Publishers and librarians still don’t understand or trust each other—even though they share a mission to deliver scholarly content. Whatever happens in a closely watched court battle over fair use, it has made the persistent divisions between the two groups more evident than ever.
What we’re seeing in this lawsuit, between Georgia State University and a trio of prominent academic publishers, is part of a much bigger struggle over how scholarly communication will evolve in a digital world. I spoke with a representative of a publishing group—publishers have kept a low profile until now—and a lawyer-librarian about their disagreements and frustrations.
There’s been a lot of talk about—and some action on—promoting library-publisher collaborations. But the struggle persists. It’s taking place in many theaters of operation across academe: in negotiations over licensing agreements that control access to scholarly content; in the rise of library-based and grass-roots scholarly publishing that might compete with what traditional publishers offer; in the spreading open-access movement. Don’t expect a peace treaty any time soon, no matter what happens in Georgia.
The details of the Georgia State case have been covered extensively in The Chronicle and other media outlets, so I won’t rehash them here. (Our round-table discussion explored what’s at stake.) The basics: In 2008, Cambridge University Press, Oxford University Press, and SAGE Publications sued officials of Georgia State over the use of copyrighted material in course e-reserves and on university Web sites. Arguments in the trial phase of the case concluded in federal court in Atlanta early this month. A ruling is expected no sooner than mid-July, perhaps later.
The plaintiffs and the publishing community have mostly stayed quiet, which has frustrated observers who don’t want to write them off as greedy enemies of scholarship. (The defendants have also declined to comment publicly.) Most of the commentary has been driven by a cluster of outspoken copyright-reform and fair-use advocates, including Kevin Smith, director of scholarly communications at Duke University. I wanted to hear from someone close to the publishers’ side. I spoke with Tom Allen, president of the Association of American Publishers, which is covering about half of the plaintiffs’ legal costs.
Mr. Allen didn’t want to comment on the specifics of the case, since the judge hasn’t issued a ruling yet. But he was eager to talk about what he considers wrong-headed ideas about the motives of the plaintiffs—and of educational publishers in general.
“We are more than a little frustrated by some of the misconceptions that are out there,” Mr. Allen told me. “The biggest misconception in the online dialogue is that publishers and universities are on opposite sides of this issue, when in fact they have a common interest in making sure that there are high-quality materials available for faculty and students.”
Publishers’ Needs
He says he’s distressed by how hard it has been to get everyone to agree to a solution that balances Georgia State’s need to find an economical way to deliver content to its campus community and publishers’ need to stay in business. “This is a difference that can be, I think, easily and pragmatically resolved to the benefit of all parties, and it’s frustrating that it hasn’t been,” he told me. The solution, in his mind, is a systemwide license from the Copyright Clearance Center, a nonprofit rights broker, which is also footing some of the plaintiffs’ costs.
I asked whether that wouldn’t amount to a monopoly, making the center the default solution. “It’s not as if that license is the only solution,” he said. Other universities go course by course and “figure out how much material is being used, and they pay for it.”
Mr. Allen is also frustrated by the view that the publishers have unfairly put faculty members on the spot. (Some Georgia State professors testified during the trial about how they use copyrighted material in courses.) The truth, he told me, is just the opposite. “We didn’t sue the faculty, precisely because we didn’t think they should be making the decision” about what constitutes fair use, he said. “This is the responsibility of the university and the administration—to develop a system that the faculty can employ easily.”
Wouldn’t that leave the university in the unenviable position of policing every act of digital copying or sharing undertaken by its campus community? Mr. Allen reiterated the publishers’ position that the university has the responsibility to develop and administer a sound copyright policy. “But that doesn’t mean policing,” he said. “That means obtaining licenses for this kind of material. This is not analogous to in loco parentis.”
He said he believed that many faculty members would be more sympathetic to the plaintiffs “if they truly understood that Georgia State is paying nothing at all for material posted on reserves.” Such a practice undermines the system that produces the content that scholars want, according to Mr. Allen, because it deprives publishers of the revenue they need to operate. “If you care about the quality of materials that faculty and students are using, you have to have a sustainable model that will produce high-quality materials,” he said.
Librarians share publishers’ desire to come up with sustainable models. What they disagree about is what counts as sustainable. Look at last year’s standoff over journal prices between the Nature Publishing Group and the University of California system; the university balked at the higher rates the publisher wanted to charge.
To get a sense of the drama from a library’s perspective, I talked with Will Cross, who’s just taken the job of director of copyright and digital scholarship at North Carolina State University.
He worries that if the publishers win the Georgia State case, it would “price librarians out of the system” by making it prohibitively expensive to license material for e-reserves. (Publishers argue that the copyright-center licensing approach is cost-effective and reasonable.)
And a victory for the publishers wouldn’t stop infringement anyway, Mr. Cross thinks; it would just drive infringers—"the bad actors,” he called them—underground.
Like Mr. Allen, though, Mr. Cross feels that faculty members need to have a better understanding of how the system works. They don’t mind their institutions’ paying for access to scholarship they’ve helped create, he said, because “they don’t feel the pinch” that libraries do. “Scholars often don’t feel the problems in the current system.”
Sour Relations
Mr. Cross and I talked about how much the case had soured library-publisher relations. Things were bad enough before the litigation, he said. But deeper distrust—of publishers’ motives and of the role of the copyright center—has become one of the striking features of a lot of the commentary about the case.
In Mr. Cross’s view, mutual suspicion helps nobody. “I don’t love the sort of libraries-versus-publishers rhetoric generally,” he said. For one thing, as he pointed out, publishers come in many shapes and forms and sizes these days. Not every publisher is an Oxford or a SAGE. Not all publishers must be enemies.
Mr. Cross even holds out the possibility that the Georgia State case could—maybe—do some good in the long run. “It may raise the profile of that conflict and that discussion that’s been going on about how to serve the scholars at the heart of it,” he said.
If anything really unites the librarians and the publishers watching the case, it’s the hope that the court will offer some kind of clarity about fair use in an academic context, whether or not it concludes that Georgia State is in the wrong in any way.
I asked Mr. Cross what advice he’d offer to publishers about how to deal with libraries. He advised them not to treat libraries as if they were the enemy.
“Librarians are the voice of reason,” he said. “Librarians are often in the middle trying to balance both sides"—the needs and rights of the producers and users of scholarly content.
“It’s easy to get into fights,” he told me. “At the base level, we’re all trying to help scholarship in the world. We’re just coming at it from different angles.”
