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The Case for Better Management of Information Access in Australian Universities

Michael Lean [HREF 1] Copyright Officer, Queensland University of Technology [HREF 2] and Griffith University [HREF 3] GPO Box 2434, Brisbane, Australia m.lean@qut.edu.au
 

Abstract

Although files were traded on the Internet before the development of the World Wide Web, it was the advent of the Web that began to make rapid access to vast amounts of information a reality for the non-technical person. This kind of access did two things: it raised deep and real concerns amongst copyright owners about their continuing ability to control the distribution of their works and it made those same copyright owners see opportunities for greatly increased sales and profit. It is therefore instructive to see how this particular aspect of the commercialisation of the Web  has impacted on one sector of our society which has been in the forefront of the uptake and development of Web-based activity - the universities.  Australian universities are net consumers of information. As Web-based technology improves, so too does the potential and desire to access and communicate to students more and more of their course materials and readings via this medium. This may not be an economically sound practice. This paper describes the current licences which enable information access by universities, as well as the forces and players involved and examines the rising costs associated with such access to copyright material. The paper goes on to predict a very dramatic rise in licence costs in the near future. It then looks at the need to manage consumption more carefully, and finally suggests ways of doing this and containing the cost rises.
 

Introduction

Over the past 12 years the writer has worked as the copyright officer for a large Australian university. This has involved, inter alia,  frequent interaction with executives of collecting societies, appearance before several parliamentary committees, and continuous observation of the legal developments which are beginning to shape the way information is handled and protected on the World Wide web. The opinions in this paper are personal, drawn from those observations and experiences, and are intended to draw attention to a situation which may well progress beyond the control of the consumers unless some collaborative action is taken. The paper is intended to provoke discussion, which hopefully will lead to awareness and action. It is not intended to provide the panacea for the ills of the copyright regime.
 

The Licenses

Access to copyright materials (hereinafter: Information Access – copyright is an issue which causes the glazing-over of academic eyes) for staff and students in Australian universities is achieved through two major statutory licences. These are the Copyright Agency Limited (CAL)  [HREF 4] licence, which covers photocopying (and more recently, digitisation of print documents, enabling Web-based delivery of course materials), and the Screenrights [HREF 5] (formerly the AudioVisual Copyright Society) licence, which covers the recording of radio and television programmes from free-to-air, cable and satellite sources (and now the digitisation of such programmes and their delivery via email or webservers). These licences are compulsory, and the collecting societies referred to above are named in the Copyright Act  [HREF 6]as the designated representatives of all copyright owners for the purpose of licensing university use of information in its various forms, and, as such, the societies are then charged with the responsibility of distributing revenue from the licence fees to their members.

Since the inception of the statutory licences, negotiations with the collecting societies for the universities have been conducted by The Australian Vice-Chancellors’ Committee (AV-CC)  [HREF 7] assisted, at times, by their lawyers. The relationship with the collecting societies has not been an easy one, and whilst the universities have always agreed that equitable remuneration for information access should be paid, the issue of what is fair and equitable has been a stumbling block; the negotiations have been fraught with mistrust and misconceptions, and there has been frequent recourse to litigation in the Copyright Tribunal. A major part of these misconceptions has been a very imperfect understanding of what actually takes place in universities, in regard to the type and quantity of information copied, and the use to which it is put. This has led, at times, to extravagant claims by the collecting societies of “systematic copying to defraud publishers” and similar allegations, particularly against university libraries. Nothing could be further from the truth, and in fact the libraries are without doubt the most copyright-aware and compliant group in the university community.

Of course, some of the litigation has been entered into in a spirit of co-operation, as the parties move into uncharted waters and a decision by a court is needed to clarify an issue. Again, some of the court appearances have been to do with the setting of rates for equitable remuneration, and it is here that problems begin to arise, as there is great disparity between the parties’ views of what is equitable. It would not be unfair to say that the university sector is regarded by the collecting societies as a source of great wealth – a cash cow, which should be milked for all it is worth. Of course, the uptake of Web use by the universities has led to very real concerns by copyright owners that they would rapidly lose control of the distribution of their product, and consequently they have lobbied for ever stricter controls and continued to ask for higher payment rates to compensate for the new uses.
 

How the System Works

The CAL licence allows universities to photocopy and digitise print works for the teaching and administrative purposes of the institution. (Copying for research is done under the provisions of S.40 of the Copyright Act, being a fair dealing for the purposes of research and study; copying by students also falls under this provision.)
Guidelines as to the amount of a literary or dramatic work which may be copied are set out in the Copyright Act, making the Australian Copyright Act unique in this regard. The amounts specified are 10% or one chapter of a book, (whichever is the greater), and, when copying from a journal, one article from any one issue, unless there are two or more articles on the same topic, in which case these articles may also be copied. The licence provides that, within these limits, multiple copies may be made, thus allowing class sets of documents to be created.

Operating under these licence conditions, universities have been able to compile books of readings – variously known as “coursepacks”, “reading bricks” or “books of readings” and sell these, on a cost recovery basis, to their students. In addition, some copying is undertaken for classroom handouts, some for inclusion in library closed reserve, and some for administrative purposes. The current rate of remuneration for coursepacks, as determined by the Copyright Tribunal, is $A0.05 per original page, whilst such specialty copying as the making of 35mm transparencies from illustrations in books costs $A1.00 per image . The ability to cost recover was confirmed in a decision after a court action brought by CAL against a university – CAL v. VUT. [HREF 8]

At the beginning of 2000, the CAL licence was extended to include the digitisation of copyright material for the same purposes, and with mostly the same quantity limits. In addition, the material thus digitised had to have its access restricted to bona fide staff and students of the institution, usually via a secure (password-protected) website; be marked in various ways, including carrying a copyright warning notice; have any existing rights management information preserved, and be made available for a limited time (in practice, this is one year - if the material remains online longer than that time, a new fee is payable). Finally, a new dimension was added: if a university lecturer digitises one part of a book and makes it available online, no-one else in the university can digitise another part of that book and make it available until the first digitisation has been taken down. This is a radical departure from the print-based licence, and reflects the Government's response to lobbying from concerned copyright owner groups. The administrative nightmare of complying with this restriction in a multi-campus university with a decentralised IT system was not considered at the time of drafting, and universities are still grappling with the details.

It is interesting to note that whilst the universities have had the capacity to deliver information in digital form for more than 5 years – significant World Wide Web access has been available for at least that long -, the lack of knowledge and the misunderstandings attendant upon not just the digitising process, but the whole world of computing, the Internet and the World Wide Web by negotiators for the collecting societies has meant that it was only last year (2000) that a workable licence agreement was put in place. In fairness, during that time there was also considerable doubt as to whether the then provisions of the Copyright Act or the CAL licence covered digitisation, and much disagreement as to what amount of remuneration should be paid if it did. One early claim from CAL was for an institution to pay $A25.00 per document digitised, then $A5.00 per student access. It was calculated that the sector could meet this claim by closing seven Australian universities, and paying CAL the funds so saved!

Similarly, the Screenrights licence permits the recording of various forms of radio and television transmissions, and with the introduction of the Digital Agenda Amendments, these may now be recorded in digital as well as analog form, (which opens up the prospect of some exciting and innovative uses of such material being delivered via Webservers at appropriate times during a course). There is no restriction on the type, number, or quantity of program material which may be recorded or copied under the licence, but the recording must be reported to Screenrights, and a royalty of $2.32 per minute paid for every copy. Requirements for access and marking are similar to those of the CAL licence. Universities who take up the digitising potential will also have to pay for a licence to communicate the material, as copyright owners now have a new right of communication which must also be licensed. Again, various compliance horrors await those trying to administer the new scheme, as the communication right means that Screenrights now asks for details such as the number of students who view a piece of programme.
 

Paying for the Privilege

The cost of the information consumed by Australian universities under the licences described above has risen rapidly during the last ten years. Because of the vast amount of print material consumed, it has proved impossible to keep records of all the copying done – at least, not records of a quality and accuracy which would satisfy all the parties involved; and record-keeping which is not accurate puts the record-keeper at risk of litigation for non-compliance with the licence conditions. To this end,
a sampling system has been devised. This is a rolling sample which spans all parts of the academic year in 12-week segments, and at any given time provides a “slice” through the copying being done by the university community. It is on the results of this sampling that CAL assesses payments to be made by universities based on an assessment of the number of pages copied per effective full-time student unit (EFTSU) – a figure universities calculate and supply each year to the Commonwealth Department of Education, Training, and Youth Affairs.

The sampling also provides information on what has been copied, and it is this information which enables CAL to distribute the money collected to copyright owners. It is not a perfect system, and it is entirely possible, (and frequently happens) that the works of a particular copyright owner may be extensively copied but not be picked up in a sample, and therefore miss out on payment. Nevertheless it is a workable scheme, and is the fairest system so far devised. Some universities attempted full record-keeping in 2000, but this was onerous and labour-intensive, and, as observed above, potentially risky.

The Screenrights licence, because of the nature of the material, was somewhat easier to administer. Originally, this was a record-keeping system, but changed to sampling for a period of some years. The university community, through the AV-CC, expressed concern at the resultant rise in costs, and the inequitable distribution of these costs across the sector, and most universities returned to record keeping several years ago, with, in a significant number of cases, a substantial drop in costs.  As most of the recording in an institution can be done through a central facility, copying records are significantly easier to gather, and the much lower volume of material copied also makes the task easier. (Vigilance is still required though, and Screenrights has not been above recruiting students to keep diaries of material that is screened in their classes – the diary entries later being compared with the university’s copying returns, in attempts to discover under-reporting. Action was initiated against four Australian universities in this manner in 2000.) As stated above, the new communication right now makes this licence more difficult to administer, and opportunities for inaccurate reporting due to the complexities of the licensing have greatly increased.

Screenrights distributes royalties to its copyright owner members based on the content of the returns submitted by the universities – probably a more straightforward process than working from sampling returns.

In the years since the inception of these two major licences, most Australian universities have chosen to fund the annual costs centrally. Because of the way the information has been gathered, i.e. through the sampling process, it is well-nigh impossible to identify the end-users with any degree of accuracy or fairness. Even though most universities are now record-keeping for Screenrights, there remains a history of sampling, and little or no consideration has so far been given at a fiscal level to any possibility of devolution of the costs to the originating schools, departments or faculties. It is also probable that there is a legacy of “relief”, dating from the time when the original agreements were signed, when universities were for the first time able to operate in these areas with some certainty as to the legality of their copying practices. This is not to deny that the current system remains complex, and increasingly full of uncertainties.

Whatever the reasons, it seems unfortunate that the central funding choice has been maintained. This has led to a culture where, whilst university teaching staff are vaguely aware that some licence conditions operate, the payment mechanisms and rising costs are remote from the users, whilst the usage is remote from those who pay, and the information used is seen as a “free good”. And therein lies the beginnings of the problem.
 

Rising Costs

Since the CAL licence was introduced in 1988, costs have risen steadily, partly  as a result of an increase in copying, partly as a result of successful advocacy in the Copyright Tribunal by the collecting societies for a higher rate. The following tables show the rises to 2000:
 
 
COPYING RATES AND PAYMENTS TO CAL SINCE SAMPLING BEGAN  (All Australian Universities)
EFTSU
Payment Year
Copy Pages per Eftsu
Rolling Three year Average
Rate Per EFTSU
Total Paid for EFTSU ($m)
327,725
1988
        
349,012
1989
205
n/a
$3.50
$1.15m
382,546
1990
179
n/a
$3.05
$1.06m
422,197
1991
200
174
$3.41
$1.30m
438,946
1992
201
194
$3.76
$1.59m
447,715
1993
365
256
$5.07
 $2.22m
451,601
1994
425
331
$7.10
$3.18m
465,965
1995
430
407
$10.58
$4.77m
489,421
1996
417
424
$12.36
$5.75m
513,258
1997
507
451
$14.26
$6.97m
523,422
1998
237
387
$12.89
$6.75m
535,566
1999
472
405
$14.27
$7.44m
 
2000
545
  
$26.59
$14.24m

 
 
 

 
Full totals including FTE:
Year Total for 
EFTSU
      $		 Total for
    FTE
        $		 Grand Total
         $
1989 1.15m 1.15m
1990 1.06m 1.06m
1991 1.30m 1.30m
1992 1.59m 1.59m
1993 2.22m 2.22m
1994 3.18m 3.18m
1995 4.77m 337,357 5.11m
1996 5.75m 449,539 6.20m
1997 6.97m 361,197 7.33m
1998 6.75m 466,443 7.22m
1999 7.53m 448062 7.98m
2000 14.24m 1,548,000 15.79m

In 2000, with the extension of the licence to include digitisation, the rate rose to $A25.00 per EFTSU. It has been agreed that this rate will apply each year until the end of 2002, at which time negotiations will take place to determine a new rate.
Currently the $A25.00 per EFTSU payment represents an overall cost to the Australian university sector of approximately $A15 million. The FTE figures referred to in the table above are the figures for staff copying (multiple copies) during the period. Nevertheless, it can be seen that, in the years 1989 to 1999, whilst the copying levels little more than doubled, the cost for the copying rose more than sevenfold.
 

The Players in the System

Universities are not acting in isolation in their use of and payment for information, but are part of a complex web which involves government, legislators, departments political parties, individual members of parliament, copyright collecting societies, publishers, creators, broadcasters, filmmakers and other copyright owners, all of whom have their own interests and agendas.

While the Australian Vice-Chancellor’s Committee acts for the Australian universities in negotiating and litigating these matters, it too is composed of a number of interest groups, perhaps with somewhat more of a common interest, which includes universities, academics, administrators and lawyers. This group shares that common interest with the school and TAFE sector, as well as entities like the CSIRO, and to some extent, corporate Australia, which is also being encouraged to take out voluntary licences for the copying it does. This diversity of interest groups is a fertile ground for misconceptions, misunderstandings, rumour, some unintended consequences, and unfortunately, a lack of coordinated approach.
 

Paying three times…

Journal articles comprise the bulk of licensed copying in universities. Obviously, teaching staff want their students to have the benefit of reading the latest thinking and research in their disciplines, and this information is best accessed through the medium of refereed journals.
In most cases, these journals are now owned by large publishing conglomerates. The universities have, for many years, encouraged their academics to publish. Indeed, to have a string of research paper publications is seen as necessary to make one’s way up the promotional ladder – the “publish or perish” syndrome. Journal publishers have taken advantage of this; firstly they refuse to publish papers unless the author assigns all rights to the publisher; secondly they do not, in most cases, pay the author – arguing, inter alia, that the prestige of publication is reward enough (and knowing how much the authors want to be published); thirdly they sell subscriptions to the journal to the university at a much greater rate than the cost of a subscription to an individual, on the grounds that the issues will be read by many; and finally they then accept royalty payments from CAL when the journal articles are copied for coursepacks or other teaching purposes. Up until now, this last payment would depend on acts of copying being recorded during sampling, as described above, but with the advent of the digital copying licence, and with journal articles now being delivered via the Web, all copying will be recorded and royalties paid.

So, in the case of journal articles, the universities pay for the journal articles to be written, through academic salaries, then pay again through subscriptions to the journals, and finally pay a third time through the CAL licence fees. This is a system which is blatantly unfair, and there are moves on a number of fronts to recapture both the revenue from, and the actual publishing of, journal articles. See for instance, the work of Princeton’s  Professor Stevan Harnad [HREF 9] and SPARC [HREF 10]
(http://www.arl.org/sparc/). With the resources of the Web available to universities, there is every reason why these initiatives, which involve amongst other things the setting up of archive servers, should be taken up.
  Nevertheless, the present system forms a significant amount of  the revenue drain, and is part of the current problem, as it pushes the copying levels to very expensive heights.
 

Digital Copying and the World Wide Web

The universities have been in the forefront of Web development, and many innovative teaching applications have been created by them. The wealth of information available to students via some of these sites is immense, and Web technology is rapidly becoming the preferred vehicle for the delivery of material that was previously provided in hard copy. The use of copyright material in this way is seen by copyright owners as a much more valuable activity than paper-based delivery, although it is not clear to the writer why this should be so. Screenrights has indicated that the delivery of video via the Web is reckoned by them to be worth three times as much as the same piece of information played to a class using conventional videotape, a recorder and monitor. The early values that CAL placed on digitised or digital material have been described above, and whilst these were moderated, the initial agreement with the universities made in 2000 effectively doubled the universities' current licence fees, to include the digitisation of print materials, so it is clear that here also, a higher premium is put on digitised material.
The higher rates for these activities reflect in part the concerns of the copyright owners about loss of control of the distribution of their works, their fears that the materials will be copied and forwarded endlessly by students with access to the Internet, and the notion that selective copying by universities of selected portions of works will reduce the overall value of those works. In practice, their fears concerning student activity will be largely unfounded; students have better things to do with their time and bandwidth than to forward copies of licensed material to others who will not thank them for overfilling their mailboxes.
Nevertheless, copyright owners have so far been able to convince the Tribunal of the value of their product and the universities have so far been able to afford the rates negotiated or set. As more and more academics see the Web as their means of delivery, more material will be presented in this way, and so costs predicated on volume alone must rise. What will be difficult will be to contain that volume caused by the educators' enthusiasm for the new process, and the copyright owners and collecting societies desire to boost their incomes by increasing the rates for copying and communicating material.
 

Looking to the Future

As can be seen from the tables above, the costs of copying have escalated rapidly since the inception of the licensing schemes, aided in part by successful advocacy on the part of the collecting societies, which have on a number of occasions convinced the Copyright Tribunal that an increase was justified; but also aided by the unrestrained copying which has taken place in universities, where, as has been pointed out, the acts of copying and payment are so widely separated as to be virtually unknown or unrelated to each other. Based on personal experience in the negotiations, on projections from past payments, advice from the AV-CC and its lawyers, conversations with senior officers from CAL, and observations of the uptake of digital copying, it is confidently estimated that, when negotiations for a new rate are resumed prior to the expiry of the present agreement at the end of 2002, CAL will be attempting to raise their income from university licences to $100 million annually.
 

Collective Responsibility

Whatever negotiations the AV-CC undertakes to moderate these demands, and however skilful those negotiations might be, there is still a chance that they will be completely unsuccessful, unless the universities are prepared to act in concert, and think in terms of sector-wide solutions. Whilst individuality is to be prized, this is not a good area in which to practice it.

One of the factors in the rising costs is the increase in copying, which the collecting societies quite rightly point to as a legitimate reason to increase their charges, and this is an area where universities can act to manage the behaviour of their people. The AV-CC has already had consultations with the survey firm, McNair Anderson, which has resulted in the design of a survey to be conducted for the benefit of individual universities to enable them to identify with a high degree of certainty the copying practices which take place within their own institution. Once copying practices have been identified, devolution of costs to individual schools and faculties becomes feasible, and can take place in an equitable way. Once devolution is contemplated and publicised, the organisational units can be encouraged to examine the copying that they do, and determine whether that copying is the most appropriate and economical way to provide the particular resource. This approach will also work well with the Screenrights licence, where the copying practices should also be carefully scrutinised.

This, of course, is not the only step which universities can take to improve their position and diminish their potential indebtedness.

Other strategies include:

 
 

The Risks and the Rewards…

Australian universities are faced with diminishing funding, and rising costs. Their staff is largely unaware of the cost consequences of their copying actions, and have a general belief that material copied under licence is a free good. If nothing is done, this situation will almost certainly result in a cost to the universities of an annual information access bill of over one hundred million dollars within the next five years. That is approximately three million dollars per university, per annum.
If action along the lines described above can be taken, and taken in concert, there is still a great opportunity to contain costs, and, while ensuring that creators are rewarded for their work, a chance exists to keep universities' commitments to reasonable proportions. Without such action, the cost and difficulty of complying with the law when taking advantage of the digital world, and delivering teaching material via the Web is likely to inhibit the use and development of its potential.
 

References:

Harnad, S., Varian, H. & Parks, R. (2000) Academic publishing in the online era: What Will Be For-Fee And What Will Be For-Free?
Culture Machine 2 (Online Journal) http://www.cogsci.soton.ac.uk/~harnad/Temp/Varian/new1.htm and http://culturemachine.tees.ac.uk/frm_f1.htm

The Copyright Act (Cwth) 1968 - AGPS Canberra   http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/

The Copyright Amendment (Digital Agenda) Bill 2000  http://scaleplus.law.gov.au/

Email from the Australian Vice-Chancellors’ Committee, in the possession of the author.

Presentation to the AV-CC on estimated costs of CAL Digital Licence - Cochrane, T.   QUT  Brisbane 1998

Submission to the Intellectual Property and Competition Review Committee of the Federal Parliament - Lean, M. & Cochrane, T. Brisbane 1999

Licence Agreement between Australian Universities and the Copyright Agency Limited – AV-CC, Canberra, 2000.

Licence Agreement between Screenrights and record-keeping Australian Universities, - AV-CC, Canberra 1999

Lean, Michael M. (2000) QUT Copyright Guide: http://www.dias.qut.edu.au/copyright/crguidefrontpage.html
 

Hypertext References:

HREF 1
http://www.dias.qut.edu.au/copyright/crguidefrontpage.html
HREF 2
http://www.qut.edu.au
HREF 3
http://www.gu.edu.au
HREF 4
http://www.copyright.com.au
HREF 5
http://www.screen.org
HREF 6
http://scaleplus.law.gov.au/
HREF 7
http://www.avcc.edu.au
HREF 8
http://www.austlii.edu.au/au/cases/cth/ACopyT/
HREF 9
http://www.princeton.edu/~harnad/intpub.html
HREF 10
http://www.arl.org/sparc/

Copyright

Michael Lean, © 2000. The author assigns to Southern Cross University and other educational and non-profit institutions a non-exclusive licence to use this document for personal use and in courses of instruction provided that the article is used in full and this copyright statement is reproduced. The author also grants a non-exclusive licence to Southern Cross University to publish this document in full on the World Wide Web and on CD-ROM and in printed form with the conference papers and for the document to be published on mirrors on the World Wide Web.

AusWeb01, the Seventh Australian World Wide Web Conference, Opal Cover Resort, Coffs Harbour, 21-25 April 2001 Contact: Norsearch          Conference Services +61 2 66 20 3932 (from outside Australia) (02) 6620 3932 (from inside Australia) Fax (02) 6622 1954