Proof Positive that Academic Publishing is Broken

This piece is from an article in the Chronicle of High Education and paints a grim picture of an alternative future without open access and common sense. Even the title gives me the shivers:

Elsevier Agrees to Let MIT Use Bits of Journal Articles Online

And what pray tell is "A Bit"? And will it become a new standard under which all copyright rules are written? I can see the new legislation now "Any individual may copy A Bit [as defined in the Definitions section] of any journal article, provided they are associated with an institution with a "Bit Use Agreement" with each publisher represented by the material being accessed. Creators of the published material are subject to the same "Bit Use" and may not distribute any part of the published item, ever." Ahhh...scientific progress in the post-DCMA world. Some extra bits from the article:

A major challenge for colleges that want to post lecture materials on the Web involves making sure they have permission to use the copyrighted images from journals and other sources that professors have put in their slides. Today the Massachusetts Institute of Technology announced that it has reached a deal with Elsevier, one of the largest journal publishers, to allow a limited amount of material from its journals to be used in MIT's OpenCourseWare project. The publisher hasn't exactly given away the store: The agreement allows the project to use up to three illustrations per journal article, and up to 100 words of text. But that will save the OpenCourseWare staff members hours and hours of time, and allow them to include some material they might not have bothered to ask about in the past, says Steve E. Carson, external-relations director for the project. "This is not only a cost saver for us, but it also expands the range of things that we can publish," he says. Publishing 400 courses online each year involves tracking down permissions for about 6,000 copyrighted items, Mr. Carson says. (The project has one full-time and one part-time employee devoted to doing just that.) What if you're not at MIT? Mark Seeley, vice president and general counsel at Elsevier, says the company has also agreed to a new policy on copyright, set up by the International Association of Scientific, Technical, & Medical Publishers, allowing any college to post small bits of journal material online. The policy doesn't allow quite as much as the deal with MIT does, however.

Why do I feel like we have just defined away our fair-dealing/fair use rights?

Comments

[Jonathan Rochkind]

Seriously, I would have thought 100 words of text in an online course would have been pretty clearly fair use anyway, no? Fair use, what fair use?

[Steve Carson]

Mark: Curtailment of fair use is a terribly important issue to us here at MIT OCW and throughout the open education community. Unfortunately, the Chronicle article missed an important point--that the agreement covers use of Elsevier materials *under our Creative Commons license.* We still reserve the right to use Elsevier materials with a fair use approach, but doing so would require our posting them as "All Rights Reserved" instead of under our open license that permits our users to redistribute and modify the materials. The distinction is important because even though use of materials on our site might be defensible under fair use, subsequent use by our site visitors may not. Our agreement puts the materials up under a license that supports open sharing of the content. We're continuing to explore appropriate options for us to employ fair use with Elsevier's and other publishers' materials to make OCW as rich a publication as possible.

Steve Carson
MIT OCW External Relations Director
scarson at mit dot edu

[mleggott]

Ahhhhh - that helps explain my confusion why MIT's OCW project would promote a license layer on top of fair use, thanks Steve.

While this makes sense from the MIT CC license/3rd party perspective my concern still remains re the fact that we have to develop these agreements in a copyright world where scholarly journals are confined behind publisher walls, thereby preventing the free and open exchange of ideas.