Copyright Hall of Janus? : Harvard University’s Two-Faced Approach to Copyright

Harvard University recently has taken two very divergent approaches to copyright. I commend Harvard on the one hand for their open access policy, and on the other hand, I am shocked by a complete disregard for generally socially accepted standards of fair use.

Last year, Harvard University’s Faculty of Arts and Sciences, Law School, and Kennedy School of Government created Open Access policies, including

a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.

Peter Suber of Open Access News lauds this step, saying that

Harvard will be the first university in the US to adopt an OA mandate. … [It is a] permission mandate rather than a deposit mandate. Instead of requiring faculty to deposit their postprints in the IR, it merely requires them to give the university permission (non-exclusive permission) to host the postprints in the [institutional repository].

As long as the university is willing to pay people, usually librarians, to make the actual deposits, it could be a faster and more frictionless way to move the deposit rate toward 100%.

Moving towards an open access approach to scholarship fits within Harvard’s approach to ownership and copyright. The Harvard University Intellectual Property Policy states, in part, that

the policy should encourage the viewpoint that ideas or creative works produced at the University should be used in ways that are meaningful in the public interest. This may be accomplished through widespread dissemination. Thus, dissemination and use of ideas and creativity should be encouraged throughout the Harvard community.

…It is expected that when entering into agreements for the publication and distribution of copyrighted materials, Authors will make arrangements that best serve the public interest.

So…

The Harvard Business Review is published by Harvard Business School publishing, a wholly owned subsidiary of Harvard University and states that anything on their website cannot be copied without permission (yet does not give an option for seeking permission to quote from the website in their extensive permissions page; I am relying on fair use).

The Harvard Business Review also takes an extreme stand on course reserves, including dismissing links as a reasonable means to access licensed content:

Except for [additional fee or direct access via the website] options, we prohibit the posting of cases, articles, or chapters on “e-reserve” course pages for student access, as well as in “electronic coursepacks” that link to our digitized content and content postings on course management systems such as WebCT or Blackboard. Such unauthorized postings are equivalent to distributing our copyrighted content to students without permission, which infringes that copyright. This is so even if the content is being used for the first time and is password-protected, accessible only to students in the course, and taken down at the end of the course.

While this has been Harvard Business Review’s policy for a while, the librarian community was reminded of the practical difficulty of working within this policy, based on the EBSCO database forbidding deep linking directly to specific articles.

So what? So deep linking isn’t allowed, you say. Big deal. What about license terms that limit how citations to materials can appear in a syllabus! The notification on Harvard Business Review publications in EBSCO is

Harvard Business Review Notice of Use Restrictions, May 2009 Harvard Business Review and Harvard Business Publishing Newsletter content on EBSCOhost is licensed for the private individual use of authorized EBSCOhost users. It is not intended for use as assigned course material in academic institutions nor as corporate learning or training materials in businesses. Academic licensees may not use this content in electronic reserves, electronic course packs, persistent linking from syllabi or by any other means of incorporating the content into course resources. Business licensees may not host this content on learning management systems or use persistent linking or other means to incorporate the content into learning management systems. Harvard Business Publishing will be pleased to grant permission to make this content available through such means. For rates and permission, contact permissions@harvardbusiness.org.

So riddle me this, Harvard Business Review — if my library has a print subscription and access via EBSCO, does that mean that professors still cannot place mentions of the material on their sylabus? You can’t prevent fair use once you sell — rather than license — your journal!

I (personally) urge those who can to use replacement sources for the Harvard Business Review, especially in non-business-related libraries and classes. And EBSCO — if users are not going to have actual access to Harvard Business Review, just don’t provide it!

Full disclosure: I am a former employee of Harvard University.

Crossposted at the Copyright Advisory Network blog

Comments

  1. Thanks, Barbara Fister, for citing to this post in Library Journal!

    And for quoting my earlier post on the Librarylaw blog!

  2. Well. So much for that blog post I was thinking of writing based on an HBR article.

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