Until recently, most members of the academic community have had little need to attend to the arcana of copyright law and practice. Well established conventions required little reflection and caused little anxiety. Now, however, digital technologies and commercialization of parts of the process of scholarly communication have destabilized assumptions and expectations. Increasingly, the once esoteric subject of copyright fuels agitated debate about the future of core portions of the academic enterprise.
The current review of University of California copyright policies is driven by serious concern about the future of scholarly communication. It has become clear that the ways in which individuals and institutions assign and manage rights to the works created in the academy have effects far beyond the original transaction. Traditional guarantees that faculty control the works they produce were intended to protect academic freedom and promote scholarly communication. Changing circumstances require a new assessment of how the University's longstanding commitment to academic freedom and scholarly communication can best be served and what adjustments are needed to improve the interaction between individual and institutional decisions.
That process must be informed by conscious understanding of the environment in which institutional decisions are made. The following discussion will summarize key developments in law, technology, new institutional partnerships, and the economics of scholarly communication. It will then turn to University policy and suggest areas in which the lack of policy or the inadequacy of existing policy hamper the University's ability to undertake new initiatives.
Legal Environment in Flux
Copyright protection is extended automatically to any work that is "fixed" in any medium, so that every work of scholarship or art, every syllabus, and every Web page is copyrighted. Proposed changes in the law to accommodate digital technologies have been driven by the interests of commercial copyright owners in the entertainment, publishing, and software industries and would strengthen the rights of owners. In response, libraries and universities have highlighted the value of the existing balance between owners and users of copyrighted works. With interests on both sides of this relationship, universities are discovering that it is essential to assure that institutional practices both respect the rights of owners and defend the privileges of users. Furthermore, the increased attention to rights requires clarification of ownership expectations in an environment where custom has often blurred legal distinctions. Another institutional concern arises from proposed new laws that could increase institutional liability for acts of faculty, students, and staff that involve transmitting copyrighted material over institutionally-owned networks.
Bills that have already passed one House and are pending in the other would: extend the term of copyright by 20 years; define the liability of online service providers (including universities) for the infringing acts of service users; give copyright owners an exclusive right of "access" to works protected by technological measures; prohibit the development or distribution of deencryption software that can be used to thwart technical protections --regardless of whether such software is actually used for illegal purposes.
For much of this century, higher education has relied on exemptions allowed under the doctrine of fair use for routine sharing of copyrighted materials. In addition, specific provisions of the current copyright law allow limited copying of materials for library preservation and permit narrowly prescribed broadcast of copyrighted material over closed-circuit television for educational purposes. Because conditions are so different in the digital environment, it is not clear how and whether these provisions will be extended, but it is certain that universities will be directly affected and that they will need to be much more mindful of how they respond to copyright issues.
Impact of new technologies
Dissemination
Information technology is enabling new modes of dissemination, new kinds of works, and new kinds of authorship that challenge conventional assumptions about scholarly communication. At the same time, the Web is enabling every member of the University community to become a publisher, with little understanding of the rights and responsiblities this entails.
In parallel with formal publication in peer-reviewed print journals, authors in many disciplines now directly disseminate research results to their professional colleagues by circulating papers and corresponding over electronic networks. More formal network distribution also takes place in some disciplines, such as physics, through central electronic preprint archives. These developments have led to serious suggestions that institutions or professional societies might use network communications to replace a substantial number of traditional journals. Early attempts to explore these possiblities have stimulated further questions about what balance between author-initiated dissemination of works and more controlled, formal, and costly vehicles based on peer review, limited access, and prestige will maximize scholarly communication. Copyright management affects the ways in which works can be distributed.
New kinds of works and authorship
New technologies also make it possible to create new kinds of works and to consider as "works" subcomponents of complex larger works. Not only may these works encompass new functionalities, but they are increasingly likely to involve multiple authors, to be continuously revised and updated, and to incorporate objects belonging to multiple rights holders and subject to different terms of use. Complex works may include both patented and copyrighted objects, for example. Some works may require substantial investment of University resources, including both high-end computing infrastructure and highly skilled technical staff. They may also require staff support for securing permissions and licenses. Where authorship is shared or difficult to attribute, the traditional assumption that faculty own copyrights does not always provide adequate guidance.
Existing distinctions between works owned by faculty authors and works owned by university employers derive in large part from the employment relationship: faculty are considered to be working within the scope of their employment when they are teaching formal courses and to be acting independently when they are conducting research. (The distinction is considerably more complex than this simple statement implies, however.) As works with enhanced functionality are introduced into the curriculum, and some faculty replace parts of their former classroom "performance" with interactive teaching activities, the boundary between "teaching" and "research" blurs. Interactive, Web-based course material often incorporates large portions of student work as well. Faculty fear that the University may attempt to seize creative works they post on the Web for class use, and administrators fear that individual faculty authors will sell whole courses to competing institutions.
A consensus that reflects the legitimate interests of individuals and institution is essential for full realization of the potential of new media. In order to reach such a consensus, serious attention must be paid to the allocation of initial ownership of some kinds of new works. At the same time, the University needs to consider what role it might play in managing such works, and about what conditions should govern transfer of rights to third parties.
Protection
Digital technologies make possible new ways of protecting and new ways of misappropriating works. "Lockbox" or "envelope" technologies may package digital works in encryption that can be deciphered only on terms set by the publisher. These may include payments for each view of a work, subscription licenses, or permission to carry out some activities but not others, such as printing or copying. By making access to works dependent on "permission" granted by software, such technologies have the potential to make fair use impossible as well as to treat access to information as a transaction subject to tracking and procedural rules.
Misappropriation of works owned by others is facilitated by the capacity of digital technologies to reproduce works instantly without degradation in quality. Rights owners believe massive copyright violation is already taking place. Academic users, on the other hand, do not always recognize that what appear to be convenient and routine teaching practices may violate the copyrights of others and destroy or damage markets for commercial material.
New Institutional Partnerships
The University and many individual faculty are entering new kinds of relationships with private entities at a rate that may rival the engagement with the Federal government in the 1950s. The growth of University-industry partnerships, which started in research, is now expanding into the instructional area. Such relationships pioneer new ground as different institutional cultures encounter each other. In this context, issues of copyright ownership and use require attention. For example, unlike government grants, private research sponsors often assert claims to copyrights for all works issuing from a project, including future derivative works. Disputes surrounding these claims are often left to contracts and grants officers for resolution with little guidance from policy or University administration.
The University is also entering into new relationships as it invites new constituencies to access its intellectual wealth, and these, too, require new attention to how copyrighted material is handled. Thus, for example, the California Digital Library, the California Virtual University, external degree programs, and industrial liaison programs allow constituencies outside the University community to access material licensed to the University. It is unclear whether educational exemptions may apply to activities that serve these communities.
The economics of scholarly communication
The emergence of large, for-profit firms as dominant publishers in some fields, especially in the physical, biological, and health sciences, has contributed to a dramatic escalation in journal prices that, in turn, is undermining the purchasing power of library acquisition budgets. This process has been amplified by simultaneous growth in the number of subfields and journals and in the volume of research published.
Among the unintended consequences of these developments has been a serious decline in the ability of libraries to purchase books, undermining a mainstay of the market for scholarly monographs. University presses report that the typical press run for a book that appeals only to academic buyers has fallen by two-thirds in the past decade, and many are concerned that in the near future such publishing, at least in traditional print formats, will no longer be economically viable at all.
Underlying these developments is the three-way relationship between universities, faculty, and publishers as it has developed to date. Although faculty are employed and supported by universities to conduct and disseminate the results of research, they are also asked to secure a substantial portion of the necessary resources and to compete in peer review processes to have their works disseminated in scholarly journals. Faculty also serve as the referees for peer review processes, usually without compensation. Journals routinely require that authors assign copyright when submissions are accepted, so that the publisher controls future uses of the work unless agreed otherwise. University libraries purchase the journals containing works produced by campus faculty--and necessary for the further production of new works by these same faculty.
Historically, faculty have had little reason to be concerned when publishers required copyright assignment: scholarly works generally had little market value, and the rewards to individual authors were measured in prestige and promotions rather than in royalties. However, rising journal prices have changed the consequences of this relationship and sparked consideration of whether institutions should insist that faculty-publisher contracts acknowledge the necessary interest of the institution in retaining access to the works its faculty publish. Another issue for faculty and their institutions arises because for-profit and some professional society publishers are increasingly seeking tight control over the works they publish. Authors sometimes find that they cannot use an article in an anthology, reproduce it for classroom use, or reuse charts and images in other contexts.
This concern is heightened as detecting works posted on the Web becomes easier. Publishers can use automated tracking software to discover unauthorized reproduction of works for use in teaching, something it was prohibitively difficult to do when reproduction was limited to photocopying.
Current Policy
Existing UC policy and practice do not fully take into account the above. Moreover, implementing guidelines for the existing copyright policy were never promulgated. Current policy:
Goals of Policy Review
In reviewing its copyright policies, the University seeks to assure that: