Publishers, copyright and the prevention of research-led teaching: a thought experiment

Being a year behind with the blog means, naturally, that things linked to the academic year come round again as I get as far as blogging about them, and in this instance the spur is making reading digitally available for students, which has propelled me into ranting again about how daft the way we publish is. I have one particular point in mind, so I will try and keep the post on target, but I’m not promising that other things that make me cross won’t turn up in footnotes. So, this is a post about how we make our research available to students for teaching purposes.

When I started teaching in 2003 the digital thing was quite new. I was the first user in that department of some new software they had of the sort that would come to be called a Virtual Learning Environment, a clunky slow thing called Sentient Discover that still worked better than Blackboard five years later (though as I’m now working with it again, I have to admit that Blackboard has come a long way since I first met it). At that point, though, there was neither file-space nor hardware available within such an environment to digitise materials from hard copy; Oxford simply aimed to provide sufficient hard copies, and so digitising actual readings is something I only really started to do at Birmingham. This post started off as a thought when I came to be doing it again the next year, to supply students on a big survey course with access to materials that a hundred-plus people would need in the same week.1

Copyright symbol

Obviously there are copyright implications about scanning stuff and sticking it online, even behind a firewall. It struck me while thinking this post out that academics’ somewhat offhand relationship to copyright is in some ways only to be expected; we almost never get paid from sales of what we write, we usually don’t in fact own copyright in it, that being either granted to a publisher and, if we’re lucky, licensed back to us, or else held by our employers.2 Consequently copyright, intended to protect the livelihood of authors, is actually of no direct monetary benefit to us, whereas it is very often in the way of our reading or accessing other information which we need to work. This is of course why there is an Open Access movement and Creative Commons licensing and various other alternatives set up by those who believe information should be free, but the fact of the matter is that lots of it ain’t. And so copyright applies to these materials, and the law in the UK is pretty clear: assuming that it’s not an exception (published outside the EU or out of copyright) you can photocopy up to five per cent of a volume or one single article or chapter, whichever is the larger, once only, for your own use (and you may not circulate that or pass it on to someone else), and you can scan the same amount of something and place it in a private digital repository as long as the managers of that repository are tallying it and making appropriate royalty payments to the Copyright Licensing Agency. I believe the rules in the USA are similar, but I’m not a lawyer and even this much may be wrong. Anyway, we now reach the thought experiment.

Often, in interviews, I have been asked how my research enhances my teaching, how I incorporate my research into my teaching, and so on, and research-led teaching is a phrase that has become almost hackneyed in the UK in the last decade or so. I have got a lot better at answering this kind of question over the years but it was always a problem for me, because I work on Spain, which is not very interesting to the average UK student, and most of my source materials are in non-Classical Latin and not available in translation. So it struck me early on that one excellent answer to that question would be, “I use this volume of translated documents that I myself have published for exactly this purpose!” And suddenly last year I realised that because of the way we publish, that is in fact not an excellent answer at all.

Consider. Let’s say that I convince some press that charters are, in fact, where medieval studies is at, and that if they publish a volume of charters translated by me it will be hoovered up by university teachers everywhere who want to use something that isn’t chronicles or literature and therefore by default the readings of the élite. So I translate the documents, they are published, my university duly buys a copy or few, and I want to set it for a course. Let us say that that course recruits fifteen students, and that I am not either willing or allowed to require that the students buy a copy each, no matter how much good it would do my royalties money (if we assume that the press I managed to persuade was such a one as pays them). I still have to make required readings available digitally, however. How much of this, my own work, can I therefore set to my students? Why, no more than five per cent, of course!

So, by publishing that material, I actually lock most of it away from the use for which I intended it. There are only two ways round this that I can see. One is to publish with a press that will publish it as an e-book and license that in terms that allow lots of people to access it at once. These are not in fact common license terms, precisely because they are constructed so as to minimise the number of books you need to buy; it shouldn’t surprise us when companies like Routledge sell e-books with licenses that mean that only one person in a university can use them at once, they are in the business of selling books!3 The other, of course, and by far the simplest and the most use to the world at large, is just to put the stuff on the open web, but this is a path with no reward in terms of professional recognition, for reasons both sound and stupid; it wouldn’t have to pass peer review, on the one hand, so is hard to rate, and on the other some people still don’t think databases count as real publication. Such a volume is something I actually want to publish, but it absolutely does my head in that somehow things have got to the point where if I picked the wrong press, actually publishing it is about the worst thing I could do in terms of making that material accessible to students…

1. FIRST RANT. Last year I was, of course, curating coins, so this teaching I did as contract staff for the Department of History. I don’t want to single Birmingham out here, because as far as I know their system for paying temporary teaching staff, often postgraduates, is usual, which is to say that it’s the system I’ve been paid with everywhere else I’ve done it or, in fact, better. The pay is by the hour, paid for contact time and an additional hour of preparation time for every classroom hour. That prep time, of course, is meant also to cover all the other work of teaching, which is to say marking, delivering feedback, answering e-mails and attending meetings with other staff, so in effect it all disappears. There is also a structural assumption that you know enough to teach a subject which is often explicitly not enacted. By this I mean that if you are new to a topic and have also got to do the reading, or even just refresh yourself about something you last read ten years ago, that hour is very quickly gone, with no other class prep done at all, but obviously it is expected that you will in fact learn enough to teach that hour anyway. So, maybe you’re more efficient than me, but I find that even now a classroom hour on a course that’s new to me takes me between two and three hours to prepare, and then there’s all the admin., so really one is getting paid at something like a third or a quarter of the rate per hours worked that one is in fact offered, all of which brings it very close to and even below minimum wage. Of course, universities largely couldn’t afford to deliver seminar teaching any other way, which is a system problem for which I don’t blame their staff, though I do blame staff who don’t recognise these economics. But therefore, when you are course leader for such a course, with five or six people being paid like that teaching for you, don’t expect them to do your photocopying or digitisation for you as well. You’re the one being paid a full-time wage: do what you’re paid for. I intend to stand by these words now that I am in fact the one being paid, of course, but it really does annoy me when people leading such courses don’t consider what their TAs actually get paid for.

2. The second rant would be about people who don’t realise they’ve signed away these rights and then protest about how unfair it is when the people to whom they’ve signed them stop them making free with what are no longer their own writings. Read your contracts.

3. I instance Routledge because these were indeed the terms under which they had licensed Dorothy Whitelock (ed./transl.), English Historical Documents volume I: c. 500-1042, 2nd edn. (London 1979), to Oxford when I taught there.

5 responses to “Publishers, copyright and the prevention of research-led teaching: a thought experiment

  1. I manage course reserves for a small state university, and am tasked with interpreting copyright and fair use (called fair dealing in some countries) which permits a portion of copyrighted works to be used without license in certain circumstances. Being paid to do this full time lets me dig into the nuances of copyright law and push the envelope in terms of electronic access for students.
    I also handle scanning print material, purchasing new material needed for courses, and manage the back end database, plus posting reading lists to our content management system (we use Canvas).
    Do you have access to a service like this? Our campus runs copyright through the library, and that is where course reserves is managed as well. I am biased, of course, but it is a good way to balance copyright compliance with the needs of students and instructors.

    • We also run such services through the library, but US copyright would seem to be laxer than UK if you can use more than 5% of a work that’s not already born-digital, and even then you’re still only talking about a portion, am I right? The balance is still off for my hypothetical needs, if so. Our fair use really only covers research and criticism, not reproduction for teaching.

  2. We are lucky enough to have educational/classroom use specifically mentioned in copyright law. There is a push (by publishers of course) to have some kind of hard limits codified, but so far our court system has been leaving plenty of wiggle room. Theoretically, an instructor could decide that an entire work is critical for a particular class, and use it without added permission, but it is considered an affirmative defense and the need would have to be demonstrated in court if a rightsholder filed suit.
    Preliminary findings in the main case on this issue are topping fair usage at about 15% on average, so I tend to get additional permissions when requested amount are more than this. ( I was able take an online ‘copyright for educators’ class from Kevin Smith, and had 2 days of in-person consultation with him when he came to my university.)
    Larger amounts have a tougher time passing muster, but a more recent case has put the onus back on rightsholders in that they should first assume a usage is ‘fair use’ by default, not the other way around. This is supposed to put a damper on throwing cease & desist letters around willy-nilly.
    Open access is really important though, especially true open access and not the predatory fee-based journals. If only we could get the peer-review system more on board so authors could get the recognition needed while still allowing broader use of their works without losing hold of their rights. Our university just got an institutional repository up & running and uses publisher pre-prints for archiving when the publisher allows. And the librarian managing the IR is doing heavy outreach with faculty to help with publishing options that maintain the greatest control and access.
    A slow process, and in the meantime academic publishers are learning far too quickly in terms of locking up digital access to important research.

    • It’s interesting to have a different perspective, thankyou. This bit caught me especially:

      Our university just got an institutional repository up & running and uses publisher pre-prints for archiving when the publisher allows.

      Mine too! This is about to become a state requirement in the UK, is why, at least for publications with an ISSN, and this is causing a certain amount of upset because of the number of places that humanities scholars publish that don’t do, or in extreme cases even known about, open access. It’s a model driven from the sciences in some important ways, where publishing pays for itself in more obvious ways than does ours…

  3. Pingback: I seem to be writing another book | A Corner of Tenth-Century Europe

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