutable, but there’s more latitude in choosing course readings.

Maybe in the long run this is all for the best. There are some intriguing new experiments afoot to make academic books more readily available than they are now. Libraries are getting savvy about publishing support and forming alliances with university presses. Faculty (who don’t typically earn much money from permissions) may seek out publishing options that allow rising scholars to study their work in class without having to pay per use. Maybe they’ll become so accustomed to sharing their own curated reading that restricting the use of their work may seem an awkward hindrance to the development of their professional reputation.  

Or the courts will reaffirm the concept of fair use in library reserves and we’ll carry on as we are until we work out new funding models for publishing scholarship and the default setting is switched to open.  Call me crazy, but I think this is a more likely future than the ones Cambridge, Oxford, and Sage are seeking.

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