College and Research Libraries Intellectual Property Many librarians wish that copyright and the transfer or use of intellectual property were far beyond their proper area of concern. Yet, as long as dissemi- nation of information is a primary philo- sophical underpinning of library service, librarians need both to be aware of the current copyright system and to en- courage frequent and informed discussion with their academic colleagues on the rami- fications of these public policy concerns. The purpose of copyright laws is to encourage productivity by rewarding crea- tors for their labor and publishers for their commitment of capital. However, differing cultural values and the assault of new tech- nologies, such as photocopiers and com- puters, have called the validity and efficacy of existing laws into question. Concomitantly, the ease of copying is allowing pirates of intellectual property to erode author and publisher profits. Publisher losses to pirates last year totalled $4.24 billion. 1 These losses drive up the costs of materials for legitimate buyers, such as libraries. Financial losses have been greater in popular materials than in scholarly ones, but the magni- tude of the losses, and the corresponding impact they have on library buying power, do call for a reexamination of the system. Cultural views of pirating differ. Jerome Su, a Chinese book pirate in Taiwan, says: "I know I am infringing foreign copyright and denying profits to publishers and authors. But the West imported our intellectual knowledge a thousand years ago, and we never got any royalties for it. Chinese people do not comprehend the copyright idea; it is a Western concept."2 In the global village, a reconception of the ideas of intel- lectual property probably needs to occur, and in the United States, alternatives to the copyright system, such as no copyright, modification of fair use principles, and differential laws, need more discussion. Mark Twain is said to have observed, "Only one thing is impossible to God: to find any sense in any copyright law on the planet." 3 Twain was not advocating copyright cessation. He believed that creative artists should be rewarded for their labors. But today, as cases work their way through the legal system, the publisher is the injured party and the chief recipient of compensation after a suit. Publishers seem to have far greater resources for protecting their financial interests than do writers for their crea- tive products. But both publishers and authors criticize the multiple uses librar- ies make of copyrighted materials. The United Kingdom and some other coun- tries have systems in place for ensuring author reimbursement and for encourag- ing creative welfare without copyright laws. In spite of the entrenched advocates of the current American system, this alter- native deserves debate. The idea of fair use only became a part of the law in the Copyright Act of 1976. In Communicating Ideas, Irving Louis Horowitz argues that legislators commingled ideas of social- ism and capitalism in arriving at the doc- trine of fair use. In fair use, the socialistic goal of free use wars with the capitalistic goal of a fair return. Horowitz argues that the cessation of fair use practices, coupled with increases in technological approaches to reporting and compensat- ing for secondary usage, would benefit all sections of the knowledge industry.4 Leon Seltzer, an early critic of the fair use law, concurs in part and contends that Congress has but two options: either to narrow the author's exclusive rights by permitting the broadest range of photo- copying or to require a full and complete 193 194 College & Research Libraries account of photocopying.5 The latter might be accomplished by having photocopiers record copies against master ISBN and ISSN numbers. In America, the author's exclusive rights are often ceded to the publisher. In a recent talk about electronic journals and scholarly communications, Ann Oker- son of the Association of Research Librar- ies encouraged authors not to sign blanket permissions, but to assign rights to their intellectual work more selectively.6 Agents advise authors of potential best sellers, but scholars often blithely sign almost any- thing. Best-selling authors do not suffer the same kinds of financial losses from photocopying because paperback pricing makes copying uncompetitive. However, authors of scholarly tracts in academic journals seldom receive direct monetary compensation for their work. They are more frequently compensated indirectly by expansion of their academic reputa- tions; photocopying and distribution of their work is almost a service to them. Yet scholars who author textbooks do · suffer financially from piracy of their work, and university presses do report fees for permission to reprint as a signif- icant income source. Increasing library automation and networking have added to the copying, even though policy guidelines on use have been developed. Yet the convenience of the copying machine has made a fun- damental change, and the policies associated with it have not caught up. Librarians have recognized the importance of a fair return for artists and publishers, but the commit- ment to free access is a powerful elixir for our profession. Librarians and scholars blanch at the suggestion that fair use should be curtailed. Our society needs to determine whether the continuation of fair use serves the underlying principle of encouraging creative work in all areas. Maybe society needs to recognize that there are differing rewards within the scholarly system, requiring different laws to meet each circumstance. The 1975 National Enquiry into Scholarly Com- May1992 munication classified knowledge as a public good because each person's ac- quisition of it does not diminish the value of the good for others. The Enquiry notes, "The private marketplace cannot be relied upon to produce the socially optimal amount of such public goods and thus subsidies of one form or another are generally required for their production." 7 The Office of Technology Assessment recommends that the copy- right laws be changed to recognize the special needs of education and libraries.8 Much scholarly material is produced through research done on federally funded grants or at state-funded institutions. This material is ostensibly produced to benefit the public at large. If policies about federal employees' not signing away copyright for their work were extended to investigators on all federally funded projects, then some reforms might occur. The stranglehold held by foreign-produced journals might be eased; resource sharing and fair use might be facilitated. I think the idea of differential laws has great poten- tial for improving dissemination of scholarly information. Reports in the regular news media in- dicate that publishers have been active in improving their legal status in the global village. Other parties in the scholarly com- munications area have been less active. Only a few scholars in the academic disci- plines seem actively engaged. In the academy, serials pricing increases demon- strate the consequences of past deci- sions. The causes and their solutions are a scholarly community concern. Librari- ans should engage faculty and adminis- trators in frequent discussions of the larger issues of copyright and transfer of intellectual property. The editor explored some of these ideas in a talk entitled "Tize Future of Copyright: Pirates v. Publishers" at tlze Amigos Biblio- graphic Council in November 1990 and at PRLC in June 1991. Further research and discourse occurred during the UCLA Senior Fellows Program, Summer 1991. GLORIANA ST. CLAIR Intellectual Property 195 REFERENCES 1. "Copyright Industries Say Piracy Loss was $4.24 Billion in 1990," Publisher's Weekly 238:11 (May 3, 1991). 2. John Chesterman and Andy Lipman, The Electronic Pirates: DIY Crime of the Century (London: Routledge, 1988), p.169. 3. Quoted in W. David Laird, "Current BibliographiC Database Ownership Issues and the Protection of Non-traditional Formats~ne User's Point of View," in Library of Congress, Intellectual Property Rights in an Electronic Age: Proceedings of the Library of Congress Advisory Committee Meeting, April 22-24, 1987, Network Planning Paper no. 16 (Washington, D.C.: Library of Congress, Network Development and MARC Standards Office, 1987), p.35. 4. Irving Louis Horowitz, Communicating Ideas: The Crisis of Publishing in a Post-industrial Society (New York: Oxford Univ. Pr., 1986), p.56 5. Ibid., p.61. 6. Ann Okerson, "Electronic Journals," a talk given at Penn State University, January 20, 1991. 7. National Enquiry into Scholarly Communication, Scholarly Communication: The Report of the National Enquiry (Baltimore: Johns Hopkins Univ. Pr., 1979). 8. U.S. Congressional Office of Technology Assessment, OTA Report on Intellectual Prop- erty Riglzts in an Age of Electronics and Information, S.Hrg. 99-919 (Washington: United States Govt. Print. Off., 1986). OCLC/AMIGOS Collection Analysis Systems Make a wise investment Choose from three options to analyze your library's data: Collection Analysis CD compares quantitative data BCL3 Tape Match measures against a standard Tape Analysis fits individual specifications Available exclusively from AMIGOS Bibliographic Council, Inc. 12200 Park Central Drive, Suite 500 Dallas, Texas 75251 214/851-8000 or 800/843-8482 SUMMA CUM LAUDE ... is how academic librarians rank EBSCO's serials management services! That's because we've helped the staffs of hun- dreds of academic and research libraries reach the highest level of excellence and efficiency in serials acquisition, manage- ment and control. Our Academic & Research Library brochure tells the whole story. Contact your EBSCO representative or the Regional Office nearest you to receive your free copy. Or write us at the address below. li:t-tle] SUBSCRIPTION SERVICES International Headquarters P.O. Box 1943 Birmingham, AL 35201-1943 (205) 991-6600 • FAX (205) 991-1479