RE: Full-text access, etc.

["Joseph Esposito" <espositoj@xxxxxxxxxxxxxxxx>]

I happen to agree with virtually all of Ms. Urquiaga's comments, especially
her vision of a progressive view of education and the ability of people of
all means to have access to educational materials, but I want to clarify my
remarks and note one point of disagreement.  I was not advocating a more
limited definition of fair use; rather, I was remarking that in the absence
of a more limited definition, few publications would be made available in
networked digital form.  This is a matter of economics, not public policy.
King Lear can command the winds to blow, but whether they blow or not has
nothing to do with his command.  An aggressive definition of fair use will
chase capital from the market.  It is already happening.  I would think that
the public policy question would be, How does one create intellectual
"property" in the absence of capital?  I don't know how, and my faith in our
civic culture post-Howard Jarvis is not great (alas).

The point of disagreement is Mr. Urquiaga's remark that no one "is
advocating the fair use right to take a textbook and scan it into an online
database."  This is not so.  Many people are advocating this.

Joe Esposito
espositoj@xxxxxxx

-----Original Message-----
From: Laurie Urquiaga [mailto:Urquiagal@xxxxxxxxxxxxxxx]
Sent: Monday, September 16, 2002 9:54 AM
To: digital-copyright@xxxxxxxxxxxxxx; espositoj@xxxxxxxxxxxxxxxx
Subject: Re: Full-text access, etc.



>All students enrolled in a class are, by definition, part of the academic
community.  Their  access to full-text content should be covered by the
database license.  Any self-respecting institution will provide off-campus
access to subscription databases.

JE:  Where such a license exists, this writer is correct.  Not all licenses
provide for off-campus access, however, and it is not really an
institution's self-respect (self-regard?) that controls this, but the terms
of the licenses, which vary.  And you would expect them to vary, because
content is (mostly) not a commodity and its terms of sale or license are set
by the seller.

LCU: I believe the original comment refers to the commitment many academic
librarians feel toward providing all members of the campus community
(wherever located) with equal access to library resources.  While it may be
that there are some long-term (legacy) licenses still in effect that
restrict off-campus use of digital subscriptions, very few libraries will
now sign a license that does not provide full access to remote users.  So,
while you are correct that terms of license are often set by the seller, if
the seller doesn't adapt the license to the demands of the audience, there
won't be very many takers.  This is particularly true in the case of large
library consortia who negotiate a single license covering multiple
institutions.  Library consortia pay big bucks for access to databases, and
are increasingly demanding favorable terms for constituent library users.

JE: But there is a practical issue that is not being addressed in this
discussion.  I hasten to add that I don't want to get into the rights and
wrongs of this but the simple economic reality of pushing the boundaries of
fair use in the digital medium.  If an institution licenses a database for
its entire community, that is the end of the argument:  now you can do
pretty much anything you want with the content.  But what about use in an
individual classroom?  It would not be hard to extrapolate from some of the
arguments on this list that Professor Jones would be protected under fair
use if he purchases a single copy of a chemistry textbook, scans it, and
then mounts it on a Web server for the thirty students in his class.  The
textbook costs (say) $100.  How much do the students pay for this?  How much
goes back to the publisher (and author)?

To make the obvious point: if fair use protects this, investment in new
textbooks will decline.

LCU: I don't think anyone is advocating the fair use right to take a
textbook and scan it into an online database.  As a practical matter, anyone
who has ever done any scanning knows that this kind of project takes more
time to complete than is reasonable for a one-semester reserve.  And it is
very clear to most educators and librarians that using copying to replace
textbook purchases is not allowed (it was part of the legislative discussion
for the 1976 copyright act).  Duplicating entire textbooks is
paradigmatically unfair.  But even more basic, digital duplication of
textbooks just doesn't work.  Recent research has shown that current
students (the generation raised with electronic media) don't absorb as much
from readings on a computer screen as from readings on paper if more than a
page or two worth of information is involved.  While digital material is
great for research purposes, when it comes to learning, paper is better.

The more common scenario is this:  Professor P assigns textbook T and
perhaps supplement S for student purchase through the bookstore.  However,
there is a particular reading in one chapter of textbook X that P thinks is
valuable.  She is not going to require students to purchase X as well as T
and S, so he requests that the library purchase a copy of X and copy the
relevant pages (lets say 10, out of a 400 page book) into a digital reserve
or supplemental reading on paper.  Is this fair use?  I think so.  Will it
cut into book sales?  Perhaps, but it is not likely to be a significant
drop.  Should the students pay royalties to the author/publisher?  I'm not
sure.  If the use is repetetive, I'd say yes, but even then, it is awfully
hard to police.  And the educational use of material is included in the
statute as being something that ought to be fair.  Very few people feel
obliged to pay royalties for research and academic-use materials, and I'm
not sure they're wrong given the constitutional purpose of copyright (at
least in the US).

My experience with this kind of situation is that if the royalties
significantly increase the cost of the reading, students will subvert the
system.  One student will access and print the material (or buy the reading)
and then share that item with his friends in the class.  The library is left
trying to figure out how many people might have read the article (it's never
100%, as any professor can tell you) either as a paper or digital document,
and then the royalties have to be paid out of institutional budgets that
weren't designated for this purpose.

JE: It is for these reasons that publishers have been so slow to embrace
digital
media.  As a practical (not moral or legal) matter, a ubiquitous, highly
restricted application of the principle of fair use would result in an
enormous surge of digital publications, many of which would become available
as unlimited domain licenses to institutions.

LCU:  You may be right, but one of my concerns with this scenario is that it
converts what has historically been a fair use (no fee) into a licensed use
(for a fee).  I don't want to see publishing as an industry go bankrupt
(note: given the research results noted above, I'm not sure digital
publishing will ever fully replace hard copies).  I think publishers serve a
valuable purpose.  Yet at the same time, any practice that further
segregates the information 'haves' from the 'have-nots' offends my
professional principles.  Education, imo, is one of those universal social
goods that should not be priced in a way that restricts the economically
disadvantaged from full participation or access.  I believe that ~limited~
copying of published materials for educational purposes should continue to
qualify as a presumptive fair use, regardless of the format of the
materials.  As a matter of public policy, I would like to see academic (and
scholarly, critical, and news reporting) fair use established as an
overriding principle that trumps restrictive licensing provisions.  I would
much rather be discussing the reasonable boundaries of fair use than whether
or not fair use should continue to exist as a public right in the digital
domain.

Laurie

Laureen C. Urquiaga
Assistant Director for Access Services
Law School Copyright Coordinator

urquiagal@xxxxxxxxxxxxxxx