a response to IPS's position paper


Subject: a response to IPS's position paper
From: Dorothy Milne (dmilne@morgan.ucs.mun.ca)
Date: pe 05 heinš† 1996 - 23:13:31 EEST


Dear Emanuella -

  A colleague of mine sent me your request for reactions to the IPA's
postion paper:

< At the annual meeting of the International Publishers Association in
< Barcelona last April, the enclosed Position Paper on Libraries,
< Copyright and the Electronic Environment of the International
< Publishers Copyright Council (IPCC) was adopted.
< In Europe we were quite surprised about the >position taken by the
< publishers On 24 September the ECUP Steering Group will invite 28
< representatives of larger publishing houses to talk about the ECUP
< Position on User Rights in Electronic Publications. I would be
< very grateful to hear from you what you think of the arguments used in
< this paper and the role pictured for the libraries.

I was so annoyed by the position paper that I decided to print it out and
read it again after a few days. I reread it today. In my opinion, it is
90% bombast and propaganda, and does not in fact present any arguments
worth defending in support of its positions. It sounds like a bullying
"initial position" in negotiations ... i.e. they are staking out an
extreme position and hoping to get most of what they want after making
some concessions. (I'm a union negotiator and so see a lot of this bombast
from employers.)

My analysis of the situation is that the publishers are very afraid
that the electronic age is displacing their function. They came into
existence with the advent of print media and now that print is being
replaced by electronic means of communication, their role as printers
and distributers of books and journals by delivery van and by mail is
rapidly becoming obsolete. Hence, their panic.

I also think they are emboldened by the new neo- conservative,
business-rules-all political climate in the USA. They believe they can
convince politicians that they must have a monopolistic hold on copyright
of electronic information and that this must be protected. Such a monopoly
on copyright would give them a strangle-hold on distribution (they think),
and would open the door to untold amounts of wealth.

I formed some of these opinions when I atended a conference on electronic
journals a few years ago. From the discussion with publishers, it became
clear that they could produce scientific journals more cheaply
electronically than the current cost of the print editions. Rather than
do that, however, their response was that they had to ensure their
survival by adding more "value added features" to the text, even though
those additional features would increase the cost of the journals even
more. At that time, their thought was to add hypertext. (more on this
below) Their focus was solely on their own economic survival, not on
whether either libraries or readers would be able to afford the
higher prices.

When I read the IPA position paper, I saw a lot of echoes of the same sort
of biased thinking in it. I am not an expert in copyright, but I have
followed the issue fairly closely, especially with respect to document
delivery of journal articles and the advent of electronic journals.

Though the position paper makes two or three references to "cooperation"
with libraries, the overall tone of the document is that of condescension
and control. I think there are two possibilities:

(a) they wish to price some of their information so high that only
    libraries can afford to buy it, and then control how libraries
    disseminate it, so they get a profit on every transaction;

(b) they hope to bypass libraries altogether, selling information
    directly to readers. In this case they want to shut out the
    library's involvement altogether.

It is interesting to consider copyright law and the democratic right
of individuals in society to access to information under those two
scenarios.

I have excerpted a few parts of the document below, and added a few
comments:

>--------------------------------------------------------------- >---- >>
<IPCC Statement: >> Libraries, Copyright and the Electronic Environment >>

<Digital Versions of Works Need Copyright Protection Adequate to their
<Nature

<Many national and international library groups have >> argued that they
<should be able to use digital formats of >copyrighted >> works in the same
<way as they used printed versions in the >past. >> This is a dangerous
<concept because it disregards the >indisputable >> fact that digital uses
<are not equivalent to non-digital >uses, and, when >> undertaken without
<regard for copyright, can have >immeasurably >> harmful consequences. >>

I would like to ask the IPA to provide proof that "digital uses..when
undertaken without regard for copyright, can have immeasurably harmful
consequences". Give an example please. For years, publishers argued
that photocopying in libraries was having a great impact on their sales.
When they finally got around to measuring it, the amount of photocopying
of copyrighted material was around 5% of the total number of photocopies
and amounted to something like $2 per student per year. If they have
studies to prove this damage, demand that they release the proof to you.
Challenge this statement, do not accept it as given.

In all of this paper, there is a problem in knowing what types of
material they are talking about. Scholarly materials, for example,
represents about 0.5% of the economic value of published materials.
So targetting university and college libraries for copying print or
electronic articles for fair use would provide only a miniscule gain
for their profit picture. So what type of material would they have
a right to be concerned about? Presumably not the big money major
sellers -- novels, etc. -- who would want to read those electronically?
Perhaps they are most worried about electronic "magazines" with
wide readership? At any rate, the position paper does not draw the
necessary distinctions among the types of document which they would
like to control copyright for.

<Similarly, there is not and should not be a "private" or "personal"
<use exemption from copyright as such (apart from limited, legitimate
<"fair uses" that are subject to sensitive criteria and do not impact
<the market for or value of the copyrighted work, or the interests of
<the creators). It must be recalled, after all, that disseminating
<printed and electronic works to individual consumers for their
<"personal" or "private" use is precisely the business authors and
<publishers are about.

What? Yes, disseminating printed works to individual consumers for
their personal or private use is precisely the business authors
and publishers are about .. and given that, society has granted
publicly funded libraries the role of lending that same information
to people, to guarantee access to information. Otherwise, we would
have a society where the rich would control by privileged access to
information. This fuzzy thinking in the position paper does not
explain to me why there should be any difference for electronic
information. Why shouldn't a rich person be free to buy the material
direct from the publisher for free, while the library may buy a copy
that can be distributed to users who cannot afford to pay? There
may be an economic argument in here somewhere, but this paper does
not present it, nor provide the sort of facts that would allow a
fair deal to be struck between publishers, libraries, or the public.

An analogy could be drawn to the "institutional" rates of journals
which publishers charge to libraries ... the higher costs presumably
account for the fact that the library copy will receive 10 or 12
uses more than a copy bought by an individual. Perhaps a similar sort
of deal on electronic databases will end up being the "fair use"
resolution for publishers and libraries.

<Many national and regional libraries contemplate digitizing their print
<collections to facilitate a virtual library that can provide service
<to patrons at remote locations and facilitate resource sharing. Such
<a concept will destroy not only the incentive to create new
<copyrighted works, but the revenue from existing works that provides
<the investment in new works by authors and >publishers.

A little hard to believe. To digitize more than a small selection of
books would be financially impossible even for very large libraries.
In distance education, students are usually expected to buy specified
texts, and then supplement with books borrowed from the library. (we
do this a lot, because we are in a remote area).
I agree that it would be wrong for a library to digitize the texts
(which would mean that the students wouldn't buy them), but I don't
think it would be wrong to digitize the supplementary works which
would be lent to them, by mail, from the university collection.
Such digitization does not replace "purchases" of material, and falls
under "fair use" from what I can see.

<The activities requested by libraries must be measured by their actual
<nature, circumstance and effect, not by inherently faulty analogy to a
<print product housed in a physical form in an analog world. When
<properly examined, the activities will frequently be found to be
<beyond the limits of statutory privilege.
I agree with the first sentence - that the resolution of copyright law
in this area should rest on demonstrated economic effects, not on
abstract analogies. The second sentence (When properly examined ...)
I doubt very much, at least on the criteria set out in the first
sentence. That is, are libraries photocopying printed documents now
that are causing publishers real economic losses? or violating fair
use? I think not. Are they doing so electronically? Not that I know
of. Do they have any proof of this? They must be challenged to
provide proof.

< A mandate for libraries to re-distribute copyrighted information for
< free is a mandate that authors and publishers not risk the investment
< in providing the information at all. Such a requirement would deprive
< society of the very values that electronic information is intended to
< provide.

That's strange. "Redistributing copyrighted information for free" is
exactly what libraries do all the time when they lend their own
materials or provide ILL's. This has been sanctioned as "fair use"
by society for a long time. And, it has not deprived society of
creative works. So ... the assumption here seems to be that the
the greater speed and ease of electronic distribution would magnify
the effect somehow. Perhaps this is so -- but where is the research
and the evidence? The IPA should be prepared to prove these allegations,
otherwise I remain very very skeptical of their validity.

With respect to the IPA's contention that copying of electronic documents
must be strictly controlled, lest the creativity of authors be stifled, I
think there may be an interesting analogy to what happened when
audiotapes replaced sound recordings as the dominant technology for
music. Note the similarities re. copyright issues: audio tapes
are simply, quickly and easily copied (illegally) and it is known
that people do copy widely from tapes borrowed from friends and from
libraries. There is, however, no evidence that this has damaged the
creativity of recording artists. On the contrary, the number of musical
groups recording and selling their music seems to have exploded --
almost anyone these days can record a tape and sell it. I think we
need to challenge the IPA's assertion that copying of electronic
media will necessarily harm the creative output of writers, on the
basis of this analogy.

Continuing with the audiotape analogy a bit further, I note that
governments have recognized that trying to prevent the copying which
violates copyright laws on audotapes is impossible. Instead, they have
levied a tax on _blank_ audiotapes, and use the revenue to subsidize
the recording artists. This is appropriate, because copyright law is
intended to balance the rights of the creative artists against the
fair use rights of (not for profit) use by individual citizens. Thus,
the subsidy quite properly goes to the creative artists, rather than
to the recording companies. Publishers, like recording companies,
are not the creative artists in this equation. Copyright law is not
meant to protect the business interests of publishers.

It seems to me that much of the IPA's claim to copyright protection
against fair use copying of electronic materials is staking a new
claim (rather than a traditional one): they want copyright law to
protect them as _intermediaries_ in the process, or possibly as
the value-added index-link suppliers in the process. This might
be interesting to discuss on its merits, but it is not the claim
to traditional rights that their argument seems to imply.

< ... the differing nature among the great variety of published and
< customized works should be considered in exploring the electronic
< environment. A highly specialized work with a limited audience cannot
< withstand copyright infringement even if another type of published
< product has some level of tolerance for minimal abuse. Generic approaches
< to the role of libraries in an electronic environment threaten to
< ignore these very important differences with unintended consequences
< to authors and scholars alike.
 This is peculiar. In print form, most of the highly specialized works
 are so expensive now that only libraries can afford to buy them, so
 fair use (i.e. anyone who wants to read it gets a library to lend it
 to him) is how readers access this information. I simply don't find
 that argument credible.

 All through this position paper there is an oh so pious reference to
 "copyright holders and authors". In fact, most publishers demand
 copyright from authors and very few authors (unless they are very rich
 and very famous) can refuse to give copyright to the publishers, who
 then package and repackage and make further profits. Also, most
 authors of 'highly specialized' materials are in fact supported by
 salaried jobs. Their aim is often quite opposite to those of the
 publisher. Authors want wide dissemination of their work for reasons
 of fame, promotion, etc. Publishers want to charge higher prices,
 which in fact limits disssemination. In very few cases indeed do
 scholars make enough "royalties" on published books to make any
 difference to them at all.

 One of the greatest threats to publishers is the fact that authors
 can, for the first time in history, edit their own works and
 "publish" on a web page, and choose how and to whom to release
 their works. With web pages, even the much ballyhooed "hypertext"
 links which publishers want to add is within the grasp of authors.
 All this chatter about protecting the creative process of authors
 is so much hot-air, at least for scholarly works. I grant, however,
 that it has some validity for people who write for a living.
 I think that a new copyright law might well take that difference into
 consideration.

 It would be worth asking the IPA if they would, in fairness, be willing
 to leave copyright in the hands of the _authors_ and to earn their
 money in the value-added features they can offer the author??

<<Digital Document Delivery is One of the New Primary Services
< Publishers Offer
<
< Digital document delivery, providing scholars and researchers with
< individual articles and short excerpts of longer works, is a new
< service being offered by publishers. It is not the same as print-based
< interlibrary loan. Many publishers around the world are in the
< process of developing new services using digital delivery designed to
< meet user needs and expectations. These services include digital
< document delivery, individual articles "on-demand," and access to
< archival databases of previously published materials with hyperlinked
< resources. Although inherently part of the traditional function of
< publishing, this new digital publishing is not the same as traditional
< print publishing. It provides significant additional value to the
< reader. For this reason, the capacity, development, and promise of
< new digital publishing should not be undercut, diminished, or abused
< by claims that whatever was a permitted or tolerated use of a print
< product should equally be permitted with digital products >and
< services. This behavior would discourage the very innovation >that
< publishers are developing to serve the marketplace.
  I agree that adding hypertext links to previously published documents
  in archives would be a significant benefit to scholarship -- it
  would be a real "value-added" benefit to the search process, and
  publishers have a right to expect to recover their costs (and make
  a reasonable profit). I also accept their argument that if they cannot
  be sure of recovering those costs, there is no point in their doing
  the job in the first place. Having said that, however, it seems to me
  that there are ways of licensing such indexes, and that there may be
  ways of separating that problem from the problem of publishing new
  journal articles in electronic form.

< Unrestricted Library Document Delivery Violates Article 9 (2) of
< Berne

< Transmission of copyright works to "remote" locations is a violation of
< copyright. Whether viewed as an aspect of the reproduction, distribution,
< performance, or display right, copyright owners have long retained the
< exclusive right to authorize the dissemination of their materials to
< remote locations.
  Really? Surely libraries have had the right to send a photocopy of
  of a print document, on ILL, to remote locations, as long as it
  was for fair use.
  And, I wonder, would a library not have the right to make a _print_
  copy of an electronically transmitted document, and then send an
  ILL of the print copy to a remote location?

< Preservation and Conservation Does Not Mean Unrestricted Use
<
< Publishers agree that libraries play an important role in preservation
< of a countries' cultural heritage. We agree that full use of technology
< should be employed in preservation and conservation of such
< materials. However, we have concerns over how copyrighted works
< should be protected once a library has converted them to digital form
< for preservation purposes.

It is hard for me to understand what they are worried about here. Are
they worried that libraries will preserve _all_ new books, as soon as
they are published (the only time when copying them would interfere
with sales?) It seems clear that only a very few books will be
preserved that way, and only years after publication, at least at
present levels of funding and technology. If they are referring to
books/journals that are originally published in electronic form, I
agree they have a point.

Somehow, I don't have a lot of faith that a copyright law will
solve these problems. (Enforcement seems unlikely to be workable,
for one thing). I think these issues may have to wait upon software
developments which prevents unauthorized copying and tampering with
the author's work.

< However, the IPA opposes any national or international legislation that
< would artificially limit how technology can be used or how copyright
< holders can provide their works to their intended markets.
This is intriguing! What in the world are they thinking about here?

< The marketplace will provide the balance needed to insure that publishers
< reach their intended audience.

What a touching belief in "the market"! Publishers are increasing
the per-article copyright fee in UnCover at a rapid rate. The going rate
has risen from $2 to $10, and in many cases is now $30 per article, and
some are asking $100 per article! I don't see any market forces
operating here. This sort of rhetoric needs to be countered by reminders
that society has to protect the right of all to access to information,
and that this protection is the role of publicly funded libraries.

Well, Emanuella, those are my comments. I find the whole position
paper to be very poorly thought out, poorly argued, and poorly written.
It is very depressing to read. It is probably meant to intimidate.
It appears to be more a political document than the starting point for
reasoned debate. I guess you have two options in how to respond:
either you can reply with reason -- or reply with a political argument.
In the battle ahead of you, the impassioned political argument (we
as librarians have to defend the rights of readers), may be necessary.
Have the reasoned arguments ready, but be prepared with political
rhetoric, too.

Best wishes,

          Dorothy Milne

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  Dorothy Milne e-mail: dmilne@morgan.ucs.mun.ca
  Memorial University, voice: [709]-737-8270
  St.John's, Nfld., Canada fax: [709]-737-2153
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