Kate Torrey’s piece in the Chronicle of Higher Education on copyright and the contemporary university instructor provides a handy introduction to the legal problems facing classroom teachers today. Unfortunately, the piece offers a crabbed view of possible solutions. (Thanks, Frank, for the pointer.) More below the jump.Of course, the Chronicle piece is itself available only to Chron subscribers, and in the context of a paean to “the essential core of scholarly communications,” that irony is not lost on her academic audience. So I’ll summarize the key points; the complexities and uncertainties of fair use prevent me from doing more. She argues: A growing number of college and university instructors are using Blackboard and similar password-protected course management tools to manage electronic course reserves, rather than producing paper coursepacks or using library-administered electronic reserves. Those instructors are already perplexed by the limits of fair use as it pertains to teaching-related reproduction and distribution of copyrighted scholarly text. Blackboard and its ilk enables those instructors to hide their troubles behind password protection, rather than encouraging them to clear rights through Copyright Clearance Center. (She seems unaware, by the way, of legal and technological connections between CCC and Blackboard. See this page on the CCC site.) Her solutions:
Sophisticated online help should be made available to faculty members and TA’s. Help desks on permissions, with knowledgeable staff members, should be put in place. Student fees should include some portion of permissions costs, just as they do for printing and technology. And universities must invest in their presses’ ability to make material available for digital use in courses. Finally, the Copyright Clearance Center, which provides copyright-licensing services worldwide, can play a critical role here. The CCC, on behalf of universities, and with course-enrollment and usage statistics provided by them, could operate a course-management permissions system, with modest fees that would acknowledge that universities were acting in good faith.
The crabbing that I referred to above has two elements. First, from the consumption end of the problem, a brief and important piece should be added to her argument. Universities could adopt express indemnification policies for faculty accused of copyright infringement in connection with distributing course materials. Right now, her diagnosis is that faculty are abusing copyright right and left. But she has no data. Certainly, some faculty are stepping well over the line. But the opposite is also likely the case. Because of uncertainty under copyright, and chilling effects caused by fear of litigation, many faculty right now are not taking full advantage of legitimate rights under copyright, to their detriment and to the detriment of their students. From either point of view, it may be in the publishers’ interest to encourage universities to indemnify faculty. If the legal risks get shifted to the university, the university ends up with much greater incentives to educate faculty properly and to police their uses of copyrighted material in teaching.
Second, the more important omission, in my view, is attention to the production side of the copyright equation. I’ve added bold highlighting above to a key sentence, which seems to get lost in the appeal to the Copyright Clearance Center and permissions processes. That sentence is helpful, but it’s indirect (perhaps deliberately so). A more direct version would speak to eliminating or reducing copyright-related constraints on reuse of scholarly works at the moment of publication. Open access for scholarly publishing would remove much of the complexity associated with reuse of scholarly materials for further scholarship and for teaching. Universities could, if they chose to do so, invest in open access in two ways. First, via their own presses, they could release scholarly books online, using Creative Commons licenses, as well as in hard-bound editions. (My conversations with university publishers suggest that the barriers to making this happen are cognitive, not economic; university presses just don’t think this way. But perhaps this may change, or is changing.) This is the easier and faster step, though it may require a policy change enacted by someone with more authority than the Director of the press, and that’s rarely easy or fast. Second, universities could invest in the creation of prestigious, peer-reviewed open access scholarly journals, and they could support and recognize faculty who publish in them, via tenure and promotion policies. This is more difficult and time-consuming and expensive. In the end, however, if this could be made to happen, much fair use uncertainty would fade away. I’m in an optimistic mood today, so why not?