A balance in electronic copyright law

March 13, 1998

Copyright law is a compromise, and compromises do not satisfy everyone. In the case of copyright law, the compromise probably does not satisfy anyone. Publishers are concerned to get a good return on their investment in publications.

Users are concerned to get the easiest access to published materials with the minimum of bureaucracy and, if possible, to have that access free at the point of use. The position has got worse since materials in machine readable form have become available. Publishers fear their business is threatened if permission is given to users to copy and then widely disseminate materials they have invested in to create. They are concerned that in practice the law is so ambiguously worded, or so difficult to enforce, that users get away with damaging, large-scale copying. Users feel copyright law prevents them doing what they want to do - download materials, annotate them and forward them to colleagues. Librarians find themselves caught between competing pressures. They have to impose rules set down by the law which may bear no resemblance to the realities of fulfilling demands from staff and students.

The problem is exacerbated by pressures on academics no longer to assign copyright to publishers when they submit articles for publication, but instead to license the publishers to reproduce the material in print, while the authors retain, for example, all electronic rights. This will add to the difficulties publishers see they are facing.

There has long been tension between copyright owners, creators and users in the sphere of academic publishing. Some take an aggressive stance, arguing that academics should ignore publishers altogether, place their material directly on the Internet and rely on academic practice and netiquette to ensure their work gains recognition. They hope in this way that the middleman, the publisher, becomes sidelined. Others have argued for a united front by librarians against what they perceive to be overpriced and over-restrictive licences to convert printed documents into digital form or disseminate digitised documents, and propose setting up ground rules so that such licences favour the users more.

In view of all these difficulties, it is perhaps not surprising that the Dearing report on higher education recommended to the government that the copyright law be amended to give academics and students easier access to digitised documents for research or studying than is presently allowed. The government indicated in an answer to a parliamentary question that it does not intend to change the law at present.

But do we need to change the law at all? Ian McCartney, the minister who replied to the question, said: "I understand there are discussions between the Publishers Association and the Joint Information Systems Committee (of the three higher education funding councils) on a licensing scheme covering digital material and specifically designed to meet the needs of teachers and researchers. I very much hope that a successful scheme can be devised."

The truth is that the conflict between academics and publishers is not as bad as many make out. Genuine progress has been made by the JISC/Publishers Association Working Parties in the past year. Following Chatham House rules, individuals from both academia and publishers have developed guidelines on fair dealing in electronic materials, on clearance mechanisms and pricing algorithms that should be used when licences for converting documents into digital form are granted, and a set of standard clauses for contracts for both digitising print materials and the use of materials provided in electronic form. Further work is underway to gain agreement on what should be permitted in regard to inter-library loans in the digital environment.

The work has produced results and it is not going on in isolation. Other developments, such as a one-stop shop for clearing the digitising of scholarly materials so that universities and colleges will no longer have to negotiate with a whole series of publishers, will simplify life for academics, librarians and publishers.

A librarian from Europe recently criticised the JISC/PA working groups. He said that the only way to deal with publishers was by confrontation, and that by negotiating with publishers, JISC was weakening the solidarity of librarians in dealing with greedy multinational publishers. I do not believe that. The JISC/PA work has produced progress. We wanted a win-win situation, and we have achieved it. Two years ago I was convinced academics and publishers were heading for a major battle over copyright in digitised materials. Now peace has broken out, and I am optimistic we have avoided confrontation. As a result we can all get on with what we are best at doing.

Charles Oppenheim is professor of information science at Loughborough University. He is a member of JISC and was a member of two of the JISC/PA working parties.

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