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Copyright and Fair Use
Paul Kobulnicky
Director, University Libraries
The pervasiveness of networked computing has spurred vigorous discussion of copyright and fair use. All of us hear daily about the Internet, the National Information Infrastructure, and the Information Superhighway. We're experiencing the reality of global information access--the world's libraries, and a great deal more--at our fingertips, whenever we want it.
Publishers and other owners of intellectual property, however, are not universally enthusiastic. They view ease of transmission as an open door to rampant copying, loss of control over their property, and an associated loss of income. They are concerned for basic, economic reasons, viz., their need to recover production costs and produce profits, and their wish to increase profits, marginally, by selling permissions. Most importantly, they worry about losing the philosophical basis of their rights if they do not defend and enforce copyright rigorously.
Like other industries, publishers most often have diversified product lines--newspapers, periodicals, trade books, scholarly titles, textbooks, multimedia, and software. Their product mix leads them to defend copyright policies that apply to their industry as a whole rather than to specific products. Thus, a textbook publisher sees a university's networking of a scholarly article, which the library owns in print, as threatening its sales because "universities" equate to the "textbook market," and networking a textbook certainly would impact its sales.
What gets lost in this broad-brush defense is the fact that different information products have very different economic drivers. Textbooks are produced for mass consumption. If portions of a textbook are distributed digitally, clearly the effect is reduced sales. On the other hand, when viewed as a percentage of total trade book sales, the academic market is negligible. There is even some evidence that placing portions of trade and non-trade books online may actually pique interest in those titles and spur sales.
Periodicals represent a similar situation. Publishers of most major trade periodicals, such as Time, Fortune, The Economist, Scientific American, and The Atlantic Monthly, see higher education as an insignificant market when compared with personal subscriptions and over-the-counter sales. By the time an issue is released, the value to the publisher of the previous issue has dropped to nearly zero, and the issue is generally unavailable. The same is true with newspapers, whose economic value is measured not only by the day of publication but often by the time of day. Once the moment has passed, the value of the information falls precipitously.
In regard to scholarly journals, the economics again are different. Higher education is the market, and that market is in steep decline due to the downward spiraling effects of decreased institutional funding and journal price inflation. Ironically, the scholarly journal is in such danger of collapse that increasing network access and liberalizing fair use may be the way for commercial publishers to save that entire class of publications.
The primary basis of existing fair use guidelines is economic impact. They focus on several issues: Is there systematic copying for profit? How substantial a portion of the work is copied? Is copying an attempt to avoid purchasing an available original? Libraries and the higher education community need to collaborate with publishers to identify ways to extend the fair use of many types of information in support of education. Where the academic market represents negligible added income to a publisher's product line, we must convince them not only of the broader social benefit of easy, free access for educational purposes, but of the potential economic benefit to themselves. Students will respond positively to publications that disseminate high quality information, and students' reading habits eventually will become subscription habits. We must convince publishers that easing restrictions on fair use for educational purposes will encourage faculty and students to respect, not violate, copyright.
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