Links to published materials are integral to the library’s mission, says Chris Flegg
Since mid 2008, a simmering battle has been taking place between Harvard Business Publishing (HBP) on the one hand, and a small number of academic libraries on the other. At issue is whether or not HBP is entitled to charge libraries for using the deep-links provided in EBSCOhost databases to point students to the full text of Harvard Business Review content.
Apart from some blogs, some disjointed tweets and some sporadic communication between interested parties, the battle has played out on the periphery of mainstream library debate, largely because HBP kicked all this off by targeting just 30 academic libraries. Each was invited to pay an additional amount of between US$3,500 and US$80,000 to retain the privilege of continued use of the EBSCO deep-links to HBP content.
According to EBSCO, the criteria used to select the 30 sites were: high volume usage of articles older than 12 months, “persistent linking activity,” and “anecdotal evidence collected primarily through conversations with a university’s faculty and academic staff.”
Some of the 30 libraries identified paid (approximately 40 percent, according to HBP), and those that didn’t had those deep-links disabled. The bewilderment, frustration and anger within the group of 30 has grown, but little cohesive action by the information fraternity has been initiated.
For decades, HBP has enjoyed a lucrative business selling articles to educational institutions, most notably Harvard Reprints, for inclusion in course related reading packs. More recently, HBP has experienced a loss of this revenue, which they claim has occurred because of the deep-links in aggregated databases.. As Sam Hainer, assistant director of business development for HBP explained:
Over the last several years, as universities have begun using platforms like Blackboard to deliver material electronically to students, we have seen universities shift away from purchasing reprints to providing links to the articles in EBSCOhost.…
Use of HBP content on EBSCOhost as a substitute for the purchase of HBP content in courses adversely affects HBP’s ability to continue to support academic research at HBS and is the reason that we established the policy above and launched the course use program.
This revenue raising move—euphemistically called a “pilot”—appears to have come to a halt. As Hainer put it, HBP “continue[s] to be approached by schools interested in the program,” though it’s unclear which schools those might be. What must be clear to both Harvard Business Publishing and EBSCO, as it is to those libraries that have been directly or indirectly involved in this development, is that the appropriation of deep-linking technology for revenue raising is highly contentious and its significance to the profession difficult to underestimate.
Quite simply, deep-links are as water is to the world’s oceans. They are the very means by which the web is just that, a traversable and navigable web. The proposition that a publisher may singly decide to ascribe a financial entitlement to the use of deep-linking technology cannot be written into the negotiation lexicon as “issue neutral”: web-enthusiasts, librarians, educators, administrators, and users world-wide should face this proposition head on and give it the thorough debate and challenge it demands.
Like all users of the web, librarians have been adept at realizing the benefits of deep-linking as a means of taking users seamlessly to external sites. By leaping on the deep-links in aggregated databases to secure more money, HBP are calling up several nightmare scenarios, not least of which is the disturbing possibility that other publishers, with content in aggregated databases, will want payment for the use of deep-links as well.
Most libraries would consider deep linking to be covered by fair use, and would not generally consider it to constitute the making, transmitting or uploading of a copy. As a result, most librarians would regard the problematic issue of copyright as having been neatly circumvented: a case of using technology to do what good technology does best—affording cost-efficiencies and improved access for users while honoring stringent legal and contractual obligations.
HBP offers two arguments: that it has a unique right because they have had a “pre-existing business” with a long history of selling HBR reprints in the higher education market, and that personal use does not cover classroom situations:
Our agreement with EBSCO explicitly prohibits this practice-the license allows universities to provide access to HBR material for individual research use only. We recently clarified the language in our policy (included at the end of every HBR article in EBSCOhost) to state unequivocally that “Harvard Business Review and Harvard Business School Publishing content on EBSCOhost is licensed for the individual use of authorized EBSCOhost patrons at this institution and is not intended for use as assigned course material. This content may not be used in electronic reserves, electronic course packs, persistent linking from syllabi or any other means of incorporating the content into course resources.”
EBSCO, for its part, is caught between unhappy library customers on the one hand and the requirements made by HBP on the other. According to EBSCO,
Publishers, as the copyright holders of their content, have the right to impose their own conditions of use applicable to their content. While EBSCO does not encourage publishers to impose conditions on usage of their content, it is obligated to enforce any conditions imposed by publishers.
The license regarding HBR content in EBSCOhost databases has been in existence for many years. Institutions using HBR content for individual search and retrieval purposes will continue to have access to HBR. Institutions seeking additional access for assigned course material are able to work with EBSCO and HBP to arrange for access.
The danger here is that these arguments distract from the core reason that propelled this “pilot” in the first place: that at the end of the day, HBP just wants to be paid more for use of their content in educational institutions and some mechanism is needed to make that happen. That the use of deep-links suffers in the process is merely collateral damage to be mopped up after the event.
Fair use by academic libraries is still being sorted out. In a situation that confronts many similar concepts, a suit in the United States is being brought against officials at Georgia State University (GSU). In that ongoing case, SAGE Publications, Cambridge University Press and Oxford University Press have charged GSU with “pervasive, flagrant, and ongoing unauthorized distribution of copyrighted materials” after scanning works and making them available via its “electronic course reserves service, its Blackboard/WebCT Vista electronic course management system, and its departmental web pages and hyperlinked online syllabi available on websites and computer servers controlled by GSU.”
So where to next?
At Oxford, we refused to pay the additional fee, and the deep-links to HBR in our EBSCOhost subscription were removed. The sky has not fallen on our heads, and educators can—and probably will—still make reference to HBP content on reading lists and in classes: a practice for which HBP is not recouping any more additional revenue.
So who has won or lost?
Clearly there is the nuisance factor for administrators and users who viewed quick-links as a way of life, but the biggest single danger is the possibility that librarians will acquiesce, pay the fee, and set a precedent to payment for deep-linking, over and above the cost of the subscriptions for which access to the content has already been negotiated and paid. The question then is: how far are we willing to be pushed to appease a single publisher’s perceived right to profit?
Author Chris Flegg is the Bodleian Business Librarian at the Saïd Business School, University of Oxford.