Principal, Xamax Consultancy Pty Ltd, Canberra
Visiting Fellow, Department of Computer Science, Australian National University
& Gillian Dempsey
Department of Commerce, Australian National University
Revision of 14 November 1999
© Xamax Consultancy Pty Ltd, 1999
This paper was prepared for submission to the Higher Education Track of the ECIS 2000 Conference, Vienna, 3-5 July 2000
This document is at http://www.anu.edu.au/people/Roger.Clarke/EC/EPIU.html
Digital formats, the Internet and the web have been responsible for an explosion in electronic publishing during the last five years. Universities are major consumers of electronically published materials, and major producers of electronically published materials, and make a great deal of use of other people's materials as raw materials in the preparation of their own content.
Universities need to clarify the ownership of works originated by university staff, take steps to protect materials from which they wish to earn revenue, ensure that their staff do not infringe the copyright of other parties, and make appropriate use of the compulsory licensing and 'fair use' provisions of copyright legislation. Beyond that, they need to participate in the current battles over information access, and actively lobby for a fair balance between the interests of originators and of users of information.
Universities are highly active originators, owners, storers and users of works that are subject to copyright and other forms of intellectual property law. The form in which the origination, publication and diffusion of intellectual property occurs has changed rapidly from being predominantly physical to predominantly electronic. With that has come a substantial change in the ease, speed and cheapness with which people can discover, access and appropriate intellectual property. That in turn has heralded a quite dramatic shift in the economics and politics of publishing. In the words of Stewart Brand (1987), "Information Wants to Be Free" (Clarke 1999b).
Large organisations whose business models are predicated on gaining revenue from works, and whose revenues, profits and hence empires are seen to be threatened, are taking various steps to shore up their position (Clarke 1999c). Universities are not only caught in the crossfire, but also have interests that are aligned with both sides of the debates:
The purpose of this paper is to examine the issues arising from electronic publishing. It commences with brief introductions to electronic publishing, and to copyright. It then identifies implications for universities.
Electronic Commerce is the conduct of business with the assistance of telecommunications, and of telecommunications-based tools (Clarke 1993). Electronic commerce can support all aspects of trade in physical goods and services except the actual delivery. Digital goods and services, on the other hand, can even be delivered electronically. Electronic publishing is usefully defined as a particular sub-set of electronic commerce Clarke (1997):
Electronic Publishing is electronic commerce in digital goods and services that are intended for consumption by the human senses
Electronic publishing has exploded during the second half of the 1990s. This has been a result of the conjunction of a number of recently emerged capabilities, in particular:
Electronic publishing encompasses a wide variety of materials, including documents in electronic form, such as articles and books; data, such as statistical tables; low-volatility reference information, such as dictionaries and encyclopaedias; high-volatility reference information, such as news, sports reports and weather forecasts; speeches; musical performances; cartoons; films and video-clips; and entertainment, infotainment, edutainment and education.
The publishing industry has recently been undergoing rapid change. A very substantial industry emerged from the innovations of Gutenberg and Caxton. It evidenced many of the hallmarks of the industrial age, such as specialisation of labour and enterprise, and economies of scale. During the present century, that industry has naturally resisted, and then sought to accommodate, the various forms of information technology.
During the mid-1980s, it became feasible to prepare quite sophisticated layouts, using PCs of the kind affordable not only by small businesses, but also by individuals. This substantially increased the speed of production, enabled higher quality presentation, and began to undermine the justification of large publishing houses' dominance of the publishing process.
Desk-top publishing essentially electronised aspects of the production process for conventionally printed materials. During the early-to-mid-1990s, it became increasingly feasible to publish materials using media other than dead trees. CD-ROMs were used, and subsequently various forms of telecommunications-transmitted soft-copy emerged. The explosion of the World Wide Web, commencing in 1993, quickly settled the argument about the medium of choice.
During the latter part of the 1990s, maturation has been taking place at both ends of the production chain. At the content-originator's end, there is a drift away from specialised software in which to prepare electronic publications, as mainstream 'word processing' packages are migrated towards 'document processing' tools. Meanwhile, the infrastructure is being developed to enable storage in a single master-format (most convincingly XML), with delivery to the consumer in any of multiple formats (e.g. HTML, Word, PDF, Postscript, XML). Although the term 'electronic publishing' is currently in common usage, the process is already in transition towards a form better described as 'cross-media publishing'.
Each of the models described above involved a production-line or industry value-chain, with a series of providers passing materials to an ultimate consumer of content. The concept of publishing has implicitly assumed a mass medium, one-way, capable only of broadcast-mode. The channels and media on which electronic publishing is built have not merely refined existing processes, but rather have had a revolutionary impact. They have enabled recipients to interact with the content, variously by providing reactions to it, by changing it in place, or by spawning new versions of it.
The critical differences in the new era are that:
The practice of public usage of the web during the last five years involves re-cycling, re-use of components, ongoing re-creation, cumulative creativity, and intentional collage. As a result, the model has changed from a sequence to a cluster, 'like bees around a honey pot'. The conventional models described above, together with interactive, 'honey-pot' e-publishing, are enlarged upon in Clarke (1999a).
Copyright is a form of property. It vests it in the originator of what is referred to in this paper as a 'copyright object'. It applies to works of a literary, dramatic, musical, artistic, or cinematographic nature, plus, in some countries, multi-media works; and to what lawyers refer to as 'subject matters other than works': broadcasts and sound recordings. In most countries, computer programs are treated as literary works.
The origins of this form of intellectual property are a British statute of the early 18th century. It is the subject of international harmonisation through conventions. Generally speaking, the law is expressed in each country by a special statute (e.g. in Australia, the Copyright Act 1968). This paper is oriented towards common law traditions, especially those of Australia. However, because most countries comply with international copyright conventions, much of the analysis should hold in other countries as well.
Copyright law confers on the owner certain exclusive rights, e.g. in Australia, they are to reproduce the work, to publish it, to perform it in public, to broadcast it, to 'submit it to a diffusion service', and to adapt it. Ownership may be 'assigned' (i.e. gifted, bartered or sold) to someone else. The owner may provide others with a licence to do specific things with the work. In particular, a licensee may be authorised (gratis, or for a fee) to make a designated number of copies, perhaps for a designated purpose, or to translate it into another nominated language, or to re-publish it in a collection. Ownership may also be intentionally or accidentally forfeited, which places the object 'in the public domain'.
Copyright infringement occurs when a 'substantial part' of a work is appropriated, in the absence of a licence to do so. In particular, it may be reproduced (copied), published (made available to others) or adapted (into a new form, including through translation), without authority. Such infringements are actionable in civil jurisdictions.
The rights of a copyright owner are subject to a number of qualifications. A copy only infringes if the amount copied is a substantial part of the work. Whether the copied part is judged to be substantial or not depends on qualitative factors as well as the size and the proportion of the work that is copied. Another qualification is the 'fair use' or 'fair dealing' provision, whereby quotations or excerpts can be copied and re-published for the purpose of research, study or comment. A further qualification relates to reproduction and adaptation for the purposes of the physically and intellectually impaired. Copyright laws generally provide for compulsory licences whereby libraries, archives, museums, galleries and educational institutions are permitted to reproduce copyright material, subject to equitable payment.
A copyright-object may be the subject of a covenant, which is a limitation with respect to the owner's rights. Arising from European laws, an implied covenant usually referred to as 'the moral rights of the author' is becoming increasingly important.
Two particular aspects of the underlying philosophy of copyright are that it is intended to protect the expression of an idea, not the idea itself, and that the purpose of copyright is not to reward origination, but to create the possibility of revenue flows which will encourage publication. These aspects of copyright law, like many others, are subject to widely varying interpretations.
Guidance in relation to copyright and the Internet is at Dempsey (1996). More detailed examinations are in AVCC (1995) and Clarke & Dempsey (1999). The reader may also find it useful to peruse the copyright notice relating to this paper.
It has been argued by some that the changes being wrought by information technology during the last decades of the twentieth century make a re-assessment of copyright law inevitable and urgent (e.g. Barlow 1994, Dyson 1995, Kelly 1996, Samuelson 1996, Nelson 1997).
Universities have interests in all facets of several kinds of intellectual property, especially patent and copyright; and establishing a coherent policy position is inevitably challenging. This section of the paper examines in succession each of the following facets:
Attention is drawn to AVCC (1995), which provides a clear summary of information on intellectual property law as it affects Australian universities, prepared just as publishing was on the cusp of dramatic change.
Copyright comes into existence through the performance of some act or acts by one or more individuals. The circumstances of these acts determines whether there is any copyright, and to whom it belongs. Under most copyright statutes, property in the work of a person employed in a contract of service, which is produced as part of that service, belongs to their employer. An employee working in an administrative or operational area is very probably supervised, and hence is probably under such a contract of service. The position relating to technical support staff, and especially research assistants, may be less clear.
As regards the primary producers of new copyright-objects, namely academic staff, it appears unlikely that they are employed in contracts of service. Australia has no binding authority on the matter. British precedents suggest, however, that academics are employed in a 'contract for services' rather than 'of service', meaning that they are independent contractors. The Privy Council held this because they felt that academics were not sufficiently subject to 'constant supervision and direction' in their work. On that basis, the copyright vests initially in the academic originator(s). It is possible that some jurisdictions might distinguish between materials designed for teaching purposes (whose creation may well be subject to organisational direction) and research works (whose creation is less likely to be supervised by a person representating the university's interests).
Universities have commonly addressed IP ownership issues by seeking to incorporate an 'intellectual property policy' into employment contracts. Some of these policies suffer deficiencies, such as being vague, riddled with exceptions, not widely respected, and/or seldom enforced. Some are subject to change without notice, or, even less convincingly, contain phrases such as "at the discretion of the Vice Chancellor". The difficulty with such pronouncements is that, in general, the terms of a contract cannot be unilaterally varied subsequent to its formation. Moreover, there is only limited consistency among the policies of different universities.
In short, it is probable that universities are not the initial copyright owners in objects that are created by academics, and it is possible that they are not the initial copyright owners in respect of objects created by some others among their staff-members. Hence, if they wish to exercise ownership of objects created by their academic staff, they need to ensure that those staff assign them to the university. An assignment must be explicit, and in writing.
A further challenge to intellectual property policies arises in the case of research undertaken under the various forms of collaborative work, including among staff-members from different institutions, and especially externally-funded and industry-linked work. Although online trading does not create such problems, it certainly exacerbates them.
Historically, individual academics earn revenue from the sale of text-books (in the preponderance of instances to a very modest extent only, and in many cases at the cost of assigning the copyright to the publisher). In all other cases (such as learned monographs, journal articles, case studies and working papers), such profits as may accrue almost always benefit entities other than the academic originator and the university that employs them.
In an era in which direct, governmental funding has been substantially reduced, universities as a whole, organisational units within universities, and individual staff-members, are all likely to be attracted to the idea of earning more from the copyrightable works that they produce. There is currently a rapid tendency away from traditional campus-based teaching towards learning-oriented approaches more akin to the distance-education model. These necessarily involve electronically delivered teaching materials. These materials are being produced in a more planned and coherent manner than has been the case in the past. Universities are spending a great deal of money on the preparation of those materials, and need to earn a return on their investment.
In order to be able to gather revenue from a work, a university needs to satisfy several requirements. Among these are the following:
In acquiring assignments from staff-members, and in making assignments of, and granting licences to, its own copyright-objects, a university must act through agents, who, ultimately, must be natural persons. Appointment of agents may need to be done formally by way of statute or rule of the relevant council.
Universities take responsibility for works in which they own copyright. They also take responsibility for other people's works, where they act as publisher. Generally, this would be likely to arise where they provide Internet services, and exercise some degree of control over the content that is transmitted using those services. In some jurisdictions, it might be that any Internet Services Provider might be construed to be a publisher.
Each university needs to appreciate the responsibilities that come with the publication of a copyright object. Should material that it own or publish infringe some law, then the university is liable. Depending on the jurisdiction, relevant laws include confidence, trade secrets, negligent misstatement, contempt of court, defamation and censorship. These matters are addressed in Clarke (1996) and Clarke (1998).
A university stores a substantial volume of copyright-objects. This function has been traditionally performed by libraries, but they have been joined by other organisational units offering electronic archives of documentary materials and software. A primary purpose in many cases is the assurance of reasonable service performance, by applying such techniques as networking locally-mounted CD-ROMs, mirroring, caching and proxy-servers.
In relation to copyright-objects owned by the university and its employees and contractors (including academics), it is important that the objects carry appropriate rights management information. In respect of these copyright-objects, the university may need to take action to prevent, detect and report unauthorised uses. In respect of copyright-objects that are owned by others, universities may discover a need to be particularly assiduous, in order to avoid civil and in some jurisdictions perhaps even criminal liabilities.
In addition, a university acts as a facilitator of access to copyright objects stored elsewhere. In the electronic context, this involves navigation and search aids, and entry points, specialised by discipline, by topic and/or by educational level of user. This function would appear to be primarily performed by libraries, in conjunction with relevant academic staff; but it may be performed by other organisational units, and by individuals (including staff-members, associates such as visitors, postgraduate students, and undergraduate students).
Where the university enables access under a licence, it is likely to have a legal responsibility to effect access restrictions to ensure only appropriate persons can display and/or print the materials. In addition to authenticating users, the university also needs to act as a buffer, in effect performing access pseudonymisation, such that the copyright-owner does not become directly aware of the identities of the individuals who access the material.
Universities are substantial users of copyright works owned by other parties. This section considers several aspects of usage:
Copyright legislation includes the notion of statutory licences. The purpose is ostensibly to ensure that users such as educational and research organisations have access to copyright-objects. The provisions do not necessarily achieve their aim, however, because the licences require equitable recompense to the copyright-owner and this has resulted in both practical and strategic barriers to copying. An example of a practical constraint is that accounting for the vast amount of photocopying that is undertaken on university campuses would be a huge and highly expensive undertaking. Hence payments by universities in Australia, for example, are based on less expensive, but nonetheless onerous, sampling arrangements.
An even more serious barrier arises in the case of even accessing, let alone printing from, digital versions of copyright-objects. This occurs where a university library establishes an 'electronic reserve' of materials frequently accessed by students. In Australia, the establishment of this vital service has been stymied for many years. Universities have a statutory licence under the Copyright Act, and could establish digital collections of copyright-objects, irrespective of who they are owned by, and allow students and staff to make digital and printed copies from those collections. But the Act makes the licence subject to an equitable payment to the copyright-owner.
Universities and the representative of copyright-owners (Copyright Agency Limited - CAL) have been unable to agree on a tariff. In 1998, the relevant parties made a joint application to the statutory arbiter, the Copyright Tribunal. In February 1999, however, the Tribunal failed to exercise its power to rule on the matter, on the grounds that it did not have enough factual information to decide the issue (the complex judgement addressed a number of matters). The matter has now moved on to the Federal Court, and delay continues. University administrators have been exceedingly cautious, and have not even implemented limited pilots, for fear of impracticably high rates being retrospectively imposed. This impasse represents a grave threat to the performance of the nation in the information era.
In addition to compulsory licences, staff and students of universities have recourse to the 'fair use' or 'fair dealings' provisions of copyright law. These enable the use of relatively small portions of copyright works for the purposes of research, study or journalistic comment, without a licence or fee. Unfortunately, in many countries, the boundaries of fair dealing are unclear in law.
Universities and their staff use existing copyright works as raw materials for new works. Until recently, this has commonly been segments of text, diagrams and images, drawn from printed works, and reproduced in written materials provided to students. Such conventional patterns have been recently supplemented by appropriation of machine-readable materials accessed over the Internet.
There is an increasing need to provide assurance against infringements of the copyright of other parties. It is important that universities appreciate that, even if they do not hold the copyright, they can be found to have been complicit in a breach of copyright. Plagiarism has hitherto been perceived mainly in the context of ethics; but in a litigious world, with copyright laws being exploited as a vehicle for sustaining large and powerful organisations, it looms as a significant economic factor. Universities appear likely to need to prevent, detect and report unauthorised usages of other people's copyright-objects.
To protect themselves, universities need to ensure that staff are provided with training to recognise where there is a need to acquire a licence. Moreover, they need to recognise the kind of licence required. The majority of licences may be simply to reproduce or `copy' the work (whether this be downloading from the web or photocopying). A common example in the context of business and commerce schools is the copying of Harvard Business School case-study materials.
Morover, where a staff member wishes to make changes to a work, the university needs to acquire a licence that explicitly permits the work to be adapted. A common example is diagrams (which, according to the dictum 'a picture is worth a thousand words' are very likely to be themselves a 'substantial part' of a work). In such cases, it may be inadequate for the university employee or contractor who amends the diagram to address the ethical and legal issues involved merely by stating that the revised diagram is 'after <citation>'.
The matter is further complicated by the relatively recent emergence of `moral rights'. Even adaptations that are permitted under a licence are implicitly required to be tasteful to the originator of the copyright. Because matters of taste are relative, carefully worded contracts are desirable.
A further problem for universities is that staff are typically mobile across the university sector, and licences are often geographically limited. Hence a staff member who acquires a licence in one jurisdiction might not be authorised to exercise the resulting rights in another jurisdiction.
Universities as copyright-owners are likely to welcome enhanced powers to extract revenue from copyright works, because it provides them with a potential source of assured funding. As information-using organisations, on the other hand, they should abhor it, because it represents a negation of the concept of freedom of access to information, which is fundamental to their existence and functions.
Greater care may be needed in the future to ensure the invocation of 'fair dealing' provisions, the avoidance of reproducing a 'substantial part' of a work, the use of rental copies rather than the making of copies, and the exercise of rights under compulsory licences. Finally, some copyright collection agencies are demanding large sums of money in return for reproduction rights. Universities may need to be equally aggressive in asserting their rights under compulsory licenses, and negotiating directly with copyright owners, as well as with representative organisations.
A further factor is that, historically, a great deal of access to published works has been anonymous, in the form of book-purchases, access to books in libraries, and viewing of films in theatres; or pseudonymous, e.g. the borrowing of books from libraries, or the hiring of a video. A relatively small proportion of access has been associated with an authenticated identity; and that has generally been where the material was being adapted or incorporated into another work.
This lack of identification is very important, because it sustains an environment in which information is generally accessible without fear of recriminations from authority-roles such as employers, competitors, teachers, parents and powerful vested interests. Any shift from copyright towards contract as the primary basis risks bringing with it a switch from predominantly anonymous to predominantly identified transactions; and with that would come a serious 'chilling effect' on information availability, and a direct threat to open society and democracy.
The spectre exists that merely accessing copyright-objects might come to require a licence or contract, and perhaps an associated payment. This could extend further to requiring the provision of identity in order to be permitted to acquire the licence. Any such tendency needs to be strenuously resisted, by universities as well as by individuals.
Universities are both producers and users of information. They are therefore on both sides of an increasingly violent battle. They want copyright to survive the explosive growth in the population of enthusiatic Internet users, so that they can gain revenue from their own works. On the other hand, their operations would be seriously harmed if freedom of access to information was undermined by the exercise of power by large, information-rich organisations. Their domestic political lobbying is causing legislatures to enact constrictive amendments to copyright laws, and their control over the U.S. Administration's agenda is resulting in international organisations amending copyright conventions to require other countries to enact corresponding amendments. In addition, they are seeking to apply constrictive technologies to achieve that end (Clarke 1999a).
Samuelson (1996) concluded that "The biggest challenge that cyberspace poses for authors and publishers is not how to strengthen copyright law, but how to reinvent their business models so that they figure out how to provide content that will interest potential customers on terms that these consumers find acceptable ... In this new environment, copyright law will likely play a useful, if somewhat minor, role". Universities must be active protagonists in the battle for reasonable balance in copyright laws.
Meanwhile, universities must undertake a variety of administrative actions if they wish to take advantage of copyright in materials that they invest in, and to avoid liability for breach of copyright in other parties' works.
AVCC (1995) 'Ownership of Intellectual Property in Universities' Australian Vice-Chancellor's Committee, December 1995, at http://www.avcc.edu.au/avcc/pubs/ooipiu.htm
Barlow J.P. (1994) 'The Economy of Ideas: A framework for patents and copyrights in the Digital Age', Wired 2.03 (March 1994), at http://www.wired.com/wired/archive/2.03/economy.ideas_pr.html
Brand S. (1987) 'The Media Lab: Inventing the Future at MIT', Viking Penguin, 1987
Clarke R. (1993) 'EDI Is But One Element of Electronic Commerce', Proc. 6th International EDI Conf., Bled, Slovenia, June 1993, at http://www.anu.edu.au/people/Roger.Clarke/EC/Bled93.html
Clarke R. (1994) 'Electronic Support for Research Practice: The Inadequacy of Economic Analysis in a Time of Revolutionary Change', The Information Society 10,1 (March 1994), at http://www.anu.edu.au/people/Roger.Clarke/II/ResPractice.html
Clarke R. (1996) 'Electronic Publishing : Commercial Considerations', December 1996, at http://www.anu.edu.au/people/Roger.Clarke//II/ElPubComm.html
Clarke R. (1997) 'Electronic Publishing: A Specialised Form of Electronic Commerce', Proc. 10th Int'l Electronic Commerce Conf., Bled, Slovenia, June 1997, at http://www.anu.edu.au/people/Roger.Clarke/EC/Bled97.html
Clarke R. (1999a) 'Key Issues in Electronic Commerce and Electronic Publishing', Proc. Conf. Information Online and On Disc 99, Sydney, 19 - 21 January 1999, at http://www.anu.edu.au/people/Roger.Clarke/EC/Issues98.html
Clarke R. (1999b) 'Information Wants to be Free', August 1999, at http://www.anu.edu.au/people/Roger.Clarke/II/IWtbF.html
Clarke R. (1999c) 'Freedom of Information? The Internet as Harbinger of the New Dark Ages', First Monday 4, 11 (November 1999), at http://www.anu.edu.au/people/Roger.Clarke/II/DarkAges.html
Clarke R. & Dempsey G. (1999) 'Key Issues in Electronic Commerce and Electronic Publishing', Proc. Conf. Information Online and On Disc 99, Sydney, January 1999, at http://www.anu.edu.au/people/Roger.Clarke/EC/IOLOD99.html
Dempsey G. (1996) 'WWW Copyright Guide', January 1996, at http://www.uq.edu.au/~uqgdemps/copyright.html
Dyson E. (1995) 'Intellectual Value' Wired 3.07 (July 1995), at http://www.wired.com/wired/archive/3.07/dyson_pr.html
Kelly K. (1996) 'The Economics of Ideas', Wired 4.06 (June 1996), at http://www.wired.com/wired/archive/4.06/romer_pr.html
Negroponte N. (1995) 'Being Digital' Hodder & Stoughton, 1995
Samuelson P. (1996) 'Authors' Rights in Cyberspace: Are New International Rules Needed?', First Monday, 1, 4, October 1996, at http://www.firstmonday.dk/issues/issue4/samuelson/
Wolf G. (1995) 'The Curse of Xanadu' Wired 3.05 (May 1995), at http://www.wired.com/wired/archive/3.06/xanadu_pr.html
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