The Death of Fair Use: Or A Few Reasons Why We Are Paying More and Getting Less

1. The Death of Fair Use: Or A Few Reasons Why We Are Paying More and Getting Less Linda S. Dobb Bowling Green State University Bgsulib@wcnet.org

2. The Facts (Not That They Bear Repeating) • Since 1986, average annual increase in serials costs have been 8.8%--amounting to a total serial unit cost increase of 226% • ARL libraries spent 3x as much on serials in 1999-2000 as they did in 1986; # of titles has decreased by 7% • Shift of funds has been from monographs to serials; 17% fewer books have been purchased • Average journal which once cost $125 will cost $1,158 in 2012; a 4 million dollar budget will have to be 14 million by then

3. More Facts on STM • Highest priced: Physics $2000; Chemistry $1900; Engineering $1100; Astronomy $1000; Biology $1000; Math $1000 (music $80) • Increases in the last 4 years range from 17& (astronomy) to 48% general science • Above Stats reported by Mary Case in ARL Bimonthly (October 2001)

4. Higher Production Costs Fewer Subscriptions Information Piracy Fear: that as information becomes available electronically subscription lists will sink More legal fees; lobbying Some upgrading of technology Unaccounted for: new experiments by both publishers and academic organizations Money, time, skill spent fighting restrictive legislation Funds spent on understanding/negot. Licenses Licenses, legislation, law suits, legalize not… What Contributes to These Stats?

5. Severe Less information is available Digital divide and research divide Institutional authors cede their copyrights to publishers their own institutions cannot afford to access More time spent on licensing issues More time spent on trying to understand what drives out faculty More time spent on trying to understand copyright issues and to control costs (at all costs) Impact on Libraries/The Public

6. A limitation of the exclusive rights of copyright owners which considered four factors in determining if something could be used fairly for criticism, comment, teaching, scholarship Purpose and character of the use Nature of the copyrighted work (fiction/non-fiction) Amount and substantiality of the portion used Impact on the potential market value of the copyrighted work What Was Fair Use?

7. Licensing--requiring librarians and consortia to become familiar with a new terrain Best guide to the above: Licensing Digital Content: A Practical Guide for Librarians by L.E. Harris (ALA) Preamble, parties, definition, contents to be covered, rights, sublicenses, interlibrary loan, fair use, e-rights, usage, usage restrictions, license fee, licensor obligations, delivery and continuing access, support and documentation, licensee obligations, monitoring use, moral rights, credits, etc. What Has Supplanted Fair Use in the Digital Environment

8. The boilerplate: alternative dispute resolution, amendments, binding effect, confidential information, currency, entire agreement, force majeure, governing law, independent parties, interpretation, notice, remedies severability, etc. What really to look for: ease of access; one stop transactions (no add. Permissions or payments); clear definitions of what is permitted; access beyond termination of the agreement; liability regarding the use of the content (Harris, p. 6) Other: confidentiality, authentication, BUDGET, downtime, archiving, choice of law More on Licenses

9. Lots of legislation in place or proposed is capable of influencing our ability to provide access to scientific information Digital Millennium Copyright Act: creates “significant remedies against unauthorized circumvention of the protection measures that are used to control access.” UCITA: Uniform Computer Information Transactions act: so far only in Maryland and Virginia. Purpose “to regulate transactions in intangible goods such as computer software, online databases and other information products in digital form.” Legislation

10. Database Protection Legislation: would limit reuse of information continued in databases; seems to refute case law on this issue TEACH: a bright spot; provides for the transmission of information (a/v, dramatic works and sound recordings) in support of distance education Problems: still need to fight UCITA wherever it crops up under various guises Brokering in Congress may cause legislators to only pass TEACH if Database Protection Legislation is passed Legislation

11. Tasini: Freelancers are entitled to payment for their work which appears in electronic compilations Impacts material written between 1976-1995 What has happened? Articles have disappeared from databases Case has been applied to photographs Example: NYT has pulled over 100,000 articles from databases; 15,000 have been restored Some authors worry about impact on ILL and in other areas Eldred (Bono revisited) Legal Cases Impacting Use/Reuse

12. Creation of alternative models for publishing from the earliest preprint server at Los Alamos through SPARC, Chem Web, BioMed Central, Public Library of Science Some scientists starting to stand up and protest Will a contest ensue over evaluations of scientific information Will lesser quality research be publishes Open Archives Initiatives; Open Citation Project; Free Online Scholarship Use and reuse of information constantly questioned in every venue: reserves, distance learning, classrooms, dormitories Libraries being called upon as experts in regards to publishing, producing knowledge, contracts, etc. Other Impacts

13. Arm yourself with the latest information Write your legislators as issues arise Be vigilant but not over prescriptive Inform faculty of the factors contributing to steep price increases Be aware of other trends that are impacting information: government policies on publishing Patents and commercialization of research at your own institutions Pressure to publish in certain prescribed lists of journals Demands by faculty to have ownership in courses produced with university funds and with multiple contributors, including librarians. What Can You Do?

14. Against the Grain ARL Bimonthly Report Crews, K. Copyright Essentials for Librarians and Educators, ALA 2000. Harris, L.E. Licensing Digital Content, ALA 2002 Bollier, David. Silent Theft, Routledge, 2002, pp. 119-146 Litman, Jessica. Digital Copyright, Prometheus, 2001. www.info-commons, org www.ala.org/washoff Copyright.ala.org Draft principles for the networked world Some Resources