Charge

A task force of librarians and university administrators knowledgeable about copyright, patent, and other university information policies will be charged with developing proposals for university policies governing intellectual property ownership and rights in an electronic environment. The task force will examine from a university perspective the emerging possibilities for the creation and dissemination of electronically based information, and develop proposals under which universities could provide their faculties and students with new options for collecting and disseminating the products of research and scholarship in electronic environments. Such options could both expand access to university-generated information and reduce the cost of that access.

Background: The rights to intellectual property created by university faculty are frequently given to commercial publishers who then sell it back to universities. An increasing proportion of this information, particularly in scientific and technological fields, is being concentrated among a small number of publishers, most of them overseas, who are increasing the price of this information at rates that exceed any reasonable combination of cost and profit, aided by an environment lacking effective market constraints.

In addition, fair use provisions provided for higher education in the 1976 copyright law are being eroded by a number of factors, including university responses to litigation by publishers. Legal advice designed to reduce exposure of individual institutions has the aggregate effect of limiting faculty and student access to scholarly information.

The development of electronic environments for the collection and distribution of information may provide universities with an opportunity to develop alternatives to the current, commercially dominated system of information creation, distribution, and use. Faculty are exploring the feasibility of forming electronic text centers which would digitize available scholarly information and make it available to scholars over computer networks. Commercial interests militate against the development of these information resources by restricting what information can be included and at what cost.

An analysis of intellectual property rights in an electronic environment may identify opportunities available through a collective response by universities that will not otherwise be realized.

Executive Summary (Including Summary Recommendations)

Overview

Most research universities already have a set of coherent policies governing intellectual property subject to patent law, mainly developed since the mid 1970s. By contrast, universities have given little attention to intellectual property governed by copyright law even though copyrighted property is used intensively in the classroom, library, and laboratory. Faculty and others at the university create new copyrighted works in immense number each year. University presses build their business on copyrights. All this notwithstanding, university copyright policies are generally narrow, incomplete, and defensive in character. As such, they do not optimize the research, teaching, or service missions of universities.

Current conditions require that universities pay immediate attention to copyright in ways discussed in this report. The utility of the emerging electronic superhighway for higher education will depend on how copyright is managed in this new environment. Higher education will not prosper if universities fail to give focused, coherent management attention to such a crucial resource as the intellectual property their faculty produces.

The roots as well as the extent of copyright policy disarray can be found in the contrast between the teaching and research functions of higher education. The marketplace value of teaching is measured by tuition income (or its equivalent in public revenues), so that numbers of classroom hours and student enrollments are closely monitored, negotiated, and managed by faculty and university administrators. By contrast, most research is regarded by both faculty and their universities as having no direct market value except where patents may be involved. University-based researchers create abundant intellectual property, but with regard to copyrights, faculty are typically free to dispose of this property in whatever way they choose. In fact, faculty generally transfer their intellectual property to publishers, occasionally with the expectation of modest honoraria or royalty payments but most often (especially as regards journal publication) with no expectation of any direct financial return at all.

But when faculty move from being creators of copyrighted property to being users of it, they encounter a number of restrictions that demonstrate the considerable market value of such property, value that results from their own creative activities as well as the improvements provided by the publishers. In literally every facet of teaching and research or scholarship, faculty encounter numerous restrictions on what they and the libraries and computing facilities which support them can do. These constraints derive from the economic interests of the owners to whom faculty have transferred copyright, owners who are exercising the limited statutory monopoly on the expression of ideas that the copyright law grants them.

The Intellectual Property Task Force of the Research Libraries Project (hereafter "the Task Force") believes the higher education community must take a more thoughtful, comprehensive, and purposeful view of copyright matters. The higher education community greatly needs publishing and other information management systems that are more serviceable and financially less onerous than existing ones--especially as regards scientific, technical, and medical journals. To meet this need, the community must work to create a market place for these activities that is economically more competitive, in which copyright monopolies are less constraining. While copyright is not, of course, the only issue to be addressed in restructuring the marketplace for scholarly communication, it is an issue of central importance.

The Task Force believes that one important way in which higher education can be appreciably strengthened is through the development of effective policies for both the use and management of intellectual property governed by copyright law. The report that constitutes the body this document describes the bases for these beliefs. It identifies the stakes higher education has in copyright and enunciates principles that should guide change in the ways intellectual property protected by copyright law should be managed. The report also identifies the many issues universities face as users of intellectual property, as creators of such property, and as publishers of it. Finally, it outlines four broad options for repositioning universities with regard to copyright.

While the ensuing report suggests a range of opportunities for universities to develop coherent copyright policies, it also documents the complexity and far-reaching ramifications of such change. Higher education is now moving between two paradigms for scholarly communication, one based on print and the other conducted electronically. While predictions about particular outcomes and timetables for this fundamental shift vary, there is little disagreement about the epochal and transformational quality of the changes now taking place.

Because issues in the coherent management of copyright are so far-reaching, the Task Force felt it best discharged its responsibilities to the Research Libraries Project by:

• Preparing the following report, which defines the key issues and outlines possible courses of actions; and

• Recommending a process for deliberation within the wider university community on these issues in the process of developing specific models of action.

Summary Recommendations

• The Task Force recommends that the Association of American Universities, working in partnership with the Association of Research Libraries, continue the process begun in this Project.

The next phase of this process should build campus consensus and involve other academic organizations, particularly the Association of American University Presses. Coordination could continue under the AAU or ARL rubric using current ARL staffing. If they are available, some of the current Intellectual Property Task Force members could continue working in the recommended groups. Funding to continue the process should be secured.

Following the structure of the Task Force report (Universities as users, creators, and publishers of copyrighted works), the recommendations propose two levels of activity (Local and National). Action areas at each level include:

• Local. Several institutions would volunteer or be asked to create model policies and documents for their own universities in two areas:

1. Copyright use (copying)

2. Copyright creation (authorship, ownership, copyright transfer, and licensing).

• National. A national group (with representatives from AAU and ARL, adding the AAUP and affiliated academic societies) should be organized to address multi-institutional topics. This group would coordinate, monitor, and disseminate results of the local work to all AAU/ARL institutions. Additionally, it would study and prepare reports and recommendations on the next phase of university IP matters. The reports will include:

1. Academic/research community consensus on what should constitute fair use rights in an electronic environment

2. Feasibility study on creating and strengthening competitive university and society-based electronic publishing outlets. Strategies would include maximizing the existing university press capabilities and the startup of a cooperative consortium for deposit of scholarly/scientific articles in electronic databases.
   

   

Report of the Task Force

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Invention then cannot, in nature, be a subject of property.
Thomas Jefferson

1 - Background, Perspectives, and Possibilities

The Research Libraries Project was commissioned in late 1992 by the Association of American Universities (AAU), an organization which comprises 58 major research and educational institutions in North America. The Project was established to offer guidance to members on key information issues facing them in the last decade of the 20th century and to position them for the 21st century. The general aims of all three Project task forces include optimizing access to and use of information resources and containing information costs, particularly during this time of rapidly changing technologies for creating, distributing, servicing, and storing information. Given the library-focused nature of the Project, the Association of Research Libraries (ARL), representing 119 major research libraries in North America, was asked to be a collaborator with the AAU in shaping the work of the Project. The participation of the AAU and the ARL speaks to a set of common needs of members as well as to their joint -- and unique -- mission within society, a mission focused on education, scholarship, research, and service.

The Intellectual Property Task Force, assigned one of three areas for the Project (the other two are Scientific & Technical Information and Foreign Acquisitions), was charged to develop proposals for university policies governing intellectual property ownership and rights, to consider opportunities in the intellectual property (IP) area to enhance the collection and dissemination of research and scholarship, and to identify a range of information dissemination opportunities that might become available through a collective response by several institutions, rather than by any individual ones. The Task Force numbers fourteen members, including university administrators, faculty (among them two legal scholars), and librarians. After an initial meeting, the group felt it would benefit from publisher participation; accordingly a university press director and a professional society publisher were added ex-officio. The IP task force understands that the AAU project Steering Committee seeks practical recommendations that can be implemented by some or all AAU and ARL members and lead the way to further discussion and study of pressing intellectual property issues.

Over the course of a year's discussions conducted face-to-face, by correspondence, and by e-mail, the IP Task Force has considered intellectual property from several points of view:

• The university as an institution, with particular reference to maximizing institutional interests in intellectual property. What should university copying policies allow? Who should own the copyrightable material created during university employment?

• The university as individuals and subgroups with different interests at different times as they assume the roles of student, educator, researcher, author, editor, administrator, and publisher.

• Scholarly publishing as a large and variously entwined system of stakeholders including people and institutions not members of AAU or ARL. The information arena is global and scholars and scientists contribute to it worldwide. It is not confined to universities and their presses but encompasses other players, notably learned societies (although these generally have very close ties to universities whose faculty are society members and officers) and commercial publishers.

• The economics of scholarly publishing, including sources of funding for dissemination of scholarly information. Some Task Force discussion focused on the importance of not undermining the existing system out of economic naivete. The Task Force also considered ways of alleviating the current university library information predicament, in which high-priced materials, particularly science, technology, and medicine journals, cause enormous repercussions and affect ability to buy in many other disciplines.

• Old systems vs. new systems. Discussion lingered on how to move from print to electronic distribution formats and on the extent to which new information technologies can be shaped by academe and academics.

This report is constructed in the following sections: Significance of copyright to universities; Principles for the use and management of copyright in universities; Universities in relationship to intellectual property, specifically universities as users, creators, and publishers of copyrighted materials; Scenarios for ownership of intellectual property created as part of university employment; Key issues for further deliberation by AAU and ARL members; and Future Prospects.

Copyright is a complicated matter. It affects many players in disparate ways at any given time. The way in which faculty and universities now treat copyright is often not in their best interests. It is critical that a process be started to maximize the benefits of copyright in institutions of higher education and research. Such a process should be continued under the umbrella of the AAU, ARL, and possibly the existing IP Task Force. There are few easy or immediate solutions but the situation can be greatly improved if the momentum of the AAU Task Force's work is continued.

As this society moves deeper and deeper into that phase of economic life called 'post-industrial,' where livelihoods are earned predominantly through the sale of information, expertise, and personal services, the extent to which copyrightable creations are protected by exclusive property interests can become central to national growth.
Barbara Ringer, "The Unfinished Business of Copyright Revision," 24 UCLA Law Review (June-August 1977): 976.

2 - Why Does Copyright Matter to Universities?

While several types of intellectual property law affect universities and their information needs (patents, trademarks, and copyright), the focus of the AAU/IP Task Force is copyright, the U.S. law and the university policies that govern the ownership and reproduction of information fixed in a tangible medium of representation including print-on-paper, sound recordings, motion pictures, art, photographs, computer formats -- in other words, the prime stuff of which research, scholarship, education, and libraries are composed. (Research universities in general addressed patents through a series of policy implementations in the 1970s.) During the development of copyright law revisions in the 1960s and 1970s, universities lived in mostly a print world. In the 1990s, electronic capabilities have taken intellectual property into seemingly uncharted territory in which the stakes are equally high.

Historically, the concept of copyright and copyright law have made it possible for information to be owned, for ownership to be transferred, and for copying to be regulated. [1] What can be owned can be sold; thus a market is born which in turn helps provide incentives for the creation and publication of more information.

The governing purpose for U.S. copyright law is embodied in the Constitution in a phrase that is particularly apposite to the work of the Task Force: to promote the progress of science and the useful arts. Scholars and practitioners frequently speak of the balance between private and public interests that the copyright law aims to achieve, and that many believe it achieves quite well. [2] Because academe's primary mission is to increase learning and understanding of the universe, institutions of higher education hold a privileged place in society. Indeed, the current Copyright Act clearly recognizes an interrelationship between commerce and the well-being of society through special legal provisions for education, scholarship, and study, especially through the provision of "fair use," the right of first sale, special language for library, archival, and interlibrary sharing activities, and public performance rights.

From the perspective of higher education, copyright brings both opportunities and problems. AAU and ARL institutions can, and to a great extent do, incorporate the copyright law's special dispensations advantageously into their campus routines. It is impossible to imagine learning or scholarship without making use of information in the classroom, office, research laboratory, or study. At the same time, the existence of copyright gives incentives to create and reap economic rewards. Scholarly publishers have responded to these incentives by publishing a great deal of information indispensable to universities. The copyright-related industries (of which publishing is one, along with film, music, and other related media) are among the United States' strongest overall.

"In 1991, the core copyright industries accounted for $206.6 billion in value added in real 1992 dollars, or approximately 3.6% of Gross Domestic Product. In terms of value added to GDP, the copyright industries contribute more to the U.S. economy than most industrial sectors and more than any single manufacturing sector including aircraft and aircraft parts, primary metals, fabricated metals, electronic equipment, industrial machinery, food, and kindred products and chemicals and allied products." [3]

Copyright makes this thriving arena possible and information is at the heart of economic growth. With much at stake, copyright owners are diligent in enforcing their rights. A scholar at the University of Massachusetts reports that in five district courts the total number of federal cases filed between 1979 and 1989 increased by about 50% (from 154,666 to 233,539) at the same time that the number of copyright cases during the period more than doubled. [4]

In even the most casual scan of the current university information scene, it is clear that the work of every department and individual is entwined with the legal and practical implications of intellectual property, its management, and its reproduction and use.

• Computers, CD-ROMs, and electronic connections have dramatically expanded awareness of the world's information and intellectual and literary holdings.

• Ubiquitous copying capabilities and ever-faster information distribution modes make it possible to read and share information as never before.

• A voracious and growing appetite for information exceeds the capacity to fund and store all potentially useful information physically at each university.

• Increasingly, members of the campus community expect wide and quick access to offsite as well as onsite information.

• Global scholarly and research communities are evolving, spurred by electronic communications, lists, and publications that cross institutional and geographic boundaries.

• Exponential expansion of networked communications has led to broadened scholarly inquiry and to many new types of publications, resources, discussions, exchanges, and collaborations, all of which are fledglings and many of which are hard to characterize.

• More people are involved in research and higher education than ever before, and, consequently, more research is being published.

• More and more finely subdivided specialties and disciplines seek information outlets; many may be too small for print-on-paper economies of scale.

One of the copyright law's strengths is a lack of specific quantity measures in the "social good" areas such as fair use. The law, legislative history, and adjunct guidelines provide even fewer definitive answers about reproduction or transmission of information electronically than they do about print. The uncertainty affects all areas: classroom and instructional needs; scholarship and research; and library operations such as Reserves and Interlibrary Loan. Yet the law, designed to be "technology-neutral," does offer a road map for institutions of higher learning.

• Permission to reproduce materials for classroom/instructional use is frequently onerous to seek and sometimes too expensive to utilize. In many cases such problems have been self-created through less than advantageous transfer of copyright away from academe.

• Works created by faculty generally arise out of their research and/or teaching employment; those same works, in turn, are used by those faculty in their employment. Currently, most universities express little ownership interest in works created as a result of faculty employment. This situation deserves to become the subject of institutional discussion.

• Cooperative and multiple-creator modes of work are posing new questions about who "wrote" a work and who is responsible for it. Large databases of diverse types of information (textual, numeric, sound, image) lend themselves to incorporation and adaptation in the work of individuals and groups of investigators. [5] Barrier-free use of such work will be critical to transforming academic inquiry.

• Distance learning requires ready and easy access to academically created materials. Many electronic licenses offer this broader access (which was taken for granted in a print-only environment) at prices that are not easily afforded. In some cases no provision is made for such access

• Cooperative preservation and access to materials in the long term is at risk: transfer of ownership outside of academe, even as copyright periods lengthen and technology life becomes shorter and shorter, does not provide insurance that scholarship and research will be available in useful form over time. Electronic information access is increasingly governed by licenses rather than by ownership rights, yet institutions may not be able to preserve access to that which they do not own.

• Research universities do not have the financial resources to meet all the expanding campus needs, expectations, and desires for information. The inability of information budgets and resources to keep up with rising information costs is paralleled by only one other major societal crisis, that of health care. For universities and libraries, information is its daily bread, a staple that is increasingly expensive. [6]

The commercial and legal worlds that share universities' intense interest in the rights to information approach the question very differently. Even back in the "low-tech days" of 1968-1973, a publisher took a major government agency (library) to the Supreme Court over the technology issue related to library photocopying. [7] In 1982 (Association of American Publishers (AAP) v. New York University) [8] and then in 1991 (Basic Books v. Kinko's Graphics) [9] the publishing community initiated legal actions involving copying and sale of course packs for instruction. In 1992, the AAP widely distributed two statements that caused concerns for academic libraries, one on Document Delivery and another on Cross-Border Document Delivery. The statements were not worrisome because they affirmed publishers' rights to collect fees for document delivery, but because a target audience for both documents seemed to be libraries; one implication was that libraries' daily chores involving inter-institutional lending were putting them in frequent violation of the copyright law. On panels at conferences, some publisher representatives assert that much if not all of libraries' current Interlibrary Loan operations are illegal and that publishers should receive compensation for practically all copies made in all libraries. [10] In turn, libraries affirm that they uphold the copyright law and pay appropriate fees when their work falls outside the permissible activities of the law.

The rapid growth of digital technologies that promise ubiquitous, ultra-fast distribution of all information (without necessarily ensuring income streams for copyright owners) leads publishers to be cautious in making scholarly publications available electronically. The result is that the fledgling electronic information world is less advanced than many universities and publishers would like it to be. Concurrently, individual researchers and scholars are putting out masses of information on academic electronic networks such as the Internet, bypassing traditional systems altogether and raising questions about the role of publishing institutions and libraries that have evolved over the past three centuries. In their daily work, members of the Task Force are aware of these trends; some members believe that every author can become a publisher, too. As publications of an entirely new sort grow and prosper -- ones that current institutions may be ill-equipped to handle -- the role of publishers and libraries may change markedly in the medium term and become either unrecognizable or greatly diminished in the longer term. As one university information specialist noted, talking about traditional publishing and intellectual property protection is akin to sending an expedition to find the New World, even as the Gold Rush is nearly over. One scholar quoted in a national news magazine's lead story on the information superhighway said, "For many people, the network revolution has already happened." [11]

Chill the champagne and polish the crystal goblets!
The book of my enemy has been remaindered
And I am glad.
--Attributed to Clive James

3 - Principles for the Use and Management of Copyright in Universities

Given the range of discussion and possibilities, the primary concern of the Task Force was to balance the disparate interests of universities as creators, users, distributors, and maintainers of copyrighted works. Such balancing included trying to answer, among others, the following questions:

• Do recommendations and actions meet the overall educational and service missions of universities? The task force was commissioned by the AAU on behalf of its institutional members. The overarching responsibility, therefore, is to guide the institutions' decision-making and policy formulation. At the same time, while putting the universities firmly at the center, the report should recognize the needs of all users in the academy.

• Are recommendations and actions likely to improve access for members of the university? Optimally deployed, copyright ought to enhance or facilitate the best deployment of information and promote and improve access within universities.

• There are real costs in authoring, publishing, organizing, and servicing information, whether in print-on-paper or in new technologies. These costs have to be recognized and supported. (Usable information does not happen most effectively under informal, unruly, spontaneous conditions, though the Internet culture may yet provide a peripheral region of unruly information that usefully supplements more structured communication. In at least this regard, it may alleviate some of academe's cost burdens.)

• Can costs be recovered? Are prices based on cost? Will universities operate more cost effectively (that is, contain increases in operating costs and the high capital investment made in teaching and research)? Comparatively inexpensive per-unit information costs charged by the not-for-profit sector and a number of commercial publishers seem preferable to pricing based almost entirely on what the market will bear (see also Science/Technology Task Force statement on this topic).

JAQUES. All the world's a stage,
And all the men and women merely players;
They have their exits and their entrances;
And one man in his time plays many parts. . .
As You Like It, Act 2, Scene 7, lines 139-142

4 - Universities in Relationship to Copyrights

The IP Task Force believes that universities need to develop, implement, and promulgate clear policies regarding copyrighted information where such policies do not currently exist. Universities and members of the university community have many copyright roles: they are users, creators, maintainers, and distributors of intellectual property. Copyright policies governing two sets of roles are particularly vital: (1) universities as users, including individuals and libraries making copies for educational, scholarly and research purposes as well as librarians preserving the body of knowledge in perpetuity, well after any publisher derives material benefit or has any interest in it; (2) universities as creators, through the substantial numbers of copyrighted works produced by their faculty and staff. A third role of great potential for the management of copyrights and scholarly communication includes universities as publishers.

A. Universities as Users of Copyrighted Materials

Universities must develop carefully articulated, comprehensive and nuanced copying policies that inform the university community about the explicit rights and obligations they have under the copyright law. Such policies are also instruments to engage and inform faculty on issues that often seem complex, opaque, or sometimes unimportant. Policies should provide convenient guidance for all segments of the community as they pursue their daily business of teaching, researching and writing, learning, and information management; policies help avoid infringement of the copyright law.

Discussion

It is part of the routine activity of universities to use copyrighted materials produced by others. Students, teachers, and researchers read, study, copy, teach, show and cite others' work from articles, books, newspapers, CDs, videos, microfilms, multimedia, etc. Libraries make copies for readers, share copies of materials with other libraries, and make copies for long-term storage and preservation. During the revision of the copyright law which took effect on January 1, 1978, Congress incorporated several special provisions into the law to promote the dissemination of knowledge in support of teaching, research, and public service missions of the academy.

The special provisions afforded to education and scholarship are described in several sections of the Copyright Act of 1976 itself. Additionally, several guidelines exist adjacent to the copyright law. While none of them has legal standing, they do represent a consensus within some parts of the publisher/user community and present views on the minimum copying allowable under the law. Presumably, compliance with the guidelines would assure that there would be no litigation from copyright owners.

Section 107 - Fair Use.

Fair use is codified in Article 107 of the Act and, within reasonable limits, offers privileges for educational, scholarly, and personal copying without permission from the copyright holder. The 1976 Act was the first revision in which fair use was given statutory status. Section 107 enumerates four factors that need to be considered case-by-case to make a fair use determination (purpose of use, nature of use, amount, and market effect). There are no precise quantity measures; the factors must be assessed together on the facts and merits of each specific case. Fair use is nonspecific enough to allow substantial latitude in interpretation and can cause publishers a great deal of concern. By balancing educational and public rights, Article 107 in the copyright law strongly fosters much of the constitutional purpose of promoting science and the useful arts.

The future of fair use is not assured in the electronic distribution modes. Publishers tend not to allow purchasers to own electronic information outright; rather, they license electronic information according to specific contractual provisions including such specific boundaries as number of campus users, number of simultaneous users, number of sites, and so on. Further, the very ability to count individual uses or users seems to offer at least some information producers an impetus to charge on a per-use basis. The continuance of fair use is identified over and over in writing and discussions as an area that needs a great deal of attention in the emerging electronic arena. For the Task Force, it is an area of primary concern. [12]

Section 108 - Library & Archiving Provisions

Section 108 of the Act offers privileges for libraries open to the public or outside researchers and it allows these libraries, for instance, to make a preservation copy if one cannot be reasonably purchased, to make a copy for a patron's use, to allow unsupervised copying provided a warning notice is posted, and to engage in lending copies provided that the purpose of lending is not to substitute for subscription or purchase of a work. This section recognizes the several public benefits delivered by libraries that advance the constitutional purpose of the copyright law.

Sections 109, 110, 117: Performance/Display Provisions; Software

Section 110 allows teachers to perform works and display motion pictures and videos in classrooms, and it permits institutions to transmit broadcasts of certain works in places of instruction. Section 117 permits the owner of software to adapt it for use on a computer, to make a copy when it is an essential step to use it on that machine (such as to load it on a hard disk) or to make a backup copy under certain conditions. [13] Section 109 allows nonprofit libraries to lend software for nonprofit purposes. The software must have a warning placed on it in accord with the Register of Copyright's regulation. [14]

GUIDELINES: Interlibrary Loan Guidelines

The Interlibrary Loan Guidelines negotiated by CONTU (The Commission of the New Technological Uses of Copyrighted Works under section 108(g)(2) of the Act, define interlibrary loan arrangements that do not run afoul of the "aggregate quantities" prohibition. This is the so-called Suggestion of Five, the safe harbor guideline (often called the CONTU Guidelines).

Under the suggestion of Five, a borrowing library may request five items from a copyrighted non-serial publication each year that the work is protected by copyright. From periodicals, however, the borrowing library may request five items from a periodical title going back five years. If the library owns the title, but the issue or volume is missing from its collection, the request does not count in the Suggestion of Five. Likewise, if the library has the title on order it does not count in the Suggestion of Five.

The Guidelines further require that the borrowing library certify that the request is within the Guidelines and that it retain records of interlibrary loan requests for three calendar years. The records must be accessible by title. There is no reason to retain records longer than the mandated three calendar years. The onus for both the certification and the record retention requirements i on the borrowing and not the lending library.

If it is within the Guidelines for a library to request and receive a photocopy of an article, it is permissible to request and receive an electronic copy. This presumes that the copy received becomes the property of the user who initiated the interlibrary loan request and that neither the lending nor the borrowing library retained a scanned copy. Retention of scanned copies and the storage of them raises many issues that are vexing, complicated, and not necessarily entirely clear from a reading of the Act. [15]

Classroom Guidelines

During the revision of the Copyright Act, educators asked for specific numerical guidelines (more specific than the fair use provisions) about their copying rights for the classroom. Affirming that the law ought to be descriptive rather than prescriptive, Congress encouraged the interest groups to create mutually acceptable guidelines. The outcome was the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions." In contrast to fair use, which is flexible and case-specific in interpretation and implementation, the Classroom Guidelines establish zones for amount of classroom copying permitted. Additionally, they impose requirements of brevity, spontaneity, and cumulative effect. The adoption of the Classroom Guidelines into a number of campus copyright policies was hastened by the lawsuit the Association of American Publishers (AAP) filed against New York University in 1982 and possibly by the Kinko's decision which also endorsed the Guidelines. Many college and university personnel remain unhappy with what they see as the impediments of guidelines more suited to the K-12 environment. The chief problems are the high cost for classroom copies and, at times, delays in receiving permissions. Either or both of these problems can make it impossible to use desired material for teaching. The Copyright Clearance Center [16] now has in place an extensive course pack program and has started development of a comprehensive university licensing program which it hopes to roll out in fiscal year 1995. This system may offer some relief over time, but in the meanwhile, experiences with unacceptable permissions situations abound. [17]

At the same time as the Classroom Guidelines were developed, faculty at the University of Wisconsin-Madison drafted an alternative set of guidelines which were adopted as that University's copyright policy in 1978 (rev. 1982). Wisconsin's policy set far more generous classroom copying allowances than the Classroom Guidelines. Nancy Marshall, then a senior librarian at the University of Wisconsin (and currently a member of the AAU/IP Task Force), participated in the development of the Wisconsin policy. Subsequently Chair of the American Library Association's Copyright Subcommittee, she led the adaptation of the Wisconsin work into ALA's "Model Policy Concerning College and University Photocopying for Classroom, Research, and Library Reserve Use" in 1982 (rev. 1986). Nonetheless, according to a copyright policy analyst, the more conservative Classroom Guidelines tend to inform university policies on the order of about 4 to 1 over the ALA work, even neither the ALA nor the Wisconsin policy have ever been challenged in the courts. [18] In fact, in 1991 the University of Wisconsin-Madison revised its classroom copying policy, making it more cautious than it had been for the previous 10 years.

Other Guidelines: Off-Air and Music

The Off-Air guidelines provide educational institutions the ability to record television programs and to retain the tapes for no more than 45 days with only one teaching use and one "reinforcement" use. In brief, anthologizing, extracting, retention, and repeated uses require the permission of the copyright owner.

Observing these several areas of copyright activity, a subgroup of the IP Task Force characterized current campus copying experiences. According to their deliberations: [19]

• The campus community is, in general, under-informed about copyright; there is a lack of understanding and knowledge of the current law and how it applies to daily transactions (though cases like NYU and Kinko's trigger negative responses to publishers among the faculty).

• When faculty have questions or concerns about copyright, there is usually no centralized campus information resource, and there is little campus support for dealing with copyright issues.

• The copying environment is more constrained than it needs to be, for fear of possible litigation; this is particularly true in the areas of classroom copying and fair use.

• Publishers are far more aggressive in asserting their rights in this domain than are universities and their faculties.

• Universities have been slow to develop a comprehensive life-cycle vision for the management of copyright. The development and implementation of a common vision appears to have been hobbled by the competitive aspects of research and decentralized nature of major research universities and the lack of intellectual community between disciplines.

Specific problems persist. For example, it is common for faculty or staff to seek permission from publishers where permission is not required, including permission to make more than one copy of an article on reserve or multiple copies for classroom distribution. Publisher memoranda (such as those circulated widely by the AAP regarding Cross-Border Document Delivery) may deter college and university libraries from pursuing enhanced resource sharing arrangements. It may incline them toward paying royalties when it is not necessary to do so. Major impediments in electronic distribution have the potential to render whole areas dysfunctional: e.g., restrictions on multiple-user access to full-text material and electronic reserves. The whole area having to do with the creation and reproduction of audiovisual and multi-media materials for library or classroom use has become particularly critical; the questions of what is permissible abound. The signing of highly restrictive electronic information licenses by libraries, faculty, and academic departments is a frequent concern. In an increasingly global world, trans-border data flow of electronic information and use of electronic networks coupled with differences in national copyright laws -- and the adoption of the Berne convention [20] -- create a complex environment that needs to be clarified.

Much of the complicated picture painted here can be resolved by consulting and studying the current copyright law itself. If universities act on the law's articulated position that it is neutral about technology, then the legal status of reproduction, transfer, and use and the plethora of other issues surrounding electronic information may not be so uncertain, although still open to discussion, interpretation, and policy formulation. Concepts like copying and fair use can be at least provisionally translated into the electronic arena, if their underlying purpose is clearly understood and retained.

The IP Task Force's general observations are supported by a comprehensive study published in December 1993. [21] For his analysis, Kenneth Crews used the same base of organizations that are sponsoring this effort -- the AAU and the ARL --and obtained 98 research university copying/reproduction policies or responses to surveys and questions about them. Sixteen institutions had no written policy or standard. Between them, the remaining 82 proffered 183 distinct policies varying in scope and format (these included formal policies, memos, procedures, and guidelines). Taken together, the policies revealed instructive patterns. For instance, the majority did address research, classroom, reserve, library copying, and interlibrary loan. Some addressed library copying only, indicating that campuses have different perceptions about whether copyright is a university issue or only a library issue. Only a minority of policies addressed non-print media in any systematic fashion. Virtually no policies were comprehensive. Policies were characterized by lack of coordination on campus, and some universities had two or more current policies -- which were not always consistent. Respondents were not necessarily aware of the campus policies that were in existence. The development of copyright-related policies on campus was often fragmented between centers of responsibility. Faculty had a "surprisingly small" role in developing such policies, which were most often developed by librarians (48.6%), administrators (26.8%), and legal counsel (15.8%). Faculty involvement was identified at 3.3% [22]

According to Crews, this low level of faculty involvement suggests that the driving force behind policies may be the legal rights of copyright owners and concerns about institutional liability. The need to avoid the risks of potential infringement and lawsuits rank high as the stated reasons for copying policies on campus. To substantiate those observations, the study notes that policy-writing rose sharply right after the NYU infringement lawsuit settlement. Eleven policies refer to that litigation as a basis for their creation. Adoption of the "safe" Classroom Guidelines in the majority of these institutions seems to be directly related to the litigation, an action which also led university attorneys into a key role in shaping university copying/copyright policies. None of Crews' findings is counter-intuitive except for one: that there is a tendency on the part of librarians to write the more conservative library copying policies. On the one hand, this observation should reassure publishers that librarians are indeed cautious and highly compliant towards the "safe harbor" standards supported by publishers. On the other hand, it suggests that the research library community could have better availed itself of the full range of the public good provisions of the copyright law, particularly fair use and Section 108 provisions.

While the Copyright Clearance Center's blanket licenses for copying on campuses and its academic permissions service offer universities some assistance, institutions who sign up for them should have first resolved their views on fair use issues, e.g., at what point in the copying process and under what circumstances should fees appropriately be paid. Fundamental policy decisions will shape the way in which copying arrangements and licenses are negotiated with a variety of brokers and suppliers. Institutions that resort exclusively to some forms of collective administration may be failing to recognize legally established opportunities that can further their academic--and financial--objectives. Many institutions seek to swap copyright dilemmas for collective assurance. The better policy would be to encourage both fair use and collective copyright administration systems to coexist; both systems must be optimized to best serve the academic mission. [23]

B. Universities as Creators of Copyrighted Materials

Clearly articulated policies on ownership of works written as part of university teaching, research and scholarship are the other half of a comprehensive university copyright policy. (The first half is addressed in the previous section. A well thought-out ownership policy also serves as a significant component of the copying policies advocated above.) Currently, most universities express little or no interest in owning or managing copyrights, giving faculty total ownership discretion over copyright transfer. Faculty deem the appearance of their work in prestigious outlets to be of such value that in exchange for publication they gladly transfer away ownership rights which they regard as financially inconsequential. But the financial consequences for the institutions are serious.

Universities have a vital and substantial economic interest in the proper management of intellectual property arising from the copyrights that their faculty create. While not reaching consensus on any single best model, the IP Task Force offers four ownership scenarios with accompanying discussions of their pros and cons.

Discussion

In the early to mid-1970s, universities began to appreciate the value of intellectual property in the form of patents and began to exercise a joint patent interest with faculty members. The principal goals in the joint management of patents were to transfer technology from the university to the marketplace effectively, aid in the complex filing and registration process, and secure potential revenue streams. The interests of universities led them to create substantial organizational and staffing capabilities, which led in turn to the creation of a robust and thriving Association of University Technology Managers (AUTM) designed to express a community of interest about patents and software. We do not suggest that copyrights and patents are identical, for clearly they are not. Patents exclude others from making, using, or selling the invention; copyright confers limited monopoly rights for reproduction, preparation of derivative works, distribution of copies, public performance, and public display. Patents extend for 17 years from date of issue in the US; copyrights begin at time of creation and last for 50 years plus the lifetime of the author (as a general rule, though there are exceptions). The right to patent is based on originality and function; copyright applies to original works fixed in a tangible form. The categories of material covered are different in patents and copyrights. And it costs approximately $10,000 to obtain a US patent, while it takes $20.00 to register a copyright, and registration is now optional even if desirable. [24]

For all these differences, one particularly important similarity links patents and copyrights: university faculty, researchers, scholars, and other community members create -- are hired, retained, and rewarded for creating -- inventions and copyrightable material, both of which are forms of intellectual property. Both have value: the patent has a potential value that is achieved if it subsequently earns revenue; the copyright has value because universities spend substantial amounts of money purchasing copyrighted materials, often materials initially produced by universities. In ARL institutions alone, about half a billion dollars were spent on acquisitions in 1992/93 academic year [25] With such sums at stake, university-generated copyrights deserve knowledgeable treatment.

During their term of employment, campus faculty, staff, and students produce many types of copyrightable works related to universities' larger mission. These publications can be traditional or electronic and include books, articles, pedagogical materials (syllabi, bibliographies), research data, dissertations, software, databases, dramatical works, musical works, multi-media packages, and other types of intellectual property. With the exception of textbooks and imaginative literature (either may be a substantial revenue source for authors) and some scholarly monographs (that may earn modest royalties), faculty generally do not receive payment from publishers for their creations. For the most part, faculty do not pay for the library materials and services they receive with their own or with departmental funds. In consequence, many do not believe that their copyrights have significant economic value to themselves or their institution. This perception can only encourage the common practice of signing copyright away in entirety. Most faculty only become aware of some consequences of transferring their ownership when they find that they need to obtain their publishers' permission to copy their own work for the classroom or for derivative works. "But I wrote it!" is perhaps the most plaintive cry heard at the photocopying machine. [26]

As part of the work of the IP Task Force, a member analyzed 39 university ownership policies supplied by Alfred Sumberg of the American Association of University Professors. The brief study reveals: [27]

• Not all university ownership policies were revised after the 1976 Copyright Act came into effect; accordingly, some policies appear to address a world in which changes in the law are not recognized.

• As noted in the Crews study [28] some institutions have more than one policy (for the academic and research sides of the institution, for example) and they do not necessarily agree.

• Length and clarity vary dramatically. Policies range from half a page to 30 pages. The briefer policies are likely simply to affirm that faculty own their copyrights, with no further guidance or information. Greater length does not necessarily yield greater clarity. The longer policies may be very complex; on reading them, the faculty member may be confused about what is owned by whom.

• In only two instances is there a claim to university interest or ownership.

• Though in general policies recognize faculty ownership of their own works, policies offer little or no help with the complex decisions about rights transfer or licensing. One result is that works are likely be assigned totally to publishers, even though the goals of a number of these publishers may be quite different from those of non-profit educational institutions.

• Only a handful of these policies mention intellectual property officers or university committees as resources for problems or disputes. Anecdotal evidence suggests that responsibility for advice is exercised, if at all, by the university legal counsel, the administration, the library, the press, or word of mouth.

• In short, it would appear that neither universities nor their faculty exercise much care in the management of copyrights; most publishers, on the other hand, manage copyrights carefully and exploit them fully.

A literature search on the topic of who owns copyrighted materials in universities shows a smattering of publication, little of it current. Except for some articles discussing whether the 1976 Copyright Act might prompt universities to mandate that works produced by faculty be works-for-hire, [29] there exists a de facto long-standing and little-examined assumption that faculty should be sole owners of copyright. Reasons for this assumption are uncertain. [30] There is little or no available literature on university copyright ownership that offers options, models, or policy analysis. However, a model policy from the Triangle Research Libraries Network (TRLN) exists and is widely available on the Internet. It assumes initial individual faculty ownership and advocates subsequent individual faculty retention of copyright instead of the usual copyright transfer to publishers. [31]

Because the IP Task Force concluded that universities should exercise their ownership interests systematically and coherently, it created several management scenarios or models for more detailed discussion. These scenarios were narrowed to the four described Section 5 of this report [32] Each had more than one advocate in the committee, for there are significant choices and tradeoffs. Nonetheless, it is clearly possible to bring rational arguments, clarity, organizational purpose, and practical help to the discussion of university management of copyrights. The least attractive option of all is to continue in the present mode, with AAU/ARL institutions working with unclear policies in an unmanaged copyright environment.

C. Universities as Publishers of Copyrighted Materials

Overall, universities rarely have a comprehensive idea of what is being published on campus or of the publishing investment they are making. Universities often do not fully recognize that they are publishers engaged in activities ranging from completely informal to the most formal publishing. Informal publication includes ephemeral materials for which copyright exists under law but which would never be asserted. Press releases, course offerings, calendars, services brochures, and some forms of electronic offerings such as informal topical discussion lists typify informal publications. Yet another arena is the preparation and production of classroom course materials or anthologies. Often sizeable staff are employed to produce these publications. The formal side of university publishing is typified by the books, journals, and other formats published by university presses. Formal publishing may also originate with departments or institutes and can include print publications, databases, software, videos, preprints, working papers, journals and symposia. Universities usually do not seek a financial return from such informal publications. Revenue-generating departmental publications may be used to support the departmental budget or otherwise unbudgeted activities. In the case of working papers or preprints, the university may subsidize copying and distribution to other institutions.

University presses are generally the locus for the most formal university publishing activities. These presses may operate at a profit, break even, or receive subsidies. There are scores of university presses in North America, some of them rivaling commercial publishers in size while others are relatively modest. Some have a history of distinguished publishing reaching back 100 years or more; others reflect the vigorous expansion of higher education after World War II. Together, these presses published over 7,000 new titles in 1993, or about 1/7th of all U.S. published books in that one year. These presses command a world-wide market. [33] They manage copyrights more actively and purposefully than any other unit of the university. They are one of the chief guarantors of independent and high editorial standards for scholarly communication. These presses ensure the survival of the serious scholarly monograph on this continent and are important publishers of books of regional interest and of belles lettres. They find a significant readership among well-informed people beyond the confines of higher education.

In these ways, university presses serve the academic community extraordinarily well and remain prized agents for advancing learning. All these strengths notwithstanding, university presses exhibit serious structural weaknesses:

• The scholarly monograph is the primary product of university presses, and the cost of publishing such works is becoming increasingly unsupportable. As scholarly publishing grows in size but depends on more and more specialized titles, the audience for a given book becomes smaller. The fixed costs of publishing must be supported by fewer buyers for each title and by larger publication lists. These financial pressures create an unfavorable spiral of costs for conventionally published scholarly monographs from which no escape is evident. This situation is partly true for journals as well.

• A few university presses have significant journals programs, primarily in the humanities and social sciences. Only two or three university presses have significant publishing programs in scientific, technical, or medical journals. Most university presses have no significant presence in journals publishing at all. As a result, university presses taken as a whole contribute little to that half or more of scholarly communication which is conducted through journals. Their absence is the more to be regretted because of the key importance of journal literature to all fields and the intractable price increases libraries face for journals, especially those published by for-profit publishers in science, technology, and medicine.

• Many university presses are capital starved. Many of them must earn back in current sales all the money they spend in a given year. This financial inflexibility makes it difficult for them to compete with large commercial publishers for new or existing journal titles, especially in the high cost areas of science, technology, and medicine. It also constrains the presses' ability to pursue innovative projects in electronic publishing.

• Faculty innovators wishing to exploit the capabilities of networked publication frequently (but not always) disregard university presses. In this measure, the presses are losing their most likely allies and their best leverage on publishing innovation.

• University presses are increasingly required to operate with little or no university funding. They are not closely integrated into the university's overall information creation, management, and dissemination activities (as conducted, for instance, by libraries and academic computing centers). In these ways, they are forced to the margins of institutional life by their "supporting" universities.

None of this suggests a healthy prognosis for university presses. The problem is not that university presses are poorly managed. It is, rather, that they are not being asked by universities to do some of the things they can do well and that most urgently need to be done, especially in establishing viable and prestigious alternatives to expensive commercial journals in science, technology, and medicine. They are not provided with the necessary financial basis for such activities, nor are they brought into strong collaboration with the university's other information management agencies.

From this perspective, universities are arguably wasting the publishing assets they have built over many years at precisely the time when the university's inability to control the costs of scholarly communication is most evident and most threatening to the vitality of the research mission of the university. From this perspective, business as usual at university presses is a self-destructive behavior on the part of higher education. The potential of the presses to be a major asset in regaining control of scholarly communication may be great and ought to be realized.