Open Access News

Andrea Foster, Despite Skeptics, Publishers Tout New 'Fair Use' Agreements With Universities, Chronicle of Higher Education, January 17, 2008 (accessible only to subscribers).  Excerpt:

The battle line between publishers and colleges, who have been fighting over campus access to digital versions of books and journals, shifted slightly in favor of the publishers on Wednesday.

The Association of American Publishers announced it had reached an agreement with Hofstra, Marquette, and Syracuse Universities to limit distribution of electronic content for students. The policies may be too vague, however, to actually help professors and librarians figure out what they can rightfully access. And one of the universities said the agreement was made under duress.

Each university, urged by the publishers, has produced guidelines governing electronic reserves, a system that libraries and professors use to make portions of books and journals available free online to students. The documents broadly state that the colleges will respect copyright law, will consider four factors in deciding whether to distribute course material, and will not assume that material elsewhere on the Internet can be redistributed without publishers' approval....

Most colleges agree that material placed on electronic reserves, or e-reserves, should be password protected and available only to students. But some college lawyers say that providing the material to students is allowed under fair use and that their institutions don't need publishers' prior approval.

Further, many colleges complain that publishers are making unreasonable demands with respect to e-reserves, said Prudence S. Adler, associate executive director of the Association of Research Libraries. Some publishers have asked colleges to pay for e-reserve content, even though the colleges have license agreements that already allow them to use the material in digital format, she added....

The publishing group cast [the three new agreements] as the outcome of cordial discussions between its representatives and college officials. But the group's news statement was not issued jointly with the universities. And an official from one of the colleges, who asked for anonymity, said his institution had drafted its e-reserve document after the publishing group threatened to sue the university for failing to restrict the availability of some works through a password-protection system....

Georgia Harper, a copyright expert who is the scholarly communications adviser for the University of Texas at Austin libraries, is skeptical that the guidelines from the three universities will clear up much confusion about how to use electronic content.

"I find the some of the statements to be ambiguous and unhelpful," she said in an e-mail message, noting that the documents include the word "may."

Comments

• I worry that publishers are forcing universities to err on the side of non-use when interpreting the vague and flexible guidelines for fair use.  Universities, more than most institutions, should be pushing the envelope instead.  I worry that publishers are extorting agreements with threats of litigation.  In the absence of these threats, publishers have no bargaining power to demand capitulation to their one-sided reading of the law.
• When I first read Foster's article, I also worried that the universities had agreed not to "assume that material elsewhere on the Internet can be redistributed without publishers' approval."  Did Hofstra, Marquette, and Syracuse just agree to block local redistribution of OA content?  I turned to the Syracuse agreement for clarification.  Here's what it says on this point:  "Permission may also be required for the use of copyrighted material as electronic course content even when such material is...available elsewhere on the internet...."  That's true as far as it goes.  All that's missing is equal emphasis on the converse:  Permission may not be required for the use of copyrighted material as electronic course content (e.g. when the use is covered by fair use or when the copyright holder has already given blanket consent through a CC license or the equivalent).
• The Marquette agreement is identical to the Syracuse agreement on this point, but the Hofstra agreement adds the following:  "When available, it is preferable to link to materials already legally available at another side rather than scan or make a digital copy of the materials."  This is out of place if the document is really about the law rather than user convenience or carbon footprint.  If making a copy is permissible, then it's permissible and there's no reason for universities to tie their own hands, especially when they need local copies as classroom hand-outs.   Sometimes copying is permitted as fair use even when the copyright holder wished it were not, and sometimes the copyright holder has deliberately removed permission barriers in order to facilitate copying and redistribution. 
• The general approach of the three agreements is (1) to minimize rather than maximize fair use, (2) to assume that all copyrighted works stand under all-rights-reserved copyrights rather than some-rights-reserved licenses, and therefore (3) to serve conventional or toll-access publishers and disserve students, teachers, librarians, universities, and open-access publishers.
• The good news?  The AAP now acknowledges that fair use applies to online content --hence, the need to limit it.  As recently as May 2007, it took the indefensible position (jointly with ALPSP and STM) that "there are exceptions and limitations to copyright laws that may in certain limited circumstances permit the copying of journal articles for certain purposes, but...these exceptions are thus far limited to traditional photocopying and do not permit the exploitation of such materials over the Internet."

Update. Also see the story in Library Journal Academic Newswire for January 22, 2008.