COPYCENSE

The Coming Copyright Clash in Higher Education

Higher education finds itself in the crosshairs of American society, and the primary focus is on the debt graduates are incurring in exchange for a college degree. There was once a time where this inspection and scrutiny was reserved for the “other” part of higher education: for-profit colleges like Strayer, Kaplan and the University of Phoenix. Those days are over. Now everyone – citizens, elected officials, and the press – are questioning the intents and missions of “reputable,” non-profit institutions, including questioning why they are authorizing salaries of $1 million or more for their presidents and chancellors.

The issue is so compelling that The Gray Lady, the venerable New York Times, has launched a new online series called “Degrees of Debt,” which purportedly examines “how college presidents are recognizing that they must handle education costs through methods other than tuition increases.”

There are a lot of things that go into calculating college tuition. Buildings must be built and maintained, lights need to come on, and professors need to be paid. In fairness, many colleges routinely offer various financial aid packages they hope will make attendance financially accessible. But the discounts can go only so far: for the most part, college is a “cash and carry” proposition. Therefore, tuition often is the main – sometimes the sole – source of a college’s income. Most schools pay all their costs from that sole stream of tuition income.

One other significant cost colleges and universities incur is the cost of scholarly publication. This cost manifests itself most notably through electronic resources that represent the publication and codification of knowledge.

The Cost of Scholarly Publication

The scholarly publication business process begins with a system – fully supported by higher education institutions – that demands “high impact” publication as a condition of achieving the holy grail of academic tenure. “High impact” does not mean acclaim, or status, or even a mention in The Gray Lady (although, increasingly, that helps). Instead, it means that the academic work must be published in a very specific, narrow set of journals. These titles vary by discipline, but everyone in the discipline can identify them.

Let’s be clear: this is a model colleges and universities impose upon themselves. By now, there are many blog posts that are as empirically rigorous as published journal articles; therefore, journals no longer have a monopoly on academic rigor. Further, scholarship, regardless the rigor level, often has little to do with effective teaching – and the quality of the teaching is a reason colleges and university use to justify high tuition prices. But blog posts and teaching are not the route to tenure. Publication, in specific journals that some influentials consider “high impact,” is the route to tenure.

Many of these “high impact” journals, once independent, have been absorbed into larger, multinational, publicly-held corporations. In that absorption, these journals’ primary purpose underwent an important evolution. Instead of knowledge dissemination, profit became the journals’ primary purpose. These profit pressures have led to a steady increase in subscription rates over the past three decades. In some cases, the subscription increases have been so steep that institutions, through their libraries, have chosen to cancel the subscriptions.

The act of cancellation is anathema to higher education, since institutions long have prided themselves on having access to and preserving the entire scholarly record. Not some of it – not just in subjects or specialties of certain professors or colleges – all of it. Yet in April 2012, a faculty advisory council to the Harvard University Library, one of the biggest and most well-funded academic library systems in the world, concluded “major periodical subscriptions, especially to electronic journals published by historically key providers, cannot be sustained: continuing these subscriptions on their current footing is financially untenable. Doing so would seriously erode collection efforts in many other areas, already compromised.”

Work Made for Hire in Higher Education

Here is the dirty little secret no one in higher education wants to acknowledge: the entire system of scholarly publication exists because colleges and universities fail to exercise the work made for hire doctrine. Under U.S. copyright law, the work made for hire doctrine essentially says that where an employee prepares a work within the scope of his or her employment, the employer – not the employee – will own the copyright in that work. Under this conceptual definition, there is no reason why colleges and universities should not universally own the copyright rights in a professor’s research and scholarship. That many do not simply is a matter of choice, as codified through institutional policy.

Therefore, most American professors end up owning the copyright rights to their research and writings, and this category customarily has been defined broadly enough so that it excludes only works that a faculty member prepares in an administrative capacity (such as committee work product). Here is where things get tricky, though. The faculty member, who has the copyright and wants tenure, must publish in certain “high impact” journals. When he publishes in “high impact” journals, he gives away that copyright as a condition of publication. When he gives away that copyright as a condition of publication, the journal publisher owns the article. When the journal publisher owns the article, it now owns the exclusive in that article. When the publisher owns the exclusive in the article, it names whatever price it wants for subscribers to access that article.

Increasingly, institutions are saying “Don’t pay whatever price a journal wants for access to an article.” At the same time, though, the institutions have changed nothing in their tenure criteria so that scholarship outside of “high impact” journals and teaching count as much toward a favorable tenure recommendation as publication in a “high impact” journal.

This, to put it mildly, puts college administrators in a pickle.

The Policy Change

The faculty advisory council at Harvard recommended researchers and faculty “move [scholarly] prestige to open access” as a way to avoid paying “whatever price a journal wants for access to an article.” That recommendation, though, underestimates the vast economic and labor costs associated with building and maintaining a current scholarly record, as well as the costs associated with backfilling the historic academic record. Perhaps Harvard can do this, but most universities do not have Harvard’s resources. The recommendation also ignores reengineering the tenure system, which is, ultimately, the root of this conundrum.

Colleges and universities, however, have a major trump card to play: they can reverse their longstanding custom against claiming work made for hire status. Instead, they could claim copyright ownership in scholarship as a way to avoid the scholarly publications crisis, and at once, justify this policy change as a way to cut the costs of education. University professors surely would scream bloody murder. This group, though, has been virtually silent concerning recent copyright battles, and professors are not a particularly sympathetic bunch these days. (Few in the media, for example, would sympathize with professors maintaining copyright in their work when reporters routinely cede copyright in their work to their own employers.) While changing institutional policy is not without peril, the peril is of the sort many institutions can manage because it is tied to a paycheck. By imposing work made for hire rules, employing colleges would merely substitute for the publishers, and take steps to avoid having to buy back their own employees’ work product.

Reversing the policy on work for hire in higher education is a draconian step. Given the economics and optics of the current crisis in higher education, however, it is increasingly likely to happen.

Note: Portions of this article were published previously as Dames, K. M. (2012, July-August). The coming copyright clash in higher education. Information Today, 29(7), 24-25.

Written by Dr. K Matthew Dames

11/01/2012 at 10:00

HathiTrust Decision Summary

In September 2011, the Authors Guild, various international authors’ rights organizations and one dozen individual authors sued HathiTrust, Cornell, and the presidents of the universities of Michigan, California, Wisconsin and Indiana, claiming that HathiTrust’s online storage, searchability and public availability of a digital corpus developed as part of the Google Books scanning project constituted copyright infringement. More than three-quarters of the books that Google scanned as part of the Books project remain subject to copyright protection.

In June 2011, Michigan announced it would share with the public “orphan works” — works to presumed to be subject to copyright protection, but for whom a copyright owner cannot be found.

On October 10, 2012, Judge Harold Baer issued a 23-page decision that held, among other things, that HathiTrust’s activities are consistent with the fair use provisions of the Copyright Act of 1976.

The remainder of this post summarizes the key holdings from the decision.
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Written by Dr. K Matthew Dames

10/11/2012 at 14:24

Information Policy and The Red Herring of a Media-Tech Industry War

In an article published earlier this year, University of Wisconsin-Milwaukee professor Sandra Braman defined “information policy” as positions and practices that concern the creation, processing, flows, access and use of information. The term certainly includes content, much of which is subject to protection under this nation’s Copyright Act, and the telecommunication pipes through which that content travels. Given this definition, it easy to see how businesses regulated by copyright and telecommunications law enjoy a synergistic relationship.

The Internet’s public availability in the early 1990s did not fundamentally alter this information policy landscape. But the Internet, along with simultaneous developments like unprecedented personal computing power, did make it possible for non-traditional actors to create, send, access and process significantly more copyright-protected information through increasingly faster telecommunication pipes. The rise of this non-traditional class also has spawned new businesses like Google (including its YouTube subsidiary), Facebook and Amazon.com, while encouraging or forcing traditional actors to evolve into new businesses (such as Comcast, a telecom company, buying NBC-Universal in a merger that was completed earlier this year).

Despite the historical and continuing synergy between copyright and telecom, there has been a recent, aggressive line of thought that argues these non-traditional entrants into the information policy landscape have grown powerful by free riding on the works of large corporate copyright owners. This argument arose during last month’s Governance of Social Media workshop at Georgetown, which Michigan State University’s Quello Center helped sponsor. The argument also manifests itself in Robert Levine’s new book, Free Ride: How Digital Parasites Are Destroying The Culture Business, and How The Culture Business Can Fight Back (2011, Doubleday).

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Written by Dr. K Matthew Dames

07/01/2012 at 09:36

Occupy Copyright

“I’m as mad as hell and I’m not going to take this anymore!’ Things have got to change. But first, you’ve gotta get mad!” — Howard Beale, Network (1976)

2011 will be known as the year of the occupation, with Occupy Wall Street being the most recognizable of the protest movements. Started in September in New York City, Occupy Wall Street is a series of ongoing, international demonstrations that protest economic inequality, corruption, and the undue influence of corporations on society and government.

But what about “occupying” copyright?

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Written by Dr. K Matthew Dames

06/01/2012 at 09:00

Decision Summary: Publishers v. Georgia State University

This article discusses the impact of a the recent federal district court decision [pdf] that, for the first time, provides colleges and university with some guidance on the use of copyrighted works for instructional purposes.

Case Summary

In April 2008, Cambridge University Press, Sage Publications and Oxford University Press sued officials at Georgia State University (“GSU”), claiming they were responsible for copyright infringement. The publishers’ complaint arose from Georgia State’s practice of allowing faculty to use university networks and university library E-reserves systems to copy and distribute book excerpts to students without paying licensing fees.

Officials for GSU, a public university, claimed that the creation and use of the unlicensed copies were allowable pursuant to the fair use doctrine, and therefore not copyright infringement. The officials also responded that the sovereign immunity doctrine precluded GSU or its officials from copyright infringement liability.

Judge Orinda D. Evans ruled May 11, 2012, that GSU professors had committed five copyright infringements from four of the publishers’ titles. The publishers had alleged 75 copyright infringement claims. The publishers will file within 20 days their proposed injunction.

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HathiTrust: Section 108 & Fair Use Are Not Mutually Exclusive

Librarians who pay attention to copyright long have believed (and have been taught) that the the law’s fair use and library preservation provisions work cooperatively (if not simultaneously) to allow libraries and archives the opportunity to use limited portions of protected works without requiring the owner’s permission, and without having to pay a license fee to the owner. In the case of Section 108, the provision allows libraries and archives to reproduce and distribute all of a protected work under specific circumstances in the event the library or archive qualifies for such protection.

The theory behind the librarians’ belief is that the fair use provisions in Section 107 act as a backstop to all the Act’s other limitations, including those under Section 108. I long have considered fair use to be the “all-you-can-eat” limitation – one that is available to libraries (or to any other member of the public) even when they cannot fulfill specific requirements Section 108 demands. (Let’s defer, for a moment, the argument about whether fair use is best classified as a privilege, a limitation, a right, or an affirmative defense.)

As law professor James Grimmelman observes, fair use is a standard that is broadly and vaguely phrased, inherently case-specific, and requires judicial elaboration and interpretation. In contrast, the library preservation allowances under Section 108 are rules that are narrowly and tightly phrased, able for librarians to apply mechanically without judicial intervention. I always have taught, in countless workshops and classes, that Section 107 and Section 108 coexist synergistically, and should be deployed in a very specific way: try to qualify for Section 108 first, and if you cannot qualify for Section 108, then use fair use as your safety net.

Now the Authors Guild is openly disputing librarians’ beliefs and interpretations.

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Written by Dr. K Matthew Dames

03/05/2012 at 14:48

Copycense Weekly Review (through Dec. 24, 2011)

Copycense social media posts on copyright, communications, intellectual property and the media industries from December 18 through December 24, 2011.

  • “Go Daddy No Longer Supports SOPA” is.gd/IwPRNN #copyright
  • Why does Bill Patry’s old book (2009) is.gd/de7EJ8 cost more than his new book (2011) is.gd/W1frTG on the Kindle?
  • Paper: Orphan Works: Definitional Issues is.gd/cUNbwO #copyright
  • Singer Cesaria Evora died last Saturday. She was 70. #music m.guardian.co.uk/music/2011/dec…
  • Cornell, Technion (Israel) win NYC science campus bid is.gd/PuYLfE
  • Wolverine uploader: 1 year federal prison; “strong message of deterrence to pirates” is.gd/N1VzAz #copyright
  • The Economist explores progeny, history of seminal “Amen, Brother” break beat is.gd/TFZL2i #music /HT @wayneandwax
  • RE bit.ly/rWu2tm Veoh wins #DMCA battle, still dead as a door nail is.gd/Va1jH5 #copyright
  • Hollywood exec: “Our mistake was allowing this romantic word — piracy — to take hold” is.gd/0EQmRw #copyright
  • USA: Federal appeals court affirms #DMCA safe harbor protection in UMG v. Veoh is.gd/ONY5zb [pdf] #copyright
  • Judge in YMCA #copyright termination lawsuit allows Songwriters Guild amici briefs is.gd/IxVzal
  • Adobe’s no-choice embrace of HTML5 is.gd/fxwYGC #media #Web
  • How the “jobs” frame failed to work magic in the AT&T/T-Mobile deal is.gd/9rlD7K #mobile
  • Framing T-Mobile/AT&T: Low prices, choice & consumer benefit = harm to stock prices? is.gd/EQM4Jg /HT @artbrodsky
  • RT @copyrightclear: Open-Textbook Idea Is Gaining Steam ow.ly/85p3a
  • Harry Potter U.S. publisher releases YA time travel series with gaming tie-in is.gd/dv6piF
  • USA: Intl Trade Commission rules Android smartphone features protected by Apple #patent is.gd/VQ0vU8 #mobile
  • AT&T Ends $39 Billion Bid for T-Mobile is.gd/tttnTn #mobile
  • Lemley, Levine, Post: Don’t Break the Internet is.gd/URfRDR #SOPA #copyright
  • RT @LawandLit: Who gets custody of Twitter when an employee quits? j.mp/uMIBj3
  • Artist without registered Nielsen SoundScan sale gets Grammy nomination is.gd/yDjmRy #music
  • Microsoft: We Can Remotely Delete Windows 8 Apps is.gd/53B6cL
  • Research Note: #Copyright Infringement & Enforcement in the US: is.gd/KlpgbT [pdf]
  • “[W]hen Napster blew a hole in the paradigm, everybody was sacrificed but the top guy” is.gd/yTJUmo #copyright #music

Written by Copycense Editorial

12/24/2011 at 17:00

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