Professors Get an `F' in Copyright Protection From Publishers

By James M. O'Neill

Nov. 17 (Bloomberg) -- U.S. college professors are flunking basic copyright protection law.

Book publishers say professors who post long excerpts of protected texts on the Internet without permission cost the industry at least $20 million a year. Cornell University, the Ivy League college in Ithaca, New York, agreed in September to regulate work its faculty puts on the Web, in response to a threatened lawsuit from the Association of American Publishers.

Professors are making material available free rather than requiring students to buy $100 textbooks. While faculty members from Harvard University to the University of Pennsylvania complain of a restricted flow of ideas, publishers say they must protect $3.35 billion in annual U.S. college textbook sales.

``We can't compete with free,'' says Allan Adler, vice president for legal and governmental affairs with the Washington- based publishers group, whose members include McGraw-Hill Cos. and Pearson Plc.

Like the music and film industries, which are fighting unauthorized copying and file-sharing, book publishers are taking on a generation of students and younger faculty members raised on free Internet content.

Cornell became the first school to respond to publishers by agreeing that legal guidelines for printing copyright material should apply to Web use, according to Vice Provost John Siliciano.

Passwords, Checklists

``This Cornell agreement is a major event,'' says Tracey Armstrong, chief operating officer at the Copyright Clearance Center, a nonprofit licensing agent in Danvers, Massachusetts, that collects royalties from more than 1,000 universities on behalf of publishers. The deal is significant because it contains guidelines that may be used in future college agreements, she says.

The accord between Cornell and publishers includes a checklist to help teachers decide whether they need to obtain publisher permission before posting material. It doesn't specify a limit on the number of words or paragraphs that may be taken from a work. The agreement recommends that teachers use temporary passwords, identification numbers or other means to limit access to copyrighted electronic course content.

The conflict stems from the interpretation of ``fair use'' as allowed under laws passed by Congress. The concept is intended to protect the financial stake of creators and publishers while allowing a limited use of material for artistic, creative or educational purposes, such as when critics quote short passages from works they review.

Copyright law doesn't quantify where ``fair use'' ends and where a violation begins, says Kenneth D. Crews, a law professor at Indiana University and director of its Copyright Management Center in Indianapolis.

`Conflicts and Dilemma'

``These situations are filled with conflicts and dilemma,'' Crews says. ``One is just understanding the definition of `fair use.' It's an inherently flexible doctrine. It can be interpreted differently by different courts under the same circumstances.''

Cornell, like other large universities, offers hundreds of courses each semester, with professors using the Internet for making articles or excerpts from books available to students at no charge, Adler says. Each item would typically generate royalties of $10 to $30, he says.

``Professors were putting up multiple chapters from books on course Web sites, and it would be repeated from semester to semester with successive classes, with students purchasing nothing,'' Adler says, referring to Cornell and other schools.

Chapter Reprinted

One professor, whom Adler declined to identify, had made available the 46-page first chapter of Thomas Friedman's best seller, ``The World Is Flat'' (Farrar, Straus and Giroux, 2005). Adler says: ``It's hard to argue that's a fair use.'' The publisher didn't return calls seeking comment.

In a Cornell course in late 2005, 25 separate works on the syllabus were freely available to students as reserved electronic postings on an internal Web site.

Cornell says more works are available on the university's course reserve system, with the total for July 2004 to June 2005 climbing to 13,413 for 765 courses from 5,039 items posted for 368 courses in 2001-02.

Illegal use of posted material is widespread, hurting publishers of novels, biographies, historical nonfiction and other works, as well as textbooks, says Patricia Schroeder, the president of the publishers association and a former Colorado congresswoman.

Self-Policing Sought

``Our board was very surprised at the breadth of it,'' says Schroeder, who declines to name other colleges the association will confront. ``We hope schools will look at the Cornell guidelines and do some self-policing.''

Armstrong estimates that publishers' losses may be more than $20 million a year, based on the $27 million in annual royalties her agency collects, most of it from books and articles that are copied and handed out to students. Royalties from material found on the Internet rather than in hard-copy form may be more, based on what Armstrong says she sees on line.

At the request of professors, college libraries used to hold certain hard copies of a book in reserve to provide access to students in a particular course. Now, electronic reserves let the library scan and post parts of works on an internal Web site for students using pass codes that expire at the course's end.

Cornell has never tallied the annual royalties paid to publishers, says Patricia McClary, Cornell's associate university counsel. The Cornell campus store assembles course packs and handles payment of permission fees, which alone are ``considerably in excess'' of $200,000 per year, she says.

New Publishing Option

Some faculty members use outside vendors, and others handle copyright permissions directly, while the university library licenses electronic journals with varying uses permitted.

The textbook publishing divisions of McGraw-Hill in New York and London-based Pearson declined to discuss the issue, referring requests for comment to the publishing association.

Sandra Kerbel, director of public services at the University of Pennsylvania's campus library, says the publishers' campaign reduces the free flow of ideas. Publishers should focus more on producing textbooks that better match teaching needs to reduce use of the Web for customizing course materials, she says.

At Harvard University, in Cambridge, Massachusetts, Chris Dede, a professor of learning technologies at the Graduate School of Education, says the Internet may let faculty members publish their own material and cut the book industry out of the picture.

``If publishers push too hard, faculty may just decide they no longer need a middleman who collects all the profits in each direction,'' Dede says.

Textbook Sales Rise

The higher-education segment of the U.S. book publishing industry had 2005 sales of $3.35 billion, 5.3 percent higher than 2004, the publishers association says. Sales for the entire book publishing industry were $25 billion in 2005, an increase of 9.9 percent.

The debate over the definition of ``fair use'' of copyright material for educational purposes is at least as old as the modern photocopying machine. Congress responded to the proliferation of photocopiers in 1976 by allowing for limited educational use of copyright materials without setting precise limits or resolving the dispute, says Crews, the Indiana University professor.

In 1989, publishers sued Kinko's Inc., accusing the copying and printing chain of producing printed course material for professors without obtaining copyright permission. Kinko's, a privately owned company that FedEx Corp. bought in 2004, paid a $1.9 million settlement for copyright infringement.

Permission From Poets

For colleges, rising textbook prices are fueling Internet use in courses. U.S. college students spent an average of $898 on books and supplies in the 2003-04 academic year, and textbook prices have climbed an average of 6 percent each year since the 1987-88 academic year, according to estimates by the U.S. Government Accountability Office, Congress's investigative arm.

``Students don't like paying so much for books, especially for books they barely use,'' says Chris Fee, an English professor at Gettysburg College in Pennsylvania who uses the Internet in his class. Fee says he's used his own material, such as photos he took at Viking runic sites in Scotland, and that he's careful to get permission before posting any copyrighted material.

Professors use Web course sites for film and audio clips as well as printed material. Al Filreis, an English professor at the University of Pennsylvania, in Philadelphia, posts audio clips to let students hear modern poets read their own work. Filreis says he seeks permission directly from the poets.

``No one has ever refused us,'' he says.

`They Get Mad'

Course instructors may be on safer ground when access to posted articles is restricted through passwords for students in a class or by scanning material using software that blocks it from getting downloaded, Crews says.

The Cornell agreement is ``a pretty good template'' that balances ``fair use'' and the rights of copyright owners, he says.

The Internet-fostered culture of free content may make the publishers' task that much harder.

``Web browsing is so powerful and common a research tool for students today that when they are blocked from access or get stopped they get mad,'' says Filreis, of the University of Pennsylvania. ``The publishers have a real uphill battle to break through that attitude.''

To contact the reporter on this story: James O'Neill in New York at Joneill16@bloomberg.net

Last Updated: November 17, 2006 00:02 EST

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