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November 18, 1993

I am speaking today on behalf of the Association of American University Presses, or AAUP. Before responding to the specific questions posed by this working group, I would like to provide some brief background about our constituents and about the importance of copyright to our activities.

The AAUP comprises 114 university and other nonprofit scholarly publishers. Of the approximately 47,000 books published in the United States last year, roughly 9,000 or 17% appeared under the imprints of AAUP member presses. Additionally, AAUP presses publish over 700 scholarly journals. Although AAUP presses produced nearly a fifth of all books sold in the United States last year, the $400 million in income received from those sales represents only 2% of total industry-wide sales during the same period.

This gap between the volume of publications and the amount of revenue generated by sales of our products reflects the unique mission of not-for-profit scholarly publishers. University presses primarily serve the interests of the research and education community, making available works of scholarship that would in many cases never be published by for-profit publishers. The contribution of university presses to the wider distribution of scholarly work is even more crucial within the disciplines of the humanities and social sciences, as in many cases university presses are the only outlets for scholars working in these areas.

Peer-review is perhaps the most important and least well understood aspect of university press publishing. This is the process by which the work of potential authors is reviewed by other scholars prior to being accepted for publication. Peer review ensures the scholarly quality, integrity, and contribution of an individual's work. Its importance is widely recognized by the academic community, expressed most vividly by the value accorded university press publication by promotion and tenure committees.

My point here is simply to underscore the central role of university presses in the wider system of scholarly communication, a role that underpins the larger social and cultural enterprise of education more broadly understood.

Turning now to the specific question of copyright, I would like to point out that although copyright is the primary mechanism by which authors and publishers receive financial remuneration for their efforts, copyright in the scholarly environment also serves another, equally important, function.

When a university press copyrights a scholar's work, the press is also affixing its imprint to that work, and in so doing, signals to the purchaser that this is the peer-reviewed version of the work. In the scholarly world, multiple versions of documents often circulate prior to formal publication via working papers, conference presentations, and the like, a practice that has already increased dramatically as a result of the Internet. In this environment, the copyright serves to distinguish the authentic version—that is, the version that has been peer-reviewed and which the author herself has chosen to disseminate as the authoritative version—from earlier drafts. Copyright thus serves to protect not only the financial interests of authors and publishers but also the intellectual interests of the larger research and education community.

Turning now to the questions posed by the Working Group, the AAUP believes that present copyright law does adequately protect the rights of both the creators and consumers of scholarly work, whether in print or electronic form. Given the potential for unauthorized copying and retransmission on the NII, we are concerned that adequate technical solutions be found to ensure the application and enforcement of the law. We do not believe that any fundamental changes in the law itself are necessary, however, and would resist any amendments to the law that would further limit the rights of authors and publishers or which would act, however unintentionally, to undermine the system of scholarly communication outlined above.

On the question of the adequacy of current provisions regarding fair use, the AAUP believes that the present fair use provisions of the copyright law are sufficient to protect the interests of both the producers and consumers of works transmitted via the networks. In the educational setting in particular, fair use is critical to enabling scholars and researchers to do their work, and appropriate fair use of copyrighted works supports the larger missions of the institutions of which we, university presses, are a part.

Determining what constitutes fair use in the electronic environment will obviously be difficult given the technical capabilities that the networks offer. We are concerned that too liberal an interpretation of fair use could undermine the scholarly legitimation function of university presses. Even in the print environment, scholars are continually confronted with the possibilities of their work being cited out of context or being reproduced in other works without their permission. Scholars care deeply about these issues, as any university press copyright manager can tell you. The possibilities for the abuse of fair use in the electronic environment are obviously much greater.

Similarly, we believe that a broadening of fair use could lead to the undermining of the entire system of scholarly publishing, especially in the area of journals publishing and with regard to the licensing of subsidiary rights. The management of subsidiary rights in the journals arena is a time-consuming and expensive task. The effective management of subsidiary rights to scholarly works ensures the widest possible distribution of those materials, however, by making such works readily available to other scholars, research libraries, and teachers. Without the exclusive right to derive income derived from subsidiary rights sales, the management of such rights would become prohibitively expensive, thus limiting the further distribution of those materials.

Conversely, however, a more strict interpretation of fair use that limits scholars' access to the materials that form the basis of their research would not be in the academic community's best interests. The present guidelines regarding the citation and inclusion of copyrighted materials under fair use contribute to the wider dissemination of scholarly research and often to additional sales as well. We do not believe that the elimination of fair use would be in anyone's best interests.

On the question of labelling or encoding copyrighted works, the AAUP believes that it would be premature to legislate requirements or impose standards given the rapid pace of technological change. We do support the general principle that some system or systems of identification of copyrighted works needs to be developed, but we are equally concerned that the protection of copyright not impede access to copyrighted materials or compromise First Amendment rights. High-quality research is dependent upon the assurance of academic freedom and the free exchange of ideas. Any system of labelling or encoding copyrighted materials should balance these concerns with those of the copyright holders themselves.

For similar reasons, we also support the general goals of open architecture, interoperability, and universal access expressed in the NII's Agenda for Action. Likewise, we are interested in seeing an NII that enables the largest possible number of users to gain access to our materials. The need to protect copyrighted materials is no justification for inhibiting interoperability, but the goals of interoperability should not be used to justify any weakening of copyright enforcement either.

With regard the licenses, the AAUP believes that licensing structures for the use of copyrighted materials are in many cases appropriate, but that decisions about what such arrangements would entail should be left up to the individual copyright holders. Given the complexity of existing contractual arrangements, the differing needs of various end-users and producers, and the vast array of copyrighted works that may ultimately be made available over the NII, it would be impossible and unwise in our opinion to create any one centralized licensing system.

Although technical means to prevent unauthorized copying may exist or be developed, the AAUP does not believe that these should be mandated or required. As with licensing initiatives, we believe that choices with regard to technical solutions to copyright protection should be left up to individual copyright holders.

Finally, we believe that educational programs to increase public awareness of issues pertaining to copyright are critical. In the context of research and higher education, the AAUP in particular supports greater efforts to inform scholars about the fundamental importance of copyright to the larger system of scholarly communication.

In closing, I would like to thank the members of the Task Force for their time today, and to urge you to ensure that the concerns of the research and education communities continue to be taken into account when considering intellectual property issues in the electronic environment. We will all be much the poorer if the potential of the NII to further research and education is compromised by the desire for excessive or overly centralized control over the free flow of information and ideas.

Author Information

Lisa Freeman is the Director, University of Minnesota Press, and Chair, Association of American University Presses' Electronic Caucus. Her e-mail address is lfreeman@maroon.tc.umn.edu