Remix Pedagogy, Libraries, and the Georgia State Case | Peer to Peer Review; Library Journal,

Barbara Fister, Library Journal; Remix Pedagogy, Libraries, and the Georgia State Case Peer to Peer Review:

"I found myself wondering today if students at my college would be happy if the US District Court for the Northern District of Georgia agrees to the motion for summary judgment filed by Cambridge, Oxford, and SAGE against Georgia State University. A ruling in favor of the publishers could put an end to most library e-reserves programs and would essentially prohibit the sharing of scholarly publications through course management systems (CMSs) without purchasing a license for each work, each student, each semester.

So why might our students be pleased?

Increasing students’ costs by replacing e-reserves with coursepacks, print or electronic, is, frankly, a non-starter. Legislators have been logging so many complaints about the cost of textbooks, the US Congress has passed a law that requires faculty to identify their required course texts before students register for classes, so that they can calculate how much the course will set them back and plan accordingly.

This is not pleasing to faculty, who now have to turn in their textbook orders much earlier, and it’s a huge headache for campus bookstores (which have to play along but will lose sales to used book vendors) and registrars who have to construct new registration procedures to enforce the law. If the courts rule against George State University, making students pay for virtually every assigned reading would be a politically toxic outcome. But it’s equally unlikely that cash-strapped institutions would be willing or able to subsidize the costs on behalf of students.

The most likely immediate outcome is that faculty would simply scale back on reading assignments. I can hear our students cheering already. But is this really good for higher education?

Going to the source

Many instructors prefer to expose students to scholarly work in its original form, rather than rely exclusively on textbooks that have combined and digested the most commonly-accepted research ideas into an accessible but bland survey.

Of course, faculty have other options. If pay-per-use proved to be too expensive, they could limit their assigned reading to open access scholarship or to materials that are licensed by the library for campus use—oh, but not including publications like the Harvard Business Review, which prohibits using its library-licensed articles in courses. (Personally, I think tenure and promotion committees should disregard any citations to this publication on candidate’s CVs, just to even the score.)

But knowledge isn’t built out of stuff that can be easily substituted, depending on cost and availability. It’s built out of unique ideas that were expressed by scholars in order to contribute something new to our understanding of the world. One of the reasons why market-based economics are so inappropriate for scholarly communication is that in the marketplace of ideas, you can’t win market share by offering a cheaper idea.

Each idea has to stand on its own merits, regardless of which publishing company owns the copyright. If I can’t afford the knowledge in an article published in Nature Neuroscience, I can’t correct the market by choosing an article in a cheaper journal. Even more confounding, being exclusive and rare does not increase the value of an idea; its value is measured by how often it’s shared.

From the publishers’ perspectiveTo try and understand the publishers’ argument, I read the original complaint, their motion for summary judgment, and supporting materials filed by two university presses and one for-profit scholarly press against four individuals: the president, provost, and heads of the library and IT operations at Georgia State University (which, the plaintiffs note, employs over 100 faculty who have written some of the materials these publishers make available; I wonder what they think about this lawsuit?). These seem to be the plaintiffs’ major points:

Revenue generated by course packs has gone down as e-reserve and CMS systems are adopted; students prefer not to purchase course packs because they are costly, so encourage their instructors to make readings available in an alternative form. It’s hard to know exactly what losses we’re talking about, since every sales figure has been redacted from the documents.

Seems it’s none of our business how much we spend on this stuff.

Some instructors’ course content is conveyed through scholarly texts that, though they have likely been acquired by the library on behalf of the campus, don’t generate new revenue for publishers as students are asked to read them. Implicit in this objection is that faculty should be requiring students to purchase most of their course materials and are engaging in spurious remix culture by creating their own spontaneous anthologies. Oh, for shame.

The plaintiffs feel that checklists used to guide fair use decisions are inappropriate because the people using them are not trained in the law, and such checklists (like the one posted at the Copyright Clearance Center (CCC), which the plaintiffs otherwise endorse as a convenient resource for paying licenses) are too likely to support fair use claims. (Hat tip to Kevin Smith for the link to CCC’s checklist.)

Because readings are in digital form, students could copy and distribute works even if access is limited to enrolled students. Apparently students should not only pay per use, but that use should be limited in some fashion. This neglects the fact that library subscriptions to digital materials enable distribution of full-text articles; in fact, most databases, even SAGE Journals Online, have functions for saving or e-mailing copies of articles, enabling convenient sharing capability. (Maybe I shouldn’t be giving these people ideas.)

Colleges and universities should adhere to fair use guidelines as restrictive as those followed by publishers; one of the plaintiffs points out that when they publish a work that incorporates copyrighted material, they consider it fair use only if they use less than three percent of the work and the use is transformative—which assigned reading typically would not be. They suggest there is no way that reading scholarly materials without a payment for each student could be fair use.

I particularly like this bit of outrage: Students are able to get materials “without setting foot in a bookstore or expending a single cent on the copyrighted materials that lie at the heart of the educational experience.” Have they heard of libraries? Of course they have! We’re their biggest customers. But apparently we’re not at the heart of the educational experience, or if we are, we shouldn’t be.

I confess I laughed out loud at this statement: “This revenue is also vitally important to the authors of such works, and serves as a spur to, and reward for, creative expression.” There is no direct financial incentive for most academic authors to publish. However, having one of your articles assigned in courses, while not profitable, is sweet.

And then there’s this fit of pique: “Defendant’s acts have been and continue to be willful, intentional and purposeful, in violation of Plaintiff’s rights.” In other words, Georgia State didn’t roll over and settle out of court.

I admit, after reading their arguments, the only one that makes any sense to me is that the revenue stream that came from coursepacks is drying up, and publishers are concerned about how to sustain their operations. But is that reason enough to demand that the use of scholarly materials in courses should be metered on a pay-per-use basis? It seems to me irresponsible for scholarly publishers to attempt to criminalize the use of these materials in courses unless it generates additional income for them.

What are our options?

Raizel Liebler asked an excellent question at the LibraryLaw Blog back in 2008, when the complaint was first filed: is fair use dead? Or are traditional publishing models dying? She lays out five options for libraries if publishers win this lawsuit:

Pay permissions for everything placed on e-reserve. This, of course, will reduce our ability to buy new scholarship and will not enhance publishers’ bottom line.

Adopt a deeply conservative set of guidelines and hope they pass muster.

Tell faculty the only things they can put in e-reserves are links to licensed content that doesn’t prohibit such linking.

Cease offering e-reserves.

Change the system.

This last idea, of course, is the only option that has a positive outcome. We need to find a way that scholars can both systematically and impulsively share scholarly work with students without penalty. We need to find a way to support and sustain the editorial value provided by conscientious and professional publishing. We need to ensure that the materials libraries provide on behalf of their communities can be used to further students’ educations.

Something is badly broken when university presses sue universities for using their materials. We need to stop playing a shell game that merely shifts the costs and benefits around. It’s not sustainable.

I want my students to be happy, and I want our faculty to be more aware of the case for open access, but putting a tollgate on library materials used in courses is not the way to go."

http://www.libraryjournal.com/article/CA6724855.html

Intersting development in Georgia State case; Scholarly Communications @ Duke Blog, 7/1/09

Kevin Smith via Scholarly Communications @ Duke Blog; Intersting [sic] development in Georgia State case:

"The copyright infringement lawsuit brought against Georgia State University by three major publishers has been in a relatively quiet phase recently...Nevertheless, there was a development in Cambridge University Press, et al. v. Georgia State University last week that could significantly change the stakes for the rest of the academic world as it watches this case unfold...

For the rest of us, this means that the decision about fair use, if the case gets that far, will be a lot more relevant to e-reserve and course management systems use around the country. That, of course, could be a good thing or a bad thing, depending on how the decision goes. But it seems the decision will be based on policy and practice a lot closer to what many schools use (assuming, of course, that the new policy really does indicate changes in practice). Presumably a ruling in favor of fair use is a little more likely now that it will be decided on the basis of this more pragmatic policy. And such a ruling would more clearly support wide-spread practices in higher education. On the other hand, a ruling against Georgia State, if it happens, would be much harder for the rest of us to explain away and distinguish from our own practices."

http://library.duke.edu/blogs/scholcomm/2009/07/01/intersting-development-in-georgia-state-case/