November 5, 2010
What is Oxford Thinking?
Copyright clearance for course packs at my institution lands in my office. For a new course in the making, I am trying to help a professor select a textbook for the class. He really likes the 2009 OU Press book Trade Secrets Law and Practice by Quinto & Singer. The problem is that it costs $245 and not likely to be a popular choice. Since he only intended to use certain parts of the book and supplement the materials with shorter articles, we thought we could check our academic Copyright Clearance Center license to see what our copyright obligations are for course packs. I post the terms from the publisher below (the book is a hard copy title):
Use of this publication is limited to a maximum of the greater of (a) 20% of any single Work and (b) two chapters or articles, in any single course. Except for the rights to create coursepacks, e-coursepacks and their equivalent as expressly authorized under the Annual Copyright License for Academic Institutions, the license granted thereunder does not include any rights to use this publication in any custom publications or other such derivative works. The Annual Copyright License Agreement for Academic Institutions does not authorize the use of this publication for inter library loan.
Of course, the right of first sale embodied in 17 U.S.C. 109 is familiar to us - but perhaps it is not familiar to Oxford. I checked another 5 OUP titles in the CCC database and they all have this language attached to their Rights Terms. I checked 3 other popular law title publishers - West, Lexis and BNA - none of them include this curious language.
As far as I know, publishers cannot opt out of U.S. law, though, interestingly, a related interpretation will be a topic of discussion on Monday at the U.S. Supreme Court when the justices (minus Justice Kagan) hear oral arguments for Costco v. Omega (does the first sale doctrine apply to objects made and purchased outside of U.S. borders and then redistributed in U.S. territory). We should keep an eye on that case!
I am not sure what Oxford means by this language but it is certainly less friendly than what we learned about Springer in MG's post here E-books to Libraries without DRM. Where Springer gets the spirit of libraries and lending, Oxford clearly does not. They have plenty of authors writing on the subject of copyright - including the fabulous William Patry - but they don't seem to consult their own publications!
Perhaps Oxford is conspiring the the ABA Standards Review Committee and trying to limit rights in the name of big business. Or maybe I am paranoid. Maybe both OUP and the ABA don't get it. (VS)
Hi Anon - I'm not really complaining or even confused about what I can do with materials covered under my CCC license. I know it does not cover our interlibrary loan procedures. I am just confused about OUPs choice of language for their terms limits. If the license has nothing to do with interlibrary loans, then what is it doing in my terms limits for course packs? Its sort of bizarre - and seems to be unique among publishers. But hey - thanks for the lesson on fair use and all that...
Posted by: Vicki | Nov 7, 2010 7:42:04 PM
With all due respect, you are a bit confused about copyright law and licensing. The first sale doctrine applies to the purchase of an individual copy of a copyrighted item. Once you have purchased that individual copy, the specific physical (or digital, sometimes) copy is yours, and you can dispose of it as you please, including lending, selling, or giving it to another. The first sale doctrine has no application at all to making or using copies of that individual item, which must be justified under other provisions of copyright law--generally, either through fair use or with the agreement of the copyright holder (licensing).
The copyright license you purchase from CCC is one means of acquiring rights to something beyond what is allowed by first sale, fair use, and other default provisions of copyright law. Here, the license allows, among other things, use of copies of an item in coursepacks. But, it doesn't limit or affect other rights you are legally granted through your acquisition of a lawful copy of the item in the first place. However, OUP is also carefully asserting that it is not expanding those rights in every direction, just to coursepacks. Notice that the language you quote above does not *prohibit* ILL at all, it just "does not authorize" ILL itself. If you do have the right to distribute via ILL, it's through another source than the license--in other words, through first sale or fair use.
So, where's the problem?
Posted by: Anon | Nov 7, 2010 12:59:10 PM
I'll pass this post along to my friends at OUP.
Posted by: William Patry | Nov 6, 2010 4:49:34 AM
I wonder how Quinto and Singer feel knowing that a potential adopter is hindered from using their work because their publisher chooses not to make their prices and licensing terms palatable to librarians, a major buyer for academic textbooks. Perhaps they did not know how OUP would sell their book when they wrote it.
Posted by: Ben Keele | Nov 5, 2010 10:04:07 AM