Association of Research Libraries (ARL®)

5. Four Scenarios for Change

While the Task Force was keenly aware of the ways in which teaching, research, and service depend on the use of copyrighted works, it focused most of its discussion on universities as creators of copyrights and possible changes in the ways universities manage copyrights. It chose this focus because these matters are attracting attention elsewhere, because copyright management is central to electronic scholarly communication, because universities might gain market leverage by changing the management of copyrights, and because purposeful copyright management is so notably absent from university policy statements on intellectual property.

A subgroup of the Task Force was charged to describe several distinct scenarios for improving the management of copyrights created at research universities. The resulting scenarios were distinctive, though some overlap with others. They are to some extent imprecise and impressionistic; nonetheless, they have proved highly useful in focusing discussions within the Task Force. The scenarios are reported to help start and shape the wider discussions and policy creation that the Task Force recommends.

Some scenarios are closely related to others. For example 1 and 2 differ in degree rather than philosophy. Numbers 3 and 4 diverge on the issue of whether faculty will be required to share copyright or whether alternative publishing incentives will be created to entice them into placing their work into a shared repository. The purpose of sharing copyright with a university or consortium is that ultimately the institutional owner would serve as guarantor of wide electronic access, archiving, and use of the materials.

None of the first three scenarios precludes creating the publishing consortium outlined in the last one. The scenarios do not pursue the possibility of total university ownership or work-for-hire. Though that has some merit, the Task Force judged it possibly too contentious to be expedient.

The Task Force felt the further refinement of these scenarios and the full articulation of their operation was best left to the further deliberations it recommends.

Existing Practices

Most universities assert no ownership claim on the copyrights faculty create. Faculty are left free to dispose of their copyrights in any way they choose. Normally, faculty are likely to transfer their copyrights to publishers; in some cases they may retain certain rights or, much more rarely, retain the entire copyright and grant a license to the publisher for the use of the copyright. The most frequent--though still rare--exception to these practices is the assertion of university ownership of copyrights created by faculty under work-for-hire clauses in some grant and contract situations.

Publishers' practices mirror these university arrangements. Especially for journal publication, publishers request and generally require authors to assign their entire copyright to the publisher. Although some publishers offer terms that permit the author to retain some limited rights, the common practice is for publishers to require the transfer of the full copyright of the work in any and all media. In order to be published, and usually without conscious attention to the consequences, faculty, research staff, and other university employees sign such transfers and thereby put themselves and their institutions in the position of buying back subsequent uses of their own work.

The overall objectives that might inform change in these arrangements were identified in Section 3 of this report. More specific objectives would include (i) facilitating the re-use of copyright works in classrooms and the library, (ii) securing publication under terms more favorable to higher education, and (iii) reducing the cost to universities of journal subscriptions, particularly for scientific, technical, and medical titles.

The Task Force notes that current author's practices of copyright assignment appear to be starting to change from a monochromatic, total assignment to publishers to retention of some rights for the author. Copyright transfer forms and transactions are generally recorded in files in publishers' offices, and the copyright statements in books and journals do not describe details of the transfer nor who has retained what rights. Also, publishers come and go; rights are sold. When permission may need to be sought, it is increasingly difficult to know where ownership lies. All the scenarios explicitly mention or assume the existence of a database detailing ownership of published academic works. Such a resource is of surpassing importance and the national efforts to create it are worthy of continuing attention in further work that may be undertaken on the IP project. [34]

Scenario 1: Enhancing Current Practices

Brief Description

Currently, the overwhelming majority of university copyright policies assume that faculty members own the works they produce and can transfer this ownership as they choose or are required by their publisher. In the first scenario, while the assumption of initial author ownership remains unchanged, all university employees (faculty, researchers, students, and staff) are educated and informed about the meaning of copyright law and the consequences of copyright assignment or transfer. The scenario encourages authors to retain rights for on-campus and inter-institutional deployment, for course packs, for campus delivery of articles, interlibrary borrowing and lending, and any AAU or other consortial sharing arrangements which exist or may be put into place.

This scenario envisions individual university members of AAU mounting strong programs for campus information, discussion, involvement and support (through model language, contracts, and licenses; copyright advice; information about academic publishing and publishers). To begin the enhancement process, representatives of university presses and society publishers whose officers are employed in AAU universities would enter into discussions with faculty to consider language acceptable for copyright transfers, contracts, or licenses; the negotiated outcomes would attempt to balance the needs of authors, universities (readers, researchers, students, libraries) and publishers. University faculty and administrators would also consider what incentives could be offered to researchers and scholars to publish in lower-priced journals and to develop alternative publishing vehicles such as public domain electronic journals.

Advantages

This scenario capitalizes on authors' keenness to have their work disseminated as widely as possible but asks for more thoughtful stewardship of their intellectual property. The aim is to change the awareness and practices of university authors in a voluntary and positive manner. (Concern about academic freedom should be addressed and alleviated.) The choices authors make are voluntary and consensual, in keeping with the academic climate. While publishers may initially feel uneasy, their needs are taken into account in the creation of contract and transfer documents that are agreed upon with the not-for-profit publishing community, a community with objectives essentially parallel to those of universities. It is the intent of this option to maintain, not to demoralize, the existing publisher community, many of whom serve universities very well at affordable prices based on cost-recovery and educational missions.

Costs of implementation are modest, since the plan does not require a new publishing system or re-design of the current one, beyond the profound alterations that changes in technology and society already prompt. A Visiting Program Officer for a year or two, working for AAU and ARL, could make a great deal of progress on educational brochures and packages, as well as on sample agreements.

Even as the scenario can positively influence current print on paper practices, it could also inform and ready university authors for the rapidly emerging electronic publishing world. It is compatible with placing information online in new university-based database or publishing systems which are being discussed in other groups, including other AAU task forces.

Faculty will likely find this scenario congenial and comparatively easy to adopt.

Disadvantages

Some will see this scenario as too modest. A powerful argument can be made that electronic distribution will transform our roles and institutions, and retaining publishing systems we are accustomed to will discourage us from taking advantage of new publishing methods. However, since it is currently very hard to characterize those methods, this argument seems idealistic rather than practical.

Because this scenario seeks enlightened behavior through volunteerism, it is not clear that enough individuals would change the way they currently assign copyright. For that matter, it is not clear how many are enough. This scenario, in its current mode, is "incentive-weak." Moreover, it is not specifically and exclusively focused on electronic publishing, which some might find a weakness; however, it neutrally addresses all technologies.

Implementation

Implementation would take time. That is, developing general documentation and information would likely take AAU and ARL staff about a year. As an outcome of the IP Task Force work, its report would be copied and promulgated, and presidents would have to ensure that it finds its way onto every faculty senate and dean's council meeting, and then to the departmental level.

Initially, campus working groups would be set up in at least a few institutions that have indicated their readiness to proceed. On each campus, a specific department and individual(s) would be asked to develop practices, resources, and language that suit the specific institutional needs; to assist authors in making transfers and choices; to inform them of their rights in re-use, classroom use, and reserves; and generally to be a dedicated resource in the copyright area. A recommended product on individual campuses will be a database or registry of university-originated copyrighted works and the permissions and restrictions associated with these works, to feed into an AAU gopher registry for use by all institutions. Such a registry would make it easier for faculty, users, and libraries to determine who has permission to copy what. At present this can be an onerous chore. Copyright transfer language is very diverse, and the publisher or CCC is not necessarily the proper source for permission. The complexity of ownership and permissions is increasing rather than diminishing.

Documents and discussions from individual campuses will be widely shared by AAU/ARL institutions. The logical place for an individual campus copyright clearance and advice center is in the office of the Vice-President for Research, or Academic VP, with close liaison with the university librarian's office and campus legal counsel's office. The University Press and University Library are also logical choices.

Additional Comments

In working with the entire campus to heighten awareness of the meaning and purpose of copyright and its effective deployment for the institutional good, we remain open and flexible to the changes that will occur via electronic publishing. An informed author base is the first critical step in making transitions into the future, when entirely different means of handling copyrights may, indeed, prove desirable. (drafted by Ann Okerson)

Scenario 2: Faculty Ownership of Copyrights

Brief Description

In the faculty ownership scenario, faculty authors choose to retain copyright in all works they produce. At the present time, by contrast, most publishers require authors to assign the copyright to them, and thus the author loses control of the work. Under Scenario 2, the faculty author determines what rights to transfer to publishers and whether to grant blanket permission for educational uses, inclusion in course packs, and the like. That is, this scenario is an extension or result of the education phase in Scenario 1. While transferring the necessary rights, authors would likely retain copyright. (Universities would probably encourage faculty authors to place their works for publication with quality publishers whose prices per page or other unit of cost are not the highest in their disciplines.)

Under this scenario, faculty authors would allow publication or other forms of access to each of their works on a case-by-case basis or by a statement of general principle. At a minimum, authors would continue to grant to publishers the right to reproduce and distribute the work in a specific publication. Authors would be responsible, either directly or through a central agency they or the university might create, for registering the copyright and granting permission to use their work.

Advantages

Faculty ownership of copyright assures authors the possibility of income in the event their works are reprinted or made available in other forms. Authors also retain the right to update, revise, and republish their works. For authors and educational institutions, faculty ownership can allow authors to make their works more broadly available to colleagues and students than the current arrangement.

Another important advantage is that this scenario may be easy to "sell" to faculty, since it places all rights within their management and control. This scenario encourages publishers to work with faculty in new ways both to reproduce and distribute their works, while recognizing that it is not necessary to take the entire copyright in order to disseminate the work. Faculty ownership also deals most directly with the problem of journals pricing, since authors would be encouraged to publish with less expensively priced publishers. Further, the scenario specifically includes a recommendation that faculty authors grant blanket permission for the reproduction and distribution of their works by other faculty and universities for educational purposes.

Disadvantages

An important disadvantage of this scenario for authors is that it forces them to become responsible for the paperwork and expense of copyright registration or for making arrangements for the publisher to do this in their names. Unless blanket permission is granted for educational uses, faculty would have to respond to repeated requests for permission to use their works unless the university creates an office to handle permissions. These services are currently provided by publishers. Ownership and management of copyright could feel onerous to faculty over a productive career.

A disadvantage of this scenario for educational institutions is that every educational user seeking permission to use a work would have to contact the author personally unless the author's university creates a central permissions office. If the author chose to impose monetary or other demands greater than those existing under current practice, then educational institutions and researchers would experience a relative loss rather than a gain in the access to knowledge. (Some publishers believe they more generously grant cost-free reproduction of sections of works to which they hold copyright than do individual authors who are copyright holders.)

Another disadvantage of this scenario is that some publishers may refuse to publish the work of an author who does not transfer copyright. It is possible, however, that if all university authors took the same position, publishers interested in continuing to receive quality manuscripts would alter their policies to accommodate the requirements of these authors and their institutions.

Implementation

Universities would first have to educate faculty members about the benefits of adopting the faculty ownership scenario. Then it could be implemented voluntarily by authors, with the encouragement of their institution. On the other hand, universities could adopt the scenario and require that authors not transfer copyright to publishers (this probably then would be part of the employment contract). Universities might want to establish offices to handle copyright permissions, or the AAU/ARL might want to establish a collective to handle permissions. The cost to the university of doing so would be modest. It would have to create an office or designate an officer to handle permissions to reproduce faculty authors' works.

Additional Comments

For this scenario to achieve its objectives of increasing access to information at reduced costs, faculty authors and/or their universities would have to construct a central medium for registering works and granting permissions. Although each work might include a universally adopted statement allowing reproduction for educational purposes, situations will invariably arise where a permissions office is needed. (drafted by Charles Timberlake)

Scenario 3: Joint Faculty/University Ownership of Copyrights

Brief Description

The joint faculty/university ownership scenario envisions shared ownership between the faculty member and his or her university. The scenario relates in general to non-royalty producing works or works that are unlikely to produce royalties. The university and the author determine what rights to transfer to the publisher, whether to license certain uses of the work, etc. Thus, control is not automatically transferred to publishers. In order to implement this scenario, new employment contracts would be required to specify joint faculty/university ownership of these works.

The university would waive royalties on property it jointly owns, but for works that generate substantial revenues, the university may require reimbursement for extraordinary expenses incurred by the university as a result of the faculty member's production of the work (i.e., extraordinary computing time, software development, audiovisual production costs, etc.). As a co-owner, the university has absorbed costs of generating the scholarship or research. The university has an interest in determining where articles are submitted for publication in order to achieve the goals of cost reduction to the university, increased availability in alternate formats, and the like.

Advantages

Joint faculty/university ownership most directly addresses the problem of the cost of materials which a university library must acquire. Since faculty authors generate and publish research results, the author should be able to retain rights to reuse works and, with the university, to grant these rights to other colleagues and universities. The university must also provide considerable support to the faculty member in exchange for its ownership rights. In exchange for these services, the university (as a co-owner) gains a role in determining where articles are placed, based not on censorship but on the goal of utilizing publishers that do not over-price. This scenario also can be particularly effective in the electronic environment

Disadvantages

It will likely be difficult to effect any change from present policy and practices. Employment contracts would have to be changed to delineate shared ownership and to define rights and will have to specify whether ownership is 50-50 or on some other basis. Faculty may initially fear a loss of rights, but a strong education program should allay concerns by reassuring them that in reality they can retain greater rights and control than they have under the present system. Another disadvantage, possibly a substantial one, is that the cost-recovery (as well as for-profit) publishers may be disinclined to take on the financial risk of value-adding to a faculty-produced work because they would be competing with authors and universities. The electronic environment may bring about these changes, in any event, when universities themselves can create and manage databases.

Although not exorbitant, universities will incur some costs to implement this scenario. Likely costs include staff time for modification of employment contracts and the funding of an office and/or officer(s) to advise authors and handle copyright permissions (see Structure section). Full implementation likely will require a 2-3 year period based on the number of steps required (see Implementation section).

Implementation

Implementation will probably require a multistage process. For example, faculty education must occur in several stages: (1) the general problem, (2) the effect of choice of publisher on university expenditures, (3) how joint faculty/university ownership will help correct the problem, (4) implementation through a pilot project that involves faculty volunteers who might submit works to an electronic site and/or create a database of their works that the university manages, and, finally, (5) full implementation. Working groups will need to be established with publishers in order to sort out what rights are necessary to continue their interest.

Legal counsel must be involved to deal with employment contract issues and to redraft the institution's copyright policy. Two new services need to be provided: (1) an office that provides advice to faculty members on publishing, contract negotiations with publishers, etc., and (2) an office to handle requests from other universities and outside entities for permission to use faculty/university copyrighted materials. This is a possible role for AAU or ARL.

Additional Comments

Creative publishers will find ways to work within this structure. Association and university press publishers might be receptive to such arrangements, especially if the university and faculty members designate one source for dealing with publisher contracts. This will reduce the difficulty publishers currently have in negotiating with individual authors. (drafted by Laura Gasaway)

Scenario 4: Joint Faculty/Consortium Ownership of Copyrights

Brief Description

In this scenario, copyright is jointly held by the author(s) of the work and a consortium of universities. This only applies to work for which the authors do not receive and do not have a reasonable prospect of receiving royalties and which does not fit under the category of work-for-hire. Any of the copyright holders has the right to copy or distribute the work or otherwise make it available, with the following significant exception:

The author or authors retain the right to assign an exclusive distribution license to whomever they choose for a period not to exceed five years (the exact time limit may depend on the academic discipline). This right would have to be exercised within a fixed time period after completion of the work---perhaps three years.

Any other transfer of the rights included in copyright requires agreement by all holders of the copyright. In exchange for its share of the copyright, the consortium guarantees a permanent electronic repository of an authentic version of the work. Furthermore, after the expiration of any exclusive distribution rights, the consortium guarantees that the work will always be freely accessible to the authors, to all faculty at those institutions participating in the consortium, and to anyone to whom the authors give access to the work. The consortium or its member libraries will catalogue and cross-reference the work and provide other value-adding services as appropriate.

Advantages

While asking faculty to relinquish the right to transfer copyright, this scenario maintains the faculty's right to give exclusive distribution rights for a period of time and thus does not restrict a faculty member's ability to publish wherever he or she desires. It gives the faculty member value-adding services in exchange for a share of the copyright. It enables publishers to obtain exclusive distribution rights which, in the present climate, are still needed to maintain financial viability for society and university presses.

This scenario recognizes that current distribution is an important value-adding feature but that service and access is in the long-term the institutions' and the library profession's business and responsibility. Implementation of this scenario could shrink the traditional journals business, particularly for the most expensive (i.e., very large or very specialized) titles through a natural marketplace action by the creators and owners of the intellectual content.

Disadvantages

Libraries would still be in the position of having to buy articles from publishers who have obtained exclusive publication rights. This scenario does not solve the problem of high prices in some commercial outlets, since exclusive distribution rights are still assignable as the faculty member chooses. This scenario also assumes a digital world, but a lot of hard copy is still produced. As long as hard copy and "traditional" print publications continue to coexist with electronic media, print publishing needs to be addressed.

This scenario has the highest startup costs of all.

Implementation

The intention is for this information dissemination system to grow organically under the oversight of an umbrella organization that would work out the legal framework and the general guidelines for a variety of small consortia (like the CIC), guaranteeing compatibility and the free sharing of information among the associated consortia and with professional societies and other organizations that are brought on board.

The initial components of the information dissemination system will be small consortia that already have electronic networks. Member universities will encourage faculty to use the consortial depository for their electronic preprints and reprints (rather than departmental or individual electronic sites). This will be accompanied by a crack-down on electronic sites that do not make explicit provision for withdrawing articles on which copyright has been signed away. The deposition of any article in the consortial depository will require the author(s) to share copyright with the consortium under the agreement stated above. If the author elects to exercise the right to assign exclusive distribution rights outside the consortium, access to the consortium's copy of the article will be blocked to everyone (including the author) until the expiration of those distribution rights.

Under this umbrella, university presses and professional societies will be publishing exclusively electronic journals of high standard that offer fast turn-around and wide dissemination (all or most universities and colleges within the umbrella will be subscribers). These journals will permit their articles to remain accessible on the consortial depository. Faculty at a participating university will have easy access to these journals through their depository (e.g., at the time of deposition, list in order of preference the journals in which you are willing to have your article published).

Faculty incentives for publishing in these electronic outlets need to be put in place. A minimum incentive is the guarantee that publication in any of these fora will be viewed favorably for purposes of promotion and tenure. Faculty incentives also need to be established to reward those who invest time in development and maintenance. Disincentives for failure to deposit an article may be introduced after the system is well established. New faculty may be contractually required to place all preprints in the depository. All faculty at institutions under the umbrella must have the ability to search the depositories and access the associated electronic journals from their offices.

Additional Comments

We will not solve the current serials pricing crisis through copyright law even if we do alleviate some problems through better copyright education and support. The solution will come when we have an information network maintained by the academic community that encourages the widest possible dissemination of scholarly work at the lowest possible cost to the universities. To create such a network, the academic community must move aggressively into electronic publishing. The community must experiment with new forms of journals and new models for cost recovery. The most natural vehicles for this move are consortia such as the CIC (the Big Ten + Chicago) which already have an electronic infrastructure and are well positioned to work cooperatively with university presses and professional societies in establishing and encouraging electronic journals.

Would faculty voluntarily share copyrights with their universities and make their work available in an affordable, widely accessible database? Is it possible to convince university and society publishers to be part of such an information dissemination system (IDS)? The outlook is very good. For publishers, the IDS would have to provide a guaranteed income stream. Faculty seek three results from publication: the opportunity to share the fruits of their academic labor; prestige and reputation; and the accumulation of the kind of capital that buys rewards (promotion, tenure, grants) in an academic setting. The IDS can be set up to meet these needs efficiently and it can provide incentives for faculty to share ownership in a manner useful to the mission of universities.

This scenario would establish the principle that collectively the AAU/ARL universities have a long term interest in the ownership of scholarly work produced by their faculties and would encourage them to publish electronically via a consortium of like-minded institutions. (drafted by David Bressaud)

6. Corollary Issues for Further Deliberation

Over the course of the Task Force's deliberations, five corollary issues emerged. The Task Force came to no settled conclusions on these matters, which are reported here as areas of substantive uncertainty and policy tension that must be considered in the institutional policy building the Task Force recommends. The following paragraphs describe each of these issues.

A. Need to commit resources to university copyright management.

While the Task Force does not recognize any of the scenarios described in the previous section of this report as clearly preferable to the others, it does believe that any greater involvement by the university in the management of copyrights will likely require:

• Assigning some university office to assist faculty and other university authors with the assignment of copyrights or with publishing licenses, granting permissions, and related matters;

• Active copyright education programs on campus;

• Strengthening affiliations with the non-profit professional and learned societies, whose officers and editors are generally members of the academic community;

• Maintaining or restoring, where necessary, infrastructure support for faculty editors working for non-profit publishers;

• Integrating university presses more powerfully into overall university information management objectives, and encouraging presses to take an assertive role in publishing scientific, technical, and medical journals, especially in electronic forms. This will require treating the presses as programmatic partners with libraries and academic computing centers. It will also probably require reversing the trend toward treating university presses as stand-alone cost-recovery centers;

• The rather harder to quantify questions of faculty recognition, rewards, and tenure lurk behind the pressure to publish. These need to be explicitly addressed on campus, in relation to discussion about faculty publishing needs and patterns. Changes in publication patterns could affect the current rewards system.

B. Possible undesirable dislocations in existing markets.

Task Force members speaking for learned societies and university presses were sympathetic to concerns about high journal costs and felt that non-profit publishers could normally deliver journals at much lower costs. They nonetheless expressed grave uneasiness about possible negative results of universities becoming active managers of copyrights.

Faculty or university retention of copyrights was a troublesome concept. The publishers on the Task Force affirmed that the existing practice of transferring copyrights is essential to giving publishers the market-place control needed to make rational editorial and investment decisions as well as to recover costs. Nonetheless, they were agreeable to the prospect of negotiating short-term exclusive or broad (though not exclusive) distribution rights.

These publishers are more sympathetic to academic authors retaining some limited rights to the subsequent use of their own work (in classroom instruction, for instance). In today's academic publishing market, where nearly all revenue comes from book sales and journal subscriptions, some publishers are willing to consider transfers of copyrights that reserve specified secondary uses to authors. But as publishers' income streams shift away from book sales and subscriptions and toward various access fees (for the use of individual articles, book chapters, parts of data sets, or segments of electronic text), rights retained by the author may increasingly represent lost sources of revenue for the publisher. It is feared that such revenue losses could drive non-profit publishers operating on slim markets out of business long before it would have any negative effect on the largest commercial publishers.

Others on the Task Force believe scholarly communication is changing so fundamentally that no publishers except the most adaptable, agile, and creative are likely to remain in business.

One Task Force member feared there was little reason to believe universities would manage their copyrights disinterestedly. The competitive nature of higher education and the need to exploit every possible revenue source might prompt universities to manage copyrights with purely commercial motives indistinguishable from those of for-profit publishers.

C. Possible rationalization of existing markets.

While there may be market-place disruptions to fear, there exists real hope for beneficial change. Competitive conditions in the existing market place, especially for research journals, decidedly favor copyright holders. Responding to high costs by lowering demand--i.e., by cancelling subscriptions--works only for titles that are not central to a discipline. Such cancellations are usually not a realistic option for high-prestige titles and other titles vital to a given field of study. The strong position which publishers of such titles hold by virtue of the customary transfer of copyrights to them is very powerful and is one factor (though only one) in the unacceptable structure of information costs research universities face.

One might hope to weaken this monopoly position by retaining certain key copying rights for universities when copyrights are transferred, or when--perhaps better--authors retain their copyrights and grant only certain rights to publishers. One might also, over time, work to increase the prestige of university and other non-profit publishers, so that less of the economic value of university-created copyrights (especially of journal articles) would flow to the profits of the higher priced publishers. Another way to alter the monopoly position of very expensive, high prestige publishers is by universities moving aggressively into electronic publishing. Where other considerations are neutral, universities might positively manage copyrights so as to favor non-profit publishing.

D. Changing environment for the creation of added value by publishers.

In traditional print-on-paper publication, publishers create substantial added value by virtue of their editorial (i.e., their gatekeeping) functions and by a host of design, production, marketing, copyright management, and other activities. Closely related services--such as indexing and abstracting, document delivery, and the development of information management software--also represent major enterprises. The forms in which these activities will be carried into the electronic environment and how the costs for these activities will change in that environment are matters of considerable debate.

Publishers serving on the Task Force felt the new environment might save only about 20% of their existing costs. By contrast, one faculty member of the Task Force urged that current publishing modes will in the future have little relevance to the conduct of highly specialized scholarly communication. Where scholars are writing primarily for other scholars, the process will arguably be managed directly by the faculty involved and conducted outside the "money economy" of conventional publishing.

E. Academic freedom.

The Task Force felt there were possible implications for academic freedom in some of the issues it discussed.

The pertinent part of the AAUP's definition of academic freedom is: "The teacher is entitled to full freedom in research and in the publication of the results, subject to the adequate performance of his [sic] other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution. . . ." (Academic Freedom and Tenure: 1940 Statement of Principles and Interpretive Comments.)

The Task Force found no inherent incompatibility between "full freedom . . . in the publication of results" and greater university involvement in the management of copyrights. In disposing of their copyrights, faculty are keenly aware of the relative prestige of various publishers and of the bearing of that prestige on promotion, tenure, and merit salary decisions, on research funding, and on peer recognition and professional mobility. These are vitally important matters that require careful consideration in the further exploration of the four scenarios advanced for managing copyrights. But they relate primarily to faculty career development and do not go to the essence of academic freedom, which has to do with advancing truth through the competition of ideas in the intellectual market place. Where research findings are so specialized they are likely to be published and read in only one or two places, institutional restrictions on such publication would clearly constitute a violation of academic freedom. Otherwise, and certainly in the vast majority of cases, there are enough appropriate publishing outlets that institutional objection to any of them is unlikely to pose a serious threat to academic freedom. Indeed, one normally would expect faculty and universities to have the same motivation in favor of prestigious publication.

One can, however, imagine circumstances in which an institution might use its copyright ownership position (whether as sole or joint owner) to stifle the publication of a work of which it disapproved or whose publication it would find embarrassing, or to harass a faculty person out of favor with the administration. The appropriate response to such abuses of academic freedom would be to identify and proscribe them. That is how the AAUP customarily deals with other threats to academic freedom.

7. Will Copyright Endure?

It is not possible to conclude a discussion that includes policy recommendations for the present management of intellectual property without noting that this is a particularly difficult time in which to prophesy on the future of subjects such as copyright -- though the risk seems rarely to work as a deterrent. The approach in this report has been to assume that legal constructs and economic practices familiar in the world of mainly printed information will persist and can be modified to account for information that comes in technologically different forms.

Yet there is a strong current of contemporary thought [[35]](#35 that holds that society is about to reach the point in technological change where current ways of doing business, dependent initially on old technologies and then gradually evolving in response to such technological change as we are beginning to see, are about to collapse completely. Information wants to be free, these voices cry, and they point to the contemporary free-for-all of the Internet as the shape of things to come.

This is a line of argument that must be kept in mind, for it certainly cannot be totally refuted on present evidence. If universities cling to current institutional forms, those who are part of them may wake one day to find themselves keepers of quiet gardens no longer much frequented by a bustling world that has taken its information business elsewhere. It is a risk that probably faces traditional publishers most urgently, but to the extent that universities have evolved their information policies in tacit and explicit collaboration with the publishing industry, they run the risks along with it.

What is in fact likely to happen is neither the libertarian fantasy nor the completely commercial conquest of cyberspace, but something halfway between. Old-fashioned forms of information will continue to be produced and used and remarkably new and novel ones will emerge. The new is unlikely to eradicate the old, but it will surely supplement it and threaten to supplant it. It is impossible to predict what percentage of our institutions' information needs and use will be met by one or another medium five or fifty years hence.

For these reasons, two things are of surpassing importance. First and simply, that universities and their members know what their intellectual property policies are -- that universities have policies and enunciate them clearly, so that when change occurs it can happen in an orderly fashion. Second, that university presidents do not look upon the issue as one to be resolved now and so left settled for the future. The 1976 Copyright Act, as any copyright law, was an attempt to make such a settlement, and there are already voices suggesting that perhaps the monumental task of revising it again cannot be put off forever, even as the most prudent voices argue for making do within the framework it creates. But universities are not (thank goodness) entirely like the United States Congress. They need not "pass a law" and this Task Force does not recommend any law-making action. Rather, universities can create a process. They can make concern for intellectual property policies and their effects on institutional goals a continuing part of institutional consciousness. If together members of the university community do that, then universities can look upon the emerging frontier as one where they can play a leading part.

Recommendations

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

In the first phase of the process represented by this report, the IP Task Force has identified and highlighted the copyright issues most critical for universities' success in the digital information environment. The next crucial phase is to build campus consensus and bring other organizations, particularly the Association of American University Presses (other organizations such as the American Council of Learned Societies should be considered) into the process. Coordination could continue under the AAU or ARL rubric using current ARL staffing. If they are available, the current Intellectual Property Task Force members could continue working in the recommended groups. Funding to continue the next stage must be secured so that groups can easily meet together and communications can be facilitated.

The issues to be addressed divide roughly into those that affect universities' status as users of copyright information and as producers. Some of these issues need to be addressed on a campus-by-campus basis, while others can benefit from a continuing national AAU/ARL dialogue. Finally, so that the achievements of individual campuses can be recognized and imitated, the national initiative should monitor and coordinate activity at the campus level and assist in disseminating information about the results. Action items are identified for both levels of activity, local and national.

I. Local Actions: Form campus committees to create copyright policies for individual universities in two areas: Copying and Copyright Ownership.

The purpose of action at the level of the individual university is to inform faculty members about copyright and engage them in defining coherent and comprehensive copyright policies. Several university presidents will be asked to offer their institutions to serve as the core of a consortial group to work closely with the AAU/ARL IP project. Each volunteer university (three to six are suggested) will appoint broadly-based committees to consider issues affecting copyright on campus. The discussions will be shared with -- and informed by -- the Task Force's work. The volunteer institutions will be charged to create comprehensive model policies and documents for their own universities in the areas of both:

(A) Universities as copyright users (i.e., copying):

Each volunteer university should work towards creation of a coherent campus copying policy addressing print, visual, aural, broadcast and computer media. This policy should be designed to exploit the full range of rights secured for higher educational activities by the 1976 Copyright Act. Fair use must be particularly emphasized and utilized.

Normally, the model policies should provide for a designated officer at each university to act as copyright specialist, ombudsperson, troubleshooter, and educator. This individual could be a university press officer, librarian, faculty member or the university's legal counsel. Logical sites for this office are: vice president for research, institutional counsel, office of the library director, or the university press. Additionally, this individual would be responsible for coordinating the signing of licenses on campus, with the objective of developing standard licenses with no unduly restrictive clauses. A copy of each transfer and licenses signed by campus individuals or units would be housed centrally for consultation as necessary.

(B) Universities as creators (i.e., ownership, copyright transfer, and licensing)

Each volunteer university should also develop detailed, coherent, and readily implemented policies on the ownership and management of intellectual property governed by copyright law. Each model policy will articulate the basis for the ownership and management of copyrighted works created at the university. In the course of policy development, the scenarios presented in the attached report need to be considered, as do questions of incentives, prestige and academic freedom. Particularly important are discussion about the specific rights that should be transferred or licensed to publishers and those that should remain with the creator or institution.

Outcome: Model policies to share throughout AAU.

Timing: Completed for the AAU of Fall 1995.

II. National Actions: Form a coordinating group that prepares in-depth reports in two vital areas: Fair Use and Competitive Academic Publishing, particularly electronic dissemination.

This group will coordinate, monitor, and disseminate results of the local actions to all AAU/ARL institutions. Additionally, members of the group will be asked to study and prepare reports and recommendations on two critical multi-institutional matters:

(A) Academic/research community consensus on fair use rights in an electronic environment

This effort will examine the constitutional basis and purpose of fair use rights and how they may be exercised in an electronic environment. Fair use should be independently studied, especially as it relates to the transition to an electronic environment for scholarly communication and rights transfer/assignment to publishers. Discussions on these issues should take place first with university presses within AAU/ARL institutions before radiating out to other publishers. Unlike some publishers who might prefer to eliminate fair use in the electronic environment, university presses (and learned society publishers whose editors are often faculty of research universities) have generally supported the continued application of fair use guidelines to electronic documents. Nevertheless, significant questions remain about precisely what constitutes fair use and how different applications of fair use guidelines will affect students, faculty, libraries, and presses.

Outcome: White paper examining the issues associated with fair use in the electronic environment, what it means and how it can be employed to advance higher education, science, and the arts as public goods.

(B) Feasibility report on strengthening and creating competitive, university or society-based publishing outlets and positioning universities strategically for electronic publishing

This effort will consider ways in which university presses could be strengthened and funded to take on a more visible, competitive role in the scholarly publishing community. The values and standards of university presses have long been supported the mission of research universities. With cooperation, proper planning, financial seed money, and support, presses should be able to play a vital new role in the area that hits library budgets the hardest: science journals publishing. Through the technological structure already in place, AAU institutions could also be particularly effective in Internet-based publishing. The group will explore the feasibility of university presses entering this arena.

The Task Force members believe that the proposed Scenario #4 as described on pages 28-29 of this report deserves particularly intensive study. The creation of a consortium to serve as an electronic article copyright depository, if begun with the necessary faculty and institutional commitment, could become the basis for an exciting, innovative model for electronic distribution.

Outcome: Specific recommendations or feasibility plans. Timing: Both reports completed for the AAU meeting of Fall 1995.

III. Corollary Issue.

Though it makes no specific recommendations in this area, the Task Force wishes to make the following additional point:

The long-term preservation and access to knowledge must be assured. The traditional library role is under some threat from lack of library ownership of electronic materials (many of which are licensed to libraries rather than sold to them) combined with lengthening periods of copyright. Who will assure access when publications cease to be viable in the market? Addressing the full range of intellectual property management issues in academe will help assure the future availability of information.

Endnotes

1. An instructive legend is related in Ludwig Bieler, Ireland: Harbingers of the Middle Ages, London, Oxford, 1963, p. 11. In the 6th century AD, the king of Ireland resolved one of the earliest copyright disputes (between Columba and Finnian of Druim Finn) by ruling "As the calf follows the cow, so the copy follows the original" The Statute of Anne (England, 1710) is frequently described as the first modern national copyright legislation. While codifying protection for the author, it was, in fact, primarily beneficial to booksellers. See Mark Rose, Authors and Owners, Cambridge, Harvard, 1993, for a discussion of the origins of the notion of author as creator.

2. For a classic article on the balance that the U.S. copyright law archives see Zechariah Chafee, Jr., "Reflections on the Law of Copyright: I," XLV Columbia Law Review: 503-529 (1945). For a user-proactive view of U.S. copyright law, see L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright; a Law of Users' Rights, Athens & London, University of Georgia Press, 1991.

3. International Intellectual Property Alliance, "Copyright Industries in the U.S. Economy: 1993 Perspective," IIPA, 1747 Pennsylvania Avenue NW, Washington, DC.

4. Katsh, Ethan and Janet Rifkin, "The New Media and a New Model of Conflict Resolution: Copying, Copyright, and Creating," 6 Notre Dame Journal of Law, Ethics & Public Policy: 49-74 (1992).

5. In her essay "Some New Kinds of Authorship Made Possible by Computers and Some Intellectual Property Questions They Raise," 53 University of Pittsburgh Law Review: 685-704 (1992), Pamela Samuelson summarizes the new authoring modes, challenges, and opportunities.

6. According to Kendon Stubbs in his Introduction to ARL Statistics, 1992/93, Washington, DC, Association of Research Libraries, March 1994, in the six years from 1986 to 1993, subscription prices paid by ARL libraries doubled. Numbers of subscriptions held dropped by 5% in six years and numbers of monographs purchased dropped by 23%. The average price per subscription rose 13% per year and is currently $186.85. If current trends persist, by the year 2000 that subscription price will be around $440.

7. The Williams & Wilkins Company v. U.S., 487 F.2d (Ct. Cl. 1973), aff'd per curiam by an equally divided court, 420 U.S. 376 (1974).

8. Addison-Wesley Publishing v. New York University, 1983 Copyright Law Decisions, [[section]] 25, 544 (S.D.N.Y. 1983).

9. Basic Books, Inc. v. Kinko's Graphics Corp, 758 F. Supp 1522 (S.D.N.Y. 1991)

10. According to Carol Risher, Vice President for Copyright and New Technology of the Association of American Publishers, the AAP's position is that royalties have to be paid from the first library copy sent to another institution (Publishers Weekly, Oct. 4, 1993: 47). In fact, the authors of this report experienced some difficulty in obtaining this particular article. Finding that the office copy was missing, they asked a nearby publishing organization to fax a replacement so the PW article could be correctly footnoted. The organization felt that fair use did not allow them to send such a fax. Additionally, PW itself wanted to know the nature and purpose for the citation in order to permit the footnote to be used.

11. James O'Donnell quoted in "Pioneering the Electronic Frontier," 115 US News & World Report, December 6, 1993: 57.

12. Jane Ginsburg, "Copyright Without Walls? Speculations on Literary Property in the Library of the Future," 42 Representations:: 53-73 (1993). Ginsburg analyzes the differences between fair use in print-based and digital information environments and reasons that if fair use does survive, it must be a new sort specifically devised for the new digital communications capacities.

13. The software provision does not clearly distinguish between computer code and works that are presented in an electronically coded medium such as a diskette, CD, etc. The Section 101 definition is "A set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result."

14. For detailed and practical elaboration on what each of these sections and the guidelines means for libraries, see Laura N. Gasaway and Sarah K. Wiant, Librarians and Copyright; A Guide to Copyright in the 1990s, Washington, DC, Special Libraries Association [forthcoming June 1994]. Chapter 5, "Audiovisual and Non-print works," is particularly apposite in setting out the issues and identifying what kind of use and copying are appropriate.

15. This section is supplied from the draft of a talk given by Laura Gasaway.

16. The Copyright Clearance Center is a reproduction rights organization in the United states. Its role is to serve as a centralized clearinghouse for copying authority and royalty payments to copyright holders. Many countries have their own CCC equivalent. ASCAP and BMI are rights organizations for music broadcasting.

17. Examples of inability to locate rights holders and to afford copyright fees abound in higher education publications and even in publishing outlets. For example, the STM Newsletter, June 1993: 23-24, recounts one Harvard faculty member's long and sad story of being bounced between publisher, CCC, and Kinko's. It was a model exercise in perseverance which resulted in, theoretically, the commission of an illegal copying act!

18. The two policies are compared and discussed in context in Ken Crews' thorough study of research university copying policies, Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education, 47-53, Chicago, University of Chicago Press, 1993.

19. The subgroup, headed by Nancy Marshall, included Robert Kraft, Al Sumberg, and Charles Timberlake.

20. In brief, the Berne Convention, to which the U.S. is a signatory, states that in the arena of copyright, foreign works are treated as if they are domestic, i.e., a book published in Germany enjoys the same protection in the U.S. as if it were published in the U.S. The ramifications can, in fact, become complicated and controversial. The Berne Implementation Act of 1988, Act of Oct. 31, 1988, Pub. L. No. 100-568, 102 Stat. 2853.

21. Crews, op. cit.

22. Crews, op. cit.: 63

23. Crews, op. cit.: 129. The IP Task Force identified two academic copyright policies that were exemplary in certain areas. Georgia Harper, General Counsel, University of Texas System, has written "Copyright and the University Community," a document strong in its coverage of all formats. The section called "The Future of Professional Fair Use" (p. 42-44) is particularly worthwhile. Wellesley College's copyright policy (March 1993) is thorough in its treatment of library copying. Both organizations have given permission to mount the policies on the Association of Research Libraries' Internet gopher. To access from an Internet prompt, type: gopher arl.cni.org. Open the Scholarly Communications menu item and then the Copyright section.

24. Katherine Ku, Office of Technology Licensing, Stanford University, fax dated Oct. 19, 1993.

25. ARL Statistics, 1991/92, 32. Washington, DC, Association of Research Libraries, 1993.

26. The Task Force noted that the ownership of copyright is of concern not only to academic authors and institutions, but to writers in general. On October 18, 1993, The Authors Guild and The American Society of Journalists and Authors issued a position statement on Electronic Publishing Rights. From the opening paragraph: "Some publishers have routinely asked writers to sign away--without compensation--all rights to electronic use of the work they have created. Indeed, many have sought to make writers' work available in 'any medium yet to be invented.' Writers and their professional organizations must resist this attempt to seize creators' rights."

27. The work of reading and annotating the 39 copyright policies was largely done by Allyn Fitzgerald, a law school graduate and research assistant at the ARL.

28. Crews, op cit.: 56-69.

29. Laura G. Lape, "Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies," 37 Villanova Law Review: 223-271 (1992). Lape addresses the questions of who now owns the copyrightable works of professors, how universities attempt to control such ownership issues, and offers a way to approach the matter. A good survey article.

30. In her footnotes, Lape, op. cit. summarizes the handful of articles written on this topic and cites arguments for faculty ownership made by Dreyfuss and Duboff. Also, a well-known ruling is the National Labor Relations Board v. Yeshiva University (NLRB v. Yeshiva Univ., 444 U.S. 672 (1980). The case held that full-time faculty are managerial rather than professional employees and are thus exempt from coverage of the National Labor Relations Act. The case has been used by some legal scholars to advance the argument of university faculty as semi-independent agents rather than employees whose copyrighted works might be considered works-for-hire.

31. Revised and circulated widely on the Internet over the past two years, this document has generated interest from some creators and dismay from some publishers. To access it, from an Internet prompt type: gopher sunsite.unc.edu. Then open UNC Information Exchange menu.

32. This subgroup was coordinated by Laura Gasaway and included David Bressoud, Ann Okerson, and Charles Timberlake.

33. From statistical data supplied by Peter Grenquist, Executive Director, Association of American University Presses, memorandum dated 3/22/94.

34.. According to Marybeth Peters, Acting General Counsel, Copyright Office of the U.S., in a fax dated March 31, 1994: "The ARPA, LC, and CNRI are collaborating on the development of an experimental Electronic Copyright Management System (ECMS). Using high-performance computing systems and networks, ECMS will include: automated copyright registration and recordation of transfers of copyright ownership . . . The proposed testbed . . . should be operational by the end of 1995."

35. Nothing if not provocative, John Perry Barlow, "The Economy of Ideas; A Framework for Rethinking Patents and Copyrights in the Digital Age (Everything you Know About Intellectual Property is Wrong)," Wired, March 1994: 84+, begins with Thomas Jefferson and moves to electrons dancing on a screen. Barlow's argument is that so fundamental a technological change will completely overturn our notions of property, value, and ownership.

AFTERWORD

It has been a great pleasure to participate in the efforts of the Intellectual Property Task Force that have led to the Report you have before you. An extraordinarily hard-working group of university faculty, librarians, publishers, and academic administrators, the members of the Task Force worked harmoniously, energetically, and with a great sense of common purpose. I have rarely been a member of a group which cared -- and knew -- more about the issues on which they were working. While Ann Okerson, Scott Bennett, Nancy Marshall, and Laura Gasaway assumed primary responsibility for drafts of sections of the Report, and while, Ann, Scott and I worked together to produce the final document, virtually every Task Force member contributed importantly to the final product. Still, I do want to acknowledge Ann Okerson's uniquely valuable contributions. Knowledgeable, hard-working, insightful, and inspirational, Ann deserves more credit than any other Task Force member for the document you now have before you.

Peter E. Nathan
March 31, 1994