Update on Georgia State Copyright Case

The keenly watched copyright case that has pitted three academic publishers (Cambridge and Oxford University Presses and Sage)against Georgia State University has entered the appeals phase, with a flurry of filings and motions this week and more expected soon. One surprise motion has come from the U.S. Department of Justice, which has requested more time to consider filing an amicus brief either in support of the publishers or in support of neither party. The possibility that the government might weigh in triggered speculation and anxiety among some observers, including academic librarians worried that the Justice Department could sabotage educational fair use if it sides with the publishers against the university.

The case will be heard by the U.S. Court of Appeals for the 11th Circuit.

In their brief, filed on Monday, the publishers argue that, if the lower court’s ruling stands, it will have implications that go far beyond Georgia State’s practices. The publishers content that e-reserves amount to course packs or anthologies of reading material. They claim Judge Evans’s decision “invites universities nationwide to accelerate the migration of course-pack creation from paper to electronic format” and to sidestep legal permission to use copyrighted content. That pattern of behavior could undercut “the efficient licensing markets that have evolved to serve the needs of academic users” which, in turn, “would threaten the ongoing ability of academic publishers to continue to create works of scholarship,” they argue.

The Association of American University Presses plans to file an amicus brief on behalf of publishers on Monday, February 4.

Stay tuned!

Duke U. Press to make backlist available via HathiTrust

As many as a thousand titles from the backlist of Duke University Press will be made available via HathiTrust, in a deal announced between the two and in cooperation with Google. Like most university presses, Duke doesn’t have the resources to digitize its entire backfile itself, but will leverage the digitization capabilities of Google and the repository infrastructure of HathiTrust. Duke’s expenses will be in the area of attempting to locate all copyright holders and obtain their permission to have their books digitized and made available under a Creative Commons noncommercial license. In return, Duke will obtain digitized files of all the books that have already been scanned by Google and/or are already available in HathiTrust.

Making money is not the goal of the project, according to Steve Cohn, the press’s director; there is very little demand for most academic titles that are more than a decade old. Instead, the project is a way to archive the scholarly content and make it more widely available, Cohn says. A print-on-demand option will be made available, with Google’s blessing, for those who discover the content online and wish to have a print copy. “We very much support Duke getting them to extend their archive and make scholarly uses” of that material, according to Tom Turvey, Director of Strategic Partnerships at Google. Google will benefit by having Duke assume the burden of rights clearances and legal liability.

For its part, HathiTrust has been seeking “a framework for university presses to open up materials in ways that are sympathetic to what they’re trying to do—both protect their bottom line and disseminate scholarly information,” according to John Wilkin, its Executive Director. Both he and Mr. Cohn believe that the Duke-HathiTrust partnership should prove to be a workable model for other presses.

Adapted from a story by Jennifer Howard published in the Chronicle of Higher Education on September 12, 2011.

SMU to revive its Press

More than a year after it announced it was suspending operations at its well-regarded press, Southern Methodist University has decided it will give the press a second chance at life. In a statement sent to The Chronicle of Higher Education, Provost Paul Ludden confirmed the decision but left the specifics and timetable vague.

“After years of struggling to stay financially viable, SMU Press is evolving in a manner that we believe gives it the best chance to survive as a relevant, sustainable publisher in an evolving publishing world,” Ludden wrote. “We plan to hire a new director for the press who will take a fresh look at the publishing landscape and reinvent the press. We imagine that digital publishing and print-on-demand will figure prominently in any new venture.”

The outcry on- and off-campus over the suspension led Ludden to study the question of whether the press could be made sustainable. Founded in 1937, the press is Texas’s oldest academic publisher and is best known for literary fiction. Its titles have been distributed by Texas A&M University since its demise.

–Adapted from article by Jennifer Howard in The Chronicle of Higher Education, August 10, 2011.

Update on Georgia State lawsuit

The plaintiffs and the defendants in the fair-use lawsuit that has pitted three academic publishers against Georgia State University have now filed their final post-trial briefs. That was the last opportunity for each side to make its case before the federal judge overseeing the case in Atlanta delivers a ruling. No date has been set for a decision in the closely watched case, but observers say one is likely by early fall. Cambridge U. Press, Oxford U. Press, and SAGE Publications have alleged that the use of copyrighted material in e-reserves and on faculty Web sites has exceeded the bounds of fair use.

From the Chronicle of Higher Education, August 4, 2011.

Publishers Grapple With Thorny Issues of Protecting Property and Going Digital

(Adapted from an article by Jennifer Howard in the Chronicle of Higher Education)

Collaborate and share—but protect your copyrights. That was the sometimes conflicting message heard at the Association of American University Presses’ annual meeting, which ended in Baltimore on June 5th. Many of the sessions and conversations took a digital turn, too, as attendees compared notes on how to acquire, produce, and market scholarly e-books and journals.

More than 700 scholarly-publishing professionals registered for the meeting, making it one of the association’s largest ever. (About 500 people signed up for last year’s conference in Salt Lake City.)

The official theme was “The Next Wave: Toward a Culture of Collaboration.” Many panels examined different partnerships that university presses have lately made a priority. For instance, one session gave an overview of four ventures being developed to sell aggregations of university-press monographs to libraries by Project MUSE, JSTOR, and Cambridge and Oxford University Presses.

One panelist at the session, Michael Levine-Clark, collections librarian at the University of Denver, gave the audience a long list of features the e-book aggregations will have to include to satisfy libraries. “We need to be able to get whichever books we want on whatever platforms make sense for us,” he said. “We absolutely need flexible pricing.” E-books should be available at least as soon as any print edition is, he told the crowd, and they should also be easy to use and not tied down by too much rights-management software.

At a session on “List Building for the Digital Age,” several editors talked about learning to incorporate what one called “e-thinking” into book acquisitions much earlier than they used to. They were joined by a literary agent, Will Lippincott of Lippincott Massie McQuilkin, who described the nervousness he encounters among authors and publishers over the unknowns of digital publishing: What kinds of royalty agreements are fair, for instance.

Jennifer Crewe, associate director and editorial director of Columbia University Press, described her press’s experience with a couple of digital-publishing projects. She suggested that some bells and whistles—book-related apps, for instance—go beyond what many scholarly publishers can or should do at this stage. “I don’t think that developing apps, especially at low consumer prices, is going to be the salvation of university presses,” Ms. Crewe said.

In a sign of how absorbed many press personnel are by digital publishing, one of the liveliest sessions was reportedly one on “How Good Is Your Metadata?” A Chronicle reporter did not attend that particular panel, on the assumption it would be a dry subject. “The panel made the important point that in the e-book world, your book is invisible so metadata is the only way to be discovered,” John P. Hussey, director of marketing and sales at the University Press of Kentucky, told The Chronicle afterward via Twitter. One panelist, Bob Oeste, senior programmer and analyst at the Johns Hopkins University Press, even worked an XML shopping list into his presentation, Mr. Hussey said. “Bob is the only person who could make going grocery shopping with XML markup language funny.” (XML, or extensible markup language, is used to encode text so that it’s machine-readable; some publishers use it in preparing e-book files.)

E-book talk was everywhere. Still, as Suzanne Guiod, editorial director of the University of Rochester Press, pointed out in a conversation, digital publishing has by no means taken over all university-press operations. A smaller, traditional press like hers, which publishes about 23 titles a year, offers digital editions but hasn’t yet gotten into fancier projects such as e-books enhanced with multimedia features. “We’re not really feeling those kinds of pressures,” Ms. Guiod said. “I’m not sure yet how relevant these discussion are to a press like ours.”

Coming Together
Big or small, digitally driven or focused on traditional print publishing, presses collectively need to build on-campus relationships to cope with the economic pressures and cultural changes they’re confronting. The association’s new president, MaryKatherine Callaway, director of Louisiana State University Press, is making university relations the theme of her presidential year. During a lunchtime address, she said that presses had made “a historic misstep” by keeping their heads down and trying not to draw administrators’ attention. That strategy has too often left them isolated and vulnerable, said Ms. Callaway.

She argued that noble talk of mission isn’t enough anymore. “A lot of our universities don’t understand why we don’t ask for a little more profit and a little less mission,” Ms. Callaway said. She announced the formation of a committee on university relations that will be led by Garrett P. Kiely, director of the University of Chicago Press.

The emphasis on collaboration, inside and outside presses’ parent institutions, carries forward the conclusions in a report put together this year by another association panel. The report, “Sustaining Scholarly Publishing,” examines changing business models and partnerships—the e-book aggregation projects, for instance.

Holding On to Copyright
For all the focus on collaboration, though, the meeting also had a circle-the-wagons feeling at times, especially on the subject of protecting intellectual property. Nobody wanted to talk on the record about the legal case under way that has pitted three scholarly publishers against Georgia State University over its use of copyrighted material in e-reserves and on university Web sites. That case has been a reminder that publishers and libraries continue to have very different ideas about when and how much users ought to pay to use copyrighted material.

A “rah, rah, rights” tone was set the first evening of the conference, in a keynote speech by David Simon, a former journalist and the creator of the HBO television series The Wire (see related coverage). Mr. Simon gave the crowd a pep talk about the importance of doing something for its own sake, without regard for commercial reward. But creating that kind of work has to be supported somehow, he said, pointing to the decline of mainstream newspapers as an example he has lived through. That decline wasn’t the fault of the Internet, he said, but of newspaper owners devaluing their own product, gutting reporting operations, and giving away content.

“Intellectual property needs to be fought for,” Mr. Simon told the crowd in his hard-bitten reporter’s manner. “Copyright matters.” His listeners broke into applause.

A plenary session, “Back to the Future of Copyright,” emphasized the value of copyright. Marybeth Peters, the former U.S. registrar of copyrights, acknowledged how hard it has been to find solutions to the problem of copyright reform and orphan works, whose copyright holders can’t be identified or located. But Jon Baumgarten, a veteran intellectual-property lawyer, said he believed that “the basic objectives and premises of traditional copyright—to provide a viable, indeed vibrant environment for [intellectual] investments to flourish—remain valid.” He advised the press association to be vigilant. “Copyright is under constant attack today,” he said.

Pirated copies of their books have been a big concern for university presses lately. A session on “Is Piracy Good for Sales?” didn’t really answer the question raised by its title, but it made clear that presses take the possibility seriously. The moderator, Chicago’s Mr. Kiely, said concern about piracy had led his press to test out the services of Attributor, a company that tracks down pirate copies of clients’ copyrighted material and helps them get that material taken down. Lately the press has had about 250 takedowns a month, said Mr. Kiely.

Attributor’s services costs about what it would cost to hire a junior-level staffer for a year, Mr. Kiely said in a conversation later with The Chronicle. It’s hard to know just how many sales are being lost to piracy, though, and the Chicago press plans to do a six-month review soon to determine whether the cost of Attributor is worth it.

For all the talk of open access and how scholars want their material to be freely available, Mr. Kiely said he finds that his authors still generally don’t ask for open-access options and that they really dislike the idea of having their work pirated. One scholar who had edited a collection of essays, Geometry, Rigidity, and Group Actions, came across a pirated edition posted online before the contributors had even received their copies. The scholar spotted it and alerted the press. The market for that book is likely to be specialized and small, but “there’s a pride of ownership,” Mr. Kiely said.

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