Recent Reports on Copyright in Scholarly Art Publishing & Digital Learning

The Andrew W. Mellon Foundation has consistently been the only foundation that for decades has taken a keen interest in the evolution of the system of scholarly communication. Some credit for encouraging that interest is owed to my mentor in publishing, Herbert S. Bailey Jr., who was director of Princeton University Press for over thirty years (1954-1986). During the tenure of William G. Bowen as Princeton's President (1972-1988), who in that capacity was an ex officio member of the Press's Board of Trustees, Bailey engaged Bowen in an ongoing dialogue about the challenges facing university presses, which were heralded in a series of articles in Scholarly Publishing beginning with an essay co-authored by Bailey with then AAUP Executive Director John Putnam in April 1972 titled "The Impending Crisis in University Publishing."

The dialogue continued even after Bailey retired and Bowen became President of the Mellon Foundation in 1988. One result of those discussions was the landmark study prepared by Bailey for the AAUP titled "The Rate of Publication of Scholarly Monographs in the Humanities and Social Sciences, 1978-1988" (1990).

During Bowen's long tenure at Mellon, just concluded when he stepped down in June of this year, the Foundation sponsored many other major studies, including Technology and Scholarly Communication (California, 1999), and laid the groundwork for the development of such major initiatives as Project Muse, JSTOR, ARTstor, and Portico.

Two new Mellon-funded studies that should be of great interest to university presses appeared during the summer of 2006. The first, issued in late July, was "The State of Scholarly Publishing in the History of Art and Architecture." [Update: The report has now been published online by Rice University Press under the title "Art History and its Publications in the Electronic Age."] A good overview of this report appeared in The Chronicle of Higher Education at the time of its release: http://chronicle.com/free/v52/i48/48a01201.htm. The study, begun in September 1995, had as its goal a better "understanding [of] the challenges faced by both scholars and publishers working in this area." The principal investigators were Hilary Ballon of Columbia's Department of Art History and Archaeology and Mariët Westermann of NYU's Institute of Fine Arts, with research support provided by Lawrence McGill of Princeton's Center for Arts and Cultural Policy Studies and Kate Wittenberg of Columbia's Electronic Publishing Initiative (EPIC). To their credit, the project leaders sought information and advice from a wide swath of journal editors, librarians, museum directors, publishers, and scholars. The final summit meeting in early March 2006 included, from university presses, Douglas Armato, Susan Bielstein, Paula Duffy, Sam Elworthy, Patricia Fidler, Michael Jensen, Frank Smith, Lynne Withey, and myself.

The second study, released in August, was a white paper written by a team led by William McGeveran and William W. Fisher under the auspices of the Berkman Center for Internet and Society at Harvard University with the title "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age": http://cyber.law.harvard.edu/media/files/copyrightandeducation.html.

This resulted from a year-long investigation intended to "explore whether innovative educational uses of digital technology were hampered by the restrictions of copyright." Not surprisingly, given the "copyleft" agenda that the Berkman Center typically pursues, the authors "found that provisions of copyright law concerning the educational use of copyrighted material, as well as the business and institutional structures shaped by that law, are among the most important obstacles to realizing the potential of digital technology in education."

Unlike the authors of the report on art history, however, the Berkman Center authors, while claiming to draw on the advice of "experts in the field," neglected to include any publishers among those consulted even though their conclusions and recommendations rested on assumptions about how our industry functions. It is hardly the first time that university presses have been ignored as sources of advice when such reports are undertaken. Another recent instance was the ACLS Cyberinfrastructure report (see article in this issue). But it belies the good intentions of such an effort, which in its final section recognizes the need for wide collaboration to solve the problems identified, when a sector like ours vital to any solution is omitted from the discussion at the outset. And an invitation to the authors of the Berkman Center report to engage in dialogue with the AAUP has so far gone unanswered.

Both of these reports contain good food for thought, and they are to be congratulated for acknowledging the complexity of the problems and challenges facing higher education in the arenas they take as their subjects for investigation. Copyright issues lie at the center of both reports.

For art history, the difficulties and costs of obtaining permissions for the use of images have always been impediments to successful publishing in the field. The problems are well analyzed in Susan Bielstein's new book, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property (Chicago, 2006). Among the most contentious issues has been the copyright status of photographs that are noninterpretive reproductions of works of art that are themselves in the public domain. Museums and other providers of images long assumed that such photographs qualified for full copyright protection as independent creations, but a federal district court judge ruled in the case of Bridgeman v. Corel in 1998 that this kind of photograph lacked sufficient creativity to ground a claim of copyright—precisely because, to be successful in portraying the works of art faithfully, they could not be interpretive works of art themselves!

Outside of law reviews and books like Bielstein's, this new report contains one of the best discussions of this controversial but crucially important case currently available. Although this decision offered some relief to beleaguered scholars and their publishers, the report recognizes that copyright issues become even more complex for electronic publications, but makes recommendations nevertheless for joint action by image-owners and image-users to alleviate the problems while touting the advantages of the digital environment for the healthy advance of the field.

For its part, the Berkman Center report lays out in an exceptionally well-organized manner, complete with succinct descriptions and useful links to other resources, the host of copyright issues that, in its view, constitute "impediments" to the full realization of the benefits of digital technology in higher education. The major "obstacles" it

identifies are of four types: "unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use; extensive adoption of 'digital rights management' technology to lock up content; practical difficulties obtaining rights to use content when licenses are necessary; undue caution by gatekeepers such as publishers or educational administrators." Among the "paths toward reform" that it supports in the final section, the report encourages the greater use of "open access" and Creative Commons licenses—without, however, showing any awareness of the potential costs in shifting to a model of full open- access publishing or of the shortcomings of the Creative Commons license (which relies on a crucially vague distinction between "commercial" and "noncommercial" use). For all its biases and weaknesses, however, the report still merits careful reading by staff at university presses as it well represents widespread sentiments among our administrator, faculty, and library colleagues.

Sanford G. Thatcher
Director, Penn State University Press