Educational fair dealings battles: Educational Institutions

I discussed Collective Societies in the context of this issue in a previous article.  While I started with them, I don't fault them for the battles we keep seeing.  Those representing collectives are just trying to keep these entities alive in a changing marketplace where their value is diminishing.   While this transition is good for authors and users alike, and is one that we should be encouraging, it will eventually lead to some redundant collective societies closing.

The problem is that educational institutions have been propping up the legacy publishing methods that these collective societies are dependant on.  These publicly funded institutions have been throwing away taxpayer money at lawsuits and royalty fees which leave the sector (and often the country) rather than modernizing.

Educational Institutions

When you get past the superficial "authors vs teachers" rhetoric, you find a very different scenario. The most expensive collections of works fall into the category of non-fiction textbooks, journals, and other academic writings.  The primary authors as well as the primary users of the works are staff and students at educational institutions.  Students are mandated to publish works as part of their learning, and staff are told to publish or perish with career advancement often tied to published works. Textbooks, even for K12, are authored by educators, and reviewed by educators -- with some reviewers merely paid with pizza by publishers.

All of this work by staff and students then leaves the institution and is redistributed back to the educational sector by third party publishers who extract massive royalty fees along the way.  It is fees flowing to academic publishers that dominate collectives like Access Copyright, as well as dominating the fees that academic institutions have to pay to publishers in direct licensing fees.

An alternative funding model that has been growing is Open Access(OA) where royalties are no longer charged. This enables the educational sector to directly pay staff for their authorship, hire editors and other staff they may not have, with the results then available freely to the rest of the sector.   There are a growing number of OA journals worldwide, and the Canadian Association of Research Libraries provides information on ongoing development in Canada.

While the movement to OA is a win-win for the educational community which is the sector for both the majority of the authors and users, there has still been barriers to adoption.

One of the greatest barriers is a perception that historical reputation of some of the previously established journals and textbook publishers is somehow more important than dealing with the financial, political and legal problems created by propping up an outdated academic publishing model.  This problem is made worse by the fact that the departments promoting the established publishers have separate budgets than the libraries who are expected to pay for the expensive journals, or students who have to pay outrageous and unnecessary textbook fees.

We need a bundle of policy solutions to encourage the transition.

Taxpayers interests must be protected

In the "authors vs teachers" rhetoric an important fact is forgotten, which is that taxpayers are ultimately paying and their interests should be respected.

I have long believed that the results of publicly funded work should be publicly licensed.  For educational institutions I would tie part of their budgets to fund OA publishing.  OA publications are not only available royalty-free within the education sector, but outside as well allowing the fruits of the work partly funded by taxpayers to be available to taxpayers (and the public in general).

During a transition period this funding could be divided by academic department, such that additional funding would be made available to departments that shifted to OA early.  The funding would come from an expenditure-neutral shift in funding to the institution, so that in effect budgets would be reduced for those departments that had not yet moved to OA publishing and increased for those who had.

In a later part of the transition period this funding would then be assumed to be institution-wide, where part of the funding to the institution as a whole would be tied to a requirement that all departments had moved to OA publishing.  This would put additional pressure on laggard departments.

Overall the goal of the policy must be to mandate OA publishing for publicly funded institutions, so the end goal of the policy would be that no public funding would be available to institutions who were unwilling to transition from legacy royalty-based publishing models to OA publishing.

Fairness in Fair Dealings

It has never seemed fair to me that we should be treating educational institutions as if they were charities, and that somehow they should have royalty-free access to the works of the world and yet be able to charge (or allow third party publishers to charge) royalties for the outputs of the institutions.

I believe that one of the primary fairness criteria for educational fair dealings should be the licensing methods used for the outputs of the academic work.  If the results will be OA or released to the public domain, this would be weighed strongly towards fairness on the input.

I would further propose that after a transition period similar to the  funding proposal above that the specific educational institution copyright exceptions (sections 29.4-30.04) should only be available to institutions whose outputs have been primarily made available through public licensing.

Policy proposal for the remaining works

While nearly all the works used in an educational setting fall under direct licensing (royalty or publicly licensed) or fair dealings, there are still some works used which should be compensated but where direct licensing isn't available or isn't practical.  With educational sector created works handled through OA, there is also far more money available to compensate non-academic authors who have always been on the losing end of these debates.

Decades of taxpayer money wasted in the so-called "educational fair use" debate and never ending  lawsuits suggests that none of publishers, collectives, or educational institutions can be entrusted to provide fair compensation to those non-academic authors.

I believe an appropriate model to use is the Public Lending Right program that provides funding to authors for the use of their works in public libraries.  This is a program outside of copyright that is focused on authors rather than copyright holders.  The program to fund authors for uses of their works in publicly funded educational institutions should be funded from an expenditure shift from educational institutions.   Unlike what happens with collectives, the proceeds for this program should be accountably targeted to authors, with funding not accessible to intermediaries or their feuding lawyers.   This would provide far better funding to authors than the small amounts paid through collective societies, and be far more accountable to taxpayers who have ultimately been funding this nonsense debate.