The premise of both subscription and transactional licensing is that universities need permission to use works beyond fair use and the rights they acquire with access. This premise is often true in today's digital environment and that is why we will discuss these licenses.
In a fully digital library, the need for these "additional" permissions has diminished, but it will never go away completely. Comprehensive access licenses are the subject of the next section where we discuss strategies to further reduce our need for permissions.
Even if we properly license whole databases of information for our patrons, there will be works the library may prefer to acquire as-needed (through interlibrary loan or by document delivery) rather than license them upfront. Thus, libraries likely will need both comprehensive access licenses and some form of transactional or subscription licensing for additional permissions even into the digital future.
Transactional licenses allows us to license permission as needed, one transaction at a time). It requires that we establish relationships with the Copyright Clearance Center for libraries, course management systems, and copy centers, and work harder to educate and inform students and employees of their rights and responsibilities under copyright law so they know when to ask for permission. Ideally these different ways of providing students with access to digital and print materials could be integrated into a single system for behind-the-scenes rights clearance, but this option seems to elude us so far.
Transactional licensing lowers our risk of lawsuits, but it does not eliminate it entirely for two reasons:
The current instability in the scope of fair use exacerbates these risks and requires that we devote more attention to educational efforts. On the other hand, these risks should diminish as comprehensive licensing and subscription licensing opportunities increase.
Subscription licenses have been discussed for many years now, but usually without much progress. In 2007, the Copyright Clearance Center (CCC) introduced he first generally available subscription license for universities. Thus, this discussion is no longer theoretical.
Subscription licensing could help us comply with copyright law, especially where a license covers a broad range of copying types, such as institutional and personal classroom, reserve and research copies, and administrative copies, and other rights including rights to create, display and transmit digital copies and to make print copies from digital works. Ideally the subscription license should contain mechanisms for adjusting fees where direct comprehensive access to electronic information diminishes the need to seek permission for uses outside the license under which access is originally acquired. The CCC indicates that it takes this into account in a rough way by providing lower per student fees for large research institutions that most likely license far more comprehensively than smaller colleges.
Reducing infringement liability: Legal risks in subscription licensing
Most institutions will likely rely on fair use for some or all uses that are not covered by the scope of a subscription license (for example, for publishers' materials that are not included), so even with such a license we will be exposed to some risk regarding our liability for the quality of fair use determinations.
Although subscription licensing proposals usually include an offer by the licensor to indemnify participating universities against suits from publishers, such an indemnity would not cover uses outside the license - the fair uses exempted from its terms. Thus, the more a subscription license covers, the better, because any remaining vulnerability to suit significantly diminishes the value of the license.
Even were we to enter into a good, mid- to long-term agreement, that encompassed electronic rights there could still be some problems:
Many are concerned that we risk the erosion of the scope of fair use if we sign subscription licenses. The fear revolves around two points: With a subscription license in place, for any materials within its scope, whether the use might have been fair or not becomes a moot point. Thus, we don't "exercise" our right, and if we don't use it, we'll lose it. The other concern is that only large institutions will be able to afford the subscription prices leaving the smaller, poorer schools on their own to defend fair use, which, of course, they can't afford to do any more than they can afford to subscribe. I am skeptical of both arguments because the evidence I see in the court cases that have addressed the kinds of systematic, high-volume copying and distribution that combined e-reserves, Blackboard and course websites constitute (for example, the Texaco, Kinko's and Michigan Document Services cases), suggests that in the presence of a mature, efficient permissions market, a plea to characterize such uses as fair use will not fare well. Thus, it is questionable that the courts would agree that we have a "fair use" to lose in this context where we are making massive numbers of copies. That is not to say that other types of fair use are similarly threatened. On the contrary, creative, transformative uses are gaining strength in the courts. Google's use of images in search engines and a publisher's use of small images of posters from Grateful Dead concerts provide two recent examples where courts upheld fair use. Digital delivery of course materials is not likely to qualify as creative and transformative however, especially given its duplicative nature (simply making copies) in the face of the availability of a permissions market for just these kinds of copies.
Strategies to reduce the need for permissions
In considering our strategies, it is important to acknowledge that so long as we are using others' works, we are obliged by copyright law to pay whatever the copyright owner asks. Even if the price seems to be too much or seems like paying twice for the same thing (once to acquire it, again to make use of it), universities are not currently paying as much as publishers want us to pay, or as much as publishers are entitled to under law. The existence or scope of fair use does not alter this basic fact.
As a further corollary, we should assume that ultimately there may be little difference between the cost of comprehensive access and the cost of bare access plus permission fees for all additional uses since copyright owners have the right to their price whether collected entirely upfront or collected partly upfront and partly after the fact of access. Still, efficiency has its advantages for them as well as for us, and I believe that over time, publishers will evolve more efficient ways to meet our needs and collect revenues from us.
Actively pursue comprehensive access to electronic information.
Retain rights to publicly archive faculty-authored scholarly works
So long as universities use others' works, they are bound to pay the owners their price. To the extent universities can retain the right to publicly archive faculty-authored scholarly works, they contribute the the lowering of costs of both access and use. It now seems possible that electronic publishing could potentially and drastically alter the dynamic among authors, publishers and consumers of scholarly works. Users want wide, affordable access and publishers and authors want reasonable remuneration. Since the university community includes authors, publishers and users under the same roof, we ought to be able to take advantage of this situation.
Libraries, scholarly presses and IT departments are collaboratively publishing
new types of scholarly works
The electronic environment offers a unique opportunity to the university community to create publishing alternatives, transact business with more user-friendly publishers, and publish its works in fields dominated by the most problematic, over-priced publications with publishers who are a part of our community or who are in any event willing to deal with users in a reasonable manner. We should capitalize on the strength we have naturally because we are all part of the same enterprise.
It is time for a more active role for universities in copyright management
A mid 1990's Association of American Universities (AAU) Intellectual Property Report suggested that an alternative scholarly works database shared by university faculty, libraries and presses would assure the community access to precisely the kinds of materials threatened by spiraling prices. One member of the Task Force suggested that "[w]here scholars are writing primarily for other scholars, the process will arguably be managed directly by faculty involved and conducted outside the 'money economy' of conventional publishing." Now, 15 years later alternative distribution systems are beginning to be developed by conscious design and simply by natural evolution from practical use of the medium. It seems clear that there will be multiple "tiers" of scholarly publication, and with respect to the greater body of copyright works, multiple tiers of publication generally.
The many publications to address over the years the crisis, now the revolution, and the opportunity of scholarly communication could fill volumes. Again, just Google it. Today, many universities are exploring scholarly electronic publishing as an adjunct to or in lieu of other forms of scholarly communication. The development of this resource is one of the most exciting aspects of the digital revolution.
Policy implementation: summary
The web of interdependencies among universities, their faculty members, libraries and publishers may be rewoven by the process of adapting our policies to the realities of the electronic world, but it will not disappear. To avoid harming the relationship between libraries and university presses, or the relationship between universities and for-profit publishers, we must focus on the overall goal of facilitating educational objectives, including but not limited to facilitating scholarly communication, rather than on preserving traditional roles and institutions. We must find solutions wherein our libraries, authors and presses can be partners rather than adversaries.
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