a license, the law, and Harvard Business Review

Over the past two weeks Professor Joshua Gans (the Skoll Chair in Innovation and Entrepreneurship at the Rotman School of Management, University of Toronto) has drawn attention to the licensing practices of Harvard Business School Publishing (HBSP). Their flagship publication, Harvard Business Review (HBR), carries restrictions, not merely by institutional subscription-access but also by usage. On 6 October 2013, in a blog post for Digitopoly, Gans wrote that added charges are incurred (on a per student basis) when HBR is used for teaching purposes. As to what teaching purposes mean, Gans amplifies:

… a teaching purpose arises when we require a student to read an article, we suggest a student reads an article or we describe a means by which students may come by an article.

Gans further noted that HBSP has offered a bundled “all you can eat” contract which “covers all HBSP materials including cases, HBR articles and perhaps ‘other stuff”, thereby eliminating the need for either HBSP to scrutinize reading lists or for faculty members to concern themselves with evaluating costs. Gans questioned the artificial division between research, teaching and learning, and offered a bold idea – that the Financial Times should exclude HBR from designation as a research publication when preparing the annual rankings of business schools:

If HBR is considered a teaching material and not an academic or practitioner journal freely available for use by students — directed or otherwise — in the ordinary course of teaching, how could it be that HBS should get credit for providing that material as part of a research mission?

The Financial Times invited Gans to elaborate further on this topic; in the issue dated to 16 October 2013. Gans again voiced his concern:

[Even though] institutions’ libraries had a subscription to HBR that allowed students and teaching faculty to access them, these articles were “not intended for use as assigned course material in academic institutions”. This does not only apply to articles copied into course packs as required readings. It applies to everything else, including links from class web pages or even mere suggestions given to students to deepen their understanding of certain areas. HBSP would now only permit institutions to do any of those common activities if they paid a fee for each article and for each student enrolled in the course (whether the student accessed the article or not).

Accompanying the Financial Times article, in a Digitopoly blog entry posted on the same day, Gans emphasized that what troubled him the most is the notion of taxing “deep linking” which he defines as: “the direction of students via links on a web page, suggested readings in a course syllabus or the mention of HBR articles in class.” Gans also pointed out what most rational people would consider reasonable: “[schools] could avoid the cost of course packs by directing students to library holdings for which HBSP have already been paid institutional subscription fees.”

Regrettably, HBSP has little disincentive in this matter as long as educational institutions are willing to cooperate with such licensing terms. But Gans brings focus upon the elasticity of scholarly endeavor — the elements that are noncontractual but maintain the broader goal of scholarship — perhaps his concerns will be echoed by other faculty and the administration? In the meantime, it is important that students, teachers, researchers and administrators understand that the terms asked for by HBSP exceed the rights they hold under copyright law:

1. When a teacher asks a student to read an article and relies upon source material legitimately purchased by the institution, this has a strong claim to fair dealing. Last year the Supreme Court expressly dealt with this issue in the context of K-12 teachers making reproductions of supplemental, required readings (see discussion of Access v. Education (2012), here). Moreover, the Court also took pains to remind us that libraries are indeed places where students are allowed to borrow required readings (see here).
2. The act of recommending a reading is not an enumerated right under Section 3. 1 (scope of rights) of the Copyright Act.
3. Since its conception as law (approximately three hundred years ago), copyright has been rooted in the act of copying. Posting  a link to material is not an act of reproduction (and thus is not infringement). The Supreme Court made this point forcefully two years ago in a case concerning defamation (see discussion of Crookes v. Newton (2011) here).

Following Gans’ article, the Financial Times published a response from HBSP on 17 October 2013; Das Narayandas (Senior Associate Dean and Chair for Harvard Business Publishing) offered this:

In the classroom, the use of HBR articles [and others] is decades-old, as are the norms around charging for such content when it is used for teaching rather than research purposes.

We discovered, though, that some institutions were using Ebsco access as a substitute for paying the normal course material fees. This summer, therefore, we designated 500 of the more than 13,000 HBR articles available in Ebsco – those most widely used in other schools’ curricula – as read-only and removed persistent linking to them. At the same time, we contacted schools and libraries to discuss institutional volume discounts. Any associated licence fees are not incremental or new; they simply shift the payment for these articles from the school to the library.

These articles remain available for researchers and research use – we simply limited the means by which they can be assigned and distributed as course materials. And, contrary to Prof Gans’ assertion, students can continue to gain access via libraries and other research portals to HBR articles faculty members would like to recommend.

It is a relief that access is still available to students. Nevertheless, Narayandas’ remarks need unpacking. That such materials are used in a classroom is “decades old” is true. However, his language of “the norms around charging for such content” insinuates that we have a tradition of a pay-per-view model of reading with respect to educational materials. This is not true. In the days before digital, when the bricks-and-mortar library was all we had, it was not the custom to charge additional fees as students arrived at the library to read journals recommended by their professors. Legitimately acquired material in a library is free to be read by all library patrons. With consideration of electronic distribution, last summer the Supreme Court stepped in to make it abundantly clear that technological advancement is not a reason to wrest further payment for works already paid for (see discussion of Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada (2012), here.)

Moreover, business models that draw artificial distinctions within the uses a patron may make of library materials are attempting to exclude fair dealing (or fair use in the United States). Our Supreme Court Justices have repeatedly held that fair dealing, a provision granted by law for unauthorized reproduction of copyrighted materials for the purposes of research, private study, etc.*, is always available for consideration. Fair dealing does not occur by name only; it is a matter of context and the copying must meet a comprehensive test of fairness. But, again, when the institution has already paid for access to the materials on an institution-wide license, fairness tilts towards the institution in matters of research, teaching, and learning.

*The latest amendment to the Copyright Act added “education” to that list. But it is important to remember that the sustaining decisions of fair dealing — as it supports research, teaching and learning — were established even without recourse to “education.” In particular, in Access v. Education (2012), Madame Abella pointed out that private study does not mean to study in isolation, but rather a personal endeavor.