The specific charges and legal merits of the test case brought by nine major publishers against New York University on grounds of copyright infringement are the business of the courts, not columnists, and there will be no discussion of them here. But the suit also raises, or highlights, larger issues of professional ethics and what must be described as, for want of a less portentous term, moral responsibility.
Those issues were succinctly addressed by Carol Risher, director of the copyright division of the Association of American Publishers, who remarked when the suit was filed last week that "universities must recognize that they have a responsibility for what their employes and faculty members do, and faculty members must recognize their own individual responsibility." This, of course, is true of any institution and those who work for it; an insurance company must bear corporate responsibility for the professional actions of its agents, and those agents similarly must live up to their professional obligations as individuals.
But when the question is applied to higher education (or, for that matter, education at any level), it assumes different dimensions. Colleges and universities are not businesses or industries. They are charged with the preservation and promulgation of ideas and knowledge, a responsibility that cannot be satisfactorily discharged without the use of published material--which makes them automatically a primary "market" for the authors and distributors of such material. What is especially galling to many observers--many of them, it should be emphasized, themselves academicians--is that the copyright controversy reveals that some institutions of higher education are openly countenancing efforts by their faculty and students to evade the responsibility of paying for the privilege of using these published materials.
This widespread practice undermines the integrity of the academic community. Often out of the very best of motives--chiefly, no doubt, that of making information available to students speedily and at the lowest possible cost--teachers and the institutions that employ them engage in large-scale, unauthorized photocopying of material that is not in the public domain. Almost certainly, more often than not this is done in innocence; few people, when they go to a photocopying machine, trouble to reflect on the legal or ethical questions raised when material owned by others is copied -- it would occur to few people, in fact, even to think of the process in those terms. But each time this happens, a potential customer for a book, periodical or scholarly journal is eliminated. The author is paid no royalties and the publisher receives no copyright fees.
Still, some who abuse the copying privilege are more innocent than others; there's sometimes a most unpleasant element of hypocrisy. Within the academic community it has long been standard practice for teachers who are authors and/or editors of textbooks to require the use of those books in their courses; if they are especially eminent professors, they may have sufficient standing to require the use of their texts not merely in their own courses but throughout entire departments. Textbook publishing is big business --much bigger than trade publishing --and the rewards to the authors can be generous indeed. Yet the interest these individuals take in the protection of their own work is not always extended to the work of others; a publishing executive makes note of those professors "who will defend their right to royalties from their own ideas, but when they are stealing from someone else, they have no respect."
The operative word of course is "stealing," just as it is in the similar controversies over audio and video taping. And just as in those controversies, there seems no practical way to reconcile all the conflicting "rights," whether real or imagined, that are clashing so noisily against each other. Copying machines won't be wished or adjudicated away any more than will be tape recorders. So the fundamental question in all of these debates is how to live with the reality of technological advances without infringing on the clear right of writers and artists to a return on the use by others of the fruits of their labors.
A reasonable gesture in this direction on the part of the academic community seems to be the fundamental goal of the suit against NYU, a copying outfit and several teachers. The publishing industry has been trying for some time, as have various authors' organizations, to persuade higher education to comply voluntarily with the photocopying provisions of the Copyright Act of 1976; its hope has been to eliminate what is described by Townsend Hoopes, president of the AAP, as "the indiscriminate and widespread copying of a range of copyrighted materials by the academic community, under circumstances going far beyond any uses permitted by the copyright law." That hope has not, to put it charitably, been realized; too many universities and professors seem unwilling to give up the freebies that the photocopiers make available to them. Again to quote Hoopes: ". . . publishers have sought to make colleges and universities aware of the unacceptability and illegality of these practices, but, in the absence of general observance, had been forced to court action."
What's truly frustrating about the obduracy of these elements of the academic community is that it is not necessary. The publishers are not utter fools. They realize that absolute enforcement of a law that is widely thought to be vague is beyond any reasonable hope. They are willing to compromise. They "recognize academic copying within reasonable, lawful limits." What they really want from the universities is good faith -- an acknowledgment, if you will, that the guardians of knowledge are as bound to live by the law as any others who enjoy the freedoms and protections it affords.
There's good reason to believe that most publishers would be quite satisfied should colleges and universities generally adopt practices comparable to those of Johns Hopkins University, the legal office of which regularly sends out explicit reminders to faculty and staff of the photocopying provisions of the Copyright Act and urges that they and their students comply with them -- a practice that, in the words of a ranking administrator at another institution, "probably is the high-water mark of compliance among universities around the country." More specific procedures that attempt to reconcile the conflicting interests of the copiers and the copied are available through the Copyright Clearance Center, including one-time payment of photocopying royalty fees; recent settlements of copying disputes between the AAP on one side and E.R. Squibb and American Cyanimid on the other could point the administrators of higher education toward an amicable settlement with the publishers.
In the end, though, this is the point: How can the community of higher education maintain the respect of the public--not to mention its self-respect -- when it condones theft by its own faculty and students? For theft is what happens every time a copyrighted piece of writing is reproduced and distributed without payment to its author and publisher. That a small number of universities are attempting to address this problem -- and it is, like it or not, a moral problem--is insufficient compensation for the greater number that are circumventing or ignoring it, or deliberately violating the law. And then there is this: If the universities can't be trusted to safeguard the writers' rights, who on earth can?