Since the February 18 fairness hearing on the Google Books settlement, Judge Chin has been confirmed by the Senate for a seat on the Second Circuit Court of Appeal. It is unclear at this time how his promotion will affect the settlement. He may decide the case before moving up, take the case with him, or pass it on to a new judge.
The Public Index has made available a report categorizing and summarizing the objections to the settlement agreement: http://thepublicindex.org/docs/commentary/objections-responses-2.pdf.
Meanwhile, a group denied admittance to the current Google Books class action settlement has filed their own suit. In April, the American Society of Media Photographers and other groups representing graphic artists and photographers filed a class action suit alleging that the scanning and display of work for the Google Books program infringes their copyrights. The parties are seeking “monetary, injunctive, and declaratory relief.”
The White House’s Office of Science and Technology Policy (OSTP) opened a Public Access Forum in December and January. They posed nine questions relating to public access to archived publications resulting from federally funded research, and solicited comments from interested members of the public and scholarly publishing community.
AAUP submitted comments to the OSTP Forum on January 21.
Earlier in January, the Scholarly Publishing Roundtable, convened by the House Committee on Science and Technology to develop “consensus recommendations for expanding public access,” also issued their report. In the association’s comments to the OSTP, the Board of AAUP endorsed the shared principles and many of the recommendations in this report. Most especially, AAUP echoed the call that funding agencies should develop public access policies within a coherent set of guiding principles, taking into account the differing needs and scholarly norms of various fields, and “in cooperation with all stakeholders.”
Read AAUP’s contribution to the OSTP Public Access Forum in full.
Read the Scholarly Publishing Roundtable Report and other relevant materials.
The parties to the Google Book suit submitted a revised version of the settlement to the court on November 13. After the submission of the amended settlement agreement, supplemental notice was issued, and an extended comment period was opened.
The Department of Justice filed its Statement of Interest regarding the Google Book Search Settlement on February 4. Among the concerns the statement details is that the federal court lacks the authority to approve the settlement, which should properly be a matter for Congress. A fairness hearing was held on February 18, during which Judge Chin heard from 26 speakers (21 against the settlement, 5 in favor). Most notably, the court heard from U.S. attorney William Cavanaugh, who argued that the class action vehicle was not appropriate for this matter and that the settlement went too far in modifying copyright, and Duralyn Durie (for Google), Michael Boni, and Bruce Keller (for the plaintiffs) who countered Cavanaugh’s claims and urged the court to approve the settlement.
View the statement of interest from the Department of Justice regarding the proposed amended settlement agreement: http://thepublicindex.org/docs/amended_settlement/usa.pdf
Peter Givler
Executive Director, AAUP
Everyone expected that this year’s Frankfurt Book Fair would be slower than usual, but no one knew by how much. As it turned out, it was slow, but not nearly as bad as the 2001 Fair that took place a month after 9/11, when there were significant last-minute cancellations and many empty booths. Attendance this year was down by 4%, according to the Fair management, and my general impression in Hall 8 (headquarters for U.S. and U.K book publishers) was that almost all the usual publishers were there, although perhaps with smaller stands and fewer people. The AAUP members I spoke with all felt the business they were doing was, if not great, certainly good enough. This was surely helped by the fact that the book trade in the U.K and Western Europe has been much less affected by the economic downturn than it has been in the U.S.
A few items of general interest. Each year the Fair designates one country as a Guest of Honor. This year it was China, which caused a certain amount of drama during the Fair because of the Chinese government’s policies restricting freedom of expression. The New York Times has provided a good summary: http://www.nytimes.com/2009/10/19/world/asia/19books.html.
In April, I became Chair of the International Publishers Association’s (IPA) Copyright Committee, and in that capacity attended a number of IPA and other publishing association meetings held during the Fair. One matter of general concern is how the World Intellectual Property Organization’s (WIPO) so-named Development Agenda will play out. The Development Agenda basically instructs WIPO to give particular attention to the needs of developing economies. Under that directive WIPO is now considering the question of whether it should, by means of a treaty, mandate that its members implement copyright exceptions in their national laws to address the needs of Visually Impaired Persons (VIPs), and to permit cross-border transfer of educational materials.
According to the World Blind Union, 80% of VIPs in countries with developing economies live below the poverty line. No one disputes that low-cost or cost-free access to the written word in appropriate formats—large type, Braille, audiobooks, etc.–is a fundamental requirement for personal and social advancement. The only question is whether this goal can be best achieved by means of a WIPO treaty, which takes 5-10 years to create and up to an equal amount of time to be implemented by WIPO’s member states, or whether there is a faster path to implementation through voluntary cooperation among stakeholders. Representatives of VIPs, publishers organizations, and reproduction rights organizations (RROs) have been making good progress on creating a framework for the necessary infrastructure.
The ethical imperative for an exception permitting cross-border transfer of educational materials is perhaps less clear. On the one hand, there is an undeniable need for low-cost access to educational materials in developing economies. On the other, educational publishing is the bedrock of local publishing in those same developing economies, accounting for as much as 90% of the industry. So what would be the overall effect of an educational exception on the local publishing industry and the development of an indigenous book culture? From a legal point-of-view, bringing something as broad as an educational exception into harmony with the Berne three-step test will present interesting challenges. This complicated issue is scheduled to be formally introduced at WIPO later this fall.
Finally, and on a completely different note, Saskia DeVries and Eelco Verwerda at Amsterdam University Press convened a two-hour meeting of interested parties to discuss the desirability of starting a European Association of university presses. 50 people attended, representing some 30 presses from 12 countries. The challenges are obvious, but there was great enthusiasm for the idea and a wonderful discussion of needs and possible joint projects. An organizing committee was formed, and there will be a follow-up meeting at the London Book Fair next year. This is a very exciting development; AAUP began with just such a series of informal meetings held in the 1920s at the ur-precursor to BEA, and I wish our European friends every success.
The parties to the Google Book settlement submitted a revised version of the settlement to the court late on November 13. Revisions include a reduced scope of coverage (limited to works registered with the U.S. Copyright Office, or published in the U.K., Australia, or Canada), the establishment of a fiduciary working out of the Book Rights Registry to look out for the interests of orphan works rightsholders, an increase in the possible number of library access terminals, and the ability for rightsholders to make their books available for free or under licenses such as those from Creative Commons. The “most favored nation” clause that was a cause of concern for many has been eliminated, allowing the Books Rights Registry to “license to other parties without ever extending the same terms to Google.” Publishers from the U.K., Australia, and Canada have been added as plaintiffs, and will have representation on the Books Rights Registry.
Under the revised settlement, the deadline to claim books has been extended to March 31, 2011.
In a court order filed on November 19, Judge Chin gave preliminary approval to the revised settlement. In his preliminary approval, he set important dates for moving forward: supplemental notices will be sent beginning December 14, objections to the amended portions of the settlement must be filed by January 28, and a final fairness hearing has been scheduled for February 18.
In a memorandum filed the day following the court order, November 20, Amazon requested that judge to reconsider the preliminary approval he had granted to the settlement, citing that the decision was made without the benefit of opposing viewpoints from members of the class.
View the amended settlement agreement and the supplemental notice (a shorter document which details the changes to the settlement) here: http://www.googlebooksettlement.com
View a redlined version of the settlement: http://thepublicindex.org/docs/amended_settlement/amended_settlement_redline.pdf
Daphne Ireland
Director of Intellectual Property and Documentary Publishing, Princeton University Press
Everyone is talking about the Google settlement. On March 13 the Columbia Law School hosted “The Google Settlement: What Will It Mean for the Long Term?” a day-long symposium with exceptional speakers assembled from the publishing, legal, and academic spheres. Conference attendees, including nine rights professionals from AAUP presses, were privileged to hear expert debate on a broad continuum of issues. The day began by considering whether this class action settlement has the effect of legislation, continued with discussion of anti-trust concerns, and moved to projections about the future of book publishing, Google Book Search as compulsory license, and possible complementary orphan works legislation.
The first session of the day was “Legislating through Settlement.” Mary Beth Peters, U.S. Register of Copyrights, observed that the settlement has a legislative effect without having been considered or approved by Congress. It incorporates aspects of legislation for orphan works, Section 108 library exceptions, treaty obligations, and compulsory licensing. Peters said she had many unanswered questions, including whether the Settlement is actually a compulsory license for the benefit of one company and what effect it might have on foreign authors and journal articles. She found it interesting that she had not been asked by Congress to comment on or study the scope of Settlement.
The technical aspects of the anti-trust question were addressed in “Competition Issues” by Randal C. Picker, Professor of Commercial Law at University of Chicago Law School. He identified in the Settlement three key features to measure how easily they might be multiplied to allow competition: digital files, scope of the rights license, and the mechanism of the Registry. How would competitors gain access to digital scans: will they negotiate anew with libraries for their own access and scanning, or will Google allow copying of their digital files? Is the scope of the settlement’s rights license able to be multiplied among competitors? Is it possible to have multiple registries? For Picker, the core of the settlement is its “one-way most favored nation clause,” which guarantees no other party can be offered license terms that are more favorable than Google’s terms in the settlement. Another anti-trust consideration is that even with competitors in this digital marketplace, Google could privilege its own book material through its Google search engine results ranking. Picker sketched an intriguing analogy between Google’s search engine/digital file access regime and the public utility access regime of the nation’s electricity grid. Finally, he explored the idea of the settlement as a compulsory license, where exclusive right holders are required to license works without prior approval on the condition that they receive royalties – similar to ASCAP and BMI in the music industry.
In “The Future of ‘Books’,” Richard Sarnoff, a chairman at Bertelsmann and Chairman of the Board of the Association of American Publishers (AAP), described the settlement as a confirmation of copyright law that sets up a mutually beneficial framework to speed the co-existence of print and digital publishing. Alan Adler, AAP, explained that it looks backward to resolve litigation and creates a path forward by designing a licensing structure to plug in with other competitors. He suggested that publishers may decide to place new works not covered by settlement terms (i.e., those copyrighted after January 5, 2009) under a Google Partner Program contract, the terms of which will likely parallel settlement terms. Lois Wasoff, former counsel at Houghton Mifflin, confessed to everyone’s relief that the settlement is “a little tough to get your arms around.” Business model and contract differences mean implications will be different among trade publishers, STM publishers, and university presses. Wasoff reported that most publishers will likely opt-in to the settlement, remove many of their works, and continue to participate in Google Book Search through the Partner Program. Richard Sarnoff summarized it well: “If you look at the settlement, there’s one thing that’s shot absolutely through it. It is the rights holder’s choice—in every possible circumstance—that rules what happens with the rights holder’s works. Outside of what I hope will be a radically shrinking number of truly orphaned works that are never claimed by anyone (and even within those, I hope with the right legislation we can handle them more actively), you are going to have the rights holder deciding whether the book will be in there in the first place, what the display uses are… and pricing…The entire settlement is set up with the full flexibility to decide how their work is to be used by Google or by anybody else.”
Authors’ opinions were surveyed in the panel “Authors and Incentives.” Jan Constantine, counsel for the Authors’ Guild, can see no downside for authors whose works are out-of-print, and applauded the development that authors and publishers will now move forward in mutual agreement about how works will be offered digitally. Arthur Klebanoff, a publisher and literary agent, highlighted the involvement of author estates in Book Rights Registry claims. In another vein, he commented that publishers will want to take care to remove previous editions of books from the Google offerings, to prevent inaccurate scholarship and edition confusion. Tracy Armstrong, President of Copyright Clearance Center, pondered the ramifications of Google Book Search, which she said certainly will include more self-publishing by authors. Armstrong speculated that one day Google Book Search’s ubiquitous user-interface could become a storefront for self-publishing intermediaries, such as iUniverse and Blurb. She wondered about legitimate incentives for competitors since Google enjoys the “first-mover advantage from this ‘ask forgiveness, not permission’ model”, and regretted that some parties might therefore imitate that illicit model.
“The Public Interest” panelists discussed whether the settlement sidestepped library and public interest and whether other industries might use this class action structure to settle their legislative issues. In his opening statement, Alex MacGillivray, counsel at Google, said “Google is in this to make search better,” to create access for researchers regardless of whether their library is financially privileged, and to serve the needs of the print-disabled. MacGillivray echoed Alan Adler’s earlier observation that the Registry will be able license the corpus to third parties. Robert Darnton, Professor and Director of Harvard University Library, thoughtfully expressed that the settlement creates the possibility of a reader’s utopia. However, he said that the Google Book Search corpus is so rich and unique that competition may be impossible. He also expressed concern that the settlement gives Google a “monopoly in fact” and that there is too great a potential for abuse of power by “ratcheting up prices” for institutional subscriptions over time, a practice he termed “cocaine pricing.” But not all monopolies are bad, in particular those providing public services. Memorably, Darnton quoted an old General Motors motto, having adapted it to: “What’s good for Google is good for the United States.” He openly invited Congress to examine the settlement and its effect on public interest. Jeffrey Cunard, counsel for AAP at DeBevoise & Plimpton, expanded on the notion that the Registry can be a licensing agency, adding that it could administrate a compulsory license for non-commercially available works, should Congress decide to enact such a license. James Grimmelman, Associate Professor at New York Law School, was insightful and brief. He is concerned about concentrated power: direct price setting, a single dominant cultural source, preservation and quality issues, changing fair use, library Section 108, first-sale doctrine, and the incentive to remain exclusive. Grimmelman believes the settlement is workable with discrete changes, which include guarantees about privacy, making the Registry accountable through transparency and oversight by the Federal Trade Commission, and a modified “most favored nation clause.” He believes this class-action settlement risks interpretation as a privately negotiated substitute for orphan works legislation.
Threaded through every panel were the topics of “out-of-print” and “non-commercially available works,” at times imprecisely discussed as “orphan works.” Google’s exclusive possession of digital scans of orphan works from libraries is an indicator of monopoly. Yet all agreed that the settlement’s greatest impact is the creation of new access to non-commercially available works. In Paul Courant’s words: “What I’ve gotten out of today is that absolutely everybody thinks that meaningful orphan works legislation would greatly improve the quality of this settlement.” Google and AAP have actively supported orphan works legislation for several years (as has AAUP). Access to truly orphan works is certainly in the public’s interest. In listening to panelists, one can imagine Congress considering orphan works legislation in the form of a compulsory license to be administered by the Registry.
There have been a couple of developments since the outstanding March conference. On April 28, the Federal District of New York postponed the deadline for right holders to opt-out and/or file oppositions to the settlement, which is now September 5, 2009. In a separate move on the same day, the Justice Department announced its inquiry into the settlement’s anti-trust issues.
There were many more speakers and compelling ideas, but this report attempts only to trace a continuum, highlighting possible long-term implications. It is likely the settlement will be approved in some form at some point in the coming year, and it has surely awakened interest on all sides.
Peter Givler was instrumental in planning the conference and roster of distinguished speakers. The following university press attendees enjoyed this stellar symposium, as well as each others’ views and good company at lunch: Lisa Bayer, Barbara Cohen, Carol Hupping, Daphne Ireland, Linda Klein, Mindy Koyanis, Jill Phillips, Clare Wellnitz, and Vicky Wells. No briefing can adequately convey the depth of the conference; fortunately, a video is available online. For details and discussion, please watch the symposium at http://kernochancenter.org/Googlebookssettlementrecording.htm
Peter Givler
Executive Director, AAUP
Virtually all of my time at the 2008 Frankfurt Book Fair was spent in meetings of other publishing associations, so I didn’t spend much time on the floor of Hall 8, the main exhibition hall for U.S., Canadian, U.K. and Israeli publishers, and my impressions of the mood and pace of the rights business being transacted this year are frankly impressionistic and spotty. Certainly the nose dive in the markets was on everyone’s mind. Some thought business was slower, while others seemed to think it was more-or-less business as usual, with one Director telling me his biggest problem was that he couldn’t compete for the good stuff. He had just lost a book to a commercial publisher who had offered five times what he was willing to pay. That there’s too much cash chasing hot books is a perennial complaint, and not just at Frankfurt, but it doesn’t appear to have dried up. At least not yet.
On open access, one interesting new development was the decision by the European Commission to fund OAPEN (Open Access Publishing in European Networks) for a 30-month pilot project to the tune of €900,000, announced one week before the Fair. OAPEN is a coalition of six European university presses, spearheaded by Amsterdam University Press, seeking to “achieve a sustainable European approach to improve the quantity, visibility and usability of high-quality OA content and foster the creation of new content by developing future-oriented publishing solutions, including an online library dedicated to HSS [Humanities and Social Sciences], and new business models.” OAPEN is looking for additional participants, and Eelco Verwerda of AUP, the main contact for OAPEN, was at the Fair to discuss the project with potential partners. OAPEN’s current membership does include an English-language publisher, Manchester University Press; if you’re interested in finding out more, you can go to their website at http://www.oapen.org/, or contact Eelco at e.ferwerda@aup.nl.
Since the vast majority of publishing still depends on the market for recovery of publishing costs, protecting copyright was a major item on the agenda at meetings of the publishing associations. A number of the specific issues had to do with the European version of issues also before Congress, such as how best to provide copyrighted materials in the appropriate formats for people with print and other disabilities. Others focused on the problems of developing nations: how to encourage the development of a local publishing industry and respect for both copyright and freedom of expression, for example.
There were also pubic sessions sponsored by the International Publishers Association on new opportunities, like a well-attended session on Web 2.0, and on new threats, like a panel discussion on online book piracy. In the latter, a representative of the Swedish Publishers Association gave a chilling presentation about Pirate Bay, a P2P file-sharing network based in Sweden. Billing itself as the largest file-sharing network in the world, Pirate Bay uses BitTorrent technology and offers unlimited downloads of movies, music, TV programs, sports events and, increasingly, books - all of it free, and none of it authorized.
Pirate Bay started with a free-spirited, Robin Hood ethos, liberating content from the shackles of capitalism for the benefit of the people, but it has become a capitalist enterprise it its own right, with advertising being handled by an agency in Tel Aviv and the money, €2 million last year, flowing into a bank in the Cayman Islands. What is unique about Pirate Bay, and uniquely discouraging, is that despite being blatantly illegal under Sweden’s own laws, it has such popular support there that it operates quite openly and two successive Swedish Prime Ministers have declared it politically untouchable.
Are any of your books available on this site? I’m not going to give the URL here, but it’s a snap to find: just head to your favorite search engine and look up Pirate Bay. Before you look, though, check with your IT staff about protecting your computer against malware. Ads aren’t the only way pirate sites make money.
U.S. Representatives Conyers, Issa, and Feeny introduced the Fair Copyright in Research Works Act, HR 6845, on September 9, 2008. AAUP sent a letter in support of the bill to its sponsors and the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property. The letter defined the bill’s purpose as follows:
On October 28, 2008, the Association of American Publishers (AAP), the Authors Guild (AG), and Google announced a settlement resolving the lawsuits filed by publishers and authors in 2005. If approved, the agreement may expand online access to in-copyright books and other written materials digitized from U.S. library collections participating in Google Book Search, while recognizing and recompensing copyright holders.
The terms of the settlement require Google to make payments totaling $125 million. These payments will be used to establish the Book Rights Registry, to resolve existing claims by authors and publishers, and to cover legal fees. The terms of the agreement would improve access to out-of print books, implement additional ways to purchase copyrighted books, create institutional subscriptions to the digitized collections, and offer free access from designated computers at public and university libraries.
The settlement is subject to approval by the U.S. District Court for the Southern District of New York. Approval will be decided after May 5, 2009, the deadline set for filing objections to the settlement terms.
AAUP’s lawyer, Linda Steinman, has written a memo for members explaining the basic terms of the settlement in the publishers’ and Authors Guild’s suits against Google. It is now posted on the members only section of the website and can be accessed here: http://aaupnet.org/members/alerts/settlementmemo103108.pdf
You can request your members only login information here:
http://aaupnet.org/pwrequest.html
The Author’s Guild has compiled a listing of information and resources regarding the settlement:
http://www.authorsguild.org/advocacy/articles/settlement-resources.html
Covered in Publisher’s Weekly:
http://www.publishersweekly.com/article/CA6609089.html
Reactions to the settlement in the Library Journal:
http://www.libraryjournal.com/article/CA6610115.html?
nid=2673&rid=reg_visitor_id&source=title
Recommendations of the Section 108 Study Group
Peter Givler
Executive Director, Association of American University Presses
The full Report of the Section 108 Study Group has been released and is now available at http://www.section108.gov/. Introduced in 1976, Section 108 of the U.S. Copyright Act specifies what are known as “the library exemptions,” the conditions under and purposes for which qualifying libraries and archives can make copies of copyrighted works without infringing. These library exemptions were framed in terms of the analogue technologies of reproduction then common. Though there have been several modifications to the Section since then, none have addressed the new capabilities, and challenges, of digital technologies.
To address these issues, the National Digital Information Infrastructure Program (NDIIP) of the Library of Congress convened the Section 108 Study Group. I was a member of this Study Group, which met fifteen times between April 2005 and January 2008. The group’s charge was to recommend to the Librarian of Congress possible alterations to the law that would accommodate new technologies.
Seeking to ensure that the group’s recommendations would reflect the balance required by the national interest between the concerns of libraries and archives on the one hand and rights holders on the other, the nineteen members were drawn from a variety of institutions and enterprises: public, university, and national libraries and archives; museums; commercial and nonprofit publishers; the film, music, and television industries; and photography.
Our report represents a consensus reached among nineteen people with overlapping but never identical interests after nearly three years of discussion and debate. It specifies where we were able to agree and make recommendations, although sometimes those recommendations are made with the stipulation that agreement is contingent on certain underlying conditions being met, or problems resolved. It also specifies where we could not agree and were not able to make a recommendation, and why.
The report now goes to the Librarian of Congress, James Billington, and from him to the senior U.S. official concerned with copyright law and its administration, the Register of Copyrights, MaryBeth Peters. She will decide how to implement the recommendations and begin the process of translating them into law through an amendment to the Copyright Act. That process will require its own round of public comment, discussion, and debate.
Section 108 currently says that a library or archive that is open to the public or to qualified researchers, is making copies “without any purpose of direct or indirect commercial advantage,” and affixes a notice that the copy is being made under the provisions of this section, can copy:
• an unpublished work for preservation or for deposit in another library,
• a published work to replace a damaged or stolen copy if an unused replacement copy can’t be acquired,
• a portion of a work for a user, including a user at another requesting library,
• and an entire work for a user, including users at other requesting libraries, if the library has determined that a copy can’t be obtained at a “fair price.”
Since the current Section 108 is one of the most confusingly organized and least transparent sections of the Copyright Act, the Study Group recommends that this section of the statute be reorganized using these more logical categories: eligibility, preservation and replacement, copies for users, and miscellaneous provisions. The Study Group’s recommendations are described below, but please note that these are abbreviated statements. For a full statement of the recommendations, please refer to the report itself.
Among the recommended revisions to 108 in the Eligibility category, the group suggested that:
• museums be granted the protections afforded to libraries and archives;
• functional requirements, such as a public service mission and trained library or archives staff, be used to determine the status of a “library” or “archive,” to help define qualifying institutions in an age when the Internet has blurred these definitions;
• and libraries and archives be allowed to outsource certain tasks permitted by Section 108, if the expertise or equipment required lies beyond the resources of libraries, archives, and their employees.
Recommended exceptions for Preservation and Replacement include permitting the creation of a limited number of copies of any at-risk materials, whether published or unpublished. The current exemption for unique unpublished works such as letters, diaries, manuscripts, and the like, for which the loss of the original is the loss of the work, is similar to today’s increasing number of “born digital” published works, which do not exhibit warning signs of deterioration before they become inaccessible and are technically at risk of loss from the moment they are acquired. The group recommends exceptions for the preservation of publicly disseminated works and of publicly disseminated online content. Rights holders would be able to opt-out of having their works preserved in this way. In addition, the group recommended “that criteria be established to determine eligibility for this exception,” and that these criteria would be based upon an institution’s technological suitability to carrying out the preservation and maintaining the integrity of the resulting digital files.
Section 108 permits libraries and archives to make single copies for users, both directly and through interlibrary loan, under certain conditions. Currently, delivery of electronic copies to users is permitted only within the library or archive’s physical premises. Amendments proposed under the Copies for Users Exceptions heading would address the question of whether to lift this restriction to permit the delivery of electronic copies to users off-premises. This was one of the most complicated and difficult questions the Study Group faced, due to the conflicting interests of libraries and archives to provide services to patrons via the internet as weighed against rights-holders’ concerns about the potential for unauthorized and unregulated distribution. The group recommend that “the single-copy restriction on copying … should be replaced with a flexible standard more appropriate to the nature of digital materials,” adding that digital copies must carry adequate protections against unauthorized use.
Section 108 permits libraries and archives to copy television news programs off the air and lend the copies to users, but at present there are no guidelines as to whether this exception permits them to provide access by means other than the lending of physical copies. The group recommended an amendment that would permit electronic distribution of view-only copies of television news programs, provided that a reasonable amount of time has passed since the original broadcast and that the material was not made available for download.
As has already been mentioned, the Study Group has recommended reorganizing Section 108’s provisions to make them more easily understood. Other recommendations for the Miscellaneous Issues category include an exception from liability for a patron’s use of reproducing equipment such as handheld scanners or cameras, providing that the library or archive posts a visible notice that such copies are subject to copyright law.
The group also discussed a variety of other issues. On some of them the group decided changes to the law might be necessary and came to certain conclusions, but made no recommendation. On others, the group was either unable to reach a consensus, or agreed that no legislative action was appropriate at this time.
It should certainly come as no surprise that the road to reconciling the interests of rights holders and libraries has its share of potholes and speedbumps, and even a few dead ends. What is much more important, I think, is that with patience and persistence the road does go through. It took us almost three years to get here, but in the end this group of nineteen people with very diverse interests did agree upon several significant enhancements to the library and archives privileges under Section 108.
The Faculty of Arts and Sciences (FAS) at Harvard has adopted a policy under which each FAS member grants Harvard “permission to make available his or her scholarly articles and to exercise the copyright in those articles.” Harvard would exercise this grant of permission by depositing the articles in an open access repository, and would license use of articles in the repository to other
entities, including commercial ones, for use in, for example, coursepacks. Articles in the repository could be sold, by Harvard or its licensees, provided that they were not sold “for a profit.” Harvard would also apparently have the right to prepare or license the preparation of derivative works.
Under the policy we understand that Harvard FAS members who receive publishing contracts for articles they have written are now required to submit to the publisher an addendum for signature. The first provision in the addendum (which we received from a commercial journals publisher, who had in turn received it from a Harvard author whose article they wished to publish) says:
All of the terms and conditions of the Publication Agreement, including but not limited to all grants, agreements, representations and warranties, are subject to and qualified by a non-exclusive license previously granted by Author to Harvard University. Under that license, Harvard may make the Article available and may exercise all rights under copyright relating to the Article, and may authorize others to do the same, provided that the Article is not sold for a profit.
Books are excluded from the policy, as are articles written before the adoption of the policy, or for which the faculty member entered into a publishing agreement before the policy was adopted. Faculty members may also request that the policy be waived for particular articles.
Omnibus spending bill H.R. 2764, which includes a passage requiring that research funded by the National Institutes of Health be made available on an open-access basis, has been signed into law. The legislation mandates that “peer-reviewed manuscripts upon acceptance for publication [are] to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.” The manuscripts will then be posted electronically on the National Library of Medicine’s PubMed Central.
The NIH policy has been previously covered in the Fall 2004 issue of the Exchange, available as a pdf: http://aaupnet.org/programs/publications/exchange/2004_fall.pdf
Resources relating to Open Access, including AAUP’s statement on OA, can be found at http://aaupnet.org/aboutup/issues/oa/index.html
The Washington Post’s coverage of the signing can be seen here.
Discussions of the concept of open access to scholarly information are increasingly marked by highly charged rhetoric and an unfortunate polarization of opinion. In late February 2007, AAUP released a statement outlining the association’s perspective on what has become known as open access, in hopes of steering the debate towards productive solutions that will best serve the entire scholarly community.
The statement sparked a number of active, thoughtful conversations online after it was released, often in response to articles about AAUP’s stance in such media as the Chronicle of Higher Education, Inside Higher Ed, ACRLog, and the If:book blog.
Read the complete AAUP Statement on Open Access.
by Sanford G. Thatcher The
Director, Penn State University Press
Andrew W. Mellon Foundation has consistently been the only foundation
that for decades has taken a keen interest in the evolution of the
system of scholarly communication. Some credit for encouraging that
interest is owed to my mentor in publishing, Herbert S. Bailey Jr., who
was director of Princeton University Press for over thirty years
(1954-1986). During the tenure of William G. Bowen as Princeton’s
President (1972-1988), who in that capacity was an ex officio member of
the Press’s Board of Trustees, Bailey engaged Bowen in an ongoing
dialogue about the challenges facing university presses, which were
heralded in a series of articles in Scholarly Publishing beginning with
an essay co-authored by Bailey with then AAUP Executive Director John
Putnam in April 1972 titled “The Impending Crisis in University
Publishing.”
The dialogue continued even after
Bailey retired and Bowen became President of the Mellon Foundation in
1988. One result of those discussions was the landmark study prepared
by Bailey for the AAUP titled “The Rate of Publication of Scholarly
Monographs in the Humanities and Social Sciences, 1978-1988” (1990).
During Bowen’s long tenure at Mellon, just concluded when he stepped
down in June of this year, the Foundation sponsored many other major
studies, including Technology and Scholarly Communication (California,
1999), and laid the groundwork for the development of such major
initiatives as Project Muse, JSTOR, ARTstor, and Portico.
Two new Mellon-funded studies that should be of great interest to
university presses appeared during the summer of 2006. The first,
issued in late July, was “The State of Scholarly Publishing in the
History of Art and Architecture.” [Update: The report has now been
published online by Rice University Press under the title “Art History and its Publications in the Electronic Age.“] A good overview of this report appeared in the Chronicle of Higher Education at the time of its release: http://chronicle.com/free/v52/i48/48a01201.htm.
The study, begun in September 1995, had as its goal a better
“understanding [of] the challenges faced by both scholars and
publishers working in this area.” The principal investigators were
Hilary Ballon of Columbia’s Department of Art History and Archaeology
and Mariët Westermann of NYU’s Institute of Fine Arts, with research
support provided by Lawrence McGill of Princeton’s Center for
Arts and Cultural Policy Studies and Kate Wittenberg of Columbia’s
Electronic Publishing Initiative (EPIC). To their credit, the project
leaders sought information and advice from a wide swath of journal
editors, librarians, museum directors, publishers, and scholars. The
final summit meeting in early March 2006 included, from university
presses, Douglas Armato, Susan Bielstein, Paula Duffy, Sam Elworthy,
Patricia Fidler, Michael Jensen, Frank Smith, Lynne Withey, and myself.
The second study, released in August, was a
white paper written by a team led by William McGeveran and William W.
Fisher under the auspices of the Berkman Center for Internet and
Society at Harvard University with the title “The Digital Learning
Challenge: Obstacles to Educational Uses of Copyrighted Material in the
Digital Age”: http://cyber.law.harvard.edu/media/files/copyrightandeducation.html.
This resulted from a year-long investigation intended to “explore
whether innovative educational uses of digital technology were hampered
by the restrictions of copyright.” Not surprisingly, given the
“copyleft” agenda that the Berkman Center typically pursues, the
authors “found that provisions of copyright law concerning the
educational use of copyrighted material, as well as the business and
institutional structures shaped by that law, are among the most
important obstacles to realizing the potential of digital technology in
education.”
Unlike the authors of the report on
art history, however, the Berkman Center authors, while claiming to
draw on the advice of “experts in the field,” neglected to include any
publishers among those consulted even though their conclusions and
recommendations rested on assumptions about how our industry functions.
It is hardly the first time that university presses have been ignored
as sources of advice when such reports are undertaken. Another recent
instance was the ACLS Cyberinfrastructure report (see article in this
issue). But it belies the good intentions of such an effort, which in
its final section recognizes the need for wide collaboration to solve
the problems identified, when a sector like ours vital to any solution
is omitted from the discussion at the outset. And an invitation to the
authors of the Berkman Center report to engage in dialogue with the
AAUP has so far gone unanswered.
Both of these
reports contain good food for thought, and they are to be congratulated
for acknowledging the complexity of the problems and challenges facing
higher education in the arenas they take as their subjects for investigation. Copyright issues lie at the center of
both reports.
For art history, the difficulties and costs of obtaining permissions
for the use of images have always been impediments to successful
publishing in the field. The problems are well analyzed in Susan
Bielstein’s new book, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property (Chicago,
2006). Among the most contentious issues has been the copyright status
of photographs that are noninterpretive reproductions of works of art
that are themselves in the public domain. Museums and other providers
of images long assumed that such photographs qualified for full
copyright protection as independent creations, but a federal district
court judge ruled in the case of Bridgeman v. Corel in 1998 that this
kind of photograph lacked sufficient creativity to ground a claim of
copyright—precisely because, to be successful in portraying the works
of art faithfully, they could not be interpretive works of art
themselves!
Outside of law reviews and books
like Bielstein’s, this new report contains one of the best discussions
of this controversial but crucially important case currently available.
Although this decision offered some relief to beleaguered scholars and
their publishers, the report recognizes that copyright issues become
even more complex for electronic publications, but makes
recommendations nevertheless for joint action by image-owners and
image-users to alleviate the problems while touting the advantages of
the digital environment for the healthy advance of the field.
For its part, the Berkman Center report lays out in an exceptionally
well-organized manner, complete with succinct descriptions and useful
links to other resources, the host of copyright issues that, in its
view, constitute “impediments” to the full realization of the benefits
of digital technology in higher education. The major “obstacles” it
identifies are of four types: “unclear or inadequate copyright law
relating to crucial provisions such as fair use and educational use;
extensive adoption of ‘digital rights management’ technology to lock up
content; practical difficulties obtaining rights to use content when
licenses are necessary; undue caution by gatekeepers such as publishers
or educational administrators.” Among the “paths toward reform” that it
supports in the final section, the report encourages the greater use of
“open access” and Creative Commons licenses—without, however, showing
any awareness of the potential costs in shifting to a model of full
open- access publishing or of the shortcomings of the Creative Commons
license (which relies on a crucially vague distinction between
“commercial” and “noncommercial” use). For all its biases and
weaknesses, however, the report still merits careful reading by staff
at university presses as it well represents widespread sentiments among
our administrator, faculty, and library colleagues.