I once took one of those pricey business school executive education workshops designed to teach leadership skills, and one of the things I learned was the importance of distinguishing between adversaries and enemies. Adversarial engagements are part of everyday life. As an academic administrator, a library manager, and a faculty member, I frequently find that some of my best friends are my adversaries, often in mutually beneficial relationships. But in a lawsuit regarding the use of e-reserves at Georgia State University, currently being decided by a federal court, three academic publishers (with the support of the Association of American Publishers and the Copyright Clearance Center) have taken a position that crosses the boundary from adversary to enemy.
The case, Cambridge University Press et al. v. Patton et al., is well-known in the world of academic publishing. Briefly, the plaintiffs (Cambridge and Oxford University Presses, and Sage Publications) allege that Georgia State's e-reserve practices violate copyright law. Because Georgia State is a public institution with 11th Amendment immunity, the plaintiffs do not seek monetary damages. Rather, they seek to alter fundamentally the way faculty use copyrighted materials in their teaching.
It's no surprise that academic publishers often find themselves in positions adverse to their authors and to libraries. They have different interests with regard to prices and royalties. University presses also have differences with their administrations, usually over fiscal issues. But the draft order the publisher plaintiffs have proposed as a remedy in the Georgia State case goes well beyond the normal conflict between publishers and academic institutions. In theory, the proposed injunction would apply only to Georgia State if adopted by the court, but in practice, the precedent it would set would result in "a nightmare scenario" for higher education, to quote Duke University's Kevin Smith, with faculty, students, and staff subject to outrageously restrictive copyright policies, and universities required to develop extensive, intrusive bureaucracies to ensure compliance (see Smith's Web post, tinyurl.com/GSUsmith).
Imagine having to seek the approval of the University Copyright Police every time you wanted to quote from a text, show an image, or distribute a handout to your students. Lest you think I am exaggerating, check out the form that, should the publishers have their way, faculty would be required to fill out every time they wish to put a copyrighted work on electronic reserve. The form (tinyurl.com/fairuseform) is based on guidelines published back in 1976, although it conveniently fails to acknowledge that the preamble to the 1976 guidelines explicitly acknowledges that fair uses may exceed the proposed limits of, for example, "not more than 1,000 words or 10% of a work, whichever is less" for excerpts; a single illustration "per periodical issue"; and no more than "one short poem, article, story, essay or two excerpts" from the same author during one class term.
As an author and an educator, I have great respect for copyright. I believe in balancing incentives for authors to promote the "progress of science and the useful arts." But as an educator, I could not comply with the restrictions the publishers have proposed. This proposed injunction does not strike a balance. Rather, it seeks to unreasonably restrict access to copyrighted works, and would force professors to exercise copyright self-censorship. A plain reading of the draft order suggests that publishers are quite willing to impose enormous costs on academic performance, and academic freedom, in exchange for higher profits. This is not the request of a friendly adversary. This is the attack of an enemy.
Still, I am not fully persuaded, even now, that academic publishers are the enemies of higher education. However, something has gone horribly wrong when entities created to serve scholarship employ costly legal action in pursuit of policies that would hamstring scholars and students that seek only to engage in customary and effective behavior in their teaching and learning.
I hope the court will recognize that the publishers' proposed injunction would be destructive of vital public purposes. And I hope cooler heads will eventually prevail among the plaintiffs. If not, the academic community will have to find other means to a better future than the one the plaintiffs have proposed. And whether that future can include publishers who would behave so inimically to the needs of higher education is less than certain.
Paul N. Courant is a faculty member, University Librarian, and dean of libraries at the University of Michigan, as well as being former provost and chief academic officer.
