According to academic libraries, there’s a just-over-the-horizon golden age in which “you always have whatever scholarship you need access to, at any time and wherever you are.” This quote comes from my library’s “welcome” page, but it could as easily come from many American university libraries.
Having e-books supersede and replace physical books is essential to the vision. Accordingly, libraries have made great advances in digitizing their paper book collections and making them available online through Google Books, HathiTrust and other digitized collections. These superb collections make the vision seem possible, enticing and even closer than we might imagine. Many university libraries have taken another step toward its realization by instituting policies that either prefer or require new book acquisitions to be in digital rather than paper format, when available.
But there is a fundamental difference between digitized versions of physical books and born-digital books. While the former move us closer to the “anyone, anytime, anywhere” future, the economics of the latter are pushing us in the opposite direction, toward a future in which access to digitally published titles is restricted and provisional.
This difference becomes apparent when we consider interlibrary loan. I regularly explain to patrons that they cannot use an e-book licensed by another University of California campus and that their best option is to request a paper copy by interlibrary loan. In one recent case a patron wanted a book that had been published only online and only as part of a package. Since subscribers to the package were prohibited from sharing any of its contents via interlibrary loan, there were only two options for the patron: either she had to read it while physically situated at a subscribing library, or my library would have had to pay many thousands of dollars to license the package.
To understand what is happening, it is first necessary to understand that digitizing projects like Google Books and HathiTrust are possible because libraries own the physical books they contain and because they choose to exercise the option to make them available in this fashion. The key point is ownership. Acquisition of a physical book brings with it a consistent and well understood set of rights and restrictions that have been clearly defined and relatively stable for more than a century.
Collectively we refer to these rights as conferring ownership. The principle that the sale of a book extinguished the right of the seller to control the subsequent disposition of a book was established by the United States Supreme Court back in 1908 in Bobbs-Merrill Co. v. Straus and reaffirmed only last year in Kirtsaeng v. John Wiley & Sons, Inc. Known as the first-sale doctrine, this principle underpins fundamental practices of a research library. It means that libraries can do pretty much what they wish with their books as long as those actions do not violate copyright (or other) law -- such venerable library practices as lending books to whomever they choose and for however long they wish, sharing them through interlibrary loan and selling or giving them away derive from the first-sale doctrine.
First-sale doctrine also provides the legal basis for such innovative practices as digitizing books; if the digitized books are in the public domain, then libraries can make them freely available, as they do with the full-view titles in HathiTrust. Copyright law and court decisions also permit digitization of in-copyright books for such transformative uses as full-text searching (you can find out if a term is used in a book, and how often, even if you can’t see it online) and data mining of digitized collections to discover patterns of thought and word use. One of the most exciting uses of digitized in-copyright titles is to provide print-impaired readers with full-text, screen-readable access to a body of literature orders of magnitude greater than previously available.
Born-digital e-books are very different animals than digitized e-books, even though they may appear similar on the screen. Where digitized e-books are owned by libraries, born-digital e-books are almost always only licensed from either the publisher or a third-party vendor, not purchased outright. The distinction between owning and licensing means, among other things, that the digital file is located on the seller’s server and not on one owned or controlled by the library. Additionally, the bundle of rights associated with ownership of a physical book is not transferred intact when a library merely pays for access.
E-book licenses vary widely. At one end are subscription packages with low per-title prices and few rights; a library’s patrons can access a subscription title only as long as it pays an annual subscription fee, effectively renting the books like you rent a car. Libraries’ ability to share titles acquired this way is extremely limited.
At the other end are licenses that ensure the library’s access to the title “in perpetuity,” for a one-time fee, permitting the library to engage in many of the practices associated with owned books. Most limited perpetual access e-books licensed by libraries (in contrast with inexpensive personal copies) generally cost about the same as a physical book, but add on rights and users and prices quickly escalate by three and five times. (The per-title cost drops if book packages are licensed, but bulk acquisition has problems of its own, and in my opinion should be avoided.)
I am aware of a single major vendor that permits the purchase of an e-book allowing a library to download and maintain a copy of the title on its own hardware, but the rights that accompany a title purchased this way are still far more limited than those associated with a purchased book. For example, it would be a violation of the purchase agreement to send one of these books out on interlibrary loan; only a single chapter can be shared per request.
In addition, the fact that titles are licensed enables the owner to engage in practices that libraries traditionally reject. Foremost among them is gathering data about readers. For libraries, protection of reader privacy is a core value, and they routinely break the connection between borrower and book as soon as the book has been returned.
Vendors, on the other hand, can monitor and record individual patrons’ book choices. They can even assert control over readers’ behavior. Once, when I was skimming an e-book, a “Browse Warning!” appeared, asserting that I was either illegally copying pages or “navigating the book in an inappropriate manner.” Were I to continue my inappropriate navigation, the vendor warned, it might not only cut me off from this book, but from all its books. I never skimmed one of the vendor’s titles again.
Finally, there is a separate problem associated with the practice of licensing, not purchasing e-books. The perpetual access model assumes that the publisher or vendor of the title is a stable, financially secure corporation that possesses the expertise to write -- or at least vet -- complex legal instruments and has invested in whatever backup mechanisms are needed to provide satisfactory assurances of access, perpetual or otherwise. However, there are ever-increasing numbers and varieties of small, individual and ephemeral publishing outlets that lack the resources to meet library standards. Consequently libraries are simply unable to acquire the e-books produced by a growing segment of the publishing industry.
For all these reasons, born-digital e-books pose significant challenges to libraries’ abilities to operate effectively, protect their patrons and meet their needs, and acquire the books they need at a reasonable cost. If libraries are to continue to provide the unique services they offer, if they are to realize the “anyone, anytime, anywhere” vision, and if they are to support the future use of their holdings in ways we cannot yet imagine, they need to own, not merely license books. And e-book ownership needs to be more closely equivalent to ownership of a physical book than is currently the case.
In short, we need to renegotiate the way libraries operate in the e-book marketplace so that they can fulfill their unique and irreplaceable functions while also ensuring that publishers and authors receive their due. It will be expensive, if we can ever get there. Books will cost more and libraries will have to develop the infrastructure needed to host, preserve and deliver the books they acquire. Fortunately, we do not have to start from scratch. We have some existing, if imperfect, purchase models on which to build. It will take time, and the golden age may be farther off and not as perfect as we had hoped. In the meantime, libraries should ease off on their preference for licensing e-books instead of buying physical ones.
Daniel Goldstein is an arts, humanities and social sciences librarian at the University of California at Davis.
A global subscription company that served as intermediary between college libraries and journal publishers has declared bankruptcy. Libraries face financial losses and time-consuming process to assure journal access.
In Friday’s decision in Cambridge University Press v. Patton, the U.S. Court of Appeals for the Eleventh Circuit followed decades of jurisprudence in casting aside bright line rules for determining whether faculty made fair use of copyrighted material. This is regrettable, as the celebrated 2012 district court opinion in the same case had opened up the possibility of teaching faculty how to properly make fair use of material using plain terms and easy-to-understand concepts, while the appeals court opinion returns us to the days of case-by-case holistic analysis and detailed exceptions, loopholes, and caveats.
The case revolves around a challenge by several companies that published non-textbook scholarly works to Georgia State University’s electronic reserve systems, wherein faculty and librarians would scan in excerpts of books for students to access digitally, a technological improvement over the traditional practice of leaving a copy or two on reserve at the library circulation desk. The publishers claimed mass copyright infringement while Georgia State cited the fair use provisions of Section 107 of the Copyright Law.
The district court exhaustively analyzed each work uploaded to electronic reserves, finding only five in violation out of the dozens submitted by the publishing companies, by taking a new twist to the law’s four factors for analysis:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for, or value of, the copyrighted work.
Traditional fair use analysis calls for a case-by-case analysis of each potential use, independently weighing the four factors holistically, which is difficult and often requires knowledge of unavailable facts (such as the effect on the market of the work, which is nearly impossible for those outside of the company to guess at). (For instance, the Supreme Court in Campbell v. Acuff-Rose Music, Inc. specifically discarded any use of “bright line rules” for determining fair use of copyrighted material.)
Judge Orinda Evans went a different route. She found that de minimis use (such as when a faculty member posts a work but no student ever accesses it) is not a violation, and that in most cases, using one chapter or 10 percent of a book that is under copyright protection would meet the fair use test. The judge decided to clearly assign winners in each of the four factors, and then give the overall win to the party with the majority of factors in their favor.
She wrote that factors one and two almost always went in favor of nonprofit higher educational use of academic works. While a determination of factor four may be difficult for a faculty member to determine, and would likely go in favor of the publishers, the judge ruled that 10 percent or one chapter of a work that is digitally available would meet the fair use test for factor three. Adding factors 1, 2, and 3 together let her find a majority and, thus, fair use, even without factor four.
Note that these findings were for those works that could be purchased digitally. In another section, the judge applied some behavioral economics to factor four by finding that for those works that a publisher did not make available digitally, a faculty member could use approximately 18 percent of the work and still win a fair use analysis. That larger limit of factor 3 could encourage publishers to make their works available at reasonable prices, so as to discourage fair use without remuneration.
This was a groundbreaking opinion that allowed intellectual property lawyers in higher education to clearly explain to administrators and faculty members which uses would and would not be fair. Rather than require our botany and geography professors to also become copyright scholars, we could provide them with reasonable tests to ensure they properly balanced the interests of students in accessing the content with the interest of publishers in compensation for developing the content. While this wasn’t the first effort to develop fair use standards, it was the clearest, and the first time that such standards were set by a court.
The appeals court rejected this analysis and found that the “District Court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief. However, the District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically.”
The appeals court instead called for a return to the holistic analysis. Rejecting the 10 percent or one chapter bright-line rule, the appellate court wrote that “the District Court should have performed this analysis on a work-by-work basis, taking into account whether the amount taken -- qualitatively and quantitatively -- was reasonable in light of the pedagogical purpose of the use and the threat of market substitution.”
The appeals court decision stands on solid precedential ground, and it is not the first court to call for a holistic and case-by-case analysis. While one can defend that decision by looking to the past, the decision is a poor one for those who look to the future. As content becomes more available in varying formats, and our faculty, staff and students are faced with myriad opportunities to pay for content, make fair use, or violate copyrights of authors and creators, the presence of clear standards and easily digestible rules provided higher education with a fighting chance to educate our academic community and encourage proper balancing and fair (but not inappropriate) use of content.
William Patry and Melville Nimmer, the two seminal thinkers in copyright law, each devote hundreds of pages to explaining copyright law. Their sets of volumes, which cost thousands of dollars, provide a comprehensive analysis of fair use and all of its details. But these books and detailed analysis are well outside the scope of what we expect of our faculty members who do not specialize in intellectual property, and our instructors simply do not have the time to conduct an exhaustive analysis of each use, even if they did take the time to learn all the permutations of the fair use analysis. This isn’t to say that they can’t, but to state the reality that they won’t.
Frankly, the dueling decisions in these cases, and the numerous articles and statements by serious copyright scholars on both sides of this analysis, show that even those who steep themselves in the details of fair use can disagree on whether a certain use is fair or violative.
When intellectual property law experts cannot agree, we should not expect our history and math faculty to do justice to the fair use analysis each time.
Instead, faculty will divide into two camps. One group will “throw caution to the wind” and use whatever content they wish in whatever form they desire, hoping never to raise the ire of the publishing companies.
The other, out of an abundance of caution, will self-censor, and fail to make fair use of content for fear that they might step over a line they cannot possibly identify, and can never be certain of until a judge rules one way or the other. Either way, our students and the publishers lose out.
The district court opinion shed some light into the murky swamp of fair use analysis. The Eleventh Circuit opinion dims that light, and threatens to return us to a regime wherein faculty who are not experts in copyright law will either use without consideration of the law or self-censor, diminishing the utility of the concept of fair use.
The Constitution teaches that the purpose of copyright is to “promote the Progress of Science and useful Arts.” The district court opinion found that small excerpts available to students “would further the spread of knowledge.”
Arming faculty with clear rules and standards to properly balance fair use of content would go a long way toward achieving this goal.
Joseph Storch is an attorney in the State University of New York Office of General Counsel. The views expressed here are his own.