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Digital Copyright Issues in Academic Publishing
Tuesday, February 14 2006 @ 11:52 AM EST

One of the advantages of doing Groklaw is that our membership includes a wide variety of people with varying backgrounds and job skills I can ask to explain things to me. When the Sony rootkit and the Google Print stories separately broke, I got into an interesting conversation with Roy Bixler, who works in the field of academic publishing, about DRM. I know how Hollywood feels, and commercial publishing, but what about academic publishers? Have they fallen in love with DRM too?

It seems disjointed. As a publisher of educational content myself, I know exactly how much it costs to do such publishing digitally, and I'm puzzled by the love affair I see with DRM, particularly because it never seems to prevent piracy anyway.

Plus, copyright law is so powerful a preventive force, I've found it more than adequate to cope with any who might wish to stray beyond given permissions. What bothers me most about DRM, though, is that it prevents fair use, which is part of copyright law, but everyone is pretending doesn't matter. So, to me, publishers and Hollywood want customers to obey copyright law, while they flout it. When did Congress pass a law that we lost all fair use rights? In connection with DRM, don't miss BoingBoing today, on Google Video DRM: Why is Hollywood more important than users

With the introduction of its new copy-restriction video service, Google has diverged from its corporate ethos. For the first time in the company's history, it has released a product that is designed to fill the needs of someone other than Google's users. ...

Some examples of user-rights that Google Video DRM takes away:

* Under US copyright law, once you buy a video, you acquire a number of rights to it, including the right to re-sell it, loan it to a friend, donate it to your kid's school and so on. But with Google Video DRM, none of this is possible: your video is locked to your account and player.

* Educators, archivists, academics, parodists and others have the right to excerpt, copy, archive and use any video in their work, under the US doctrine of fair use. However, Google's DRM tool stops them from doing this, and Google's video can't be played on anyone else's tool.

Roy has graciously written an article for us on current thinking on DRM in the academic publishing field. Additionally, he asked a former boss of his, Bruce Barton, who has worked in this field for twenty years, to write about the tension between DRM and academic publishing and to suggest a solution, and that article follows Roy's. I found them very interesting, particularly the cost analysis, which makes perfect sense to me, and I hope you enjoy them too.

Roy mentions National Academies Press, whom I adore. They allow you to download PDFs of technical books, and if you wish a hardbound copy, you can buy one. I asked a representative there a couple of years ago how that works, and he told me that with technical works, people really do buy, because they want to have it handy on their bookshelf, so allowing free downloads seemed to help sales because it let customers browse to see what they wanted to buy.


Digital Copyright Issues in Academic Publishing

By Roy Bixler
5 February 2006

As technology affects publishers of all kinds, whether the medium is video, audio or print, it is interesting to see how the publishers adapt to the changing environment. The primary challenge lies with the ease of making digital copies of works and the implications that has for the application of copyright law. Laws like the Digital Millienium Copyright Act in the US, which enforce technical restrictions on making copies, are well-known and are primarily associated with the music and film industries. However, due to the market failure of e-books, technological change has not been as quick to affect the print medium.

Nonetheless, print publishers still sell some e-books and it is increasingly common to see electronic editions of books published on CDs, DVDs or online. So it is relevant to explore what print publishers think of copyright in the digital age. Not surprisingly, the commercial print publishers hold a very similar philosophy to their counterparts in the video and audio sectors.

Commercial Publishers

In an Association of American Publishers white paper called "What Consumers Want in Digital Rights Management"1 , they have the following to say about DRM: "DRM does not implement copyright. DRM is technology that establishes and enforces to varying degrees certain permissions and restrictions on access and use of content. These permissions and restrictions are not, and in the current state of technology could not be, an embodiment of copyright law." Also, in testimony before the US House Judiciary Committee on allowing unrestricted (non-DRM) Internet access to books for intructional purposes, Allen Adler of Association of American Publishers said "AAP opposed the alternative bill's proposal because its version of a revised Section 110(2) exemption would have (1) permitted the online use of entire copyrighted works in a manner that substituted for the usual purchase or acquisition of instructional materials by or for students, and (2) exposed copyrighted works to potentially market-killing risks of unauthorized reproduction and distribution on the Internet." (Adler, 2001)"2

In other words, DRM is a supplement to copyright and is a perceived necessity because it is easy to copy unrestricted digital content. The assumption is that so many consumers would rather make a free copy than pay the author or publisher for their work that publishing in digital form would be unprofitable. However, there are duelling studies as to whether unrestricted downloads have any significant effect on sales.3; 4; 5

Academic Publishers

Academic publishing is a more interesting case because the market dynamic is different from commercial publishing. Academic publishing generally serves niche markets which are inherently unprofitable. The mission of academic publishing tends to focus on the dissemination of knowledge instead of on pleasing shareholders.

The relationship between academic publishers and their customers is a closer one. Oftentimes, the customer is also the author of some published work. Academics are accustomed to collaborating with each other, building on the works of others ("standing the shoulders of the giants that came before them") and reviewing each others' works. This dynamic puts a premium on openness6 and discourages technological measures which inhibit sharing of works.

In North America, the advocacy group for academic publishers is the Association for American University Presses (AAUP). When asked whether they take any position on digital copy restrictions, AAUP's executive director Peter Givler said "As an association I don't think we could take a position on this question." On the AAUP's Web site, one finds that they consider traditional copyright law to be for the public good7 and that technologies which push the limits of the fair use doctrine like Google Print (now Google Book Search) need to be further clarified8 and tuned.

The academic publishers' views can range from agreement with their commercial counterparts to cautious acceptance of free copying. For instance, when asked about DRM, the University of Chicago Press had this to say:

The University of Chicago Press acts as an agent of its authors in its publishing programs and works to protect their intellectual property rights as the Press makes their work available to the learned community.

We believe that Mike Shatzkin and the AAP's Allan Adler speaks well on the topic of Digital Rights Management.

Michael Jensen of the National Academies Press says that they have considered the issues of DRM and have decided not to use it in their publications because they would prefer to maxmimise availability of their content, they do not want to lock it down and also they do not want to deal with the customer service issues that may come with DRM. Jensen also says that they have started putting books on their Web site for free reading/browsing in 1994, have more than 3,500 books online and now have a significant amount of traffic at 1.25 million hits per month. In the past, they have implemented watermarking on their downloadable PDF (Portable Document Format) files but abandoned that practice 8 months ago since they have found so few issues with online copyright infringement that it was not worth the trouble.


According to the AAUP9 , university presses are subsidised and on average make about 85% of their revenues on sales. Given this, it is easy to understand why some university presses with uncertain subsidies are less enthusiastic about the idea of easily available copies which current technology enables. They can ill afford any significant loss to their already pinched revenues. But, at this point, any loss due to unrestricted digital copies is hypothetical.

There is also the Canadian model to consider, in which the government funds the lion's share of academic publishing. According to the estimates of Steve Izma of Wilfrid Laurier University Press:

Currently the Canadian government directly or indirectly funds a great deal of Canadian scholarly material:
  1. From my observations over the years about 30% of the income of the majority of Canadian-owned publishing companies (both profit and non-profit) comes directly from various levels of government (usually through arts councils, scholarly publishing committees) as grants
  2. Almost all (except for one or two notable exceptions) Canadian University Presses are significantly subsidized by their Universities through outright cash transfers or through grants-in-kind, such as free rent; most Universities see this kind of publishing as a form of promotion of the University as well as of its scholars, even if their press publishes material of wider origin. The amount of this subsidy varies widely and from year to year, depending on the income from sales, but it is not unusual to see the Press of any particular University benefitting to the equivalent of 20% to 30% of income through these sources
  3. Of the remaining actual sales income, more than half (and possibly as much as 75%) must come from either academics or students doing research or institutions like libraries -- so the income is either from government-funded organizations, employees, or from grants that academics themselves have received from government sources.

Even with all of these subsidies, the Canadian Encyclopedia says "... the university presses exist precariously. Editing and production costs are only one aspect of the problem in a country where funding, distribution and limited readership are factors never easily resolved."10

In sum

Ultimately, since it costs money to edit and produce print works, the questions are about business models. At the same time, the customers of academic works value the ability of free access to print works and would frown on any technogical restrictions which make this more difficult. If free copying is available, will current business models still work? If not, can an alternate model compatible with free copying be found? If DRM is inevitable, then can it at least be made minimally intrusive and user-friendly?11 As these questions are still unresolved, this is certainly a new era for academic publishing.

1 Slowinski, F. Hill (2003 March). What Consumers Want in Digital Rights Management (DRM): Making Content as Widely Available as Possible In Ways that Satisfy Consumer Preferences
Retrieved February 7, 2006, from:

2 Adler, A. (2001, June 27). Statement of Allan R. Adler vice president for legal and governmental affairs Association of American Publishers before the Subcommittee on courts, the Internet and intellectual property House Judiciary Committee concerning S.487 "The Technology, Education And Copyright Harmonization Act Of 2001."
Retrieved February 5, 2006, from:

3 Liebowitz, Stan J. (2005 March) File Sharing: Creative Destruction or just Plain Destruction
Retrieved February 12, 2006, from

4 Oberholzer, Felix and Strumpf, Koleman (2004 March). The Effect of File Sharing on Record Sales
Retrieved February 12, 2006, from

5 Boorstin, Eric S. (2004 April 7). Music Sales in the Age of File Sharing
Retrieved February 12, 2006, from

6 McGreal, Rory (2004 November). Stealing the Goose: Copyright and Learning
Retrieved February 5, 2006, from

7 Givler, Peter (2003 February 9). Copyright: It's for the public good (originally appeared in The Chronicle Review)
Retrieved February 5, 2006, from

8 AAUP. Google Book Search, née Google Print
Retrieved February 5, 2006, from

9 AAUP. Some University Press Facts
Retrieved February 5, 2006, from

10 Canadian Encylopedia. University Presses.
Retrieved February 14, 2006, from

11 Jones, Pamela (2005 June 27). Grokster Decision - as Text
"Further, copyright holders may develop new technological devices that will help curb unlawful infringement. Some new technology, called "digital `watermarking' " and "digital fingerprint[ing]," can encode within the file information about the author and the copyright scope and date, which "fingerprints" can help to expose infringers."
Retrieved February 5, 2006, from

About the author: Roy Bixler has worked at the University of Chicago Press from 1994 to 2006 as a programmer and system administrator. During that time, he has spoken about technical issues at AAUP conferences and generally acquired a knowledge and appreciation of the world of academic publishing.

© Copyright 2006 Roy Bixler


The tension between DRM and academic publishing

By Bruce Barton
5 February 2006

With respect to DRM, what strikes me as both interesting and a challenge for university presses is the tension between the mission they serve and the business model under which they operate. Their mission, of course, is the certification and dissemination of scholarship. The business model comprises a number of things, most notably, the direct recovery of costs from readers. The tension follows from the most common cost recovery strategy: by restricting access to scholarship to only those readers who have paid for access, presses limit distribution and therefore, potentially, dissemination. I say "potentially" because in some disciplines I imagine presses reach the 200 people in the world capable of or interested in reading the most arcane of their publications. (Libraries purchase access for the communities they serve. Access nearly always implies that someone has paid for it.)

DRM is simply the implementation of this cost recovery strategy for electronic media.

What's wrong with this?

All would be well if purchasing power were unlimited. It isn't. And consequently scholarship is not thoroughly nor, one should note, equitably distributed. To the extent that this is true, university presses are failing their mission.

Distribution is not the same as dissemination. To disseminate the publisher must in addition to distributing scholarly materials notify readers that these materials exist. But in the electronic world, both notification and second-copy distribution costs are dropping dramatically. Let's assume for a moment that universities, scholarly societies, or other sources of funding were to pay for certification (managed peer review) and first copy costs. Then there would be no significant costs remaining and no need for DRM as a means of extracting payment in exchange for access. In effect, these funding sources are already paying for the production of scholarship. And compared to those costs, the cost of publication is tiny. There is certainly a precedent for this approach to publishing: a portion of research grants routinely go to paying for the page charges commonly assessed by scientific journal publishers.

Moreover, as Steve Izma points out, the same funding sources are paying much of the DRM fees. It seems like madness to suffer the transaction costs involved in this cost recovery model.

The way out of this?

I do not expect to see it coming from within the university press or the library communities. Budgetary expectations are too entrenched. I think that it is more likely that we will see a new generation of scholars organizing peer review and publication amongst themselves and deciding for their peers that this counts towards tenure and promotion. And they will teach their graduate students where to look for the best scholarship (as their teachers taught them). They will publish to whomever can find them and the good stuff by virtue of its citation network will rise to the top of Google's hit list (assuming Google doesn't make you pay to get there).

About the author: Bruce Barton is an eLearning Tools Developer with Academic Technology at DoIT, a unit of the University of Wisconsin at Madison. He specializes in server-side system design and Java development. Prior to joining DoIT, Bruce worked for the University of Chicago Press where he led successful efforts in eBook publishing and eCommerce. He has organized workshops and been a frequent speaker and author on the effective use of technology in scholarly publishing.

© Copyright 2006 Bruce Barton.

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