The Cost of a Quality Education

Book bills that regularly exceed $300 have become as beloved a Harvard tradition as the Quantitive Reasoning Requirement. But some Harvard administrators and publishing experts are already hinting that next fall's book bills will lighten even the heaviest wallets.

The reason? In March 1991, a federal court ruled that copying giant Kinko's Graphics Corp. had violated copyright statutes, touching off a movement by publishers to force copiers and colleges to seek permission before they copy any materials for courses.

Now, with publishers stepping up compliance measures and copy shops nervous about touching anthologies of any kind, industry experts and Harvard administrators involved in sourcebook production say methods of producing course materials may change.

First, copiers have left college professors and their assistants with the responsibility of securing written permission from the publisher of every article they use in sourcebooks.

Second, buying books could become more of a trial for students. Some administrators say that, in a variety of ways, changes in the publishing industry could lead to more expensive sourcebooks, higher total book bills and less comprehensive course readings.

While Harvard's record of compliance with copyright law is good, that record does not shield the University from the costly and time-consuming process. Harvard administrators now say that the added costs of obtaining permissions, along with a corresponding rise in the royalty fees publishers collect from such permissions, may force them to raise the price of many sourcebooks.

"There are more publishers now--especially in England and small university presses--that insist that we go through the Copyright Clearance Center, which adds another fee," says William G. Witt, copyright officer at Harvard's Sourcebook Publications office. Copyright Clearance Center is a Salem, Mass.-based, not-for-profit corporation that processes copyright permissions request for the academic community.

Beyond the increased administrative costs, Witt says he has seen steep increases in royalty fees.

"In general, I would say [royalty] fees have increased 25 to 50 percent, in some cases as much as 100 percent," Witt says.

Despite the added costs, administrators say they are doing what they can to prevent the price of sourcebooks from escalating. But some are having difficulty keeping prices low.

"This year's sourcebook went up pretty substantially, from [about] $50 to $63," says John Owen, head section leader for Historical Study A-12, "International Conflicts in the Modern World." "I'm not an expert, but I think the changes in the syllabus and the permissions was responsible for that."

While the Kinko's case has sparked many of the most significant changes in copyright permissions, the movement for greater compliance is nothing new for publishers. After the Congress revamped copyright law in 1976, publishers--who do business in a high-risk, low-return $50 million industry--began trying to make copying companies comply with their interpretation of the new statutes.

Before the March 1991 ruling, college professors nationwide used different methods of compiling sourcebooks. Faced with vague copyright laws, some professors, particularly those in large departments and universities like Harvard, meticulously filled out "permissions," or requests sent to copyright holders asking for permission to use their materials.

Many professors, however, bypassed copyright holders, simply taking the articles they wanted in their sourcebooks directly to local copiers and printers. Many professors and copying firms say they believed this practice was protected under Section 1.07 of the 1976 Copyright Act, also known as the "fair use" provision.

The law reads: "The fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright."

But the Kinko's case, in which eight members of the Association of American Publishers (AAP) won $1.8 million in damages and legal fees, hinged on two exceptions contained within the "fair use" provision. According to the law, fair use does not apply to copies made in "a commercial nature," and the effect of the use upon the potential market for the copy righted work is grounds for determining what is fair use.

The court cited both exceptions in making its ruling, saying that copy stores could not make copies without first obtaining permission from the copyright holder. The decision sent shockwaves through the copying industry, as many copy companies scrambled to comply, contracting with copyright clearinghouses in some cases and placing the responsibility for obtaining the permissions on professors in most others.

"One of the outcomes of the Kinko's suit was a greater compliance throughout the industry," says Judith Platt, spokesperson for the AAP, which provided both the organization and the lawyers for the suit.

Following the decision, Kinko's agreed not to appeal the case in exchange for a promise that AAP would not further sue the company for additional copyright infringements.

Immediately hailed by publishers as a breakthrough, the agreement irked some small copiers, who labeled it a "corrupt bargain" and openly questioned the AAP's tactics.

One small copier, James M. Smith, made his challenge brazen and, for the publishers, frighteningly public. Shortly after the agreement was initially made, Smith, the owner of Michigan Document Services, went public with his opposition to the AAP, charging that the publishers had used their legal leverage to create a lengthy, overly-expensive process for obtaining copyright permissions.

That process, he says, unfairly discriminates against small copiers and terrorizes the academic community.

"We've already lost one place [copy store] in Ann Arbor," says Smith. "We have situations when professors want to use their own books in their own class and can't. It's an avaricious monopolistic system that affects students and scholars."

With Smith making noise, Platt says AAP decided to begin the second phase of their copyright enforcement campaign: bringing smaller copiers into compliance. Picking a starting target was easy--the organization filed suit against Michigan Document Services February 27 on behalf of three of its members. And Smith says he is itching for a fight.

"This is a calculated infringement suit against us," says Smith. "I know it...and I refuse to be intimidated."

Smith attracted the publishers' attention not only with his outspoken style but with his open solicitation of business from college professors in Michigan. The entrepreneur even advertised his own system for making restitution to publishers: Smith charges customers one cent per page for royalties and planned to send them an annual check.

But Ronald S. Rauchberg, lawyer for AAP and the three plaintiffs, Princeton University Press, St. Martin's Press, and the Macmillan Publishing Company's Free Press division, says his organization is not trying to pick on the little guy.

"This guy [Smith] has a kind of genius for publicity," says Rauchberg. "But in effect, he was writing to professors and saying you can do it by the book ... or you can do business with me."

Rauchberg, however, says that such an arrangement is unacceptable.

"He was so brazen about promoting his business as illegal [that] if we had left him alone," Rauchberg says. "I have no doubt that in every other university community there would be this problem.

Publishers concede that sourcebook costs have gone up, but only because so many copiers and universities were not in compliance before. Publishing companies deny that there has been any increase in the royalty fees themselves.

"There may be an increased labor cost," says Platt.

But she adds, "These requests have always been folded in. If prices have gone up dramatically, it's only because they were underpriced to begin with."

Although Harvard as a whole has a good record of complying with copyright laws in the past, The level of compliance among Harvard departments is more difficult to determine.

A December 1986 report written by Harvard attorney Allan A. Ryan urged professors to obtain permissions for everything they copy for a course--the same position that the AAP currently promotes.

Many of Harvard's larger departments and some graduate schools moved quickly to bring themselves into line with the report. For Core courses, an office to produce sourcebooks and comply with copyright laws was established one year earlier. And the Department of Economics, for example, has two people working on the production of sourcebooks.

"We're very careful," says Douglas W. Elmendorf, assistant professor of economics and head section leader for the biggest course in the College, Social Analysis 10, "Principles of Economics." "There are people who don't go to this much trouble."

But some industry experts and Harvard administrators worry that publishers, many of whom have seen permission requests double in the past year, are thinking too much about money and not enough about the academic community.

Companies, concerned about protecting their profit ledgers and keeping royalty fees rolling in, may be charging prices professors cannot pay or, in some cases, refusing to grant permissions all together.

"[The push for] compliance could restrict the kind of material that is available and the manner of availability," says Jeff Hazlett, a Congressional lobbyist for the quick printing industry.

Some Harvard professors and section leaders say publishers on average have denied access to about 10 percent of the material requested. In Foreign Cultures 14, "Society and Politics in India," 10 of the 30 pieces planned for the sourcebook could not be used, according to teaching fellow Rina Verma.

While professors say the denials of their permission requests constitute a nuisance, there are almost always alternative texts that can be used.

"I'd like to have my first choice on all the articles we assign," says Dillon Professor of International Affairs Joseph S. Nye, who taught Historical Study A-12 in the fall. "But I don't think it had any distorting effect on the course."

Publishers, however, say that access is not a God-given right. "The entire industry benefits from this," says Platt. "The whole publishing process is based on the idea of intellectual property. The creator needs an incentive for that creation."

But Harvard administrators and professors say that students will bear the burden of increased copyright enforcement.

"Publishers are becoming stingier. Some publishers are now exercising a 10 percent rule, which is if you want to use more than 10 percent of the book, you have to have the students buy the book," Owen says.

"So, as a result, there was at least one reading where I had to excise a few pages from the middle of a chapter to get us under the 10 percent limit. It was silly, but we had to do it," he says.

With the upcoming Smith case, industry experts differ over what the ultimate legal result will be. Smith was slapped with an injunction by a federal judge in Michigan last week and was forbidden to copy any works published by the three publishers who are suing him.

Even if the case is resolved in favor of Smith, publishers still control the sourcebook industry.

"The fact is the publishers own it," says Hazlett. "The needs of the students monetarily might be outweighed by the rights of the copyright holder."