Copyright and Innovation in Electronic Publishing: A Commentary by Scott Bennett

Understanding copyright law will enable librarians

to honor both the proprietary and public interest components of

copyright, while using to full advantage new

electronic information resources. This article

looks at copyright issues in a changing

information landscape.

This commentary was presented at the 1 lth Top Management Roundtable

of the Society for Scholarly Publishing, November 1992. The topic of the

Roundtable was "Strategic Risk-Taking: Electronic Innovation in

Scholarly Publishing."

Scott Bennett is Director, Milton S. Eisenhower Library, Johns Hopkins

University, Baltimore, MD.

T he world of scholarly communi- cation changed for each of us the day we first put a personal

computer on our desk and plugged it in. The information management capacity that desktop computing puts directly in our hands, especially when it links us to networked communication, has sent us spinning off on a course of revolu- tionary change. In this brave new world, copyright law may appear to be a relic from another era--at best a nuisance and more likely a serious impediment to innovation.

Copyright law, however, is none of these things. It remains, in fact, essen- tial to effective scholarly communica- tion. If we misunderstand copyright, we will be ineffective innovators. We need to understand the enduring function of copyright even in an environment of fundamental change. We need also to understand what is actually changing and the ways we might respond to those changes.

Enduring Functions First then, what are the enduring

functions of copyright law? For almost 300 years, we have used copyright laws to regulate commerce in information. The first of these laws, the 1710 Statute of Anne, marked a change of truly revo- lutionary consequence. Knowledge had always before been an instrument of power managed by the state or the church. The new copyright law repositioned knowledge as an item of trade in an open marketplace. Just as significantly, copyright law limited proprietary inter- ests in publications so as to create a public domain for knowledge. Copyright law conceived of knowledge as a pub- lic good and began to democratize its use. This development was perfectly ex- pressed at the end of the 18th century,

with a clause of the U.S. Constitution authorizing a copyright law whose pur- pose would be "to Promote the Progress of Science and useful Arts. ''t

From the outset, then, copyright has regulated two things: proprietary rights in the marketplace for information and the public interest in knowledge as a keystone for an informed and free soci- ety. The two are indeed different from one another, but neither can exist with- out the other. We forget this at our peril.

Libraries also began to change their character in the 18th century. Once instruments of privileged power, some libraries began operating on democratic principles of knowledge, and by the 19th century "public libraries" began to flour- ish.

Today's Information Age thus inher- ited from the Age of Enlightenment two vital and enduring institutions. One is a system of trade regulation, called copy- right law, which grants to creators of information a limited statutory monopoly for publishing information. The law strongly protects the financial interests of copyright holders, but its purpose in granting this protection is to promote knowledge as a public good. It does that by regulating--in fact by limiting in a number of ways-- the monopoly granted to information creators. This purpose is clearly stated in the Consti- tution and has consistently been upheld by the Supreme Court. 2

Another heritage of the 18th century is a system of libraries that nourishes the public interest in the information that copyright law protects. More spe- cifically, and in the terms of today's law, libraries are one of the places that readers most often exercise their fair use rights. Libraries operating in the public interest will not become obso- lete in the electronic information age

The Journal of Academic Librarianship, vol. 19, no. 2, p. 87-91 ©1993 by the Journal of Academic Librarianship. All rights reserved.

exactly because they will be needed for the critically important social functions that first called them into being.

Four Fundamental Changes I emphasize these unchanging char-

acteristics of copyright law and librar- ies because they provide a useful context for understanding what is changing. I see four changes-in authorship, in the practicality of auditing use, in the ease of copying, and in uncertain responsi- bility for the long-term preservation of information-as having fundamental importance.

Authorship. The first of these changes involves authorship and its products. The scientific community has long used joint- authorship to report the communal work of research laboratories and other group- ings of researchers. In an electronic en- vironment, it is increasingly the com- munications network itself that brings people together for collaboration. This often results in the creation of less for- mally structured and sustained, more spontaneous and participatory scholarly products. In this environment, the iden- tity of authors can become somewhat ambiguous.

Not surprisingly, the identity of the work can also become ambiguous. In a communications environment where the distribution of ideas is highly fluid, nearly instantaneous, and not particularly well controlled (even by the author, even when we know who that is!), conventional distinctions among conversation, corre- spondence, reporting, technical papers, and formal publication become blurred. In some regards electronic scholarly communication more nearly approximates a phone system or a broadcasting envi- ronment than a conventional publishing environment. This environment involves and empowers individuals in unprec- edented ways in the creation and distri- bution of information. For that reason, it is an environment that particularly favors the promotion of learning and the democratic uses of knowledge, which are the constitutional underpinnings of U.S. copyright law.

Auditing. A second fundamental change is the practicality of auditing, and therefore of charging for, each dis- crete use of information. It is now pos- sible-in a way it never was beforeto identify each reader and to track that reader’s use of information as discrete, billable transactions. There are two ways

of doing this: establishing individual accounts with online database vendors, and developing arrangements-perhaps involving the Copyright Clearance Cen- ter-that bring copyright owners and information users together for market- place transactions.

From a library point of view, this change is usually described as a shift from ownership to access. This shift does not affect the legal position of either the copyright holder, the reader, or the library. What it does change--and change quite dramatically-is the marketplace in which they meet, which is much different from that created 300 years ago with the first copyright law. On the one hand, by reducing the value of the library’s information ownership role, the new marketplace reduces as well the ability of the library to limit the mo- nopoly granted to copyright holders. Con- versely, the new marketplace greatly increases the potential value of the copyright holder’s monopoly because the direct link between copyright holder and the so-called “end user” makes it pos- sible to bypass some of the limits im- posed on that monopoly under copyright law.

These new arrangements were tech- nologically impossible in the old print- dominated environment. One might therefore say the new technology par- ticularly favors the granting of exclu- sive rights to copyright owners. Such grants were the basic instrument for public policy envisioned in the copy- right clause of the U.S. Constitution.

Ease of copying. A third fundamen- tal change arises from the ease with which information can be copied in an electronic environment. The monastic scriptorium, then the printing press, and more recently the photocopy machine have conventionally defined different eras in duplication technology. Duplication has steadily become less labor inten- sive and less costly. The computer era- especially the era of the desktop computer-has pushed the labor needed for duplicating information almost to the vanishing point. Ease of copying is now the greatest threat to the monopoly position of copyright holders. The elec- tronic marketplace that so enhances the copyright monopoly by putting infor- mation owners directly in touch with information users, simultaneously threat- ens to destroy the value of that mo- nopoly by making it technologically unsustainable.’ This difficulty is the basic

economic paradox of the new informa- tion marketplace.

Responsibility for preservation. A fourth fundamental change relates to the long-term preservation of electronic in- formation. Part of the problem is sim- ply technical, having to do with high obsolescence rates in computer hard- ware and software and the relatively brief shelf life of digital recording media. These are technical problems with fairly clear solutions. Another and more im- portant problem, however, results from the broad diffusion of ownership of intellectual products in an electronic environment. This diffusion is impor- tant because nobody preserves what they do not own.

The high costs of permanent owner- ship have limited the number of insti- tutions willing to embark on compre- hensive preservation activities. In practice, only national libraries and archives, some research libraries, and a few large public libraries are commit- ted to broadly based, long-term stew- ardship of the information they own. It is far from clear that these agencies will have a significant ownership stake in electronic information products. It is equally unclear that those who do have such a stake will embrace the un- compensated costs of preservation.

Commercial owners of electronic copyrights will presumably have no motive to maintain their information once the market for it becomes unprofitable. Not-for-profit owners of electronic copy- rights may well recognize an organiza- tional obligation to preserve their infor- mation products, but they may be less likely than libraries to see such preser- vation activities as central to their or- ganizational mission. So to the extent that the long-term preservation of knowl- edge is crucial to the promotion of leam- ing, the new marketplace for electronic information appears not to favor the cen- tral public policy objective of the copy- right laws.

What are the consequences of these four changes for innovation in schol- arly communication? How are we man- aging change? Or if we are not actually “managing” change, how are we respond- ing to it?

A Good Offense Prohibitions. For some, the best de-

fense is the appearance of a good of- fense. Some publishers-not just those

88 the Journal of Academic Librarianship, May 1993

of electronic information---are responding to change by aggressively claiming more rights than they actually have. While it is still possible to find the simple and accurate "all rights reserved" copyright notice, one more frequently encounters the false assertion: "This book, or parts thereof, may not be reproduced in any form whatever." Such a notice ignores the copying that is expressly provided for in the 1976 Copyright Law Act, as does the following more aggressive and egregiously misleading statement: "No one may make copies--for any reason or any purpose---without our permis- sion . . . . Also, you may not use any text in any way that involves unautho- rized reproduction . . . . -4 While such notices are legally unenforceable, they no doubt help to discourage quite ap- propriate copying by force of intimida- tion.

Contracts and Licensing. Publish- ers know they cannot sue readers for copying that which is expressly permit- ted under the law, so they look for other devices to strengthen their position. One of these is the now familiar "shrink- wrap contract," which attempts to cre- ate a contract binding the purchaser of information to certain limitations on the use of that information. Opening a wrapper may not create an enforceable contract, however. And even if it does, it is unlikely that such a contract is enforceable with regard to any use of information forbidden in the contract but permitted under the Copyright Act.

Enforceable or not, publishers of electronic information have relied heavily on licensing agreements in recent years to enhance their monopolies. Whether through the use of "shrink-wrap con- tracts" or more formally executed li- censes, commerc ia l publ ishers are responding to the steeply rising demand for elecironic information products. (The rapid development of CD-ROM prod- ucts has been notable, as has been the availability of online bibliographic and full-text resources.)

Because of this marketplace success, we are likely to work with such licenses for some time to come. 5 To the extent they are used to define user communi- ties (and thereby create a basis for pric- ing), licenses are useful. To the extent they are used to enhance the monopoly position of publishers in contravention of the limits on that monopoly set in the copyright law, they are pernicious. Both publishers of electronic informa-

tion and libraries have much to learn about creating effective licenses. 6

A Different Approach Some few publishers have decided

to take a fundamentally different atti- tude to the possibility their material may be copied. Typically these are journal editors who publish only in the elec- tronic medium, using the Internet for their means of distribution. They charge modest subscription rates or none at all. They regard copyright protections as adequate, or they may grant wide lati- tude in the use of copyrighted material. They are motivated not by commercial profits but by the possibility of trans- forming scholarly communication itself.

"While there is little question about the applicability of the

"work-for-hire" doctrine to faculty journal articles, there is little reason as yetmto believe universities will wish to change

their established practice of leaving faculty unfettered in the use of their copyrights."

The work of these journal editors and publishers offers particularly fertile ground for innovation, as is evident in the recent announcement of the part- nership between the electronic journal Postmodern Culture and the Oxford University Press. 7

Few other editors or publishers are ready to follow the lead regarding copy- right of these academic pioneers in elec- Ironic publishing. Commercial publishers and not-for-profit university presses generally regard the close management of their copyrights as essential to the economic health of their business. Many librarians take the complementary view that the health and economic viability of scholarly communication depend on who owns copyrights and the purposes with which those owners manage their rights. 8

Richard Dougherty was among the first in the academic library community to identify the key importance of copy- right ownership and to urge that uni- versities "take back" the ownership of copyrights that academic authors cus-

tomarily--and unthinkingly--transfer to journal publishers. 9 One way to take back ownership is to strengthen university presses as producers of both paper and electronic publications. A vast number of scholarly journals-----especially those for the sciences, technology, and medi- cine--are now in the hands of commer- cial publishers and largely beyond the reach of such a take-back strategy.

Two Proposals If many existing journals are unavail-

able to university presses, individual articles written by faculty researchers for those journals may not be. Propos- als have been made for universities to retain a significant measure of control over the copyrights of journal articles. One such proposal calls for voluntary action on the part of academic authors to retain their own article copyrights and to grant publishers one-time rights to publish their articles. Most signifi- cantly, authors acting under this pro- posal would require publishers to print a notice with the article granting per- mission for the "noncommercial repro- duction of the complete work [i.e., the article] for educational and research purposes. ''1°

Another proposal aimed at the same result is based on universities asserting limited management rights over faculty copyrights under the "work-for-hire" concept of corporate authorship. This proposal does not call for voluntary action on the part of faculty, nor does it pro- hibit the transfer of copyrights to pub- lishers. But it does assert a legal right for universities to condition those trans- fers in order to permit nonprofit orga- nizations to copy articles in response to specific requests for them? ~

There is much question about the pract ical i ty of these proposals for strengthening university presses and changing the management of copyrights to benefit scholarly communication. While there is little question about the applicabili ty of the "work-for-hire" doctrine to faculty journal articles, there is little reasorr--as ye t - - to believe uni- versities will wish to change their es- tablished practice of leaving faculty unfettered in the use of their copyrights. Purely voluntary action on the part of faculty is also a long shot, as is the likelihood that capital-poor universities will attempt to position their university presses to compete with commercial publishers? 2

the Journal of Academic Librarianship, May 1993 89

While one can question the practi- cality of these specific proposals, there is little question that universities are finding existing arrangements for schol- arly communication insupportable, es- pecially those parts of it dominated by European commercial publishers of sci- entific, technical, and medical journals. To investigate further what might be done, the American Association of Universities has appointed a task force on Intellectual Property Rights in an Electronic Environment.13

Implicit in all of these responses to change is an attempt to understand the emerging environment for scholarly publishing. The information handling power of computers, the rapid and rela- tively inexpensive communication made possible by the Internet, and the conve- nience of the personal workstation en- vironment make it certain that electronic journal publishing will grow in impor- tance and very likely become dominant in time. The ease of copying in this environment and the history of software piracy leave copyright holders under- standably cautious. Caution will not, however, prevail against the power of computers and telecommunications to effect change. Thus, the only produc- tive response is a willingness to engage with these forces of change in a risk- taking, experimental manner.

A Perspective for the Years Ahead Our experiments need to recognize

that the competition between the pro- prietary interest and the public interest in intellectual property is as old as the idea of copyright itself. In the new, uncertain, and rapidly changing envi- ronment for scholarly communication, everyone involved needs to do at least three things:

l We should acknowledge the legiti- macy of both the proprietary and public interest in information, and acknowl- edge there is legitimate competition between these values that will be played out in ways we cannot yet describe.

l We should respect the copyright law. This means understanding the law so that we can obey it and benefit from it. It means a refusal to wink at violations of the law, however widespread, just as it means advancing no untenable claims either to copyright protection or to fair use. Most important, it means acknowl- edging there are many genuinely debat-

able issues before us that will need to be resolved through negotiation, legis- lation, and litigation. Respecting the copyright law means making judicious use of these methods of resolving dif- ferences.

l We should keep the Constitutional purposes of copyright strongly in view; honor those purposes: and work to give them vitality.

This last point is really the litmus test for us all. If we pass it, science and the useful arts will progress: those who trade in the marketplace of information and knowledge will prosper; and the human imagination will flourish. What more could we properly wish?

References ‘U.S. Constitution, Article 1, Section 8, Clause 8. 2An excellent new history and analysis of copyright law is L. Ray Patterson and Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (Athens: University of Georgia Press, 1991). 31t is, of course, possible to secure elec- tronic information against unauthorized use. Such security arrangements work reason- ably well for national secrets, financial trans- actions, and other information that is not itself placed in trade. Security arrangements work much less well, as we learned in try- ing to prevent unauthorized copying of software, when one is trying to sell the secured information in an open marketplace. A conference is scheduled at which “the territory between security issues and the need for practical, user-friendly systems for marketing information resources and serv- ices” will be mapped. Information about the conference is available from Thomas Lee at the MIT Program on Digital Open High Resolution Systems (617-253-6828; TLEE@FARNSWORTH.MIT.EDU). @Ihe fist of these copyright notices is taken from a nonfiction publication of a leading university press. The second is from a mass market paperback novel. The third is from a nonfiction series and was quoted in an October 19, 1992 posting to the Public Ac- cess Computer Systems Form (PACS- L@UHUPVMl .BITNET). The argument of the next paragraph draws upon the legal analysis of Charles B. Kramer, which is carried in the October 19. 1992 posting.

5William Y. Arms, in describing his work to build an electronic library at Carnegie Mellon University, comments on the need for a “new economic, legal, and social tiame- work” for such an enterprise. Each step in building that framework at Carnegie Mellon has been “essentially an experiment, usu- ally defined by a simple contract. . . . Each agreement is for a fixed period of time, to minimize the risk for all parties, and re-

stricts access to the materials to authorized members of the university community. We do not expect these contracts to be a long- term model, but we hope that this early experience will build the understanding and mutual confidence that will be needed to create really large online collections.” Quoted form Arms, “Experience in Collection De- velopment for an Electronic Library,” a paper prepared for the Knowledge for Europe Conference and distributed October 27, 1992 on the PUB-CLUB@CORNELL.EDU listserv.

6The Coalition for Networked Information is investigating the possibility of constructing a standard contract form to govern access to and delivery of electronic information. Panels of information buyers and providers were convened in the summer of 1992 to discuss the contents of such a contract. Not surprisingly, it was copyright issues that most sharply divided buyers from provid- ers. The former wanted to avoid contrac- tual limitations on fair use permitted under copyright law; the latter wanted to define permissible uses as a matter of contract law, without reference to copyright. More infor- mation on this investigation is available from Paul Peters, Executive Director, Coalition for Networked Information, 21 DuPont Circle, Washington, D.C. 20036 (202-296- 5098; PAUL@CNI.ORG).

‘Internet distribution of the journal Post- modern Culture (1990- ) will continue to be managed at North Carolina State Uni- versity; Oxford University Press will dis- tribute the journal in microfiche and disk formats (see the listserv posting of November 3, 1992 on “Publishing E-Journals: Pub- lishing, Archiving, and Access,” VPIEJ- L@VTVMl.BITNET). For a broad survey of electronic journal publishing and an excellent account of the interconnection of copyright and telecommunications, see Ann Okerson, “With Feathers: Effects of Copy- right and Ownership on Scholarly Publish- ing,” College & Research Libraries, 52 (1991). 425-438. The noteworthy group of academic editors and publishers Okerson describes is small in number but likely to be the catalyst for much change in schol- arly communication. The pioneering work of this group is undercapitalized and fre- quently groundbreaking in technical and procedural matters. A new Consortium for Electronic Publishing, a joint venture ini- tially of the Association of Research Li- braries and the American Mathematical Society, is proposed to provide self-help for this group. The proposed Consortium would assist in “creating and facilitating working, standard, electronic communica- tions and publishing solutions for the not- for-profit publishing community.” More information is available from AM Okerson, Director, Office of Scientific and Academic Publishing, Association of Research Librar ies, 21 DuPont Circle, Washington, D.C.

90 the Journal of Academic Librarianship, May 1993

29936 (202-296-2296; ANN@CNI.ORG). SThe difference that ownership and man- agement intention can make is evident in the changing price of the Drug Information Journal. Through 1992 it had been pub- lished by Pergamon, and the 1992 price was $290. The Drug Information Association took the title back to its own management and lowered the 1993 subscription to $65. See the November 4, 1992 posting by James Wi l l i ams to the A R L - D I R E C T O R S @ CNI.ORG listserv. 9See Richard M. Dougherty, "To Meet the Crisis in Journal Costs, Universities Must Reassert Their Role in Scholarly Publish- ing," Chronicle of Higher Education (April 12, 1989): A52.

'°See the draft "University Policy Regard- ing Faculty Publication in Scholarly Jour- nals" prepared by a joint committee of fac- ulty, librarians, and university press editors from Duke University, North Carolina State University, and the University of North Carolina at Chapel Hill in Newsletter on Serials Pricing Issues, Number 46, Septem- ber 7, 1992 (LISTSERV@GIBBS.OIT. UNC.EDU). More information about this draft policy is available from Garry Byrd, Health Sciences Library, University of North Carolina at Chapel Hill (919-966-2111; BYRDMED@ MED.UNC.EDU). USee Scott Bennett and Nina Matheson, "Scholarly Articles: Valuable Commodities for Universities," Chronicle of Higher Edu- cation (May 27, 1992): B1-B3.

t2The impracticality of these proposals is well argued by Sanford G. Thatcher, Di- rector of the Pennsylvania State University Press, in "Document Delivery and Copy- right in a University Environment," an unpublished paper delivered on September 18, 1992 at a document delivery workshop sponsored by the American Association of Publishers. '3University faculty, library administrators, and academic and association administra- tors will constitute the task force, which began work early in 1993. More informa- tion about the task force is available from John C. Vaughan at the American Associa- tion of Universities, One Dupont Circle, Washington, D.C. 20036 (202-466-5030).

Leadership. Conflict management. Total quality management. Managing technology. Organizational assessment. Managing for change. Job analysis. Self-directed teams. Effective communication. Performance improvement strategies. Folh)wership. Skills assessment. Participatory decision making. Time management. Job enhancement. Strategic planning. Futuring.

Although information is best absorbed in component parts, knowledge is gained through integrating those parts.

Clearly, academic libraries, like all organizations, must confront their problems and remove barriers to improving the quality of their services. But using a piecemeal one-size-fits-aU approach to management can actually stymie change and demoralize personnel.

Dougherty & Associates specializes in working with academic libraries--large or small--to achieve their preferred futures. And D&A encourages clients to take a customized, synthesized approach to goal setting, problem solving, and decision making. Using a variety of methods tailored to meet the needs of individual institutions---including cost studies, surveys, and futuring techniques--

D&A works with library staff and management to develop consensual goals, and strategies for achieving them. D&A clients have available to them the expertise of associates from many areas of campus information service and delivery.

Please contact Dougherty & Associates for more information or to discuss your specific requirements.

Preferrod Informotton Fulurms

DOUI]HERTY.:IASgl]CIRIES ~ n t s tO Acadoml¢ Inst i lu t l@na

Richard M. Dougherty, President 321 S. Main Street / P.O. Box 8330

Ann Arbor, MI 48107

Tele: 313/665-7108 • Fax: 313/662-4450 ,, Bitnet: userie4c@umichum

the Journal of Academic Librarianship, May 1993 91