Manager of Professional Relations
Copyright Clearance Center
At the core of copyright is the promotion of scholarship, or in constitutional language, progress in the useful arts. The monopolistic right of the copyright holder, whether author or publisher, is balanced by certain special privileges, some ascribed on the basis of institutional identity, as with universities, and some on the basis of professional mission, as with librarians.
The copyright law is an equitable rule of reason and it has the demonstrated capacity for evolution. Interest in changing the law has diminished some in recent months and that is encouraging. Undoubtedly any effort to rewrite the copyright law would fall prey to a different law -- the law of unintended consequences. If there is any doubt that a law in flux would be more difficult than our current circumstances, just ask the Canadians.
The real challenge may not be the reasonableness of the law but the reasonableness of those of us -- librarians, publishers, authors and a host of intermediaries in the world of scholarly communication -- charged with making the law work. Or as those of us who recall Pogo might admit, "We have met the enemy and it is us."
Publishers and universities are beginning to reach for common ground for the management of intellectual property in an academic setting. Certainly there are a number of valuable projects going on in the university environment based on site licenses and other types of contractual relationships. At the Copyright Clearance Center, we have been engaged in the development of a different approach -- a repertory license for the university campus.
Before describing such a license, let me take a moment to describe CCC. The Copyright Clearance Center is a not-for-profit organization established in 1978. The CCC Board is comprised of publishers, authors, and users of copyrighted material. Current Board members include a university press representative, Sandy Thatcher of Penn State, and a university representative, Stuart Lynn of Cornell. CCC represents the works of 8600 publishers worldwide, and provides licensing systems to commercial corporations, document deliverers, special libraries, and producers of university coursepacks. After approximately ten years of development, the corporate licensing program returned over $15 million to publishers in 1993. After only two years of operation, CCC's coursepack program, the Academic Permissions Service, has returned just over a $1.5 million to publishers and their authors.
CCC also serves as the Reproduction Rights Organization (RRO) for the United States, linked through the International Federation of Reproduction Rights Organizations to counterpart agencies throughout the world. Through bilateral agreements with other RRO's, CCC has repatriated to the US royalties collected on behalf of US rightsholders in Norway, the United Kingdom, France, and Germany. Elsewhere, repertory licenses are a well developed feature of the academic landscape.
CCC actually must concede that it is only the second most experienced administrator of repertory licenses in the United States; ASCAP is older and larger. There is, incidentally, one critical difference between CCC and ASCAP. ASCAP will sue for copyright infringement while CCC, as a matter of policy, does not. Lest we miss the point that sticks can play an important role in copyright compliance even though carrots are the tool of choice, ASCAP's return to rightsholders currently runs eight to ten times that of CCC.
In 1989, CCC initiated a project for developing a repertory license for the university environment, adapting the most compelling features of our current corporate license to the needs of academic institutions and testing those features against the real world needs of academic institutions and the authors and publishers who serve them. The pilot involved six colleges and universities and approximately 150 US publishers as well as those publishers in the UK registered with the Copyright Licensing Agent, the RRO in the UK. Since the two year run of the pilot, CCC has held several conferences for selected participants. Our observations on university licensing are based not only on the data collected during the two year pilot but also on subsequent "debriefings" of those who participated.
Based on the data from the pilot, as well as the perceived needs and interests of both rightsholder and university participants, the essential features of a repertory license for universities must address access to an extensive and constantly expanding repertoire of works
The diversity of material of interest within any academic institution is literally unbelievable. In CCC's coursepack program alone, we identify, on average, ten (10) new rightsholders a day who must be added to CCC's existing data base of 8600 rightsholders. In just two and a half years, coursepack requests have been received for over 7000 different rightsholders.
Another feature of a repertory license for universities is a broad grant of rights that permits a range of uses, both predictable and unanticipated, and meets the various needs of faculty, students, staff, and administrators. In addition to seeking access to a virtually endless body of material, the scholar seeks freedom to use information in a variety of ways and with an immediacy that is perceived to exceed the standard of timeliness and ease associated with the traditional permissions process. Moreover, the diversity of materials from journals to textbooks, the options for media from print to electronic formats, and the entire set of users from faculty to students to staff must all be addressed within reasonable parameters.
The current time and attention devoted to the growth and evolution of information technology should not obscure the real and immediate needs for practical solutions to large scale problems related to photocopying of print material.
Flexibility in the grant of rights and in responsiveness to evolving technology will grow more important in licenses as the electronic future comes closer. That future is very likely to outstrip our ability to define, measure, and value information in ways that can be reduced to precise agreements with reasonable life spans. Broad principles, inclusive arrangements, and practical agreements will be far easier to sustain
The needs of a broad range of rightsholders and academic institutions must also be addressed when developing a repertory license for universities. A model that is suitable only for large publishers, whether journal or text, and large research institutions would be corrosive to the needs of the broader scholarly community which includes smaller institutions and such scholarly publishers as not for profit societies neither of which have the resources to protect their interests individually.
Particularly important to the university itself is that the license functions largely independent of end user behavior and/or knowledge of or commitment to the copyright law. End users are very likely to be the least informed and the least motivated in understanding copyright and in conforming their behavior to its expectations. An individual scholar's view of these issues is likely to be driven by the hat of the moment -- whether as author, teacher, or scholar -- rather than by a view of the verities of intellectual property or for that matter by university policy on copyright. We've all heard the scholar wax lyrical over the free flow of scholarship on the net within his or her discipline only to turn shortly after and demand the latest royalty statement from the publisher of a recent textbook.
The repertory license for a university should recognize fair use and library privileges (sections 107 and 108) in an administrative fashion that respects those prerogatives, but is not excessively burdensome. These privileges, described in sections 107 and 108, are alternately described by librarians as rights, by publishers as defenses against infringement or, getting into even deeper waters, by Jane Ginsburg in the publication circulated at this conference as subsidies to scholarly publications. Repertory licensing, with administrative mechanisms for accommodating these positions practically, can resolve a philosophical impasse.
The repertory license must cross national boundaries easily. Copyright laws themselves vary widely. The rationale behind those laws also vary widely. As information becomes ever more global, it will be increasingly important that domestic licenses are supported by an international network of agreements and understandings.
Another important feature of a repertory license is that it relies on just in case not just in time pricing. Pricing strategies in a repertory license would need to rely on a series of collection and distribution algorithms that would combine broad access to materials with predictability of pricing for academic institutions and some certainty of broad compliance with copyright on a university's campus with reasonable valuation of their materials for authors and publishers.
CCC's experience in the corporate market confirms over and over that extensive authorized access to copies of information at a price that is perceived as reasonable and under systems that do not interfere significantly with access to information build demand for the original product. The most frequent response of librarians to survey data demonstrating high use of a particular publication by photocopying is to order additional copies of that publication.
On balance if the cost is more than universities want to pay and the returns to publishers less than they expect, the negotiations between the parties may well be deemed a success.
It is also important not to spend dollars to collect dimes Expressed in a different way, the value attributed to the intellectual property must substantially exceed the cost of the administrative systems to protect that property. The decided attractions of highly particular systems for both rightsholders and academic users aside, such approaches demand complex, and therefore expensive, administrative procedures and systems support.
In order to achieve repertory licenses, we must identify solutions to some difficult obstacles:
Journal publishers are keenly concerned with library copying, as well as the transformation, legal and otherwise, of their materials into electronic forms which are subject to a variety of uses not contemplated in a print world. Text publishers, however, are focused on the steady growth of coursepacks and custom publishing .
Publishers cannot license what they do not own; the rights conveyed by the author in any instance may vary. Access to contracts and documentation may well be fragmented, particularly for older materials. There must be some consensus among publishers and between publishers and authors that their common interest in copyright compliance is more binding than their differences so that reasonable accords can form the basis of licensing agreements and pricing models.
The existing systems for permission and/or site licensing of materials accommodate only a small fraction of all the material that is copied and disseminated now. Assuming considerable latitude under copyright for academic institutions and their educational mission, there is still a tremendous volume currently of unauthorized copying. The promise of technology is only that of measuring large numbers of very small transactions; technology also carries an inherent demand for rules and standards which will pose a decidedly more difficult set of problems given the variability of current practices in the permissions arena.
Repertory licensing in academic institutions will require extensive cooperation, creativity, and clarity of interest on the part of authors, publishers, librarians, scholars, and university administrators. The good will building among those constituencies must soon translate into broad based agreements on uses, terms and conditions, and above all, pricing models.
The promise is real, as long as the visionaries are not so imperious about the technologies of the future that we cannot deal with the technologies of the present. And so long as the advocates of principles know when to quit staking out turf and start designing solutions. And, above all, as long as the lawyers do not wind up with control by default, developing a system so complex and/or so open to argument, that only they can decipher it.
If scholarly communication is about wisdom, not information, and if the lines of communication remain open, the promise is great.