Austin, Texas
May 18-20, 1994
Peter Nathan
University of Iowa
The Intellectual Property Task Force was composed of university library directors, law library directors, university faculty who were especially interested in intellectual property issues, including those involved in scholarly society publishing operations, university press directors, and one provost. I should also note that the provosts are very supportive of this effort. I would like to begin by sharing a bit of background material designed to help set the stage for my more extended discussion of our recommendations.
The charge to the AAU Intellectual Property Task Force was to develop proposals for university policies governing intellectual property ownership and rights, particularly in the movement into an electronic network environment; to examine, from a university perspective, the emerging possibilities for creation and dissemination of electronically based information; and to develop proposals by which universities can provide their faculty and students with new options for collecting and disseminating research and scholarship.
The process involved four work groups. The first examined how intellectual property governed by copyright law is being managed today. The short answer is that while some aspects are working well, many members of the task force believe there are substantial areas that are not, and universities are having to pay markedly increasing dollars to recover the intellectual property of their own faculty colleagues. The second work group explored how scholarly communications might look in the near term. Particular emphasis was put on understanding better the new electronic media by which increasing quantities of intellectual property will be disseminated in the years to come. The third work group considered the policy bases for the ways in which universities should manage their intellectual property. These bases included advancement of research, teaching, service, preservation of royalty income for faculty authors, and enhancement of efforts by universities to better contain the costs of intellectual property. Finally, the fourth work group considered a range of options for managing copyrights. These included an enlightened status quo, faculty ownership, joint faculty-university ownership, university ownership by itself, ownership by a consortial body, and joint faculty-consortial body ownership. I will talk a little bit more about the options later.
Now, let me move to a brief discussion of the recommendations. The task force recommended above all that AAU, working in partnership with ARL, ought to continue the process begun by this project. In this first phase the Intellectual Property Task Force identified and highlighted the copyright issues most critical for university success in the digital information environment. The next crucial phase is to build campus consensus and to bring other organizations--particularly, for example, the Association of American University Professors as well as perhaps the Council on Learned Societies--into this process. We think the coordination of this effort ought to continue under the auspices of AAU and ARL. The issues that we believe this new effort should address include those that affect universities and their status as both users of copyright information and producers of copyright information. Some of these issues need to be addressed on a local campus-by-campus basis, others would benefit from a continuing national AAU/ARL dialogue, and so we propose a concurrent local and national strategy. We also believe that the national initiative should monitor and coordinate activity at the campus level and assist in disseminating information about the results. The local actions would involve, above all, the formation of campus committees to create copyright policies for individual universities in two areas: copying and copyright ownership. At the level of the individual university, the aim will be to inform faculty members about copyright and engage them in defining coherent and comprehensive copyright policies. You may well think that is what you do now or, at least, that there is a group on your campus who does that. Our census, to our great surprise, found that relatively few universities in the AAU are able to achieve this goal with any great effectiveness. I was surprised and disappointed.
We will ask several university presidents to offer their institutions to serve as the core of a consortial group to work closely with the AAU/ARL intellectual property project. Each volunteer university--we suggest three to six of them--will appoint broadly based committees composed of faculty, library people, and others to consider issues affecting copyright on campus.
There will be two principal functions of this group. The first will address the role of universities as copyright users, i.e., affecting copying itself. Each volunteer university would work toward the creation of a coherent campus copying policy that addresses print, visual, oral, broadcast, and computer media. The effort will be made to exploit the full range of rights secured by the 1976 Copyright Act. Fair use must be particularly emphasized. It is our sense that universities have not exploited the full range of rights under the 1976 Copyright Act and that, in particular, the limits of fair use have not been tested. It is fair to say that there are a number of people on the committee who feel that university lawyers have been quite conservative and may be restricting. They have cautioned us against really making use of rights we properly ought to enjoy under the current law. We also believe a designated officer at each university should act as a copyright specialist or its troubleshooter/educator. This individual would also be responsible for developing policies to coordinate the signing of licenses on campus in order to develop standard licenses with no unduly restrictive clauses.
The plan, then, would be to use several universities as "test beds," create copying policies that perhaps might take all of us to the points where we are using the rights envisioned in the 1976 Copyright Act, and fair use to a greater extent than now is available to any of us. Second, this same group of universities would explore the role of universities as creators of intellectual property, considering such issues as ownership, copyright transfer, and licensing, so that each volunteer university would also develop detailed, coherent, and readily implementable policies on the ownership and management of intellectual property. We considered a variety of scenarios that ranged from maintaining the present situation but doing it in a more effective way, educating faculty to a far greater extent than we now do on their opportunities for ownership, to some dramatically different scenarios for ownership. We have not taken a position that one is practicable above any of the others, although there are a number of people who do feel that a joint faculty/consortial ownership model makes the most sense. But above all, the aim here is to get universities to engage their faculty in discussion of the specific rights that should be transferred or licensed to publishers and those that should remain with the creator or the institution.
On a national level, the task force recommends the formation of a coordinating group that would prepare in-depth reports in two vital areas--fair use and competitive academic publishing, particularly electronic dissemination. This group would also coordinate, monitor, and assimilate results of the local actions, and the group would be asked to study and prepare reports on these two critical issues.
The first would be to attempt to achieve consensus in the academic research community on fair use rights in an electronic environment. It would examine the constitutional basis and purpose of fair use rights and how they may be exercised in the newly emerging electronic environment. We assume this group will consult a variety of constituencies, and we recommend that discussions on these things ought to take place first with university presidents within the AAU/ARL institutions before moving out to other non-profit publishers and some commercial publishers. It is clear that all of these groups ought to be consulted, but it is also clear that university presses play a particularly important role in this regard and perhaps ought to play a much more important role in the future. They, in some sense, represent a model of what we are looking for, a responsible pricing policy as well as a great deal of knowledge of the needs of faculty and academic institutions.
We would hope that this group then could create a white paper that examines the issues associated with fair use in the electronic environment, what it means, and how it can be employed to enhance our goals. We also envision this group producing a feasibility report on strengthening and creating competitive university- or society-based publishing outlets in order to position universities strategically for electronic publishing. In some ways the most intriguing, exciting, and difficult of all of the issues to be considered by this task force is a consideration of ways in which university presses could be strengthened and funded to take on a more visible competitive role in the scholarly publishing community. Above all, we feel that the focus on the role of the university presses in science journals publishing is most important to consider, and that the AAU institutions might also be particularly effective in Internet-based publishing. We would hope, then, that this group would create these two reports, would monitor and overview the efforts at the local university-based activities as well.
Overall, then, the aim of our recommendations is to assure the long-term preservation and fuller access to knowledge and intellectual property. We think that this time presents us with great opportunities to rethink many of the things that we have been doing for so long and perhaps make some substantial, marked progress toward a solution to some of the problems that have been preventing us from providing the fullest possible service to our clientele.