Report of the AAU Task Force on Intellectual Property Rights in an Electronic Environment Submitted to the AAU Presidents Steering Committee April 4, 1994 Washington, DC Endorsed by the AAU Presidents April 18, 1994 Washington, DC TABLE OF CONTENTS ================= Task Force Members 105 Charge 107 Executive Summary (Including Summary Recommendations) 109 Report of the Task Force 1. Background, Perspectives, and Possibilities 113 2. Why Does Copyright Matter to Universities? 115 3. Principles for the Use and Management of Copyright in Universities 120 4. Universities in Relationship to Copyrights 121 A. Universities as Users of Copyrighted Materials 121 B. Universities as Creators of Copyrighted Materials 127 C. University as Publishers of Copyrighted Materials 130 5. Four Scenarios for Change 133 Existing Practices 133 Scenario 1: Enhancing Current Practices 135 Scenario 2: Faculty Ownership of Copyrights 137 Scenario 3: Joint Faculty/University Ownership of Copyrights 139 Scenario 4: Joint Faculty/Consortium Ownership of Copyrights 141 6. Corollary Issues for Further Deliberation 145 A. Need to commit resources 145 B. Possible undesirable dislocations in existing markets 145 C. Possible rationalization of existing markets 146 D. Changing environment for the creation of added value 146 E. Academic freedom 147 7. Will Copyright Endure? 149 Recommendations 151 Afterword AAU TASK FORCE ON INTELLECTUAL PROPERTY RIGHTS IN AN ELECTRONIC ENVIRONMENT TASK FORCE MEMBERS ================== Peter E. Nathan, Chair Provost, University of Iowa Millicent Abell University Librarian, Yale University Prudence Adler (staff) Association of Research Libraries Henry H. Barschall Professor of Physics, University of Wisconsin-Madison Scott Bennett R. Champlin and Debbie Sheridan Director, Eisenhower Library, The Johns Hopkins University David Bressaud Professor of Mathematics, Pennsylvania State University Gregory Crane Professor of Classics, Tufts University Laura Gasaway Director of the Law Library, University of North Carolina-Chapel Hill Jane Ginsburg Professor of Law, Columbia University Robert Kraft Professor of Religious Studies, University of Pennsylvania Nancy Marshall University Librarian, College of William and Mary Peter Menell Professor of Law, University of California-Berkeley Ann Okerson (staff) Association of Research Libraries Alfred D. Sumberg Director of Government Relations, American Association of University Professors Charles Timberlake Professor of History, University of Missouri Bernard Rous (ex officio) Association for Computing Machinery Colin Day (ex officio) University of Michigan Press and Association of American University Presses TASK FORCE ON INTELLECTUAL PROPERTY RIGHTS IN AN ELECTRONIC ENVIRONMENT CHARGE ====== A task force of librarians and university administrators knowledgeable about copyright, patent, and other university information policies will be charged with developing proposals for university policies governing intellectual property ownership and rights in an electronic environment. The task force will examine from a university perspective the emerging possibilities for the creation and dissemination of electronically based information, and develop proposals under which universities could provide their faculties and students with new options for collecting and disseminating the products of research and scholarship in electronic environments. Such options could both expand access to university-generated information and reduce the cost of that access. Background: The rights to intellectual property created by university faculty are frequently given to commercial publishers who then sell it back to universities. An increasing proportion of this information, particularly in scientific and technological fields, is being concentrated among a small number of publishers, most of them overseas, who are increasing the price of this information at rates that exceed any reasonable combination of cost and profit, aided by an environment lacking effective market constraints. In addition, fair use provisions provided for higher education in the 1976 copyright law are being eroded by a number of factors, including university responses to litigation by publishers. Legal advice designed to reduce exposure of individual institutions has the aggregate effect of limiting faculty and student access to scholarly information. The development of electronic environments for the collection and distribution of information may provide universities with an opportunity to develop alternatives to the current, commercially dominated system of information creation, distribution, and use. Faculty are exploring the feasibility of forming electronic text centers which would digitize available scholarly information and make it available to scholars over computer networks. Commercial interests militate against the development of these information resources by restricting what information can be included and at what cost. An analysis of intellectual property rights in an electronic environment may identify opportunities available through a collective response by universities that will not otherwise be realized. EXECUTIVE SUMMARY (INCLUDING SUMMARY RECOMMENDATIONS) =================================== Overview ======== Most research universities already have a set of coherent policies governing intellectual property subject to patent law, mainly developed since the mid 1970s. By contrast, universities have given little attention to intellectual property governed by copyright law even though copyrighted property is used intensively in the classroom, library, and laboratory. Faculty and others at the university create new copyrighted works in immense number each year. University presses build their business on copyrights. All this notwithstanding, university copyright policies are generally narrow, incomplete, and defensive in character. As such, they do not optimize the research, teaching, or service missions of universities. Current conditions require that universities pay immediate attention to copyright in ways discussed in this report. The utility of the emerging electronic superhighway for higher education will depend on how copyright is managed in this new environment. Higher education will not prosper if universities fail to give focused, coherent management attention to such a crucial resource as the intellectual property their faculty produces. The roots as well as the extent of copyright policy disarray can be found in the contrast between the teaching and research functions of higher education. The marketplace value of teaching is measured by tuition income (or its equivalent in public revenues), so that numbers of classroom hours and student enrollments are closely monitored, negotiated, and managed by faculty and university administrators. By contrast, most research is regarded by both faculty and their universities as having no direct market value except where patents may be involved. University-based researchers create abundant intellectual property, but with regard to copyrights, faculty are typically free to dispose of this property in whatever way they choose. In fact, faculty generally transfer their intellectual property to publishers, occasionally with the expectation of modest honoraria or royalty payments but most often (especially as regards journal publication) with no expectation of any direct financial return at all. But when faculty move from being creators of copyrighted property to being users of it, they encounter a number of restrictions that demonstrate the considerable market value of such property, value that results from their own creative activities as well as the improvements provided by the publishers. In literally every facet of teaching and research or scholarship, faculty encounter numerous restrictions on what they and the libraries and computing facilities which support them can do. These constraints derive from the economic interests of the owners to whom faculty have transferred copyright, owners who are exercising the limited statutory monopoly on the expression of ideas that the copyright law grants them. The Intellectual Property Task Force of the Research Libraries Project (hereafter "the Task Force") believes the higher education community must take a more thoughtful, comprehensive, and purposeful view of copyright matters. The higher education community greatly needs publishing and other information management systems that are more serviceable and financially less onerous than existing ones--especially as regards scientific, technical, and medical journals. To meet this need, the community must work to create a market place for these activities that is economically more competitive, in which copyright monopolies are less constraining. While copyright is not, of course, the only issue to be addressed in restructuring the marketplace for scholarly communication, it is an issue of central importance. The Task Force believes that one important way in which higher education can be appreciably strengthened is through the development of effective policies for both the use and management of intellectual property governed by copyright law. The report that constitutes the body this document describes the bases for these beliefs. It identifies the stakes higher education has in copyright and enunciates principles that should guide change in the ways intellectual property protected by copyright law should be managed. The report also identifies the many issues universities face as users of intellectual property, as creators of such property, and as publishers of it. Finally, it outlines four broad options for repositioning universities with regard to copyright. While the ensuing report suggests a range of opportunities for universities to develop coherent copyright policies, it also documents the complexity and far-reaching ramifications of such change. Higher education is now moving between two paradigms for scholarly communication, one based on print and the other conducted electronically. While predictions about particular outcomes and timetables for this fundamental shift vary, there is little disagreement about the epochal and transformational quality of the changes now taking place. Because issues in the coherent management of copyright are so far-reaching, the Task Force felt it best discharged its responsibilities to the Research Libraries Project by: o Preparing the following report, which defines the key issues and outlines possible courses of actions; and o Recommending a process for deliberation within the wider university community on these issues in the process of developing specific models of action. Summary Recommendations ======================= o The Task Force recommends that the Association of American Universities, working in partnership with the Association of Research Libraries, continue the process begun in this Project. The next phase of this process should build campus consensus and involve other academic organizations, particularly the Association of American University Presses. Coordination could continue under the AAU or ARL rubric using current ARL staffing. If they are available, some of the current Intellectual Property Task Force members could continue working in the recommended groups. Funding to continue the process should be secured. Following the structure of the Task Force report (Universities as users, creators, and publishers of copyrighted works), the recommendations propose two levels of activity (Local and National). Action areas at each level include: o Local. Several institutions would volunteer or be asked to create model policies and documents for their own universities in two areas: (1) Copyright use (copying) (2) Copyright creation (authorship, ownership, copyright transfer, and licensing). o National. A national group (with representatives from AAU and ARL, adding the AAUP and affiliated academic societies) should be organized to address multi- institutional topics. This group would coordinate, monitor, and disseminate results of the local work to all AAU/ARL institutions. Additionally, it would study and prepare reports and recommendations on the next phase of university IP matters. The reports will include: (1) Academic/research community consensus on what should constitute fair use rights in an electronic environment (2) Feasibility study on creating and strengthening competitive university and society-based electronic publishing outlets. Strategies would include maximizing the existing university press capabilities and the startup of a cooperative consortium for deposit of scholarly/scientific articles in electronic databases. REPORT OF THE TASK FORCE ======================== "That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Invention then cannot, in nature, be a subject of property." - Thomas Jefferson 1 - Background, Perspectives, and Possibilities =============================================== The Research Libraries Project was commissioned in late 1992 by the Association of American Universities (AAU), an organization which comprises 58 major research and educational institutions in North America. The Project was established to offer guidance to members on key information issues facing them in the last decade of the 20th century and to position them for the 21st century. The general aims of all three Project task forces include optimizing access to and use of information resources and containing information costs, particularly during this time of rapidly changing technologies for creating, distributing, servicing, and storing information. Given the library-focused nature of the Project, the Association of Research Libraries (ARL), representing 119 major research libraries in North America, was asked to be a collaborator with the AAU in shaping the work of the Project. The participation of the AAU and the ARL speaks to a set of common needs of members as well as to their joint -- and unique -- mission within society, a mission focused on education, scholarship, research, and service. The Intellectual Property Task Force, assigned one of three areas for the Project (the other two are Scientific & Technical Information and Foreign Acquisitions), was charged to develop proposals for university policies governing intellectual property ownership and rights, to consider opportunities in the intellectual property (IP) area to enhance the collection and dissemination of research and scholarship, and to identify a range of information dissemination opportunities that might become available through a collective response by several institutions, rather than by any individual ones. The Task Force numbers fourteen members, including university administrators, faculty (among them two legal scholars), and librarians. After an initial meeting, the group felt it would benefit from publisher participation; accordingly a university press director and a professional society publisher were added ex-officio. The IP task force understands that the AAU project Steering Committee seeks practical recommendations that can be implemented by some or all AAU and ARL members and lead the way to further discussion and study of pressing intellectual property issues. Over the course of a year's discussions conducted face-to- face, by correspondence, and by e-mail, the IP Task Force has considered intellectual property from several points of view: o The university as an institution, with particular reference to maximizing institutional interests in intellectual property. What should university copying policies allow? Who should own the copyrightable material created during university employment? o The university as individuals and subgroups with different interests at different times as they assume the roles of student, educator, researcher, author, editor, administrator, and publisher. o Scholarly publishing as a large and variously entwined system of stakeholders including people and institutions not members of AAU or ARL. The information arena is global and scholars and scientists contribute to it worldwide. It is not confined to universities and their presses but encompasses other players, notably learned societies (although these generally have very close ties to universities whose faculty are society members and officers) and commercial publishers. o The economics of scholarly publishing, including sources of funding for dissemination of scholarly information. Some Task Force discussion focused on the importance of not undermining the existing system out of economic naivete. The Task Force also considered ways of alleviating the current university library information predicament, in which high-priced materials, particularly science, technology, and medicine journals, cause enormous repercussions and affect ability to buy in many other disciplines. o Old systems vs. new systems. Discussion lingered on how to move from print to electronic distribution formats and on the extent to which new information technologies can be shaped by academe and academics. This report is constructed in the following sections: Significance of copyright to universities; Principles for the use and management of copyright in universities; Universities in relationship to intellectual property, specifically universities as users, creators, and publishers of copyrighted materials; Scenarios for ownership of intellectual property created as part of university employment; Key issues for further deliberation by AAU and ARL members; and Future Prospects. Copyright is a complicated matter. It affects many players in disparate ways at any given time. The way in which faculty and universities now treat copyright is often not in their best interests. It is critical that a process be started to maximize the benefits of copyright in institutions of higher education and research. Such a process should be continued under the umbrella of the AAU, ARL, and possibly the existing IP Task Force. There are few easy or immediate solutions but the situation can be greatly improved if the momentum of the AAU Task Force's work is continued. ********** "As this society moves deeper and deeper into that phase of economic life called 'post-industrial,' where livelihoods are earned predominantly through the sale of information, expertise, and personal services, the extent to which copyrightable creations are protected by exclusive property interests can become central to national growth." - Barbara Ringer, "The Unfinished Business of Copyright Revision," 24 UCLA Law Review (June-August 1977): 976. ********** 2 - Why Does Copyright Matter to Universities? ============================================== While several types of intellectual property law affect universities and their information needs (patents, trademarks, and copyright), the focus of the AAU/IP Task Force is copyright, the U.S. law and the university policies that govern the ownership and reproduction of information fixed in a tangible medium of representation including print- on-paper, sound recordings, motion pictures, art, photographs, computer formats -- in other words, the prime stuff of which research, scholarship, education, and libraries are composed. (Research universities in general addressed patents through a series of policy implementations in the 1970s.) During the development of copyright law revisions in the 1960s and 1970s, universities lived in mostly a print world. In the 1990s, electronic capabilities have taken intellectual property into seemingly uncharted territory in which the stakes are equally high. Historically, the concept of copyright and copyright law have made it possible for information to be owned, for ownership to be transferred, and for copying to be regulated.[1] What can be owned can be sold; thus a market is born which in turn helps provide incentives for the creation and publication of more information. The governing purpose for U.S. copyright law is embodied in the Constitution in a phrase that is particularly apposite to the work of the Task Force: to promote the progress of science and the useful arts. Scholars and practitioners frequently speak of the balance between private and public interests that the copyright law aims to achieve, and that many believe it achieves quite well.[2] Because academe's primary mission is to increase learning and understanding of the universe, institutions of higher education hold a privileged place in society. Indeed, the current Copyright Act clearly recognizes an interrelationship between commerce and the well-being of society through special legal provisions for education, scholarship, and study, especially through the provision of "fair use," the right of first sale, special language for library, archival, and interlibrary sharing activities, and public performance rights. From the perspective of higher education, copyright brings both opportunities and problems. AAU and ARL institutions can, and to a great extent do, incorporate the copyright law's special dispensations advantageously into their campus routines. It is impossible to imagine learning or scholarship without making use of information in the classroom, office, research laboratory, or study. At the same time, the existence of copyright gives incentives to create and reap economic rewards. Scholarly publishers have responded to these incentives by publishing a great deal of information indispensable to universities. The copyright- related industries (of which publishing is one, along with film, music, and other related media) are among the United States' strongest overall. "In 1991, the core copyright industries accounted for $206.6 billion in value added in real 1992 dollars, or approximately 3.6% of Gross Domestic Product. In terms of value added to GDP, the copyright industries contribute more to the U.S. economy than most industrial sectors and more than any single manufacturing sector including aircraft and aircraft parts, primary metals, fabricated metals, electronic equipment, industrial machinery, food, and kindred products and chemicals and allied products."[3] Copyright makes this thriving arena possible and information is at the heart of economic growth. With much at stake, copyright owners are diligent in enforcing their rights. A scholar at the University of Massachusetts reports that in five district courts the total number of federal cases filed between 1979 and 1989 increased by about 50% (from 154,666 to 233,539) at the same time that the number of copyright cases during the period more than doubled.[4] In even the most casual scan of the current university information scene, it is clear that the work of every department and individual is entwined with the legal and practical implications of intellectual property, its management, and its reproduction and use. o Computers, CD-ROMs, and electronic connections have dramatically expanded awareness of the world's information and intellectual and literary holdings. o Ubiquitous copying capabilities and ever-faster information distribution modes make it possible to read and share information as never before. o A voracious and growing appetite for information exceeds the capacity to fund and store all potentially useful information physically at each university. o Increasingly, members of the campus community expect wide and quick access to offsite as well as onsite information. o Global scholarly and research communities are evolving, spurred by electronic communications, lists, and publications that cross institutional and geographic boundaries. o Exponential expansion of networked communications has led to broadened scholarly inquiry and to many new types of publications, resources, discussions, exchanges, and collaborations, all of which are fledglings and many of which are hard to characterize. o More people are involved in research and higher education than ever before, and, consequently, more research is being published. o More and more finely subdivided specialties and disciplines seek information outlets; many may be too small for print-on-paper economies of scale. One of the copyright law's strengths is a lack of specific quantity measures in the "social good" areas such as fair use. The law, legislative history, and adjunct guidelines provide even fewer definitive answers about reproduction or transmission of information electronically than they do about print. The uncertainty affects all areas: classroom and instructional needs; scholarship and research; and library operations such as Reserves and Interlibrary Loan. Yet the law, designed to be "technology-neutral," does offer a road map for institutions of higher learning. o Permission to reproduce materials for classroom/instructional use is frequently onerous to seek and sometimes too expensive to utilize. In many cases such problems have been self-created through less than advantageous transfer of copyright away from academe. o Works created by faculty generally arise out of their research and/or teaching employment; those same works, in turn, are used by those faculty in their employment. Currently, most universities express little ownership interest in works created as a result of faculty employment. This situation deserves to become the subject of institutional discussion. o Cooperative and multiple-creator modes of work are posing new questions about who "wrote" a work and who is responsible for it. Large databases of diverse types of information (textual, numeric, sound, image) lend themselves to incorporation and adaptation in the work of individuals and groups of investigators.[5] Barrier- free use of such work will be critical to transforming academic inquiry. o Distance learning requires ready and easy access to academically created materials. Many electronic licenses offer this broader access (which was taken for granted in a print-only environment) at prices that are not easily afforded. In some cases no provision is made for such access o Cooperative preservation and access to materials in the long term is at risk: transfer of ownership outside of academe, even as copyright periods lengthen and technology life becomes shorter and shorter, does not provide insurance that scholarship and research will be available in useful form over time. Electronic information access is increasingly governed by licenses rather than by ownership rights, yet institutions may not be able to preserve access to that which they do not own. o Research universities do not have the financial resources to meet all the expanding campus needs, expectations, and desires for information. The inability of information budgets and resources to keep up with rising information costs is paralleled by only one other major societal crisis, that of health care. For universities and libraries, information is its daily bread, a staple that is increasingly expensive.[6] The commercial and legal worlds that share universities' intense interest in the rights to information approach the question very differently. Even back in the "low-tech days" of 1968-1973, a publisher took a major government agency (library) to the Supreme Court over the technology issue related to library photocopying.[7] In 1982 (Association of American Publishers (AAP) v. New York University)[8] and then in 1991 (Basic Books v. Kinko's Graphics)[9], the publishing community initiated legal actions involving copying and sale of course packs for instruction. In 1992, the AAP widely distributed two statements that caused concerns for academic libraries, one on Document Delivery and another on Cross- Border Document Delivery. The statements were not worrisome because they affirmed publishers' rights to collect fees for document delivery, but because a target audience for both documents seemed to be libraries; one implication was that libraries' daily chores involving inter-institutional lending were putting them in frequent violation of the copyright law. On panels at conferences, some publisher representatives assert that much if not all of libraries' current Interlibrary Loan operations are illegal and that publishers should receive compensation for practically all copies made in all libraries.[10] In turn, libraries affirm that they uphold the copyright law and pay appropriate fees when their work falls outside the permissible activities of the law. The rapid growth of digital technologies that promise ubiquitous, ultra-fast distribution of all information (without necessarily ensuring income streams for copyright owners) leads publishers to be cautious in making scholarly publications available electronically. The result is that the fledgling electronic information world is less advanced than many universities and publishers would like it to be. Concurrently, individual researchers and scholars are putting out masses of information on academic electronic networks such as the Internet, bypassing traditional systems altogether and raising questions about the role of publishing institutions and libraries that have evolved over the past three centuries. In their daily work, members of the Task Force are aware of these trends; some members believe that every author can become a publisher, too. As publications of an entirely new sort grow and prosper -- ones that current institutions may be ill-equipped to handle -- the role of publishers and libraries may change markedly in the medium term and become either unrecognizable or greatly diminished in the longer term. As one university information specialist noted, talking about traditional publishing and intellectual property protection is akin to sending an expedition to find the New World, even as the Gold Rush is nearly over. One scholar quoted in a national news magazine's lead story on the information superhighway said, "For many people, the network revolution has already happened."[11] ********** Chill the champagne and polish the crystal goblets! The book of my enemy has been remaindered And I am glad. - Attributed to Clive James ********** 3 - Principles for the Use and Management of Copyright in Universities ========================================================= Given the range of discussion and possibilities, the primary concern of the Task Force was to balance the disparate interests of universities as creators, users, distributors, and maintainers of copyrighted works. Such balancing included trying to answer, among others, the following questions: o Do recommendations and actions meet the overall educational and service missions of universities? The task force was commissioned by the AAU on behalf of its institutional members. The overarching responsibility, therefore, is to guide the institutions' decision-making and policy formulation. At the same time, while putting the universities firmly at the center, the report should recognize the needs of all users in the academy. o Are recommendations and actions likely to improve access for members of the university? Optimally deployed, copyright ought to enhance or facilitate the best deployment of information and promote and improve access within universities. o There are real costs in authoring, publishing, organizing, and servicing information, whether in print -on-paper or in new technologies. These costs have to be recognized and supported. (Usable information does not happen most effectively under informal, unruly, spontaneous conditions, though the Internet culture may yet provide a peripheral region of unruly information that usefully supplements more structured communication. In at least this regard, it may alleviate some of academe's cost burdens.) o Can costs be recovered? Are prices based on cost? Will universities operate more cost effectively (that is, contain increases in operating costs and the high capital investment made in teaching and research)? Comparatively inexpensive per-unit information costs charged by the not-for-profit sector and a number of commercial publishers seem preferable to pricing based almost entirely on what the market will bear (see also Science/Technology Task Force statement on this topic). ********** JAQUES All the world's a stage, And all the men and women merely players; They have their exits and their entrances; And one man in his time plays many parts As You Like It, Act 2, Scene 7, lines 139-142 ********** 4 - Universities in Relationship to Copyrights ============================================== The IP Task Force believes that universities need to develop, implement, and promulgate clear policies regarding copyrighted information where such policies do not currently exist. Universities and members of the university community have many copyright roles: they are users, creators, maintainers, and distributors of intellectual property. Copyright policies governing two sets of roles are particularly vital: (1) universities as users, including individuals and libraries making copies for educational, scholarly and research purposes as well as librarians preserving the body of knowledge in perpetuity, well after any publisher derives material benefit or has any interest in it; (2) universities as creators, through the substantial numbers of copyrighted works produced by their faculty and staff. A third role of great potential for the management of copyrights and scholarly communication includes universities as publishers. A. Universities as Users of Copyrighted Materials ================================================== Universities must develop carefully articulated, comprehensive and nuanced copying policies that inform the university community about the explicit rights and obligations they have under the copyright law. Such policies are also instruments to engage and inform faculty on issues that often seem complex, opaque, or sometimes unimportant. Policies should provide convenient guidance for all segments of the community as they pursue their daily business of teaching, researching and writing, learning, and information management; policies help avoid infringement of the copyright law. Discussion ========== It is part of the routine activity of universities to use copyrighted materials produced by others. Students, teachers, and researchers read, study, copy, teach, show and cite others' work from articles, books, newspapers, CDs, videos, microfilms, multimedia, etc. Libraries make copies for readers, share copies of materials with other libraries, and make copies for long-term storage and preservation. During the revision of the copyright law which took effect on January 1, 1978, Congress incorporated several special provisions into the law to promote the dissemination of knowledge in support of teaching, research, and public service missions of the academy. The special provisions afforded to education and scholarship are described in several sections of the Copyright Act of 1976 itself. Additionally, several guidelines exist adjacent to the copyright law. While none of them has legal standing, they do represent a consensus within some parts of the publisher/user community and present views on the minimum copying allowable under the law. Presumably, compliance with the guidelines would assure that there would be no litigation from copyright owners. Section 107 - Fair Use ====================== Fair use is codified in Article 107 of the Act and, within reasonable limits, offers privileges for educational, scholarly, and personal copying without permission from the copyright holder. The 1976 Act was the first revision in which fair use was given statutory status. Section 107 enumerates four factors that need to be considered case-by- case to make a fair use determination (purpose of use, nature of use, amount, and market effect). There are no precise quantity measures; the factors must be assessed together on the facts and merits of each specific case. Fair use is nonspecific enough to allow substantial latitude in interpretation and can cause publishers a great deal of concern. By balancing educational and public rights, Article 107 in the copyright law strongly fosters much of the constitutional purpose of promoting science and the useful arts. The future of fair use is not assured in the electronic distribution modes. Publishers tend not to allow purchasers to own electronic information outright; rather, they license electronic information according to specific contractual provisions including such specific boundaries as number of campus users, number of simultaneous users, number of sites, and so on. Further, the very ability to count individual uses or users seems to offer at least some information producers an impetus to charge on a per-use basis. The continuance of fair use is identified over and over in writing and discussions as an area that needs a great deal of attention in the emerging electronic arena. For the Task Force, it is an area of primary concern.[12] Section 108 - Library & Archiving Provisions ============================================ Section 108 of the Act offers privileges for libraries open to the public or outside researchers and it allows these libraries, for instance, to make a preservation copy if one cannot be reasonably purchased, to make a copy for a patron's use, to allow unsupervised copying provided a warning notice is posted, and to engage in lending copies provided that the purpose of lending is not to substitute for subscription or purchase of a work. This section recognizes the several public benefits delivered by libraries that advance the constitutional purpose of the copyright law. Sections 109, 110, 117: Performance/Display Provisions; Software ======================================================== Section 110 allows teachers to perform works and display motion pictures and videos in classrooms, and it permits institutions to transmit broadcasts of certain works in places of instruction. Section 117 permits the owner of software to adapt it for use on a computer, to make a copy when it is an essential step to use it on that machine (such as to load it on a hard disk) or to make a backup copy under certain conditions.[13] Section 109 allows nonprofit libraries to lend software for nonprofit purposes. The software must have a warning placed on it in accord with the Register of Copyright's regulation.[14] GUIDELINES: Interlibrary Loan Guidelines ========================================= The Interlibrary Loan Guidelines negotiated by CONTU (The Commission of the New Technological Uses of Copyrighted Works under section 108(g)(2) of the Act, define interlibrary loan arrangements that do not run afoul of the "aggregate quantities" prohibition. This is the so-called Suggestion of Five, the safe harbor guideline (often called the CONTU Guidelines). Under the suggestion of Five, a borrowing library may request five items from a copyrighted non-serial publication each year that the work is protected by copyright. From periodicals, however, the borrowing library may request five items from a periodical title going back five years. If the library owns the title, but the issue or volume is missing from its collection, the request does not count in the Suggestion of Five. Likewise, if the library has the title on order it does not count in the Suggestion of Five. The Guidelines further require that the borrowing library certify that the request is within the Guidelines and that it retain records of interlibrary loan requests for three calendar years. The records must be accessible by title. There is no reason to retain records longer than the mandated three calendar years. The onus for both the certification and the record retention requirements i on the borrowing and not the lending library. If it is within the Guidelines for a library to request and receive a photocopy of an article, it is permissible to request and receive an electronic copy. This presumes that the copy received becomes the property of the user who initiated the interlibrary loan request and that neither the lending nor the borrowing library retained a scanned copy. Retention of scanned copies and the storage of them raises many issues that are vexing, complicated, and not necessarily entirely clear from a reading of the Act.[15] Classroom Guidelines ==================== During the revision of the Copyright Act, educators asked for specific numerical guidelines (more specific than the fair use provisions) about their copying rights for the classroom. Affirming that the law ought to be descriptive rather than prescriptive, Congress encouraged the interest groups to create mutually acceptable guidelines. The outcome was the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions." In contrast to fair use, which is flexible and case-specific in interpretation and implementation, the Classroom Guidelines establish zones for amount of classroom copying permitted. Additionally, they impose requirements of brevity, spontaneity, and cumulative effect. The adoption of the Classroom Guidelines into a number of campus copyright policies was hastened by the lawsuit the Association of American Publishers (AAP) filed against New York University in 1982 and possibly by the Kinko's decision which also endorsed the Guidelines. Many college and university personnel remain unhappy with what they see as the impediments of guidelines more suited to the K-12 environment. The chief problems are the high cost for classroom copies and, at times, delays in receiving permissions. Either or both of these problems can make it impossible to use desired material for teaching. The Copyright Clearance Center [16] now has in place an extensive course pack program and has started development of a comprehensive university licensing program which it hopes to roll out in fiscal year 1995. This system may offer some relief over time, but in the meanwhile, experiences with unacceptable permissions situations abound.[17] At the same time as the Classroom Guidelines were developed, faculty at the University of Wisconsin-Madison drafted an alternative set of guidelines which were adopted as that University's copyright policy in 1978 (rev. 1982). Wisconsin's policy set far more generous classroom copying allowances than the Classroom Guidelines. Nancy Marshall, then a senior librarian at the University of Wisconsin (and currently a member of the AAU/IP Task Force), participated in the development of the Wisconsin policy. Subsequently Chair of the American Library Association's Copyright Subcommittee, she led the adaptation of the Wisconsin work into ALA's "Model Policy Concerning College and University Photocopying for Classroom, Research, and Library Reserve Use" in 1982 (rev. 1986). Nonetheless, according to a copyright policy analyst, the more conservative Classroom Guidelines tend to inform university policies on the order of about 4 to 1 over the ALA work, even neither the ALA nor the Wisconsin policy have ever been challenged in the courts.[18] In fact, in 1991 the University of Wisconsin-Madison revised its classroom copying policy, making it more cautious than it had been for the previous 10 years. Other Guidelines: Off-Air and Music =================================== The Off-Air guidelines provide educational institutions the ability to record television programs and to retain the tapes for no more than 45 days with only one teaching use and one "reinforcement" use. In brief, anthologizing, extracting, retention, and repeated uses require the permission of the copyright owner. Observing these several areas of copyright activity, a subgroup of the IP Task Force characterized current campus copying experiences. According to their deliberations:[19] o The campus community is, in general, under-informed about copyright; there is a lack of understanding and knowledge of the current law and how it applies to daily transactions (though cases like NYU and Kinko's trigger negative responses to publishers among the faculty). o When faculty have questions or concerns about copyright, there is usually no centralized campus information resource, and there is little campus support for dealing with copyright issues. o The copying environment is more constrained than it needs to be, for fear of possible litigation; this is particularly true in the areas of classroom copying and fair use. o Publishers are far more aggressive in asserting their rights in this domain than are universities and their faculties. o Universities have been slow to develop a comprehensive life-cycle vision for the management of copyright. The development and implementation of a common vision appears to have been hobbled by the competitive aspects of research and decentralized nature of major research universities and the lack of intellectual community between disciplines. Specific problems persist. For example, it is common for faculty or staff to seek permission from publishers where permission is not required, including permission to make more than one copy of an article on reserve or multiple copies for classroom distribution. Publisher memoranda (such as those circulated widely by the AAP regarding Cross-Border Document Delivery) may deter college and university libraries from pursuing enhanced resource sharing arrangements. It may incline them toward paying royalties when it is not necessary to do so. Major impediments in electronic distribution have the potential to render whole areas dysfunctional: e.g., restrictions on multiple-user access to full-text material and electronic reserves. The whole area having to do with the creation and reproduction of audiovisual and multi-media materials for library or classroom use has become particularly critical; the questions of what is permissible abound. The signing of highly restrictive electronic information licenses by libraries, faculty, and academic departments is a frequent concern. In an increasingly global world, trans-border data flow of electronic information and use of electronic networks coupled with differences in national copyright laws -- and the adoption of the Berne convention[20] -- create a complex environment that needs to be clarified. Much of the complicated picture painted here can be resolved by consulting and studying the current copyright law itself. If universities act on the law's articulated position that it is neutral about technology, then the legal status of reproduction, transfer, and use and the plethora of other issues surrounding electronic information may not be so uncertain, although still open to discussion, interpretation, and policy formulation. Concepts like copying and fair use can be at least provisionally translated into the electronic arena, if their underlying purpose is clearly understood and retained. The IP Task Force's general observations are supported by a comprehensive study published in December 1993.[21] For his analysis, Kenneth Crews used the same base of organizations that are sponsoring this effort -- the AAU and the ARL -- and obtained 98 research university copying/reproduction policies or responses to surveys and questions about them. Sixteen institutions had no written policy or standard. Between them, the remaining 82 proffered 183 distinct policies varying in scope and format (these included formal policies, memos, procedures, and guidelines). Taken together, the policies revealed instructive patterns. For instance, the majority did address research, classroom, reserve, library copying, and interlibrary loan. Some addressed library copying only, indicating that campuses have different perceptions about whether copyright is a university issue or only a library issue. Only a minority of policies addressed non-print media in any systematic fashion. Virtually no policies were comprehensive. Policies were characterized by lack of coordination on campus, and some universities had two or more current policies -- which were not always consistent. Respondents were not necessarily aware of the campus policies that were in existence. The development of copyright-related policies on campus was often fragmented between centers of responsibility. Faculty had a "surprisingly small" role in developing such policies, which were most often developed by librarians (48.6%), administrators (26.8%), and legal counsel (15.8%). Faculty involvement was identified at 3.3%.[22] According to Crews, this low level of faculty involvement suggests that the driving force behind policies may be the legal rights of copyright owners and concerns about institutional liability. The need to avoid the risks of potential infringement and lawsuits rank high as the stated reasons for copying policies on campus. To substantiate those observations, the study notes that policy-writing rose sharply right after the NYU infringement lawsuit settlement. Eleven policies refer to that litigation as a basis for their creation. Adoption of the "safe" Classroom Guidelines in the majority of these institutions seems to be directly related to the litigation, an action which also led university attorneys into a key role in shaping university copying/copyright policies. None of Crews' findings is counter-intuitive except for one: that there is a tendency on the part of librarians to write the more conservative library copying policies. On the one hand, this observation should reassure publishers that librarians are indeed cautious and highly compliant towards the "safe harbor" standards supported by publishers. On the other hand, it suggests that the research library community could have better availed itself of the full range of the public good provisions of the copyright law, particularly fair use and Section 108 provisions. While the Copyright Clearance Center's blanket licenses for copying on campuses and its academic permissions service offer universities some assistance, institutions who sign up for them should have first resolved their views on fair use issues, e.g., at what point in the copying process and under what circumstances should fees appropriately be paid. Fundamental policy decisions will shape the way in which copying arrangements and licenses are negotiated with a variety of brokers and suppliers. Institutions that resort exclusively to some forms of collective administration may be failing to recognize legally established opportunities that can further their academic--and financial--objectives. Many institutions seek to swap copyright dilemmas for collective assurance. The better policy would be to encourage both fair use and collective copyright administration systems to coexist; both systems must be optimized to best serve the academic mission.[23] B. Universities as Creators of Copyrighted Materials ===================================================== Clearly articulated policies on ownership of works written as part of university teaching, research and scholarship are the other half of a comprehensive university copyright policy. (The first half is addressed in the previous section. A well thought-out ownership policy also serves as a significant component of the copying policies advocated above.) Currently, most universities express little or no interest in owning or managing copyrights, giving faculty total ownership discretion over copyright transfer. Faculty deem the appearance of their work in prestigious outlets to be of such value that in exchange for publication they gladly transfer away ownership rights which they regard as financially inconsequential. But the financial consequences for the institutions are serious. Universities have a vital and substantial economic interest in the proper management of intellectual property arising from the copyrights that their faculty create. While not reaching consensus on any single best model, the IP Task Force offers four ownership scenarios with accompanying discussions of their pros and cons. Discussion ========== In the early to mid-1970s, universities began to appreciate the value of intellectual property in the form of patents and began to exercise a joint patent interest with faculty members. The principal goals in the joint management of patents were to transfer technology from the university to the marketplace effectively, aid in the complex filing and registration process, and secure potential revenue streams. The interests of universities led them to create substantial organizational and staffing capabilities, which led in turn to the creation of a robust and thriving Association of University Technology Managers (AUTM) designed to express a community of interest about patents and software. We do not suggest that copyrights and patents are identical, for clearly they are not. Patents exclude others from making, using, or selling the invention; copyright confers limited monopoly rights for reproduction, preparation of derivative works, distribution of copies, public performance, and public display. Patents extend for 17 years from date of issue in the US; copyrights begin at time of creation and last for 50 years plus the lifetime of the author (as a general rule, though there are exceptions). The right to patent is based on originality and function; copyright applies to original works fixed in a tangible form. The categories of material covered are different in patents and copyrights. And it costs approximately $10,000 to obtain a US patent, while it takes $20.00 to register a copyright, and registration is now optional even if desirable.[24] For all these differences, one particularly important similarity links patents and copyrights: university faculty, researchers, scholars, and other community members create -- are hired, retained, and rewarded for creating -- inventions and copyrightable material, both of which are forms of intellectual property. Both have value: the patent has a potential value that is achieved if it subsequently earns revenue; the copyright has value because universities spend substantial amounts of money purchasing copyrighted materials, often materials initially produced by universities. In ARL institutions alone, about half a billion dollars were spent on acquisitions in 1992/93 academic year.[25] With such sums at stake, university- generated copyrights deserve knowledgeable treatment. During their term of employment, campus faculty, staff, and students produce many types of copyrightable works related to universities' larger mission. These publications can be traditional or electronic and include books, articles, pedagogical materials (syllabi, bibliographies), research data, dissertations, software, databases, dramatical works, musical works, multi-media packages, and other types of intellectual property. With the exception of textbooks and imaginative literature (either may be a substantial revenue source for authors) and some scholarly monographs (that may earn modest royalties), faculty generally do not receive payment from publishers for their creations. For the most part, faculty do not pay for the library materials and services they receive with their own or with departmental funds. In consequence, many do not believe that their copyrights have significant economic value to themselves or their institution. This perception can only encourage the common practice of signing copyright away in entirety. Most faculty only become aware of some consequences of transferring their ownership when they find that they need to obtain their publishers' permission to copy their own work for the classroom or for derivative works. "But I wrote it!" is perhaps the most plaintive cry heard at the photocopying machine.[26] As part of the work of the IP Task Force, a member analyzed 39 university ownership policies supplied by Alfred Sumberg of the American Association of University Professors. The brief study reveals:[27] o Not all university ownership policies were revised after the 1976 Copyright Act came into effect; accordingly, some policies appear to address a world in which changes in the law are not recognized. o As noted in the Crews study[28] some institutions have more than one policy (for the academic and research sides of the institution, for example) and they do not necessarily agree. o Length and clarity vary dramatically. Policies range from half a page to 30 pages. The briefer policies are likely simply to affirm that faculty own their copyrights, with no further guidance or information. Greater length does not necessarily yield greater clarity. The longer policies may be very complex; on reading them, the faculty member may be confused about what is owned by whom. o In only two instances is there a claim to university interest or ownership. o Though in general policies recognize faculty ownership of their own works, policies offer little or no help with the complex decisions about rights transfer or licensing. One result is that works are likely be assigned totally to publishers, even though the goals of a number of these publishers may be quite different from those of non-profit educational institutions. o Only a handful of these policies mention intellectual property officers or university committees as resources for problems or disputes. Anecdotal evidence suggests that responsibility for advice is exercised, if at all, by the university legal counsel, the administration, the library, the press, or word of mouth. o In short, it would appear that neither universities nor their faculty exercise much care in the management of copyrights; most publishers, on the other hand, manage copyrights carefully and exploit them fully. A literature search on the topic of who owns copyrighted materials in universities shows a smattering of publication, little of it current. Except for some articles discussing whether the 1976 Copyright Act might prompt universities to mandate that works produced by faculty be works-for-hire,[29] there exists a de facto long-standing and little-examined assumption that faculty should be sole owners of copyright. Reasons for this assumption are uncertain.[30] There is little or no available literature on university copyright ownership that offers options, models, or policy analysis. However, a model policy from the Triangle Research Libraries Network (TRLN) exists and is widely available on the Internet. It assumes initial individual faculty ownership and advocates subsequent individual faculty retention of copyright instead of the usual copyright transfer to publishers.[31] Because the IP Task Force concluded that universities should exercise their ownership interests systematically and coherently, it created several management scenarios or models for more detailed discussion. These scenarios were narrowed to the four described Section 5 of this report.[32] Each had more than one advocate in the committee, for there are significant choices and tradeoffs. Nonetheless, it is clearly possible to bring rational arguments, clarity, organizational purpose, and practical help to the discussion of university management of copyrights. The least attractive option of all is to continue in the present mode, with AAU/ARL institutions working with unclear policies in an unmanaged copyright environment. C. Universities as Publishers of Copyrighted Materials ======================================================= Overall, universities rarely have a comprehensive idea of what is being published on campus or of the publishing investment they are making. Universities often do not fully recognize that they are publishers engaged in activities ranging from completely informal to the most formal publishing. Informal publication includes ephemeral materials for which copyright exists under law but which would never be asserted. Press releases, course offerings, calendars, services brochures, and some forms of electronic offerings such as informal topical discussion lists typify informal publications. Yet another arena is the preparation and production of classroom course materials or anthologies. Often sizeable staff are employed to produce these publications. The formal side of university publishing is typified by the books, journals, and other formats published by university presses. Formal publishing may also originate with departments or institutes and can include print publications, databases, software, videos, preprints, working papers, journals and symposia. Universities usually do not seek a financial return from such informal publications. Revenue-generating departmental publications may be used to support the departmental budget or otherwise unbudgeted activities. In the case of working papers or preprints, the university may subsidize copying and distribution to other institutions. University presses are generally the locus for the most formal university publishing activities. These presses may operate at a profit, break even, or receive subsidies. There are scores of university presses in North America, some of them rivaling commercial publishers in size while others are relatively modest. Some have a history of distinguished publishing reaching back 100 years or more; others reflect the vigorous expansion of higher education after World War II. Together, these presses published over 7,000 new titles in 1993, or about 1/7th of all U.S. published books in that one year. These presses command a world-wide market.[33] They manage copyrights more actively and purposefully than any other unit of the university. They are one of the chief guarantors of independent and high editorial standards for scholarly communication. These presses ensure the survival of the serious scholarly monograph on this continent and are important publishers of books of regional interest and of belles lettres. They find a significant readership among well-informed people beyond the confines of higher education. In these ways, university presses serve the academic community extraordinarily well and remain prized agents for advancing learning. All these strengths notwithstanding, university presses exhibit serious structural weaknesses: o The scholarly monograph is the primary product of university presses, and the cost of publishing such works is becoming increasingly unsupportable. As scholarly publishing grows in size but depends on more and more specialized titles, the audience for a given book becomes smaller. The fixed costs of publishing must be supported by fewer buyers for each title and by larger publication lists. These financial pressures create an unfavorable spiral of costs for conventionally published scholarly monographs from which no escape is evident. This situation is partly true for journals as well. o A few university presses have significant journals programs, primarily in the humanities and social sciences. Only two or three university presses have significant publishing programs in scientific, technical, or medical journals. Most university presses have no significant presence in journals publishing at all. As a result, university presses taken as a whole contribute little to that half or more of scholarly communication which is conducted through journals. Their absence is the more to be regretted because of the key importance of journal literature to all fields and the intractable price increases libraries face for journals, especially those published by for-profit publishers in science, technology, and medicine. o Many university presses are capital starved. Many of them must earn back in current sales all the money they spend in a given year. This financial inflexibility makes it difficult for them to compete with large commercial publishers for new or existing journal titles, especially in the high cost areas of science, technology, and medicine. It also constrains the presses' ability to pursue innovative projects in electronic publishing. o Faculty innovators wishing to exploit the capabilities of networked publication frequently (but not always) disregard university presses. In this measure, the presses are losing their most likely allies and their best leverage on publishing innovation. o University presses are increasingly required to operate with little or no university funding. They are not closely integrated into the university's overall information creation, management, and dissemination activities (as conducted, for instance, by libraries and academic computing centers). In these ways, they are forced to the margins of institutional life by their "supporting" universities. None of this suggests a healthy prognosis for university presses. The problem is not that university presses are poorly managed. It is, rather, that they are not being asked by universities to do some of the things they can do well and that most urgently need to be done, especially in establishing viable and prestigious alternatives to expensive commercial journals in science, technology, and medicine. They are not provided with the necessary financial basis for such activities, nor are they brought into strong collaboration with the university's other information management agencies. From this perspective, universities are arguably wasting the publishing assets they have built over many years at precisely the time when the university's inability to control the costs of scholarly communication is most evident and most threatening to the vitality of the research mission of the university. From this perspective, business as usual at university presses is a self-destructive behavior on the part of higher education. The potential of the presses to be a major asset in regaining control of scholarly communication may be great and ought to be realized. 5 - Four Scenarios for Change ============================= While the Task Force was keenly aware of the ways in which teaching, research, and service depend on the use of copyrighted works, it focused most of its discussion on universities as creators of copyrights and possible changes in the ways universities manage copyrights. It chose this focus because these matters are attracting attention elsewhere, because copyright management is central to electronic scholarly communication, because universities might gain market leverage by changing the management of copyrights, and because purposeful copyright management is so notably absent from university policy statements on intellectual property. A subgroup of the Task Force was charged to describe several distinct scenarios for improving the management of copyrights created at research universities. The resulting scenarios were distinctive, though some overlap with others. They are to some extent imprecise and impressionistic; nonetheless, they have proved highly useful in focusing discussions within the Task Force. The scenarios are reported to help start and shape the wider discussions and policy creation that the Task Force recommends. Some scenarios are closely related to others. For example 1 and 2 differ in degree rather than philosophy. Numbers 3 and 4 diverge on the issue of whether faculty will be required to share copyright or whether alternative publishing incentives will be created to entice them into placing their work into a shared repository. The purpose of sharing copyright with a university or consortium is that ultimately the institutional owner would serve as guarantor of wide electronic access, archiving, and use of the materials. None of the first three scenarios precludes creating the publishing consortium outlined in the last one. The scenarios do not pursue the possibility of total university ownership or work-for-hire. Though that has some merit, the Task Force judged it possibly too contentious to be expedient. The Task Force felt the further refinement of these scenarios and the full articulation of their operation was best left to the further deliberations it recommends. Existing Practices ================== Most universities assert no ownership claim on the copyrights faculty create. Faculty are left free to dispose of their copyrights in any way they choose. Normally, faculty are likely to transfer their copyrights to publishers; in some cases they may retain certain rights or, much more rarely, retain the entire copyright and grant a license to the publisher for the use of the copyright. The most frequent-- though still rare--exception to these practices is the assertion of university ownership of copyrights created by faculty under work-for-hire clauses in some grant and contract situations. Publishers' practices mirror these university arrangements. Especially for journal publication, publishers request and generally require authors to assign their entire copyright to the publisher. Although some publishers offer terms that permit the author to retain some limited rights, the common practice is for publishers to require the transfer of the full copyright of the work in any and all media. In order to be published, and usually without conscious attention to the consequences, faculty, research staff, and other university employees sign such transfers and thereby put themselves and their institutions in the position of buying back subsequent uses of their own work. The overall objectives that might inform change in these arrangements were identified in Section 3 of this report. More specific objectives would include (i) facilitating the re-use of copyright works in classrooms and the library, (ii) securing publication under terms more favorable to higher education, and (iii) reducing the cost to universities of journal subscriptions, particularly for scientific, technical, and medical titles. The Task Force notes that current author's practices of copyright assignment appear to be starting to change from a monochromatic, total assignment to publishers to retention of some rights for the author. Copyright transfer forms and transactions are generally recorded in files in publishers' offices, and the copyright statements in books and journals do not describe details of the transfer nor who has retained what rights. Also, publishers come and go; rights are sold. When permission may need to be sought, it is increasingly difficult to know where ownership lies. All the scenarios explicitly mention or assume the existence of a database detailing ownership of published academic works. Such a resource is of surpassing importance and the national efforts to create it are worthy of continuing attention in further work that may be undertaken on the IP project.[34] Scenario 1: Enhancing Current Practices ======================================== Brief Description ================= Currently, the overwhelming majority of university copyright policies assume that faculty members own the works they produce and can transfer this ownership as they choose or are required by their publisher. In the first scenario, while the assumption of initial author ownership remains unchanged, all university employees (faculty, researchers, students, and staff) are educated and informed about the meaning of copyright law and the consequences of copyright assignment or transfer. The scenario encourages authors to retain rights for on-campus and inter-institutional deployment, for course packs, for campus delivery of articles, interlibrary borrowing and lending, and any AAU or other consortial sharing arrangements which exist or may be put into place. This scenario envisions individual university members of AAU mounting strong programs for campus information, discussion, involvement and support (through model language, contracts, and licenses; copyright advice; information about academic publishing and publishers). To begin the enhancement process, representatives of university presses and society publishers whose officers are employed in AAU universities would enter into discussions with faculty to consider language acceptable for copyright transfers, contracts, or licenses; the negotiated outcomes would attempt to balance the needs of authors, universities (readers, researchers, students, libraries) and publishers. University faculty and administrators would also consider what incentives could be offered to researchers and scholars to publish in lower- priced journals and to develop alternative publishing vehicles such as public domain electronic journals. Advantages ========== This scenario capitalizes on authors' keenness to have their work disseminated as widely as possible but asks for more thoughtful stewardship of their intellectual property. The aim is to change the awareness and practices of university authors in a voluntary and positive manner. (Concern about academic freedom should be addressed and alleviated.) The choices authors make are voluntary and consensual, in keeping with the academic climate. While publishers may initially feel uneasy, their needs are taken into account in the creation of contract and transfer documents that are agreed upon with the not-for-profit publishing community, a community with objectives essentially parallel to those of universities. It is the intent of this option to maintain, not to demoralize, the existing publisher community, many of whom serve universities very well at affordable prices based on cost-recovery and educational missions. Costs of implementation are modest, since the plan does not require a new publishing system or re-design of the current one, beyond the profound alterations that changes in technology and society already prompt. A Visiting Program Officer for a year or two, working for AAU and ARL, could make a great deal of progress on educational brochures and packages, as well as on sample agreements. Even as the scenario can positively influence current print on paper practices, it could also inform and ready university authors for the rapidly emerging electronic publishing world. It is compatible with placing information online in new university-based database or publishing systems which are being discussed in other groups, including other AAU task forces. Faculty will likely find this scenario congenial and comparatively easy to adopt. Disadvantages ============= Some will see this scenario as too modest. A powerful argument can be made that electronic distribution will transform our roles and institutions, and retaining publishing systems we are accustomed to will discourage us from taking advantage of new publishing methods. However, since it is currently very hard to characterize those methods, this argument seems idealistic rather than practical. Because this scenario seeks enlightened behavior through volunteerism, it is not clear that enough individuals would change the way they currently assign copyright. For that matter, it is not clear how many are enough. This scenario, in its current mode, is "incentive-weak." Moreover, it is not specifically and exclusively focused on electronic publishing, which some might find a weakness; however, it neutrally addresses all technologies. Implementation ============== Implementation would take time. That is, developing general documentation and information would likely take AAU and ARL staff about a year. As an outcome of the IP Task Force work, its report would be copied and promulgated, and presidents would have to ensure that it finds its way onto every faculty senate and dean's council meeting, and then to the departmental level. Initially, campus working groups would be set up in at least a few institutions that have indicated their readiness to proceed. On each campus, a specific department and individual(s) would be asked to develop practices, resources, and language that suit the specific institutional needs; to assist authors in making transfers and choices; to inform them of their rights in re-use, classroom use, and reserves; and generally to be a dedicated resource in the copyright area. A recommended product on individual campuses will be a database or registry of university-originated copyrighted works and the permissions and restrictions associated with these works, to feed into an AAU gopher registry for use by all institutions. Such a registry would make it easier for faculty, users, and libraries to determine who has permission to copy what. At present this can be an onerous chore. Copyright transfer language is very diverse, and the publisher or CCC is not necessarily the proper source for permission. The complexity of ownership and permissions is increasing rather than diminishing. Documents and discussions from individual campuses will be widely shared by AAU/ARL institutions. The logical place for an individual campus copyright clearance and advice center is in the office of the Vice-President for Research, or Academic VP, with close liaison with the university librarian's office and campus legal counsel's office. The University Press and University Library are also logical choices. Additional Comments =================== In working with the entire campus to heighten awareness of the meaning and purpose of copyright and its effective deployment for the institutional good, we remain open and flexible to the changes that will occur via electronic publishing. An informed author base is the first critical step in making transitions into the future, when entirely different means of handling copyrights may, indeed, prove desirable. (drafted by Ann Okerson) Scenario 2: Faculty Ownership of Copyrights ============================================= Brief Description ================= In the faculty ownership scenario, faculty authors choose to retain copyright in all works they produce. At the present time, by contrast, most publishers require authors to assign the copyright to them, and thus the author loses control of the work. Under Scenario 2, the faculty author determines what rights to transfer to publishers and whether to grant blanket permission for educational uses, inclusion in course packs, and the like. That is, this scenario is an extension or result of the education phase in Scenario 1. While transferring the necessary rights, authors would likely retain copyright. (Universities would probably encourage faculty authors to place their works for publication with quality publishers whose prices per page or other unit of cost are not the highest in their disciplines.) Under this scenario, faculty authors would allow publication or other forms of access to each of their works on a case-by- case basis or by a statement of general principle. At a minimum, authors would continue to grant to publishers the right to reproduce and distribute the work in a specific publication. Authors would be responsible, either directly or through a central agency they or the university might create, for registering the copyright and granting permission to use their work. Advantages ========== Faculty ownership of copyright assures authors the possibility of income in the event their works are reprinted or made available in other forms. Authors also retain the right to update, revise, and republish their works. For authors and educational institutions, faculty ownership can allow authors to make their works more broadly available to colleagues and students than the current arrangement. Another important advantage is that this scenario may be easy to "sell" to faculty, since it places all rights within their management and control. This scenario encourages publishers to work with faculty in new ways both to reproduce and distribute their works, while recognizing that it is not necessary to take the entire copyright in order to disseminate the work. Faculty ownership also deals most directly with the problem of journals pricing, since authors would be encouraged to publish with less expensively priced publishers. Further, the scenario specifically includes a recommendation that faculty authors grant blanket permission for the reproduction and distribution of their works by other faculty and universities for educational purposes. Disadvantages ============= An important disadvantage of this scenario for authors is that it forces them to become responsible for the paperwork and expense of copyright registration or for making arrangements for the publisher to do this in their names. Unless blanket permission is granted for educational uses, faculty would have to respond to repeated requests for permission to use their works unless the university creates an office to handle permissions. These services are currently provided by publishers. Ownership and management of copyright could feel onerous to faculty over a productive career. A disadvantage of this scenario for educational institutions is that every educational user seeking permission to use a work would have to contact the author personally unless the author's university creates a central permissions office. If the author chose to impose monetary or other demands greater than those existing under current practice, then educational institutions and researchers would experience a relative loss rather than a gain in the access to knowledge. (Some publishers believe they more generously grant cost-free reproduction of sections of works to which they hold copyright than do individual authors who are copyright holders.) Another disadvantage of this scenario is that some publishers may refuse to publish the work of an author who does not transfer copyright. It is possible, however, that if all university authors took the same position, publishers interested in continuing to receive quality manuscripts would alter their policies to accommodate the requirements of these authors and their institutions. Implementation ============== Universities would first have to educate faculty members about the benefits of adopting the faculty ownership scenario. Then it could be implemented voluntarily by authors, with the encouragement of their institution. On the other hand, universities could adopt the scenario and require that authors not transfer copyright to publishers (this probably then would be part of the employment contract). Universities might want to establish offices to handle copyright permissions, or the AAU/ARL might want to establish a collective to handle permissions. The cost to the university of doing so would be modest. It would have to create an office or designate an officer to handle permissions to reproduce faculty authors' works. Additional Comments =================== For this scenario to achieve its objectives of increasing access to information at reduced costs, faculty authors and/or their universities would have to construct a central medium for registering works and granting permissions. Although each work might include a universally adopted statement allowing reproduction for educational purposes, situations will invariably arise where a permissions office is needed. (drafted by Charles Timberlake) Scenario 3: Joint Faculty/University Ownership of Copyrights ============================================================= Brief Description ================= The joint faculty/university ownership scenario envisions shared ownership between the faculty member and his or her university. The scenario relates in general to non-royalty producing works or works that are unlikely to produce royalties. The university and the author determine what rights to transfer to the publisher, whether to license certain uses of the work, etc. Thus, control is not automatically transferred to publishers. In order to implement this scenario, new employment contracts would be required to specify joint faculty/university ownership of these works. The university would waive royalties on property it jointly owns, but for works that generate substantial revenues, the university may require reimbursement for extraordinary expenses incurred by the university as a result of the faculty member's production of the work (i.e., extraordinary computing time, software development, audiovisual production costs, etc.). As a co-owner, the university has absorbed costs of generating the scholarship or research. The university has an interest in determining where articles are submitted for publication in order to achieve the goals of cost reduction to the university, increased availability in alternate formats, and the like. Advantages ========== Joint faculty/university ownership most directly addresses the problem of the cost of materials which a university library must acquire. Since faculty authors generate and publish research results, the author should be able to retain rights to reuse works and, with the university, to grant these rights to other colleagues and universities. The university must also provide considerable support to the faculty member in exchange for its ownership rights. In exchange for these services, the university (as a co-owner) gains a role in determining where articles are placed, based not on censorship but on the goal of utilizing publishers that do not over-price. This scenario also can be particularly effective in the electronic environment Disadvantages ============= It will likely be difficult to effect any change from present policy and practices. Employment contracts would have to be changed to delineate shared ownership and to define rights and will have to specify whether ownership is 50-50 or on some other basis. Faculty may initially fear a loss of rights, but a strong education program should allay concerns by reassuring them that in reality they can retain greater rights and control than they have under the present system. Another disadvantage, possibly a substantial one, is that the cost-recovery (as well as for-profit) publishers may be disinclined to take on the financial risk of value-adding to a faculty-produced work because they would be competing with authors and universities. The electronic environment may bring about these changes, in any event, when universities themselves can create and manage databases. Although not exorbitant, universities will incur some costs to implement this scenario. Likely costs include staff time for modification of employment contracts and the funding of an office and/or officer(s) to advise authors and handle copyright permissions (see Structure section). Full implementation likely will require a 2-3 year period based on the number of steps required (see Implementation section). Implementation ============== Implementation will probably require a multistage process. For example, faculty education must occur in several stages: (1) the general problem, (2) the effect of choice of publisher on university expenditures, (3) how joint faculty/university ownership will help correct the problem, (4) implementation through a pilot project that involves faculty volunteers who might submit works to an electronic site and/or create a database of their works that the university manages, and, finally, (5) full implementation. Working groups will need to be established with publishers in order to sort out what rights are necessary to continue their interest. Legal counsel must be involved to deal with employment contract issues and to redraft the institution's copyright policy. Two new services need to be provided: (1) an office that provides advice to faculty members on publishing, contract negotiations with publishers, etc., and (2) an office to handle requests from other universities and outside entities for permission to use faculty/university copyrighted materials. This is a possible role for AAU or ARL. Additional Comments =================== Creative publishers will find ways to work within this structure. Association and university press publishers might be receptive to such arrangements, especially if the university and faculty members designate one source for dealing with publisher contracts. This will reduce the difficulty publishers currently have in negotiating with individual authors. (drafted by Laura Gasaway) Scenario 4: Joint Faculty/Consortium Ownership of Copyrights ============================================================= Brief Description ================= In this scenario, copyright is jointly held by the author(s) of the work and a consortium of universities. This only applies to work for which the authors do not receive and do not have a reasonable prospect of receiving royalties and which does not fit under the category of work-for-hire. Any of the copyright holders has the right to copy or distribute the work or otherwise make it available, with the following significant exception: The author or authors retain the right to assign an exclusive distribution license to whomever they choose for a period not to exceed five years (the exact time limit may depend on the academic discipline). This right would have to be exercised within a fixed time period after completion of the work--- perhaps three years. Any other transfer of the rights included in copyright requires agreement by all holders of the copyright. In exchange for its share of the copyright, the consortium guarantees a permanent electronic repository of an authentic version of the work. Furthermore, after the expiration of any exclusive distribution rights, the consortium guarantees that the work will always be freely accessible to the authors, to all faculty at those institutions participating in the consortium, and to anyone to whom the authors give access to the work. The consortium or its member libraries will catalogue and cross-reference the work and provide other value-adding services as appropriate. Advantages ========== While asking faculty to relinquish the right to transfer copyright, this scenario maintains the faculty's right to give exclusive distribution rights for a period of time and thus does not restrict a faculty member's ability to publish wherever he or she desires. It gives the faculty member value-adding services in exchange for a share of the copyright. It enables publishers to obtain exclusive distribution rights which, in the present climate, are still needed to maintain financial viability for society and university presses. This scenario recognizes that current distribution is an important value-adding feature but that service and access is in the long-term the institutions' and the library profession's business and responsibility. Implementation of this scenario could shrink the traditional journals business, particularly for the most expensive (i.e., very large or very specialized) titles through a natural marketplace action by the creators and owners of the intellectual content. Disadvantages ============= Libraries would still be in the position of having to buy articles from publishers who have obtained exclusive publication rights. This scenario does not solve the problem of high prices in some commercial outlets, since exclusive distribution rights are still assignable as the faculty member chooses. This scenario also assumes a digital world, but a lot of hard copy is still produced. As long as hard copy and "traditional" print publications continue to coexist with electronic media, print publishing needs to be addressed. This scenario has the highest startup costs of all. Implementation ============== The intention is for this information dissemination system to grow organically under the oversight of an umbrella organization that would work out the legal framework and the general guidelines for a variety of small consortia (like the CIC), guaranteeing compatibility and the free sharing of information among the associated consortia and with professional societies and other organizations that are brought on board. The initial components of the information dissemination system will be small consortia that already have electronic networks. Member universities will encourage faculty to use the consortial depository for their electronic preprints and reprints (rather than departmental or individual electronic sites). This will be accompanied by a crack-down on electronic sites that do not make explicit provision for withdrawing articles on which copyright has been signed away. The deposition of any article in the consortial depository will require the author(s) to share copyright with the consortium under the agreement stated above. If the author elects to exercise the right to assign exclusive distribution rights outside the consortium, access to the consortium's copy of the article will be blocked to everyone (including the author) until the expiration of those distribution rights. Under this umbrella, university presses and professional societies will be publishing exclusively electronic journals of high standard that offer fast turn-around and wide dissemination (all or most universities and colleges within the umbrella will be subscribers). These journals will permit their articles to remain accessible on the consortial depository. Faculty at a participating university will have easy access to these journals through their depository (e.g., at the time of deposition, list in order of preference the journals in which you are willing to have your article published). Faculty incentives for publishing in these electronic outlets need to be put in place. A minimum incentive is the guarantee that publication in any of these fora will be viewed favorably for purposes of promotion and tenure. Faculty incentives also need to be established to reward those who invest time in development and maintenance. Disincentives for failure to deposit an article may be introduced after the system is well established. New faculty may be contractually required to place all preprints in the depository. All faculty at institutions under the umbrella must have the ability to search the depositories and access the associated electronic journals from their offices. Additional Comments =================== We will not solve the current serials pricing crisis through copyright law even if we do alleviate some problems through better copyright education and support. The solution will come when we have an information network maintained by the academic community that encourages the widest possible dissemination of scholarly work at the lowest possible cost to the universities. To create such a network, the academic community must move aggressively into electronic publishing. The community must experiment with new forms of journals and new models for cost recovery. The most natural vehicles for this move are consortia such as the CIC (the Big Ten + Chicago) which already have an electronic infrastructure and are well positioned to work cooperatively with university presses and professional societies in establishing and encouraging electronic journals. Would faculty voluntarily share copyrights with their universities and make their work available in an affordable, widely accessible database? Is it possible to convince university and society publishers to be part of such an information dissemination system (IDS)? The outlook is very good. For publishers, the IDS would have to provide a guaranteed income stream. Faculty seek three results from publication: the opportunity to share the fruits of their academic labor; prestige and reputation; and the accumulation of the kind of capital that buys rewards (promotion, tenure, grants) in an academic setting. The IDS can be set up to meet these needs efficiently and it can provide incentives for faculty to share ownership in a manner useful to the mission of universities. This scenario would establish the principle that collectively the AAU/ARL universities have a long term interest in the ownership of scholarly work produced by their faculties and would encourage them to publish electronically via a consortium of like-minded institutions. (drafted by David Bressaud) 6 - Corollary Issues for Further Deliberation ============================================= Over the course of the Task Force's deliberations, five corollary issues emerged. The Task Force came to no settled conclusions on these matters, which are reported here as areas of substantive uncertainty and policy tension that must be considered in the institutional policy building the Task Force recommends. The following paragraphs describe each of these issues. A. Need to commit resources to university copyright management. ==================================================== While the Task Force does not recognize any of the scenarios described in the previous section of this report as clearly preferable to the others, it does believe that any greater involvement by the university in the management of copyrights will likely require: o Assigning some university office to assist faculty and other university authors with the assignment of copyrights or with publishing licenses, granting permissions, and related matters; o Active copyright education programs on campus; o Strengthening affiliations with the non-profit professional and learned societies, whose officers and editors are generally members of the academic community; o Maintaining or restoring, where necessary, infrastructure support for faculty editors working for non-profit publishers; o Integrating university presses more powerfully into overall university information management objectives, and encouraging presses to take an assertive role in publishing scientific, technical, and medical journals, especially in electronic forms. This will require treating the presses as programmatic partners with libraries and academic computing centers. It will also probably require reversing the trend toward treating university presses as stand-alone cost-recovery centers; o The rather harder to quantify questions of faculty recognition, rewards, and tenure lurk behind the pressure to publish. These need to be explicitly addressed on campus, in relation to discussion about faculty publishing needs and patterns. Changes in publication patterns could affect the current rewards system. B. Possible undesirable dislocations in existing markets. ========================================================== Task Force members speaking for learned societies and university presses were sympathetic to concerns about high journal costs and felt that non-profit publishers could normally deliver journals at much lower costs. They nonetheless expressed grave uneasiness about possible negative results of universities becoming active managers of copyrights. Faculty or university retention of copyrights was a troublesome concept. The publishers on the Task Force affirmed that the existing practice of transferring copyrights is essential to giving publishers the market-place control needed to make rational editorial and investment decisions as well as to recover costs. Nonetheless, they were agreeable to the prospect of negotiating short-term exclusive or broad (though not exclusive) distribution rights. These publishers are more sympathetic to academic authors retaining some limited rights to the subsequent use of their own work (in classroom instruction, for instance). In today's academic publishing market, where nearly all revenue comes from book sales and journal subscriptions, some publishers are willing to consider transfers of copyrights that reserve specified secondary uses to authors. But as publishers' income streams shift away from book sales and subscriptions and toward various access fees (for the use of individual articles, book chapters, parts of data sets, or segments of electronic text), rights retained by the author may increasingly represent lost sources of revenue for the publisher. It is feared that such revenue losses could drive non-profit publishers operating on slim markets out of business long before it would have any negative effect on the largest commercial publishers. Others on the Task Force believe scholarly communication is changing so fundamentally that no publishers except the most adaptable, agile, and creative are likely to remain in business. One Task Force member feared there was little reason to believe universities would manage their copyrights disinterestedly. The competitive nature of higher education and the need to exploit every possible revenue source might prompt universities to manage copyrights with purely commercial motives indistinguishable from those of for-profit publishers. C. Possible rationalization of existing markets. ================================================= While there may be market-place disruptions to fear, there exists real hope for beneficial change. Competitive conditions in the existing market place, especially for research journals, decidedly favor copyright holders. Responding to high costs by lowering demand--i.e., by cancelling subscriptions--works only for titles that are not central to a discipline. Such cancellations are usually not a realistic option for high-prestige titles and other titles vital to a given field of study. The strong position which publishers of such titles hold by virtue of the customary transfer of copyrights to them is very powerful and is one factor (though only one) in the unacceptable structure of information costs research universities face. One might hope to weaken this monopoly position by retaining certain key copying rights for universities when copyrights are transferred, or when--perhaps better--authors retain their copyrights and grant only certain rights to publishers. One might also, over time, work to increase the prestige of university and other non-profit publishers, so that less of the economic value of university-created copyrights (especially of journal articles) would flow to the profits of the higher priced publishers. Another way to alter the monopoly position of very expensive, high prestige publishers is by universities moving aggressively into electronic publishing. Where other considerations are neutral, universities might positively manage copyrights so as to favor non-profit publishing. D. Changing environment for the creation of added value by publishers. =========================================================== In traditional print-on-paper publication, publishers create substantial added value by virtue of their editorial (i.e., their gatekeeping) functions and by a host of design, production, marketing, copyright management, and other activities. Closely related services--such as indexing and abstracting, document delivery, and the development of information management software--also represent major enterprises. The forms in which these activities will be carried into the electronic environment and how the costs for these activities will change in that environment are matters of considerable debate. Publishers serving on the Task Force felt the new environment might save only about 20% of their existing costs. By contrast, one faculty member of the Task Force urged that current publishing modes will in the future have little relevance to the conduct of highly specialized scholarly communication. Where scholars are writing primarily for other scholars, the process will arguably be managed directly by the faculty involved and conducted outside the "money economy" of conventional publishing. E. Academic freedom. ===================== The Task Force felt there were possible implications for academic freedom in some of the issues it discussed. The pertinent part of the AAUP's definition of academic freedom is: "The teacher is entitled to full freedom in research and in the publication of the results, subject to the adequate performance of his [sic] other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution. . . ." (Academic Freedom and Tenure: 1940 Statement of Principles and Interpretive Comments.) The Task Force found no inherent incompatibility between "full freedom . . . in the publication of results" and greater university involvement in the management of copyrights. In disposing of their copyrights, faculty are keenly aware of the relative prestige of various publishers and of the bearing of that prestige on promotion, tenure, and merit salary decisions, on research funding, and on peer recognition and professional mobility. These are vitally important matters that require careful consideration in the further exploration of the four scenarios advanced for managing copyrights. But they relate primarily to faculty career development and do not go to the essence of academic freedom, which has to do with advancing truth through the competition of ideas in the intellectual market place. Where research findings are so specialized they are likely to be published and read in only one or two places, institutional restrictions on such publication would clearly constitute a violation of academic freedom. Otherwise, and certainly in the vast majority of cases, there are enough appropriate publishing outlets that institutional objection to any of them is unlikely to pose a serious threat to academic freedom. Indeed, one normally would expect faculty and universities to have the same motivation in favor of prestigious publication. One can, however, imagine circumstances in which an institution might use its copyright ownership position (whether as sole or joint owner) to stifle the publication of a work of which it disapproved or whose publication it would find embarrassing, or to harass a faculty person out of favor with the administration. The appropriate response to such abuses of academic freedom would be to identify and proscribe them. That is how the AAUP customarily deals with other threats to academic freedom. 7 - Will Copyright Endure? ========================== It is not possible to conclude a discussion that includes policy recommendations for the present management of intellectual property without noting that this is a particularly difficult time in which to prophesy on the future of subjects such as copyright -- though the risk seems rarely to work as a deterrent. The approach in this report has been to assume that legal constructs and economic practices familiar in the world of mainly printed information will persist and can be modified to account for information that comes in technologically different forms. Yet there is a strong current of contemporary thought[35] that holds that society is about to reach the point in technological change where current ways of doing business, dependent initially on old technologies and then gradually evolving in response to such technological change as we are beginning to see, are about to collapse completely. Information wants to be free, these voices cry, and they point to the contemporary free-for-all of the Internet as the shape of things to come. This is a line of argument that must be kept in mind, for it certainly cannot be totally refuted on present evidence. If universities cling to current institutional forms, those who are part of them may wake one day to find themselves keepers of quiet gardens no longer much frequented by a bustling world that has taken its information business elsewhere. It is a risk that probably faces traditional publishers most urgently, but to the extent that universities have evolved their information policies in tacit and explicit collaboration with the publishing industry, they run the risks along with it. What is in fact likely to happen is neither the libertarian fantasy nor the completely commercial conquest of cyberspace, but something halfway between. Old-fashioned forms of information will continue to be produced and used and remarkably new and novel ones will emerge. The new is unlikely to eradicate the old, but it will surely supplement it and threaten to supplant it. It is impossible to predict what percentage of our institutions' information needs and use will be met by one or another medium five or fifty years hence. For these reasons, two things are of surpassing importance. First and simply, that universities and their members know what their intellectual property policies are -- that universities have policies and enunciate them clearly, so that when change occurs it can happen in an orderly fashion. Second, that university presidents do not look upon the issue as one to be resolved now and so left settled for the future. The 1976 Copyright Act, as any copyright law, was an attempt to make such a settlement, and there are already voices suggesting that perhaps the monumental task of revising it again cannot be put off forever, even as the most prudent voices argue for making do within the framework it creates. But universities are not (thank goodness) entirely like the United States Congress. They need not "pass a law" and this Task Force does not recommend any law-making action. Rather, universities can create a process. They can make concern for intellectual property policies and their effects on institutional goals a continuing part of institutional consciousness. If together members of the university community do that, then universities can look upon the emerging frontier as one where they can play a leading part. Recommendations =============== The Task Force recommends that the Association of American Universities, working in partnership with the Association of Research Libraries, continue the process begun by this Project. In the first phase of the process represented by this report, the IP Task Force has identified and highlighted the copyright issues most critical for universities' success in the digital information environment. The next crucial phase is to build campus consensus and bring other organizations, particularly the Association of American University Presses (other organizations such as the American Council of Learned Societies should be considered) into the process. Coordination could continue under the AAU or ARL rubric using current ARL staffing. If they are available, the current Intellectual Property Task Force members could continue working in the recommended groups. Funding to continue the next stage must be secured so that groups can easily meet together and communications can be facilitated. The issues to be addressed divide roughly into those that affect universities' status as users of copyright information and as producers. Some of these issues need to be addressed on a campus-by-campus basis, while others can benefit from a continuing national AAU/ARL dialogue. Finally, so that the achievements of individual campuses can be recognized and imitated, the national initiative should monitor and coordinate activity at the campus level and assist in disseminating information about the results. Action items are identified for both levels of activity, local and national. I. Local Actions: ================= Form campus committees to create copyright policies for individual universities in two areas: Copying and Copyright Ownership. The purpose of action at the level of the individual university is to inform faculty members about copyright and engage them in defining coherent and comprehensive copyright policies. Several university presidents will be asked to offer their institutions to serve as the core of a consortial group to work closely with the AAU/ARL IP project. Each volunteer university (three to six are suggested) will appoint broadly-based committees to consider issues affecting copyright on campus. The discussions will be shared with -- and informed by -- the Task Force's work. The volunteer institutions will be charged to create comprehensive model policies and documents for their own universities in the areas of both: (A) Universities as copyright users (i.e., copying): Each volunteer university should work towards creation of a coherent campus copying policy addressing print, visual, aural, broadcast and computer media. This policy should be designed to exploit the full range of rights secured for higher educational activities by the 1976 Copyright Act. Fair use must be particularly emphasized and utilized. Normally, the model policies should provide for a designated officer at each university to act as copyright specialist, ombudsperson, troubleshooter, and educator. This individual could be a university press officer, librarian, faculty member or the university's legal counsel. Logical sites for this office are: vice president for research, institutional counsel, office of the library director, or the university press. Additionally, this individual would be responsible for coordinating the signing of licenses on campus, with the objective of developing standard licenses with no unduly restrictive clauses. A copy of each transfer and licenses signed by campus individuals or units would be housed centrally for consultation as necessary. (B) Universities as creators (i.e., ownership, copyright transfer, and licensing) Each volunteer university should also develop detailed, coherent, and readily implemented policies on the ownership and management of intellectual property governed by copyright law. Each model policy will articulate the basis for the ownership and management of copyrighted works created at the university. In the course of policy development, the scenarios presented in the attached report need to be considered, as do questions of incentives, prestige and academic freedom. Particularly important are discussion about the specific rights that should be transferred or licensed to publishers and those that should remain with the creator or institution. Outcome: Model policies to share throughout AAU. Timing: Completed for the AAU of Fall 1995. II. National Actions: ====================== Form a coordinating group that prepares in-depth reports in two vital areas: Fair Use and Competitive Academic Publishing, particularly electronic dissemination. This group will coordinate, monitor, and disseminate results of the local actions to all AAU/ARL institutions. Additionally, members of the group will be asked to study and prepare reports and recommendations on two critical multi- institutional matters: (A) Academic/research community consensus on fair use rights in an electronic environment This effort will examine the constitutional basis and purpose of fair use rights and how they may be exercised in an electronic environment. Fair use should be independently studied, especially as it relates to the transition to an electronic environment for scholarly communication and rights transfer/assignment to publishers. Discussions on these issues should take place first with university presses within AAU/ARL institutions before radiating out to other publishers. Unlike some publishers who might prefer to eliminate fair use in the electronic environment, university presses (and learned society publishers whose editors are often faculty of research universities) have generally supported the continued application of fair use guidelines to electronic documents. Nevertheless, significant questions remain about precisely what constitutes fair use and how different applications of fair use guidelines will affect students, faculty, libraries, and presses. Outcome: White paper examining the issues associated with fair use in the electronic environment, what it means and how it can be employed to advance higher education, science, and the arts as public goods. (B) Feasibility report on strengthening and creating competitive, university or society-based publishing outlets and positioning universities strategically for electronic publishing This effort will consider ways in which university presses could be strengthened and funded to take on a more visible, competitive role in the scholarly publishing community. The values and standards of university presses have long been supported the mission of research universities. With cooperation, proper planning, financial seed money, and support, presses should be able to play a vital new role in the area that hits library budgets the hardest: science journals publishing. Through the technological structure already in place, AAU institutions could also be particularly effective in Internet-based publishing. The group will explore the feasibility of university presses entering this arena. The Task Force members believe that the proposed Scenario #4 as described on pages 28-29 of this report deserves particularly intensive study. The creation of a consortium to serve as an electronic article copyright depository, if begun with the necessary faculty and institutional commitment, could become the basis for an exciting, innovative model for electronic distribution. Outcome: Specific recommendations or feasibility plans. Timing: Both reports completed for the AAU meeting of Fall 1995. III. Corollary Issue ===================== Though it makes no specific recommendations in this area, the Task Force wishes to make the following additional point: The long-term preservation and access to knowledge must be assured. The traditional library role is under some threat from lack of library ownership of electronic materials (many of which are licensed to libraries rather than sold to them) combined with lengthening periods of copyright. Who will assure access when publications cease to be viable in the market? Addressing the full range of intellectual property management issues in academe will help assure the future availability of information. ENDNOTES ======== 1 An instructive legend is related in Ludwig Bieler, Ireland: Harbingers of the Middle Ages, London, Oxford, 1963, p. 11. In the 6th century AD, the king of Ireland resolved one of the earliest copyright disputes (between Columba and Finnian of Druim Finn) by ruling "As the calf follows the cow, so the copy follows the original" The Statute of Anne (England, 1710) is frequently described as the first modern national copyright legislation. While codifying protection for the author, it was, in fact, primarily beneficial to booksellers. See Mark Rose, Authors and Owners, Cambridge, Harvard, 1993, for a discussion of the origins of the notion of author as creator. 2 For a classic article on the balance that the U.S. copyright law archives see Zechariah Chafee, Jr., "Reflections on the Law of Copyright: I," XLV Columbia Law Review: 503-529 (1945). For a user- proactive view of U.S. copyright law, see L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright; a Law of Users' Rights, Athens & London, University of Georgia Press, 1991. 3 International Intellectual Property Alliance, "Copyright Industries in the U.S. Economy: 1993 Perspective," IIPA, 1747 Pennsylvania Avenue NW, Washington, DC. 4 Katsh, Ethan and Janet Rifkin, "The New Media and a New Model of Conflict Resolution: Copying, Copyright, and Creating," 6 Notre Dame Journal of Law, Ethics & Public Policy: 49-74 (1992). 5 In her essay "Some New Kinds of Authorship Made Possible by Computers and Some Intellectual Property Questions They Raise," 53 University of Pittsburgh Law Review: 685-704 (1992), Pamela Samuelson summarizes the new authoring modes, challenges, and opportunities. 6 According to Kendon Stubbs in his Introduction to ARL Statistics, 1992/93, Washington, DC, Association of Research Libraries, March 1994, in the six years from 1986 to 1993, subscription prices paid by ARL libraries doubled. Numbers of subscriptions held dropped by 5% in six years and numbers of monographs purchased dropped by 23%. The average price per subscription rose 13% per year and is currently $186.85. If current trends persist, by the year 2000 that subscription price will be around $440. 7 The Williams & Wilkins Company v. U.S., 487 F.2d (Ct. Cl. 1973), aff'd per curiam by an equally divided court, 420 U.S. 376 (1974). 8 Addison-Wesley Publishing v. New York University, 1983 Copyright Law Decisions, ¤ 25, 544 (S.D.N.Y. 1983). 9 Basic Books, Inc. v. Kinko's Graphics Corp, 758 F. Supp 1522 (S.D.N.Y. 1991) 10 According to Carol Risher, Vice President for Copyright and New Technology of the Association of American Publishers, the AAP's position is that royalties have to be paid from the first library copy sent to another institution (Publishers Weekly, Oct. 4, 1993: 47). In fact, the authors of this report experienced some difficulty in obtaining this particular article. Finding that the office copy was missing, they asked a nearby publishing organization to fax a replacement so the PW article could be correctly footnoted. The organization felt that fair use did not allow them to send such a fax. Additionally, PW itself wanted to know the nature and purpose for the citation in order to permit the footnote to be used. 11 James O'Donnell quoted in "Pioneering the Electronic Frontier," 115 US News & World Report, December 6, 1993: 57. 12 Jane Ginsburg, "Copyright Without Walls? Speculations on Literary Property in the Library of the Future," 42 Representations:: 53-73 (1993). Ginsburg analyzes the differences between fair use in print- based and digital information environments and reasons that if fair use does survive, it must be a new sort specifically devised for the new digital communications capacities. 13 The software provision does not clearly distinguish between computer code and works that are presented in an electronically coded medium such as a diskette, CD, etc. The Section 101 definition is "A set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." 14 For detailed and practical elaboration on what each of these sections and the guidelines means for libraries, see Laura N. Gasaway and Sarah K. Wiant, Librarians and Copyright; A Guide to Copyright in the 1990s, Washington, DC, Special Libraries Association [forthcoming June 1994]. Chapter 5, "Audiovisual and Non-print works," is particularly apposite in setting out the issues and identifying what kind of use and copying are appropriate. 15 This section is supplied from the draft of a talk given by Laura Gasaway. 16 The Copyright Clearance Center is a reproduction rights organization in the United states. Its role is to serve as a centralized clearinghouse for copying authority and royalty payments to copyright holders. Many countries have their own CCC equivalent. ASCAP and BMI are rights organizations for music broadcasting. 17 Examples of inability to locate rights holders and to afford copyright fees abound in higher education publications and even in publishing outlets. For example, the STM Newsletter, June 1993: 23-24, recounts one Harvard faculty member's long and sad story of being bounced between publisher, CCC, and Kinko's. It was a model exercise in perseverance which resulted in, theoretically, the commission of an illegal copying act! 18 The two policies are compared and discussed in context in Ken Crews' thorough study of research university copying policies, Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education, 47-53, Chicago, University of Chicago Press, 1993. 19 The subgroup, headed by Nancy Marshall, included Robert Kraft, Al Sumberg, and Charles Timberlake. 20 In brief, the Berne Convention, to which the U.S. is a signatory, states that in the arena of copyright, foreign works are treated as if they are domestic, i.e., a book published in Germany enjoys the same protection in the U.S. as if it were published in the U.S. The ramifications can, in fact, become complicated and controversial. The Berne Implementation Act of 1988, Act of Oct. 31, 1988, Pub. L. No. 100-568, 102 Stat. 2853. 21 Crews, op. cit. 22 Crews, op. cit.: 63 23 Crews, op. cit.: 129. The IP Task Force identified two academic copyright policies that were exemplary in certain areas. Georgia Harper, General Counsel, University of Texas System, has written "Copyright and the University Community," a document strong in its coverage of all formats. The section called "The Future of Professional Fair Use" (p. 42-44) is particularly worthwhile. Wellesley College's copyright policy (March 1993) is thorough in its treatment of library copying. Both organizations have given permission to mount the policies on the Association of Research Libraries' Internet gopher. To access from an Internet prompt, type: gopher arl.cni.org. Open the Scholarly Communications menu item and then the Copyright section. 24 Katherine Ku, Office of Technology Licensing, Stanford University, fax dated Oct. 19, 1993. 25 ARL Statistics, 1991/92, 32. Washington, DC, Association of Research Libraries, 1993. 26 The Task Force noted that the ownership of copyright is of concern not only to academic authors and institutions, but to writers in general. On October 18, 1993, The Authors Guild and The American Society of Journalists and Authors issued a position statement on Electronic Publishing Rights. From the opening paragraph: "Some publishers have routinely asked writers to sign away--without compensation--all rights to electronic use of the work they have created. Indeed, many have sought to make writers' work available in 'any medium yet to be invented.' Writers and their professional organizations must resist this attempt to seize creators' rights." 27 The work of reading and annotating the 39 copyright policies was largely done by Allyn Fitzgerald, a law school graduate and research assistant at the ARL. 28 Crews, op cit.: 56-69. 29 Laura G. Lape, "Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies," 37 Villanova Law Review: 223-271 (1992). Lape addresses the questions of who now owns the copyrightable works of professors, how universities attempt to control such ownership issues, and offers a way to approach the matter. A good survey article. 30 In her footnotes, Lape, op. cit. summarizes the handful of articles written on this topic and cites arguments for faculty ownership made by Dreyfuss and Duboff. Also, a well-known ruling is the National Labor Relations Board v. Yeshiva University (NLRB v. Yeshiva Univ., 444 U.S. 672 (1980). The case held that full-time faculty are managerial rather than professional employees and are thus exempt from coverage of the National Labor Relations Act. The case has been used by some legal scholars to advance the argument of university faculty as semi-independent age