academic journals and copyright control

Via Duke Library’s Kevin Smith, an update on what academic publishers want from the Georiga State Copyright Case that’s now coming to trial:

… amongst that deluge of paper is a truly frightening document, the proposed injunction that the plaintiffs are requesting if they win the case. I have always known that there was a lot a stake for higher education in this case, but the injunction the publishers want would be a nightmare scenario beyond even my most pessimistic imaginings.
First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU. It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future. It would make GSU responsible for every conceivable act of copying that took place on their campus …
Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.
I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers. …
Permission fees are the real purpose here, of course. The goal is to drive more and more money to the Copyright Clearance Center, which is the only source of permission mentioned by name in the draft injunction. … I believe that compliance with this order, were the publishers to win their case and the Judge to adopt the proposed injunction, would be literally impossible. For one thing, the record keeping, monitoring and reporting requirements would cost more than any institution can afford, even if they were technically possible …Yet you can be sure that if those things happen, all of our campuses would be pressured to adopt the “Georgia State model” in order to avoid litigation.
This proposed order, in short, represents a nightmare, a true dystopia, for higher education. We can only hope, I think, that Judge Evans is clear-sighted enough, and respectful enough of what Congress intended when it passed the 1976 Copyright Act, not to adopt this Orwellian proposal, even if she finds in favor of the plaintiffs. No judge likes to issue an order that cannot be obeyed, and this one would be so far outside the stated policies of the United States in its copyright law that an appellate court could, and likely would, overturn it purely on those grounds.

As Kevin says, the plaintiffs are unlikely to be granted such a far-reaching injunction. But the request makes it clear—if further clarification were required—how they see their interests, and how far removed those interests are from the academics who, in addition to teaching courses that incorporate material from scholarly journals, also edit, referee, subscribe to, subsidize, and provide all the content of these journals almost entirely for free. Scholarly publishing is a canonical case of Information Feudalism. If there is anywhere one would want to see the scythe of disintermediation cut through the fields, it’s here.

Written by Kieran

May 19, 2011 at 2:08 pm

5 Responses

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  1. Maybe this could be an incentive for academics and university libraries to rebel against information feudalism and switch to open-access journals? Would any social movement theorists care to speculate about what it would take for this to happen?


    Benjamin Geer

    May 19, 2011 at 3:03 pm

  2. Wow! The EFF would call that “a chilling effect on free speech.”

    It cuts to the very basis of why we publish. If we are not allowing open review for the pursuit of truth, then what is the purpose of academic publication at all That this should come from Cambridge University Press make me ask: WWND – What Would Newton Do?

    TED Lectures have their strengths and weaknesses, but this one from Johanna Blakley shows that the markets without intellectual property rights are three orders of magnitude more profitable than those with.

    Re Benjamin Greer above – it is not the libraries that matter but the academics who write. The world has many publishers. Cambridge University Press is only one. Recall that in Hollywood United Artists was formed by worker bees. Within a generation we may go from Cambridge Dons to “Quiet Flows the Cam.”


    Michael E. Marotta

    May 19, 2011 at 5:34 pm

  3. Ah… too hasty… I went for the Injunctions first, primary sources and all that. Then I read the commentaries. I see that there is more to this and it is complicated. Nasty. But complicated. I still have to vote with the school. I am only now placing manuscripts with peer-reviewed journals. My 300 other publications were all sales. So, I understand and appreciate intellectual property rights. We all like to get paid. That said, it is hard to see anything good coming from this.

    I do not see how my alma mater, Eastern Michigan University, does anything different from Georgia Tech. In fact, I just logged in to the library from home this morning, logged in to JSTOR and got some information for a comment on someone else’s blog.

    Be they giants with shoulders, Oxford, Cambridge and Sage are only three, neither a monopsony nor a monopoly.


    Michael E. Marotta

    May 19, 2011 at 5:57 pm

  4. M.Marotta- just a point of clarification- accessing JSTOR (as faculty, student, or alum) is different than the course packs that are the focus of this particular lawsuit. JSTOR is a non-profit archive that works with content providers/publishers(which is why you generally can’t get the most recent volumes of journals through JSTOR). If, for instance, I want content from ASR I can access older volumes through JSTOR, or the more recent volumes through Sage as my institution has paid an institutional subscription fee .

    Course packs, however, are collections of work- sometimes journal articles, sometimes portions of books, pulled together for use in a course. Sometimes they are bound, much like books- in this instance they are digital. Depending on the circumstances, materials may meet the requirements of and be included under the ‘fair use’ portion of copyright law. In other instances permission should be obtained from the publisher for inclusion. The course packs under question may be reproducing material in excess of the amount allowable under fair use rules (1 chapter of a book is a common guideline). As the article states, “The lawsuit contends that in many cases, professors are providing students with multiple chapters of a given work, in violation of the “fair use” provision of copyright law.”



    May 19, 2011 at 8:15 pm

  5. We’ve lost track of this thread in the flurry of the also-important Wal*Mart debate. But this is a big one. Academics are being squeezed between federal law which requires open access and publishers who are demanding pay access only. The academics who produce the content are on the one hand being threatened with punishment for failing to meet the federal open access requirements and on the other being threatened with punishment for circumventing the publishers’ copyrights.

    It was a Georgia State librarian’s presentation at an SWS forum in Atlanta last year, alongside the comments of the publishers present at the panel, that alerted me to just how extreme these issues are.



    May 20, 2011 at 5:10 pm

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