Re: Electronic Reserves

On 12 Nov 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 11/11/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > On 09 Nov 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> > >
> > > This brings to mind one of the principal criticisms of the recent
> > > photocopying cases, American Geophysical Union v. Texaco and
> > > Princeton Univ. Press v. Michigan Document Services. Both cases
> > > appear to ASSUME that the defendants would have paid to use the
> > > material rather than forego using the material. There was no
> > > attempt to analyze what the harm would be from uses that would
> > > be foregone if everyone had to pay for the use. It is a
> > > difficult factual issue to resolve, to be sure; but shouldn't we
> > > at least try to answer that question in analyzing fair use?
> >
> > Both these plantiffs and the entire academic research segment of
> > the publishing industry witnessed a tremendous dropoff of unit
> > sales following introduction of the Xerox 914 plain paper copier
> > in 1959. The average print The average number of copies sold per
> > book title dropped from 2394 in 1960 to less than 1000 in 1974.
> > (Statistical Indicators of Scientific and Technical Communication
> > 1960-1980. National Science Foundation. 1976) Journal circulation
> > plummeted in similar fashion.
>
> These are compelling statistics, but they are not inconsistent with
> my point, which was that copyright owners should have to prove that
> photocopying is being used to substitute for purchases, rather than
> merely for uses that would not occur if a fee has to be paid.

Policies changed because of the copier. The 1976 law embraced library photocopying and fair use. The legislative history included in the 1988 report on library photocopying to the Register of Copyrights makes this clear.

What was the impact? In 1989 the Association of College and Research Libraries dropped language in their Standards for University Libraries asserting that weak collection could harm research. There is now a considerable literature in library management on how to compare the cost of a subscription to the cost of N number of photocopies -- and how to determine how many "uses" might require such photocopies in a year.

I gave some statistics before. There are plenty more showing the decline of print runs during a period when education and research activities increased.

> > Based on cheap photocopying, libraries emphasized resource sharing
> > after 1969, anticipating the endorsement of fair use in the 1976
> > legislation. Libraries that once had 6% of university spending now
> > get less than 2% because administrators believe that's all they
> > need -- no matter how desparately faculty senates plead otherwise.
> > Meanwhile, administrative growth has found ways to dispose of the
> > 4% taken from the libraries and instruction. (Digest of Education
> > Statistics.)
> >
> > The penury of libraries is not shared by their host organizations.
> > We note that, like Texaco, many universities rack up excess revenue
> > ten times or more what they spend on their libraries. They are
> > simply trying to save money at the expense of ethics and the
> > copyright industries.
>
> Not every library can be the Library of Congress. A certain amount
> of resource sharing is both inevitable and desirable.

The largest academic library collections don't come close to the Library of Congress in terms of numbers of volumes or function. They don't come close to academic collections of 30 years ago.

What is needed is a collection that satisfies local needs, present and future. Any number of faculty senates and research directors can demonstrate decades of dissatisfaction. For example U Cal Berkeley chair of the academic senate Leon Litwack asks "Has the library lost its soul?" in the California Monthly alumni assn magazine 108,4 Feb 1998 [http://www.alumni.berekely.edu/monthly/monthly_index/feb_98/library.html]

> The sharing of knowledge is itself a worthy public goal. The
> creation and publication of knowledge is also a worthy public goal.
> The difficult question remains: how best to balance these two goals?
> The question is made more difficult by the introduction of new
> technology, which alters the balance that previously existed. A new
> equilibrium was (and is) inevitable.

Publishers are in the "business" of identifying knowledge of value and making it widely available. Libraries collect this material, classify and catalog it, and present it over a long period -- long after the publishers have exhausted their printings. Academic and public libraries make their collections available to the public, including off-campus researchers. None of this was changed by photocopying.

Nor did the new technology alter the mission of the university, usually expressed as "research, education, and public service." That mission was changed by the accumulation of power by administrators. Much has been written (for instance THE DEGRADATION OF THE ACADEMIC DOGMA, by Nisbet) I feel universities now prefer to invest millions of dollars of surplus income in real estate or financial markets rather than in knowledge.

> I must concede, however, that many academics (including myself) have a
> vested interest in the copyright status quo with which we have become
> comfortably familiar, and are sometimes too willing to accept on faith
> that the balance that previously existed should be preserved without
> change in the face of new technology.

Universities changed the balance in the 1970s without asking faculty, research sponsors, students, etc. Library funding took a hit that far exceeded the resource sharing authorized by the new law and CONTU guidelines.

> > Instructors turned to photocopy coursepacks as copyshops appeared
> > on every campus. Publishers produce authorized collections of
> > articles tailored to the requirements of (and edited by) instructors
> > of large enrollment courses. The economics of photocopying makes such
> > a collection viable in small quantities. As "fair use" it was simply
> > unethical.
>
> Photocopying made economical something that had never been done before:
> the creation of coursepacks in smaller quantities. Two questions
> remain.
>
> First, what did these teachers do before they used coursepacks? Did they
> simply use an authorized collection? If so the author and publisher have
> lost money, but society has presumably gained something (more effective
> teaching?) by enabling professors to tailor materials to their
> individual desires. A balance needs to be struck. Alternatively, it is
> possible that these teachers simply placed materials on reserve. If so,
> the coursepack is simply more efficient; the author and the publisher
> have lost nothing.

Libraries once purchased multiple copies based on faculty request. This applied both to reserve materials and to subscriptions that circulated within departments and laboratories. Any number of schemes have been launched to fill the gap produced by cancellations. Most of them involve a great deal of red-tape-and-wait for photocopies. None really provide the browsability of the real thing.

> Second, what will these professors do if they have to pay a fee to the
> CCC? If they will still use the coursepacks, authors and publishers
> get money that adds to their financial incentive to publish without
> hindering education in a serious way. If professors forego coursepacks
> in favor of reserve materials, then society has lost the benefit of
> convenience with no gain to the publisher. If professors forego
> coursepacks in favor of authorized collections, authors and publishers
> get more money, but society loses some potential innovations in
> teaching. How should we balance these offsetting effects?

Authorized coursepacks are OK with me, how ever permissions are acquired. Students pay for them, just as they pay for any textbook. Their tuitions should provide them with a decent library collection. Research sponsors, such as the U.S. government, also pay an average of $55 for every $100 direct research costs. They are also entitled to support by a decent collection.

> These are extraordinarily difficult questions to answer, in part because
> the truth lies somewhere in between: some professors use coursepacks as
> a substitute for authorized collections, but some use them merely for
> convenience. In addition, there are legitimate differences of opinion
> concerning what the best poolicy should be. The ethics of the situation
> are hardly one-sided.

I think use of the many options makes choices easier and perhaps more effective. As a miracle that saves money for the university, however, resource sharing and photocopying have been overpromised and overplayed to the detriment of dissemination.

> > The consensus among publishers for academic markets is that these
> > misuses of the photocopier generally hurt all sales and the interests
> > of authors, researchers, and students in dissemination.
>
> It is hardly surprising that publishers believe is that photocopying is
> a bad thing. Most libraries, teachers and students think otherwise, and
> authors are split. I have no doubt that sales were hurt, but whether
> society as a whole is better off is still an open question.

When all the facts are understood, I think you will find librarians, authors, instructors, researchers, and their sponsors on the same side as the publishers.

Thanks for your interest.

Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com> Received on Thu Nov 19 1998 - 01:06:26 GMT