The problem with permission

Because Duke has begun teaching Massively Open Online Courses (MOOCs), my office has gotten much more involved, over the past year, in the process of seeking permission to use copyrighted content.  We began a new service to help MOOC instructors make careful fair use decisions, find freely-licensed content for their courses, and get permission for materials where we deem it necessary.  The story of the first year of that service is told in this article that has just been published by D-Lib Magazine, written by Lauren Fowler, our first permissions intern, and me.

From the perspective of one asking a rights holder for permission to use some content, the process has a lot of frustration, some of which we detail in the article.  The most common frustration, as many people have discovered, is that so many rights holders simply do not respond.  They are not obligated to, of course, but even a simple “NO” would save lots of wasted effort and time on both sides of the exchange.  Yet a significant number of rights holders do not even send that; in our article we note that 23.5% of our requests garnered no reply at all, even after several contacts.

Sometimes, however, it is even more frustrating to receive a reply, because those answers often confirm that we are not dealing with a well-managed or carefully-administered process.  Frequently when we do get a response, what we hear back clearly indicates that the staff member who contacts us is unaware of what we have actually asked.  We have a carefully written request letter that is very clear about exactly the use we intend to make of the work if permission is granted, yet over and over the rights holder’s staff replies with inapposite questions or, amusingly, a grant of permission to do something else entirely.

One example can illustrate this humorous frustration.  Shortly before she left to take up a full-time library job, Ms. Fowler sent a letter to a major motion picture studio because one of our instructors wanted to use an illustration from a movie in a way that was probably fair use but for which we decided to ask permission, since it is a well-known picture and MOOCs are receiving so much attention and such large participation.  We got back a very nice message from a permissions rep saying that “the attached letter should cover your use.”  Unfortunately, the attached letter was a painstaking, though inaccurate, description of the exception for the public display of a copyrighted work in the course of face-to-face teaching.  I reviewed our multiple requests, and it seemed impossible not to understand that we were asking about an online use.  Yet we were told that a letter about physical classroom use, for which permission is not even required, would serve our purpose.  This left us at loss about how to proceed; we didn’t really have the needed permission, but it seemed like the rep was trying to grant it.  Maybe she just attached the wrong form letter.  So what do we do, as the time to make decisions about course content grows short?

It is certainly possible to conclude from the experiences we have had, which many others have also reported — see Susan Bielstein’s wonderful book on “Permissions, A Survival Guide” — that large rights holders simply are not interested in giving permission, or even in asking for permission fees.  The experience seems to confirm what the judge in the Georgia State case held in her ruling, that permission income is simply not that vital for most rights holders, so they invest very little time and energy into processing permission requests.

But recently I have dealt with two requests from the other side — requests directed at Duke from two large textbook publishers for permission for them to use content putatively owned by us in books they were publishing.  Astonishingly, the same laissez faire attitude seems to prevail when the big content company is doing the asking as it does when we are seeking permission from them.

In the first instance, a big textbook publishers sent an e-mail asking for permission to reuse an image, and a high-res scan of the image, to the Coordinator of Academic Support in our Office of Information Technology.  That person was clearly mystified — she is not engaged in IP issues or rights in any way — so she got in touch with me.  I could see very clearly that the image in question had been published by the Duke University Press, so we were able to redirect the request.  But we had to do the research (which was easy) because the company did not bother.

When this request finally reached the correct folks at Duke Press, they were shocked at the shoddy effort that the textbook publisher had made.  Even with more limited resources, I know from experience that DUP does much better work.  But the folks at the Press were inclined to see this as isolated incompetence on the part of a company with, it seems, a less than stellar reputation.  Unfortunately, the very next day I received confirmation that the problem is not isolated at all.

Yesterday I received a similar request from a different major textbook publisher.  It was directed to me, which is perhaps a little more sensible than selecting a random person from IT; I get these types of requests quite often, and routinely try to direct them to the right office.  But this one was especially difficult, because it just attached a scan of a page from a published work, and asked for permission to use “the attached.”  The request gave us no idea of where the page had been originally published, what part of that page was the focus of the request, or why the request had been sent to Duke in the first place.  An email to the publisher rep who sent the initial message told us that they were seeking permission to use only a single sentence quotation from the page, which is absurd.  And the request apparently came to us because of a connection between the publication and one of our collection centers.  So I forwarded it to the collection curator, but shook my head as I did so at the bumbling way these and so many other requests from permission come to us from those who yell loudest about the need to base our copyright system on permission.

It is hard not to conclude from these and similar experiences that the publishers sending the requests are not really interested in contacting the correct rights holder or in defining an appropriate scope for a license  They appear to simply be trying to collect paper — any message or letter that says the use is OK is sufficient to be filed away and forgotten.  From the other side, when we make a request for permission the same attitude prevails.  Little effort is made to accurately understand the request or craft an effective license.

Permission from a rights holder can solve many problems; it is an important part of a complete IP rights strategy in the digital environment.  But it is not a process for the faint of heart, nor a solution to be suggested lightly.  Even large professional publishers seem to find it overwhelming or, perhaps, not worth the investment of staff time and effort.  So when, in debates or litigation over copyright issues, rights holders groups assert that permission is the best solution and copyright exceptions should give way to a licensing process, we need to counter those claims by telling these sorts of stories.  Many of us can recount similar instances, and also catalog teaching opportunities that have been lost because permission was simply not available.  Judges and legislators need to know about these problems with permission, because they reenforce the wisdom — the necessity — of building exceptions into copyright and not relying on the whims and dubious competencies of rights holders to manage a permissions-based culture.