Associate Director for Journals
The MIT Press
In response to budget stresses in libraries, the continuing exponential growth of research being published, and persistently above average price increases particularly for scientific journals, in the last two years there has been a search for answers and responses by the university and library communities in particular. One such response has been the movement encouraging authors to limit the rights they give to publishers, in some cases to first publication rights only. Most of the parties urging these changes say that nonprofit publishers are not the culprits, and therefore not the targets, of these movements. But, like it or not, nonprofit publishers -- among them university presses -- are suffering from these movements. Copyright policy may seem to be the club that either side believes they can use against the other, but for either to use it that way has the potential to destroy the scholarly communication system.
In this talk I want to describe how the licensing of subsidiary rights works in the journals environment and how that would be affected by the initiatives going on to transfer copyright management from the publisher to the author or author's university. Then I want to touch on Fair Use -- the balance it is intended to create between the public's need for access to information and the publisher's need to recover its costs -- and end by briefly speculating on the concept of fair use in the electronic environment.
I have been listening to some of the copyright discussions going on in the last two years and have become very concerned about loss of access to journal material if some of the initiatives being discussed were implemented. I realize that I am in danger of sounding like a publisher with a vested interest in the current system, but I have discussed this with many librarians who also see serious problems on the way. We need to understand how the subsidiary licenses for journal material work today and why in order to understand what changes might occur if the management of copyright changed.
First, I see copyright as a tool for two things: (1) protecting the authority and use of the author's work; and (2) increasing the dissemination of scholarly research. I do not think of copyright in terms of control, which is a word I frequently hear others attribute to publishers and copyright.
At the present, most scholarly journals handle copyright in the following way:
The author is asked to transfer copyright or a bundle of rights to the publisher.
In return, the publisher grants back to the author the right to reuse his or her own work.
The publisher registers copyright with the Library of Congress.
The publisher handles requests from photocopy shops to make multiple copies of articles for classroom use.
The publisher handles requests from other publishers wanting to reprint articles in books by other authors and other publishers.
The publisher handles requests from other publishers to translate articles.
The publisher licenses others to produce audio tape versions of articles.
The publisher licenses secondary publishers to produce the issues in different formats (microfilm, microfiche, CD-Rom, electronic delivery, document delivery of articles in paper or other form).
Secondary publishers, or aggregators as I heard them called recently, are the focal point for a number of products that are increasingly important to the individual researcher and the library community. At the recent Charleston conference on issues in serials and book acquisitions, I heard much about how important these products are to librarians. I know that subscriptions to some of my journals have been cancelled because of their availability in full-text form in these secondary products. John Regazzi, from Engineering Information, H.W. Wilson, just described EI Reference Desk and was immediately surrounded by librarians wanting to know how to get his product. David Blair, from University of Michigan, has talked about the need for scholars to find their way through the mass of information available -- whether in print or electronic form. For journals, these bibliographic searching tools have been made available by commercial secondary publishers, and now because of customer demand these products are incorporating delivery of full-text in addition to bibliographic references. To quote from the Mellon report:
Libraries themselves assumed responsibility for providing bibliographic information in electronic form about their monographic collections, as a continuation of the traditional cataloging activity. Information in electronic form about the serial literature, on the other hand, is in many instances provided by commercial services. The cost implication for libraries is significant. If they wish to offer a comprehensive array of bibliographic services, they must absorb the substantial cost of acquiring the commercial services, and in many instances members of the university community demand such services in addition to traditional acquisitions.[1]
Under the current system, journal publishers serve as the focal point for the production of secondary materials that are becoming increasingly essential to librarians, scholars, and students. That is, CD-Rom and on-line databases of indexes and abstracts that point to full-text of journal articles (either electronically accessed or print ordered), and document delivery services such as CARL Uncover, Faxon Research Services, and now Ebsco's CASIAS (Current Awareness Service/Individual Article Service), get their material through licenses with journal publishers or the Copyright Clearance Center (which has licenses with journal publishers). I have heard over and over again from librarians that faculty and students love these tools and that our publications have to be in them. But I believe these tools will not exist if publishers do not have the right to license subsidiary rights from authors. This is for two main reasons:
Publishers serve as the focal point for gathering rights. The secondary publisher has to make one license with one publisher in order to get a large body of content. The importance of the publisher as focal point can be seen by looking, for example, at the special issue of Representations that is available to conference participants. This journal has thirteen authors -- six from outside the U.S., one from private industry, one from Library of Congress, and five employed by universities in the U.S. It is important to note that less than half the authors are based at U.S. educational institutions, which are proposed to be the new copyright owners in some of the proposals circulating. Under proposals urging author ownership of copyright, the secondary publisher would have to get a license with thirteen different people in order to include the contents of this issue. None of the proposals circulating have discussed how to handle authors that do not reside at U.S. universities.
Publishers serve as the focal point for determining choice of content. The secondary publisher uses the reputation of the journal and the publisher to determine whether the material is appropriate for inclusion in its product.
This, I believe, is an even more crucial point. Without the publisher as the focal point, the secondary publisher would have to wait for publication of a journal issue, consider each article individually as to quality and appropriateness for their product, then find the author and negotiate the rights. I believe (and have confirmed this with several secondary publishers) that this would be totally impractical and would make the products both so expensive and so delayed as to be impossible to produce.
Then there are the document delivery services such as CARL, Faxon Research, etc. At the Charleston Conference I heard several things about the importance of these services:
When we are deciding whether to subscribe to a new journal, we look to see if it is in CARL and, if it is, we don't subscribe.
Money is being taken out of the serials budget and transferred to deposit accounts for document delivery services.
Some librarians and consortiums are setting up their own document delivery.
In other words, everybody's doing it. But the same problems would apply as with the secondary publishers -- where to get permission to use the material and the possibility of waiting for material to be published and deciding on an individual article basis whether they want to include the article. (Of course, I assume here that these services will want to exercise some selectivity over quality or type of material.)
And, of course, there is the Copyright Clearance Center, not a document delivery service but potentially impacted by this scenario. Individual authors could register their articles with CCC and have them included in their voluntary permissions program. But how many authors would carry through with this? How many records would this require CCC to carry in their database and report on? Only a very small percentage of the total articles published are ever reused (or reported or requested to be reused) currently. Changing copyright ownership to individual authors would make the CCC grind to a halt, in my opinion.
So, is there room for compromise on the copyright issue? Yes, some. I believe publishers should consider doing the following:
Explicitly tell authors what rights they retain and what permission they have to reuse their own material.
When an author wishes to retain copyright, have other options available that allow the publisher to still license subsidiary uses of the article in order to not deter dissemination of the material.
Explain to authors what publishers do with the rights they are asking for, and what benefit there is to the author and the scholarly community from the products and subsidiary uses those rights make possible.
Make it easy for photocopy shops and professors to get quick permission to use articles in classes, such as blanket agreements whenever possible. (Note that blanket agreements are impossible in a world of different copyright arrangements from author to author.)
I urge publishers to consider the following policies:
Allow authors to copy their own articles for use in their own classes without requesting permission and without fee to the publisher.
If appropriate for the discipline, reduce the length of time for exclusive rights to the publisher as long as it can be followed with nonexclusive rights to the publisher to insure the continuation of subsidiary forms of publication.
Allow authors to post early versions of articles on FTP sites if they point to the final authoritative version published in the journal.
These are all areas were customer demand is pushing compromises by publishers and where, I believe, our past traditions may not necessarily be workable in the new scholarly publishing environment.
I would like to touch briefly now on fair use -- an important concept that tries to balance the need to have easy access to research with the need for the publisher to recoup its investment. This topic is becoming increasingly important today as evidenced by much talk on e-mail discussion lists urging librarians to aggressively push the boundaries of fair use (the use it or lose it mentality). This has a circular effect which is negatively impacting publishers -- not just commercial ones but non-profit publishers also.
This cycle begins with the library not having enough money to buy the materials it wants. It therefore cuts subscriptions to journals and tries to fill requests for articles from missing journals with interlibrary loan or document delivery systems. The publisher experiences a drop in institutional subscriptions with no increase in subsidiary income to compensate and therefore raises the price. Publishers can only respond to selling fewer subscriptions by economies in production and/or increasing prices. The publishers that will be hurt first and the most are those that price on a cost-recovery basis and not on a for-profit basis. Activities by libraries that are intended to extend the boundaries of fair use will ultimately come back in higher prices on either journal subscriptions or copyright fees. Fair use has got to be fair.
The second point I want to make is that we need to develop an understanding of what fair use will look like for electronic publications. I would like to believe that accommodation for fair use can be given in the electronic environment and that I will not have to charge every time someone (whether it be an individual or a library) browses an article in one of my journals. But librarians and publishers must work together to come up with an understanding of fair use that approximates what is currently available in the print environment and also takes into account the special qualities of the electronic environment.
[1]Cummings, Anthony M., Witte, Marcia L., Bowen, William G., Lazarus, Laura O., Ekman, Richard H. University Libraries and Scholarly Communication: A Study Prepared for the Andrew W. Mellon Foundation. (Washington, D.C.: The Association of Research Libraries, 1992), 117.