Bernard Donovan looks to the US for some pointers to the impending crisis looming over publishing rights in the electronic age

Copyright is a serious matter these days, and, with copyright coming under scrutiny by the Follett committee and its implementation group progeny, a glance across the Atlantic at the recent deliberations of a task force on intellectual property rights may provide some clues for the future.

The task force was set up under the auspices of the American Association of Universities, with the collaboration of the Association of Research Libraries, to look at intellectual property rights in an electronic environment and reported to the AAU research libraries steering committee in April.

It seemingly takes the promised benefits of an electronic world for granted, and, because the costs of providing copyright-paid copies of print-on-paper material to staff and students are regarded as unacceptably high (simply because libraries find it hard to afford them), ways are being sought to circumvent the present copyright system as a means of reducing the cost of information to an acceptable level.

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After a discursive introduction, the report sets out four scenarios for change with the aim of gaining market leverage by changing the management of copyrights.

The first scenario postulates the establishment of strong programmes of campus discussion about copyright and the examination of possible copyright transfers, contracts and licences in an effort to balance the needs of authors, universities and publishers.

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Authors would be encouraged to retain the rights of their work for on-campus and inter-institutional use in course packs, interlibrary borrowing and lending. Representatives of university presses and society publishers whose officers were employed in AAU universities would be involved in the discussions, which would be directed toward not-for-profit publications. Apparently, commercial publishers producing material in great demand are believed to have little to contribute.

Ideally, university faculty and administrators would explore the incentives that might be offered to authors to publish in lower-priced journals and in developing alternative publishing vehicles, such as public domain electronic journals. The generation of a profit from publication is evidently frowned upon, although it is deemed to be the intention of this option "to maintain, not to demoralise, the existing publisher community, many of whom serve universities very well at affordable prices based on cost-recovery and educational missions."

Faculty ownership of copyright is predicted in the next scenario, where the author would determine the rights given to publishers and decide whether to grant blanket permission for educational uses, including course packs and so on. While this option might reduce the copyright cost of course packs, it would require that the author assume responsibility for the administration of copyright, and deal personally with all of the requests for permissions that might arise. The universities themselves might establish offices to handle copyright permissions on behalf of their staff, but this would be expensive, burdensome, and simply redirect library funds away from acquisitions. Since the aim of the exercise is to limit the expenditure on copyright by universities any revenue would be minimal.

The third scenario ventures into intriguing ground, for it contemplates shared ownership between the faculty member and university, yet is directed in general to non-royalty producing works or works that are unlikely to produce royalties, such as research publications.

In return for absorbing some of the costs in generating the scholarship or research, the university would gain a voice in determining where articles are submitted for publication, "based not on censorship but on the goal of utilising publishers that do not over-price."

Most probably, employment contracts would need to be altered to ensure that universities could share ownership of such intellectual property, for there is no doubt that academic freedom would be infringed.

The task force also noted that "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."

Here, the task force appears to have overlooked a significant complication, in that the salaries of many academics and research workers come from research grants and therefore that the grant-giving bodies naturally regard the research findings as their property, not to be abrogated by the universities.

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There is also the unvoiced, but implicit, assumption that worthwhile material is produced only by academic staff and no consideration of the repercussions of their scenarios on the publication of research findings from non-academic institutes, medicine, health, industry, commerce and the extramural researcher. All of this material could well be directed away from domestic publication toward highly-regarded journals published outside the United States.

The concept of joint author-university ownership of copyright material is developed further in scenario four, where copyright would be held by the author and a consortium of universities.

It would only apply to work not yielding royalties or any prospect of them and work not fitting under the category of "work-for-hire", whatever that means. Any of the copyright holders, that is the author or the participating universities would be able to copy or distribute the work freely. Authors would retain the right to assign an exclusive distribution licence to whomsoever they chose for some years (perhaps three), although this right would need to be exercised soon after completion of the work.

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While the consortium would guarantee the preservation of an authentic copy of the work in an electronic repository, it would punish the assignment of rights outside the consortium by preventing access to the electronically stored copy of the work to everyone, including the author, until expiration of the distribution rights. Alongside the presumption that suitable systems for the electronic storage and delivery of masses of documents exist within universities, scenario four contemplates the closure of such a depository to unapproved (non-consortium copyright owned) material.

"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)."

No thought appears to have been given to the means by which the high quality of stored information would be sustained. Would the highly-regarded papers be refereed and properly edited before inclusion in the depository? Who would decide between acceptable and unacceptable papers? And how would the inevitably high costs of the quality control mechanism be retrieved?

University presses are finding life hard now, without being burdened with the production of a mass of material unlikely to pay for itself. Professional societies would not be able to afford to operate a refereeing system, for there would be no revenue stream for them. And, without the rejection of a high proportion of sloppily-prepared papers describing poorly executed studies, how could standards be preserved?

There is a hint that all or most of the universities or colleges within a consortium would subscribe to the journals, but no suggestion of the way in which the level of subscription might be set. Would the subscription be fixed for some years, or be assessed each year according to usage? Would universities be prepared to pay a higher subscription for the prestige journals?

There is no reason why they should, for an all-encompassing electronic journal system is envisaged; but if they do not, then an alternative system would develop, with high quality material being published outside the consortium, and only second-rate material being held on the university computers.

There is also the prospect that any savings made in the acquisition of expensive journals would be countered by the cost of provision, maintenance and operation of the electronic document store and delivery system.

Although the task force acknowledges that scholarly publishing is a global activity, little thought appears to have been given to the fact that American journals of high quality generate substantial income from sales outside the United States.

If this material were to be made available cheaply to non-American users by the university consortia (as logically it must) then the consequent loss of income would adversely affect American users. Much of any saving could then disappear. As there is no likelihood of the American consortia gaining the copyright of foreign material, presumably the electronic system would have to operate in parallel with the means of handling publications from outside the United States. Surely the proposed consortia would continue to pay for foreign material, and this would again limit savings.

Regrettably, the work of the task force appears to have been driven by one overriding fact of scholarly life: that libraries are unable to acquire all that they would like in the way of high-priced materials, particularly of science, technical and medical journals.

The price of such journals is too high, they argue, and must be reduced, hopefully, by taking control of copyright and generating major changes in scholarly publishing. That is a very narrow view, for there is at least one attractive possibility.

An alternative means of coping with the dearth of money for information acquisition would be for all grant-giving bodies to follow the practice of the best and make provision for expenditure on information retrieval in their awards, as is done for drugs, chemicals, glassware, energy, telephone charges, travel and other items.

The funds would be used at the discretion of the researcher and would not necessarily flow to the library; but the pressure on library funds would ease. Of course, there would be repercussions for libraries, but competition between journals for the best work would remain and threats to academic freedom avoided.

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Bernard Donovan is secretary of the Association of Learned and Professional Society Publishers.