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The $500 Coursepack
Students at Harvard other universities are battling coursepacks that cost almost $500, due to copyright insanity. Pissed off, they're photocopying articles from the coursepack on their own, which this editorial from the Harvard Crimson calls illegal. I could be wrong but I'm pretty sure it's actually fine to photocopy articles for personal use, particularly for educational purposes. What's NOT okay is for a commercial outlet such as Kinko's to sell coursepacks without getting copyright clearances.
(Via Sivacracy)
Posted by carrie on 03/28/2005 | Permalink
Comments
Actually, fair use is not as expansive in this area as one might think. Copying course materials specifically to avoid buying licensed course packets is probably not within the fair use exception to infringement.
In general, teacher photocopying is permissable if it is - short (less than around 2500 words), spontaneous (with little time for proper licensing), and not too frequent (less than ten articles per class). There is a kind of truce between academia and publishers around these guidelines, which are meant to roughly match what a court would do if each case were litigated.
Not everything used for academic purposes falls under fair use.
No one article is going to cost very much. Five classes, with a couple dozen articles each, could cost the world. Many teachers copy materials themselves to avoid this problem. It doesn't make it legal, it just makes it harder to detect.
So, to all the academics out there - viva la ssrn!
http://www.ssrn.com/
Rob Rickner (I'm in my last year of lawschool. I am not a lawyer and this post is not meant to be legal advice.)
Posted by: Rob Rickner | Mar 28, 2005 5:38:43 PM
well, I didn't say teachers could photocopy books and hand them out to five clases. And I certainly didn't say that everything used for educational purposes can be considered fair use.
That said, I'm skeptical of the 10 articles per class rule -- where does that come from? (case law? ruling?) As a former high school media studies teacher, I must say that rule would have made it all but impossible to teach my class! (We frequently read & discussed newspaper articles/current events.) That might be in one of your textbooks, but it sounds a bit like content industry propaganda to me.
Posted by: carrie | Mar 28, 2005 9:48:54 PM
>I didn't say teachers could photocopy books
>and hand them out to five clases.
I wasn't implying that you meant anything like that. All I was trying to say is: on the facts presented in the Harvard Crimson article it is extremely unlikely that a court would find fair use.
>That said, I'm skeptical of the 10 articles
>per class rule -- where does that come
>from? (case law? ruling?)
I started my research at Nimmer on Copyright section 13(E)(3)(a), and then a few cases.
The guidelines come from an agreement between publishers and universities. It is an informal truce. Neither side is willing to really push the issue. It also worked into the legislative history of the 1976 Act and some courts have put some weight on the agreement in fair use rulings.
It is not law, and one court has said so. You can bend these guidelines quite a bit and still win on a fair use defense in court. Fair use is a little fuzzy and you can't put exact word counts and page limits on it. However, the kids at Harvard are pretty far from being able to claim fair use.
>As a former high school media studies
>teacher, I must say that rule would have
>made it all but impossible to teach my
>class!
First, the guidelines come from an agreement made with universities, not high schools. I'd guess that high schools would have more leeway as they are not independant non-profit corporations and, usually, have far less resources. Then again, who knows, I couldn't find a case on it in my quick search.
Second, bringing in articles on current events is spontaneus use. You have less time to license the works, which supports a fair use defense.
Finally, it's a crappy friggin' system. I doubt anyone would drag a public high school into court for photocopying a few newspaper articles to give to kids, but big media has never ceased to astound me. Lately, it seems anyone could be a target, even a public school teacher.
>it sounds a bit like content industry
>propaganda to me.
It is, kinda. These guidelines represent the place where the industry promises not to sue. The "agreement" might be more like an open threat these days. Sure, your rights might extend past this point, but you have to pay a lawyer big bucks to find out and if you're wrong it'll cost ya.
This reply took a bit longer than I thought, but if you have anymore questions I'll be glad to look 'em up.
(same disclaimer, don't take this as legal advice, etc. etc.)
Posted by: Rob Rickner | Mar 28, 2005 11:09:30 PM
The Crimson editorial also spends some time talking about the economics of the issue, which seem to me to be the more cogent issue, since the economic aspects of content are changing more quickly than its legal aspects. Part of it could simply be a matter of strengthening the feedback loop; if professors were aware of less students taking their classes because of coursework costs, they might be more conscious of that in choosing their materials.
Of course, you can argue that for many students choosing classes at an elite college, course packet costs don't affect their choices much if what's at stake is, say, the chance to take a seminar from a star in your chosen field. And also, $500 is steep for a course packet, but it's not that significant to somebody who's paying full tuition at an Ivy League, is it?
I suspect this is part of the problem; there's not much price elasticity in students choosing classes. I also imagine there isn't much price elasticity in professors choosing course materials; if one article is highly priced, it's not exactly easy to swap it out with something else that's cheaper.
Current online efforts at sharing curricula might help with these issues, since they might make content pricing more transparent, and people could pool their efforts in composing different course curricula for different price points. Also, I imagine that some of the efforts to supplant academic journals entirely with cheaper or free online efforts would help.
But then, I barely graduated from undergrad, so what do I know.
Posted by: Francis Hwang | Mar 29, 2005 2:19:06 AM
Where the Harvard Crimson errs is in failing to note that the students can engage in "self help" in another way: by acquiring the reading list. The Harvard library presumably has all of the materials in the coursepack (have you seen the Harvard collection?) and there is nothing wrong with a professor distributing a reading list and leaving the students to have at it.
The coursepack is a way to gather diverse materials, but it isn't the only way to access them.
Posted by: Charles Star | Mar 29, 2005 11:10:32 AM
>if professors were aware of less students
>taking their classes because of coursework
>costs, they might be more conscious of that
>in choosing their materials.
Very true, but I would rather professors assign everything they wanted to rather than limit readings to what is affordable. Of course, Harvard has a 13 billion dollar endowment. They could reduce the course packeet costs if they wanted to. Then again, my state school was not so lucky.
The long term solution is ssrn, where professors can publish materials under the various CC licenses.
>The Harvard library presumably has all of
>the materials in the coursepack
I went to a school, for a year, that used the library instead of making us purchase books. It was a rough system. You have to really plan for it by purchasing multiple copies of every book. You could only take books out for a short time, as little as a few hours, and my late fees probably amounted to as much as many books cost. Going to the library for your materials is great as long as very few people do it, and you have plenty of time to hunt down everything you need.
Read this awesome article for some good information on all these issues. Its focus is on legal publishing, but could apply to other subjects as well.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=635141
Posted by: Rob Rickner | Mar 29, 2005 11:34:58 AM
My undergrad school (and my law school) put copies of the coursepacks in the library along with copies of longer non-coursepack readings. It doesn't take much more "planning" than having the bookstore order multiple copies of the coursepack for sale.
Posted by: Charles Star | Mar 29, 2005 12:24:22 PM
>My undergrad school (and my law school) put
>copies of the coursepacks in the library
Good point. The library I was thinking of housed every book for every class. There was no student bookstore to speak of. In the wash, it was a pretty good system once I got the hang of it.
On the otherhand, my lawschool does a terrible job of making course books available, as I found out the semester I couldn't afford all my books until my student loans came in.
Hmm, maybe the Harvard professors should just make some copies of the course packet available in the library.
Posted by: Rob Rickner | Mar 29, 2005 3:00:33 PM
I attended grad school at Harvard in Education. I had professors for one class who scanned articles and kept them on their password-protected web site. Any ideas on the legality of that? I know they had tried to get permission to put them on CD rather than selling them in packets through the bookstore because of the cost.
Also if you requested an article through inter-library loan at Harvard, a copy would be delivered to your school's library which made it very easy and cheap to make your own course pack. It was free to do and was their official procedure. Maybe professors could do more to utilize that service to bring down costs.
And believe me that not all Harvard students can afford $500 for a course pack, although maybe things are different over at the college.
Posted by: Jen | Mar 29, 2005 6:16:44 PM
>I had professors for one class who scanned articles and kept them on their password-protected web site.
I regularly do this for my classes. Everyone I've asked at my university says it is legal, although I am not in the legal field, so I don't know for sure. Only students registered for the class have access to the site. I also put a printed copy in the library, but this is less of a boon than you'd imagine. Students only have access to rather overpriced photocopying in the library, so copying from there is not economical for them. Reading materials there is unfeasable when items are on 2-hour loan.
And of course, course pack fees do not only apply to rich students -- publishers charge the same for my students in a less fancy establishement. Besides, I went to grad school at an Ivy, and I had no money at all. You can't generalize.
This is becoming a substantive problem -- as it gets harder to give students access to a wide range of materials (ten articles a class? I use upwards of thirty), teachers are going to move more to textbooks and collections that limit creative thinking and learning.
Posted by: leahd | Mar 30, 2005 10:13:26 AM
>I had professors for one class who scanned
>articles and kept them on their
>password-protected web site.
>I regularly do this for my classes. Everyone
>I've asked at my university says it is legal,
>although I am not in the legal field, so I
>don't know for sure.
The answer is not so simple. Password protecting your electronic reserves improves your argument for fair use. It isn't a slam-dunk, however. Copying is still copying and the court will still look to the amount of works posted, how long, and other factors.
>Besides, I went to grad school at an Ivy,
>and I had no money at all. You can't
>generalize.
You missed my point. Harvard is very, very wealthy. They could, without even the smallest effort, reduce the cost of course packets. Some Ivy League schools have not invested as wisely, but Harvard has enough money to cover these costs effortlessly. Harvard commands more capital than most nations in the world, between real estate, investments, and other income.
And yes, broke students go to Harvard.
>This is becoming a substantive problem
This IS a substantial problem. Course packets are more flexible than textbooks. Universities need to address this issue collectively and work out something better than the 30 year old truce left in the wake of the 70's fair use cases.
Posted by: Rob Rickner | Mar 30, 2005 5:25:01 PM
whoa!
we are missing the point here. the coursepacks in and of themselves are a seperate copyright...the "compilation" can be copywritten...just like a recipe book can be copywritten even though one cannot copyright a single recipe......
that is the copyright everyone is fussing over. fair use on an article by article basis is completley different.
nathan.
Posted by: nathan | Apr 4, 2005 10:05:02 PM
Nathan: no, you are the one who is confused. Any copyright on the compilation of materials would belong to the instructor (or, more realistically, his/her school). It would not belong to indiv. article publishers and therefore is not relevant to the situation discussed here.
Posted by: carrie | Apr 5, 2005 12:36:25 AM
I didn't go to Harvard, and I don't know what these coursepacks are you are talking about. You know, I had to fight and work hard to just be able to attend school, much less what I had to do to pay for it. I was so sick of being ripped off on textbooks that have to be the "current" edition so you couldn't use last years textbook (as if Art History has changed SO much in the last 12 months). There is so much BS in the textbook industry, and we had to pay so much money (I am still $52,000 in debt) that personally, I could care less about all this you all are talking about. The final goal for me was to get my degree, which I did. If the instructor copied something for us as an instructional aid, if it was all used for education, if no plagarism was involved, I don't see anything wrong with it.
If a few authors feel ripped off because an instructor is using his or her article as a teaching aid....oh well. I would feel honored if it was me.
Posted by: James | Apr 5, 2005 2:47:02 AM
