By Scott Jashik, Inside Higher Ed
ANAHEIM,
Calif. — When academics hear that Congress might consider changes in
copyright law, those who think about the issue tend to feel of lawmakers
that “anything they do will be bad. They will do what Hollywood wants,”
and generally restrict access to materials, not ease it. That was the
assessment here Friday of Pamela Samuelson, a leading expert on
intellectual property issues, in a speech to attendees at the Educause
annual meeting.
While that academic skepticism of Congress may be understandable,
higher education (leaders and rank and file academics) need to get more
involved in copyright questions, said Samuelson, the Richard M. Sherman
Distinguished Professor of Law at the University of California at
Berkeley and co-director of the Berkeley Center for Law and Technology.
Several recent wins for universities in copyright disputes, she said,
are being appealed. And Congress may be about to launch a major overhaul
of copyright law. The interests of higher education in copyright are
too great — especially in the digital era — for colleges and
universities to be on the sidelines, Samuelson said.
The wins of late have been significant and have strengthened the
concept of “fair use,” under which students and faculty members can in
certain situations use portions of copyrighted materials in teaching and
research. Last year, a federal judge rejected the vast majority of the claims
made against Georgia State University by publishers who objected to the
way the university used electronic reserves for supplementary course
materials. Also last year, an authors’ organization lost a lawsuit against the Hathi Trust, an electronic repository based at the University of Michigan.
If the universities prevail in the appeals, Samuelson said, academic
copyright interests could be significantly strengthened. But that’s not
certain, and there is also the possibility of significant changes in
copyright law. In March, Maria A. Pallante, the U.S. registrar of
copyrights, proposed a Congressional review of the law.
Pallante said that the last major revisions were 15 years ago, but that
many elements of copyright law date to a 1976 revision of the law.
Congressional leaders have indicated that they plan to start hearings
next year.
Samuelson noted that several of the issues Pallante raised for review
directly affect higher education. Among the topics cited by Pallante:
“revising exceptions and limitations for libraries and archives,
addressing orphan works [those lacking current copyright protection],
accommodating persons who have print disabilities, [and] providing
guidance to educational institutions.”
The first thing higher education needs to do, she said, is reposition
itself so that it is not just viewed as a consumer of copyrighted
materials but as a major producer of them. Too often in these
discussions, she said, higher education isn’t given credit for
“universities as authorial communities.”
Where higher education may differ from other producers of content is
in the large numbers of people who want their work disseminated as
broadly as possible, without an emphasis on denying access. Samuelson is
in the process of creating a new organization, called the Authors
Alliance, for academics “who want our works available.”
Along these lines, Samuelson also said it was important for more
academics to “push back” and to refuse to sign over copyright to
publishers, or to impose limits on any rights they turn over. She said
that universities that have been creating repositories for the work of
their faculty members have allowed faculty authors to have a stronger
negotiating position with publishers.
When publishers accept work, she said, the initial proposal is
typically “assign all copyright” to the publisher, with a tone of “I
demand this.” But she said that more and more faculty are learning that
they do have leverage. “If you say, ‘That doesn’t work for me,’ they
have another policy.”
And when faculty members find journals that have reasonable policies
about use by authors and for educational purposes, Samuelson said, they
should favor such outlets and share their enthusiasm with colleagues.
(She did just that by noting that she regularly publishes in the
access-friendly technology journal Communications of the ACM.)
Even as academics take such steps, however, they must participate in in the political debates over copyright, she argued
Many leaders and experts in higher education “want to hide” when
people talk about the possibility of Congress reopening copyright
legislation, Samuelson. “While it is sensible to be somewhat concerned
about what would happen if Congress decided to reopen” the legislation,
Samuelson said, “it would be a mistake for higher ed not to say, ‘If we
want to do this, these things need to be on the agenda.’ ” Generally,
she said, higher education needs to be sure the fair use victories of
the courts are preserved.
Further, she said some copyright law has been based on classroom use
meaning a physical classroom. So it’s very important for higher
education to have copyright law that works in online (or hybrid)
courses.
Jarret S. Cummings, director of external relations for Educause, said
via e-mail after the session that the organization hasn’t taken a
position on overhauling copyright law. “We plan to align with the
general higher ed community response as it takes shape. I believe we’ll
see that come together as actual legislation is introduced in Congress,
which will give the relevant higher ed associations a clearer basis
around which to organize,” he said.
The American Council on Education is also waiting until the copyright
ideas that have been proposed become an “actionable proposal,” said Ada
Meloy, general counsel of the American Council on Education. But she
noted that the association (along with other associations) has filed
briefs in the Georgia State and Hathi Trust appeals cases, backing the universities.