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62nd IFLA General Conference - Conference Proceedings - August 25-31, 1996

Copyright Legislation, Fair Use and the Efficient Dissemination of Scientific Knowledge

Ole Bronmo, Deputy Director
Trondheim University


Copyright is about conflicting interests. I shall be concerned with questions of fairness and rational and efficient solutions rather than legal matters, politics and not jurisprudence. My point of view is that of institutions of research and higher education and I shall focus on questions such as:

Distinctive characteristics of research literature

The publishing of scientific literature is a system for documentation and communication between researchers, university teachers and students.

Publishing works and being quoted in other researchers' publications are important factors in the evaluation of researchers and research groups, and the evaluations in turn play a part in determining allocations, wages, professional recognition, etc. The reward system is linked to these factors and not to royalties or user fees.

Both the use and production of literature in scientific institutions are characterized by a number of special aspects and functions of which it is important to be aware when drafting laws and regulations in the field of copyright.

In the field of higher education and research, a distinction may be made between two main types of publishing, each of which poses an entirely different set of problems. In the case of monographs, and textbooks in particular, the authors will in most cases have an interest in preventing illegal use that limits the sale of the monograph. However, the vast majority of scientific publications are published in the form of articles in journals, reports, conference papers, etc. This area of publishing has a very special function which distinguishes it from traditional publishing activities, in the following ways:

While the number of works published is enormous, each article, report, etc. has a very low frequency of use. Even in highly prestigious scientific journals, each article is read by a very small number of people.

The literature on most subjects quickly becomes outdated. Fifty per cent of the demand for literature on technical and science subjects concerns works that are less than two years old.

Generating income is not the primary objective of scientific publishing. Authors do not normally receive remuneration when their scientific articles are published. On the contrary, in some instances they must pay a fee to have their work published.

The reporting of research activity is an integral part of researchers' or teachers' obligations towards the institutions that employ them. Employers normally have no interest in collecting royalties for the publishing activities of their researchers. Their main interest is to have an efficient system for the exchange of information.

Any commercial interests that may be related to scientific publications concern the commercialization of products and processes, rather than the sale of periodicals or research reports.

From the individual researcher's point of view, the main goal of publishing is to achieve recognition within the scientific community, in addition to idealistic objectives such as increasing the overall body of knowledge and making research results available to colleagues for critical assessment. Thus, the interests of the user and those of the author are often identical. Scientists are concern ed with obtaining the easiest possible access to the work of fellow researchers and the maximum dissemination of their own works.

To a large extent, scientific publishing is a closed system. Researchers write for other researchers. The overwhelming majority of the articles in scientific journals are published by the staff of research and educational institutions, as part of their ordinary obligations to their employer. Scientific periodicals are purchased by the institutions employing the authors of the papers in these s ame periodicals.

Research and educational institutions are both producers and purchasers of the same published material, and through their subscriptions, for which they pay more than individuals, pay publishers to act as an intermediary in a system for the exchange of scientific information.

Scientific publishing is a publicly funded system for the dissemination of scientific information, in which publishers play the role of intermediary, and authors normally have no royalty interests.

Quality assurance is carried out by referees who come from our own institutions that are both producers and purchasers of the published material.

Publishing in scientific periodicals is an important part of the documentation of the research activities carried out by universities and research institutions.

Who contributes to the total scientific information system?

Participants at certain levels of the system of scholarly information and communication are now demonstrating a desire to draw larger revenues from the overall system, by imposing charges on or impeding the traditional use of scientific literature in an institutional context. Institutions of higher education and research have both a financial and a professional interest in relation to the laws a nd regulations that govern the system of scholarly communication and information. A significant proportion of the wealth generated in connection with scientific publishing is created as part of the ordinary activities of these organizations. The dissemination of knowledge is one of their main goals. The university and research sector therefore has clear interests of both a financial and moral nature in connection with copyright, but have yet to develop a policy to deal with the field of scientific and academic communication. It is therefore high time that the sector assumes responsibility for protecting its own interests.

The research and scholarly activity that is a prerequisite for the whole publishing industry in this area, is carried out by institutions of research and higher education, to a great extent with public money. The people who write the books and papers resulting from this research activity are employed by these institutions, and the same goes for the referees that act as a quality guarantee for th e publishers. Scholarly periodicals and monographs are being bought by institutions and their libraries. In other words, only a very small part of the economic activity that constitutes the basis for the production of these publications can be attributed to the publishers. Still the publishers and the right holders' organisations want to control the whole communication system and lay down rule s for the use that institutions can make of scholarly publications.

Very little effort has been made to examine the balance in terms of creation of wealth, costs and financial profit between publishers, database producers, institutions of higher education, their libraries and their library users, and this should be made the subject of a separate study. Similarly, we lack reliable estimates of the actual loss of sales sustained by publishers and authors due to the copying carried out by the general public. However, there is no question that the public sector through research institutions, academic and research libraries and archives makes a major contribution to promoting the production of intellectual works and to ensuring that the public at l arge, including publishers and authors, have access to intellectual works after the end of their relatively short commercial lifetime.

The use of scholarly publications by institutional buyers

The main purchasers of scientific literature are institutions. Imposing restrictions on the way literature is made available to the staff and students of these institutions, for instance in the form of a more restrictive interpretation of the concepts of private and non commercial use, only serves to impede normal institutional use. Little attention has been focused on the rights that instituti onal purchasers of books and periodicals should have to make use of the works in their own activities. Typical uses of a periodical in a research or educational institution include:

These uses should not be considered extras on the publication menu that a university has to pay for in addition to the ordinary purchasing price of the periodical or book.

A significant share of subscriptions to scientific journals and purchases of scientific monographs are made by institutions. It might therefore be approriate if copyright legislation was based on what is normal use in an institutional context. Special attention must be devoted to defining the rights of individuals who are connected to organisations and institutions to use literature purchased b y the institution. Expedient use may often mean that several print outs or copies are taken of the same article in a periodical even by one individual simply because it is a practical way of working.

Should the publishers reap the benefits from the libraries' efforts?

One might ask whether the fact that academic and research libraries bear the costs of storing and providing access to literature should give them certain rights in terms of exploitation. The restrictive policy pursued by publishers as regards maintaining stocks of works is a clear indication that when all of the costs related to providing access to published material are considered, there is no profit to be made in ensuring the availability of publications beyond an extremely limited period of time. There are very few exceptions to this general rule, consisting of a few publications that achieve "classic" status. Normally, therefore, the costs of storing, registering and providing access to literature will be borne by academic and research libraries. This raises the question as to wh ether it is fair that the use made possible by these efforts on the part of academic libraries should increase income for the publishers.

The same situation will presumably arise in the field of electronic publishing, where there will be a great deal of material which it will not be profitable to store in databases at all, or at least not after a certain period of time. It will be possible to find some of this material in public databases, if academic and research libraries are given the opportunity to build up electronic collecti ons. The question of whether it is fair that institutions bear the costs, while publishers reap the royalties, also arises in this connection.

Academic libraries seek to meet the specific needs of users by collecting and storing information and providing a retrieval system capable of "packaging" information that is disseminated through scientific or technical journals. The libraries' access to, acquisition of and creation of indexes, bibliographies and bibliographical databases are essential in this connection. Publishers alone are un able to meet the individual user's need for specialized technical information. Much of the demand is for literature that is no longer in print or that is published in other countries and thus difficult for users to obtain. Some of the requests are so specific that the users are not interested in purchasing the entire work. In such cases, academic libraries play an important role as specialized information suppliers.

To what extent does copying reduce the sale of scholarly literature?

Not enough is known at present about the correlation between photocopying and the decrease in sales of published works. Copying enables educational institutions to provide students with individualized combinations of works and selections of material to complement textbooks in a way that would not be possible if they had to purchase a sufficient number of original works.

Without this possibility of copying works, there would probably be a change in working methods within the educational sector, greater use of libraries, less freedom as regards choice of syllabus, concentration on a few standard works, etc. Any increase in book sales would therefore be limited to fewer publications than those that have been copied. The "loss" sustained by publishers as a result of photocopying may thus be difficult to identify, and might just as easily be related to the loss of a market segment. Under current conditions, certain works that would have generated a profit if no photocopying was carried out cannot be published. Whether this in itself is sufficient grounds for introducing restrictions on copying that, in a social context, helps to achieve the more efficien t transfer of information is a question for the political authorities to decide upon. The entire issue is highly complex and should be studied so as to acquire a more informed idea of the consequences of photocopying for publishers and authors, in particular the consequences for sales of the photocopied works.

The provision regarding private use and other lending rules are based on the premise that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. It is hard to say to what extent the copying of written material purchased by an institution that is carried out by students and employees causes a decrease in sales, as little effort has been made to investigate this aspect. More precise information is therefore required about the consequences of copying carried out within academic institutions for the sale of books and periodicals.

Private/fair vs professional use

The concept of "private use" is a key issue in the debate on the size of the user fee that educational institutions should pay for copying copyright protected material. All the parties involved appear to agree that a certain amount of copying carried out by individuals in connection with hobbies or professional interests but not in connection with the exercise of a profession or with studies, ma y be described as "private use". There also seems to be agreement that an individual who copies portions of a document that he or she has purchased for private use is also acting within the limits of what is considered "private use".

The uncertainty as to what should be considered private use arises primarily in cases where institutions purchase books and periodicals, or subscribe to databases, and copies are made by a student or a member of the institution's staff. In such cases, the copying is often done to keep abreast of one's professional field or to prepare for examinations, and thus has a certain professional utility.

In Norway at least, disagreement seems primarily to revolve around whether or not copying that is carried out in connection with the exercise of a profession and the upgrading of expertise falls within the scope of the provision regarding private use, and the rights of an institution to copy purchased material.

Roughly speaking, copying may be classified in three groups according to its purpose:

Copyright legislation and the efficient dissemination of scientific information

Purchasing, storing, registering and providing access to literature represent significant costs for institutions of higher education and research. Fees and control systems related to the use of this literature in the form of copies increase these costs. Over a period of many years, an efficient system has been developed for the exchange of information in the field of research and education that can be further enhanced by means of modern technology. Care must therefore be taken not to introduce legislation that imposes additional costs on institutions, society and students, unless it can be demonstrated that right holders are being deprived of considerable revenues through the utilization of modern copying techniques.

Copyright legislation will be a vital element in all future systems for disseminating scientific information. The laws in this field should therefore also be designed to help create an efficient, cost effective system for the exchange of information. It is extremely important that the introduction of new technology for the distribution of professional literature does not make public access to i nformation more difffcult or more costly than it is at present. On the contrary, information technology should provide opportunities to achieve greater democratization of the flow of information. Copyright legislation must also safeguard the legitimate interests of institutions of higher education and research in making possible expedient use of the information produced within the sector itself .