From the Executive Director

Publishing, Copyright, and "Scholarly Communication"

Sandria B. Freitag, November 1995

This column could be regarded as a continuation of last month's brief exploration of the endangered monograph. As scholarly communication expands to embrace electronic as well as print forms, scholars face a series of challenges that are both creative and worrisome. The release last month by the Department of Commerce of the "White Paper"—the Clinton administration's position paper on copyright in an electronic age—and current congressional consideration of the extension of copyright by twenty years are but two instances in an increasingly complex, unresolved, and frustrating set of circumstances.

These issues are often painted starkly as a battle between fair access and property rights. Among the many representatives who attended the set of meetings convened by the Department of Commerce in the year between the issuance of the Green Paper (draft) and the White Paper, for instance, the Association of Research Libraries (ARL) staunchly defended fair access while the Association of American Publishers, an organization of commercial presses, consistently fended off every incursion into the ability of publishers to charge for their control over intellectual property.

For those of us who are simultaneously scholar-teachers and authors, the situation cannot be painted in such stark black-and-white terms. Yes, we need fair access to printed materials for our own scholarly use and to assign to students. Yes, we desperately need a path through the copyright thicket for use of visual materials to study and teach from. But if the emphasis on fair use denies to scholarly publishers (academic presses as well as professional societies) the ability to recover their costs, no venues will survive for publishing our work.

This is the connection to last month's column. The threatened demise of monographs, especially in the smaller fields ("markets" as the presses see them), demonstrates dramatically what can happen when scholarly publishers lose their ability to balance revenues against costs. They abandon particular fields; they switch the ratio of their list between monographs and other kinds of books (both trade books and generalist, synthetic works); or they raise the per-unit costs so high that few individuals and only limited numbers of institutions can buy their publications. None of these strategies are in the interests of the scholarly world. They certainly do not meet the larger need for scholarly communication, as it is becoming defined in a combined print-electronic world.

Some enthusiasts have argued that the great, democratic potential of the Internet will not only supplant the function of scholarly publishers, but will do so in an environment that will foster greater intellectual collaboration and exchange. It does seem likely that various electronic forms and forums will facilitate greater intellectual interchange in new, creative, and provocative ways. But it is also true that specific contributions made by scholarly publishers to the intellectual enterprise will continue to be much valued—especially their facilitation of peer review (which most often leads to bet ter final drafts) and their preparation of manuscripts (including editing and formatting to enable scholarly work to be presented more clearly). As we become deluged by information indiscriminately dispersed on the Internet, it is likely that the quality control conveyed by a publisher's imprimatur will become even more important that it has been in print. And within the academy, the current system of tenure depends not only on a "gatekeeper" function being performed by scholarly publishers, but on the attendant functions of marketing (including placing books for re view and publicizing their availability). All of these contributions are financed in the overhead attached to the cost of a publisher's op erations; they must be paid for in some fashion if they are to take place at all, and the current circumstances of the Internet make no provision for these functions.

What links the viability of scholarly publishers with copyright discussions? One example will suffice: the need to define new understandings around the electronic availability of teaching materials. Certain conventions have become accepted in the print world that do not translate in obvious ways when applied to virtual classrooms. What, for instance, is a classroom? In print, "fair use" depended on face-to-face teaching relationships between teacher and student; with new forms of distance learning, this characteristic will not necessarily obtain. Similarly, what is a class? In print, fair use defined a class as a one-time offering; with class syllabi and learning exercises available electronically, students may work at different paces or "take" a course that is always offered. And, finally, what constitutes a "copy" and its user? In print, one could designate a particular print version as a copy and limit its audience under fair use; the technologies of electronic dissemination make such definitions much more problematic, and they pose significant problems regarding the ability to limit use. Viewed strictly from the perspective of the interests of a learner or teacher, the new conceptual understandings of fair use in an electronic environment seem obvious.

Yet viewed from the similar interests of a scholarly publisher concerned with survival, the answers are not so simple. A major strategy adopted by most not-for-profit presses has been to shore up the sagging monograph revenue stream by expanding the offerings of teaching materials. Revenue from publications for the classroom is drawn from supplementary texts, essay collections, primary source collections, and royalties when copyrighted materials are reproduced in teacher-created readers. The ability to realize revenue from all of these offerings is imperiled by a broad understanding of fair use.

Debates about fair use and property rights, then, must not be permitted to take place in a vacuum that does not recognize the need of scholars to have help in disseminating their work. There are a range of possibilities for financing these functions, and even of transferring some of them from scholarly publishers to other participants in this world. One proposal put forward increasingly by the university community, for instance, is to create an alternative to the market model that would support scholarly publishers. Some suggestions to this end have included (1) straight and large subventions from the universities to their presses, and (2) the donation by users/libraries of operating capital to a fund available to presses for operating costs. Another approach would be to see some of the functions (especially distribut ion and dissemination) reassigned to librarians or others (including scholarly societies), so that publishers have less overhead.

Scholars will not want to rule out any creative effort to address the larger issues surrounding the future of scholarly communication. And we will want to encourage all of those with contributions to our world of scholarship to participate in the discussion. To do this, however, will require that many of us pay close attention to what seem to be arcane issues of copyright, and that we situate them in the larger context of facilitating scholarly interchange. The AHA hopes to play a positive role in this process. In this we will work with partners such as the American Council of Learned Societies (whose vice president, Doug Bennett, repeatedly represented the scholar-author viewpoint in the White Paper discussions), the National Coordinating Committee for the Promotion of History (whose director, Page Miller, played a pivotal part in shaping White Paper discussions around preservation and access), and the Na tional Humanities Alliance (which has a subcommittee chaired by ARL Director Duane Webster that focuses on copyright.) We will keep you apprised of developments, and we invite additional comments from you.