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The Death of Fair Use: Or A Few Reasons Why We Are Paying More and Getting Less Linda S. Dobb Bowling Green State University The Facts (Not That They Bear Repeating)

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the death of fair use or a few reasons why we are paying more and getting less

The Death of Fair Use: Or A Few Reasons Why We Are Paying More and Getting Less

Linda S. Dobb

Bowling Green State University

the facts not that they bear repeating
The Facts (Not That They Bear Repeating)
  • Since 1986, average annual increase in serials costs have been 8.8%--amounting to a total serial unit cost increase of 226%
  • ARL libraries spent 3x as much on serials in 1999-2000 as they did in 1986; # of titles has decreased by 7%
  • Shift of funds has been from monographs to serials; 17% fewer books have been purchased
  • Average journal which once cost $125 will cost $1,158 in 2012; a 4 million dollar budget will have to be 14 million by then
more facts on stm
More Facts on STM
  • Highest priced: Physics $2000; Chemistry $1900; Engineering $1100; Astronomy $1000; Biology $1000; Math $1000 (music $80)
  • Increases in the last 4 years range from 17& (astronomy) to 48% general science
  • Above Stats reported by Mary Case in ARL Bimonthly (October 2001)
what contributes to these stats
Higher Production Costs

Fewer Subscriptions

Information Piracy

Fear: that as information becomes available electronically subscription lists will sink

More legal fees; lobbying

Some upgrading of technology

Unaccounted for: new experiments by both publishers and academic organizations

Money, time, skill spent fighting restrictive legislation

Funds spent on understanding/negot. Licenses

Licenses, legislation, law suits, legalize not…

What Contributes to These Stats?
impact on libraries the public

Less information is available

Digital divide and research divide

Institutional authors cede their copyrights to publishers their own institutions cannot afford to access

More time spent on licensing issues

More time spent on trying to understand what drives out faculty

More time spent on trying to understand copyright issues and to control costs (at all costs)

Impact on Libraries/The Public
what was fair use
A limitation of the exclusive rights of copyright owners which considered four factors in determining if something could be used fairly for criticism, comment, teaching, scholarship

Purpose and character of the use

Nature of the copyrighted work (fiction/non-fiction)

Amount and substantiality of the portion used

Impact on the potential market value of the copyrighted work

What Was Fair Use?
what has supplanted fair use in the digital environment
Licensing--requiring librarians and consortia to become familiar with a new terrain

Best guide to the above: Licensing Digital Content: A Practical Guide for Librarians by L.E. Harris (ALA)

Preamble, parties, definition, contents to be covered, rights, sublicenses, interlibrary loan, fair use, e-rights, usage, usage restrictions, license fee, licensor obligations, delivery and continuing access, support and documentation, licensee obligations, monitoring use, moral rights, credits, etc.

What Has Supplanted Fair Use in the Digital Environment
more on licenses
The boilerplate: alternative dispute resolution, amendments, binding effect, confidential information, currency, entire agreement, force majeure, governing law, independent parties, interpretation, notice, remedies severability, etc.

What really to look for: ease of access; one stop transactions (no add. Permissions or payments); clear definitions of what is permitted; access beyond termination of the agreement; liability regarding the use of the content (Harris, p. 6)

Other: confidentiality, authentication, BUDGET, downtime, archiving, choice of law

More on Licenses
Lots of legislation in place or proposed is capable of influencing our ability to provide access to scientific information

Digital Millennium Copyright Act: creates “significant remedies against unauthorized circumvention of the protection measures that are used to control access.”

UCITA: Uniform Computer Information Transactions act: so far only in Maryland and Virginia. Purpose “to regulate transactions in intangible goods such as computer software, online databases and other information products in digital form.”

Database Protection Legislation: would limit reuse of information continued in databases; seems to refute case law on this issue

TEACH: a bright spot; provides for the transmission of information (a/v, dramatic works and sound recordings) in support of distance education

Problems: still need to fight UCITA wherever it crops up under various guises

Brokering in Congress may cause legislators to only pass TEACH if Database Protection Legislation is passed

legal cases impacting use reuse
Tasini: Freelancers are entitled to payment for their work which appears in electronic compilations

Impacts material written between 1976-1995

What has happened? Articles have disappeared from databases

Case has been applied to photographs

Example: NYT has pulled over 100,000 articles from databases; 15,000 have been restored

Some authors worry about impact on ILL and in other areas

Eldred (Bono revisited)

Legal Cases Impacting Use/Reuse
other impacts
Creation of alternative models for publishing from the earliest preprint server at Los Alamos through SPARC, Chem Web, BioMed Central, Public Library of Science

Some scientists starting to stand up and protest

Will a contest ensue over evaluations of scientific information

Will lesser quality research be publishes

Open Archives Initiatives; Open Citation Project; Free Online Scholarship

Use and reuse of information constantly questioned in every venue: reserves, distance learning, classrooms, dormitories

Libraries being called upon as experts in regards to publishing, producing knowledge, contracts, etc.

Other Impacts
what can you do
Arm yourself with the latest information

Write your legislators as issues arise

Be vigilant but not over prescriptive

Inform faculty of the factors contributing to steep price increases

Be aware of other trends that are impacting information: government policies on publishing

Patents and commercialization of research at your own institutions

Pressure to publish in certain prescribed lists of journals

Demands by faculty to have ownership in courses produced with university funds and with multiple contributors, including librarians.

What Can You Do?
some resources
Against the Grain

ARL Bimonthly Report

Crews, K. Copyright Essentials for Librarians and Educators, ALA 2000.

Harris, L.E. Licensing Digital Content, ALA 2002

Bollier, David. Silent Theft, Routledge, 2002, pp. 119-146

Litman, Jessica. Digital Copyright, Prometheus, 2001., org

Draft principles for the networked world

Some Resources