Madeline McIntosh president of sales, operations, and digital, Random House. is quoted in an interview by librarian Kate Sheehan in Library journal :
"I hope librarians and publishers can help each other continue to focus on what we're each great at. Libraries are both cultural institutions and businesses, in the best sense of both words. They buy a lot of books. They buy a lot of really wonderful books. And they help bang the drum for those books in their communities. That has tremendous value for us, and for the readers we both share and value." And "...The value of a library to us—and our authors—is inextricably linked to a library having a physical space, where people can come and discover books."
That is the "big picture view" that says that publishers, authors and libraries are all part of the same economic eco-system. So we should work together to grow the markets for content & reading.
But some of the innovations and changes made possible by new technologies in such areas as digital course packs for students, e-books that are rented rather than owned, massive scanning projects of print collections, have lead to accademic libraries being sued by their erstwhile partners in that eco-system.
GEORGIA STATE UNIVERSITY LITIGATION
The suit against Georgia State University (GSU) was filed in April 2008 when Cambridge University Press, Oxford University Press, and Sage Publications entered their complaint that GSU e-reserves consitutued unauthorized copying and distribution of their copyrighted materials. During the course of the litigation GSU had developed extensive checklist that faculty were to use to decide when materials could be used under the doctrine of "fair use" or not.
The publishers were never satified with this. They propose almost absolute constraint on the school from using any of the copyrighted content without permission. Not aknowledging any "fair use" at all.
"WHEREFORE, Plaintiffs pray:
1. That this Court enter an order pursuant to 17 U.S.C. § 502 and 28 U.S.C. § 2201 declaring that Defendants’ actions as complained of herein constitute copyright infringement, and granting permanent injunctive relief enjoining Defendants or any individuals in their employ or control, now or in the future, without seeking the appropriate authorization from Plaintiffs, from copying, displaying or distributing electronic copies of any of Plaintiffs’ copyrighted works to Georgia State students or anyone else, or from facilitating or encouraging others to do so, in the manner described above — namely, via the collection and assembly of course reading materials for offer to students through an e-reserves system, a course management system, a course web page, or any similar electronic distribution method;..."
The author of the Law Library Journal article. The GSU Lawsuit: Don't Know How Lucky You Are", finds such a position to belie statements of such publishers that their mission is “to further the University’s objective of advancing knowledge, education, learning, and research.”
It appears that these academic publishers have chosen to forget that much of the content they have to sell comes from many of the same faculty & researchers at the institutions whose libraries, they sell to. One result of these policies, has been more faculty participating in new methods for sharing scholarly research, easily and affordably, such as The Public Library of Science, Multimedia Educational Resource for Learning and Online Teaching (MERLOT), MIT’s Open CourseWare initiative, Wikibooks.
AUTHORS GUILD SUIT
Another area where academic libraries are targets of lawsuits involves their role in the huge Google library scanning project. While several major US universities had allowed Google to scan and digitize major portions of their print collections, up until now the legal challenges had been directed at Google itself. But recently, as the publishers in that suit seemed to be trying to work out issues to deal with the court's rejection of their settlement, the Authors Guild decided to sue the participating libraries themselves.
It appears that what may have triggered this move against the libraries was the initiative by these libraries to actually host a significant portion of the scanned works themselves and make it avaialble to their faculty & students. The schools would work cooperatively to identify those works considered "orphan works" that may not have an identifiable author who could provide permission to use their works. Some experts say that even with no identifiable author, the use of an entire work is probably beyond "fair use".
However, even given that consideration, and that in this case, the content is created by authors themselves, what the Authors' organizations are seeking in court, also seems to exhibits an absolutist need for complete control :
From the complaint, Demand for Relief :
"(c) Pursuant to 17 U.S.C. § 503, this Court order the impoundment of all unauthorized digitai copies of works protected by copyright within Defendants’ possession, custody or control, including works whose copyrights are held by Plaintiffs, to be held in escrow under commercial grade security, with any computer system storing the digital copies powered down and disconnected from any network, pending an appropriate act of Congress."
While the authors do seem to have several provisions of existing copyright law to support their suit, what needs to change is that very law. There have been at least two major legislative attempts to deal with some of these very issues of contention in this law suit."Orphan Book" bills were proposed in 2006 & 2008 but were never enacted.
We need to ask the authors' groups whether sueing these libraries, can help bring about the needed legislation from Congress. Or does it just set the stage for more protracted litigation that may become a stumbling block to getting Congress to finally act ?
To restore the mutual synergy among authors, publishers and libraries, referred to in the opening quote, the participants need to return to the "big picture" of the "Public Square" in which the collective, interdependent and continuing nature of creativity is recognized.