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RE: Future of the "subscription model?"

Hey Sandy, I, too, have concerns as you have expressed.  I do a 
great deal of speaking and teaching on this subject and would 
consider myself a fair use advocate.  Having said that, the 
notion that simply using something for ANY other purpose than the 
original and/or surrounding a completely copied work with other 
materials is not my understanding of "transformative".  I 
understand the desire and desperation some feel when thwarted in 
what they view as promoting social good and education but, in my 
view, such a practice, if widely adopted goes too far.  The fair 
use analysis would then just hinge on whether or not the work was 
"transformative" and we could skip the other factors.

I have similar view as to the Texaco case, where the reasoning 
seemed circular as well - in that situation, the court took into 
account market effect on licensing revenues in evaluating the 
fourth factor whereas I think you are doing the analysis to 
determine whether licensing fees are necessary in the first !
  place.  Both situations swallow the whole -

Peggy Hoon

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Sandy Thatcher
Sent: Tuesday, November 08, 2011 6:50 PM
To: liblicense-l@lists.yale.edu
Subject: Re: Future of the "subscription model?"

Does this mean libraries will push the envelope further on using 
"fair use" to justify more copying than in the past?  Jonathan 
Band, adviser to the ARL on legal issues, believes that 
"transformative use" can justify copying of ANYTHING except 
current textbooks, on the theory that everything else (journal 
articles, monographs, etc.) is written for a specific audience of 
peers and not intended for classroom use, thus "re-purposed" when 
copied for classroom use. See what he has to say on this subject 
in the briefing paper he provided to ARL in the HathiTrust suit. 
Band argues: "the scholarly works of nonfiction that . . . 
probably constitute the majority of the works within the Proposed 
Use, now serve a different purpose from when written.

For example, the author and publisher in the late 1920s of a 
then-comprehensive history on the decline of the Hapsburg Empire 
intended to educate contemporary audiences about that history. A 
scholar would now access that out-of-print book through the 
Proposed Use not for purposes of learning that history, but 
rather for historiographical purposes: to understand how scholars 
in the middle of the 20th century viewed the decline of the 
Hapsburg empire." That kind of reasoning could consign a vast 
number of scholarly works to the dustbin of historiography, 
whether orphaned or not. For example, in some fields where 
research advances rapidly, last year's scientific paper is 
already "old news." And who is to judge when a work crosses the 
threshold of current to only "historiographical" interest?  Do we 
really want courts determining what is timely, and what not, in 
scholarly research?

Sandy Thatcher

>> If publishers detect a pattern in which subscriptions are
>> cancelled and single-article sales are substituted for them,
>> then the price of single articles will rise.
>Well, exactly. I fully expect publishers to do whatever they can 
>to continue realizing constantly-increasing revenues from their 
>library customers. It's only reasonable that they should do so, 
>especially given that they've been able to secure increasing 
>revenues every year for the past few decades. The problem is 
>that they're going to fail, because throughout those past 
>decades, the curves of library budgets (which have tended to 
>increase annually at low-single-digit rates) and journal prices 
>(which have tended to increase at rates of 9-10% per year) have 
>been headed for an inevitable and permanent divergence. 
>Libraries have been warning publishers about this since as long 
>ago as the 1970s; the standard response has been "Yeah, you keep 
>saying there's a pricing crisis, but then you renew all your 
>subscriptions." Now the divergence has come. Most of us can no 
>longer redirect money from other budget areas to cover 
>extortionate subscription price increases, so now we're 
>cancelling, and some of us are doing so in great chunks. 
>Publishers (in the aggregate) aren't going to be able to 
>continue realizing annually-increasing revenues from libraries 
>anymore for the same reason that you can't realize blood from a 
>rock. Charging more for articles isn't going to help publishers 
>at all, because the money they want simply isn't there to be 
>Rick Anderson
>Assoc. Dean for Scholarly Resources & Collections
>J. Willard Marriott Library
>University of Utah