Texaco

Georgia Harper has supplied us with a helpful analysis of the recent Texaco decision, and I thank her for doing that. (I prepared my own, for circulation on a list to university presses.) But her approach is flawed, I feel, in perpetuating the common assumption that universities have only a single interest in this case, as users, rather than as publishers themselves. I'd like to remind her that among the plaintiffs in the class action suit against Texaco were a couple of university presses!

This point needs to be emhpasized because it is all too easy to see the world divided up into (virtuous) university researchers and (greedy) commercial publishers. But in fact what lies at the heart of all the problems we've been having with copyright is a pervasive myopia, particularly among scholars but also secondarily among librarians. University scientists have been chiefly responsible for the rapid growth of high-priced STM journals (because they are rewarded with tenure and promotion for quantity, rather than quality, of publications), and these journals in turn have driven library budgets to the limit, resulting in sharp reduction of purchases of monographs in other fields, mainly affecting the liberal arts, where university presses do most of their business. Consequently, the entire scholarly publishing system, particularly in the liberal arts, is imperilled. (Our own press, a major publisher in literary criticism for decades, has no choice now but to get out of this field now that the market has almost completely collapsed: 91% of our books in the field published since 1985 have sold fewer than 800 copies, and 65% fewer than 500, including paperbacks!) Meanwhile, people blithely continue to go on photocopying everything in sight, with no thought to the way this practice contributes to undermining the system of publishing that serves them all. (Just one example of direct economic effect: photocopying revenue for one of our humanities journals has increased threefold over the time since the Kinko's decision and now constitutes 5% of the journal'stotal income--the equivalent of 50 individual subscriptions!)

Relating this to the Texaco decision, I'd like to highlight one part of the ruling not mentioned at all by Georgia Harper: "Indeed, if the issue were open, we would seriously question whether the fair use analysis that has developed with respect to works of authorship alleged to use portions of copyrighted material is precisely applicable to copies produced by mechanical means. The traditional fair use analysis, now codified in section 107, developed in an effort to adjust the competing interests of authors--the author of the original copyrighted work and the author of the secondary work that 'copies' a portion of the original work in the course of producing what is claimed to be a new work. Mechanical 'copying' of an entire document, made readily feasible and economical by the advent of xerography..., is obviously an activity entirely different from creating a work of authorship. Whatever social utility copying of this sort achieves, it is not concerned with creative authorship." This is exactly the point that is all too often overlooked when photocopying is treated as "fair use." What photocopying is--as I argued when I testified on section 107 at Senate hearings way back in 1973--is just a form of "parasitical" publishing, adding no value to the original but simply multiplying it in copies that reach the same market as the original. It therefore inevitably erodes the market for the original, all the more threateningly so when the market to begin with is so small (as it is for most university press publications), and the final result is that the material people want to copy cannot be supplied at all! Thus, in the end, everyone loses.

The importance of the paragraph cited above from the decision becomes clear when you see how much emphasis the appeals court placed on the distinction Judge Leval had made between "transformative" and "nontransformative" uses in finding the first factor to favor the plaintiff publishers. The resounding affirmation the appeals court gave to this piece of Leval's analysis (originally laid out at length conceptually in an article in the Harvard Law Review in l990 cited in the decision) means that it is likely to carry the day on any further appeal. It is probably the single major difference between the majority and minority opinions. The minority judge took an extremely broad view of what "transformative" means, essentially holding that whatever contributes to research in any way is therefore somehow "productive" and thus value-adding in the way "transformative" connotes. That, in my view, is a ridiculous argument and leads to the reductio ad absurdum that as long as it's for research, anything goes: "fair use" has no limits when the ultimate goal is the good that research brings to society. The minority judge obviously has no idea of what is involved in scholarly publishing and what is necessary to keep it alive. And, without publishing, how will research continue to stay alive?

Rather than resist the suggestion that photocopying should be paid for, as Georgia Harper apparently does in her concluding recommendations, wouldn't the easiest answer be a blanket license to cover all photocopying in universities assuming the cost is not unduly burdensome--say, in the range of $10 per student and $25 per researcher? This could cover all photocopying, including coursepacks, done within any given university. It would eliminate a lot of paperwork--all the processing of individual permissions that goes on now--and would free people from worrying what they could and couldn't copy (assuming that the CCC's universe of coverage could be enhanced to include the vast bulk of materials used), while at the same time there would be a payback to the publishers that would enable them to keep the supply of materials coming. Market forces would not be eliminated, since the CCC paybacks to publishers would be based on statistical surveys as are done with corporations now and publishers would thus know which of their books and journals are most in demand. Perhaps this is what Georgia Harper is herself saying in the final footnote of her paper (though elsewhere in her paper she seems to share the animosity that some people in universities still feel toward the CCC)?

Sandy Thatcher
Director, Penn State Press (also, honesty requires me to disclose, a member of the CCC's board of directors)
<sgt3[_at_]psuvm.psu.edu> Received on Mon Nov 28 1994 - 20:44:51 GMT