Yesterday, we received a very odd letter from Michelle Donelan MP, which left us all scratching our heads in bemusement. The letter can be read here

At a loss for words, for a change, the campaign team handed over the reigns to the esteemed Professor Oppenheim. Please find his analysis of the Minister’s letter below. We thank Professor Oppenheim for his contribution and echo his call for the minister to meet with us and other expert parties face-to-face so we can, once again, clarify the issues and explain her remit to assist.

THE MINISTER OF STATE FOR UNIVERSITIES’ LETTER REGARDING EBOOK PRICES TO ALEX CHALK MP DATED 18 MARCH 2021

Michele Donelan MP, the UK’s minister for higher education, has the following remiti:

  • · Strategy for post-16 education (jointly with Gillian Keegan)
  • Universities and higher education reform· Higher education student finance (including the Student Loans Company)
  • Widening participation in higher education
  • Quality of higher education and the Teaching Excellence Framework
  • International education strategy including education exports international students and technology in education
  • Opportunity Areas programme

It’s worth noting, from the point of view of this blogpost, that she has NO remit to promote or help the scholarly publishing industry – that remit belongs elsewhere.

Ms Donelan’s reply to Alex Chalk MPii was published on 18 March 2021iii and has already received numerous comments in social media. Mr Chalk’s original letter raised the problem of the excessive prices that libraries and other users are suffering to access ebooks when compared to the price for purchasing the equivalent hard copy book. These problems have been thoroughly aired, for example in a recent Zoom-based webinariv organised by University College London that was entitled “Ebooks: Scandal or Market Economics” and which attracted hundreds of delegates.

In this blogpost, I want to examine what Ms Donelan had to say about the issues raised. She starts by saying she was sincerely sorry for her delay in replying, but gives no explanation for that nearly four months’ delay. She then says that her Department is not responsible for pricing and licensing practices of independent academic publishing companies, or copyright law. This is disingenuous, because her remit DOES cover all of higher education, and clearly that is being impacted by the pricing approach adopted by many publishers of ebooks. She then acknowledged that the Department for Digital, Culture, Media and Sport (DCMS) is aware of the issues involved.

The next three paragraphs of her response emphasise how supportive HM Government has been for the publishing sector. Since she previously stressed that the publishing industry is not within her Department’s remit, why did she bang on about that? Then she says “We have also been advised by the Department for Business, Energy and Industrial Strategy (BEIS) that copyright is a private property right, so it is usually up to the right holder(s) to decide whether, or how, their works may be used by third parties.” [my emphasis – I will come back to that point later]. Well, it’s good to know she has been told what copyright is, although her knowledge is incomplete as she seems to be unaware that there are numerous exceptions to copyright in the law. She clearly needs some basic copyright training. I know of many individuals and organisations that would only be too happy to provide her with the necessary training so she understands these key features of copyright law. Plus, of course, there are some very good textbooks on the topic – maybe DCMS Library holds some, ideally in print form as I’d like reassurance that my taxpayer money isn’t being mis-spent on ebook versions of copyright law textbooks. But then she makes a truly amazing statement in regard the rights held by the copyright owner: “As such, this is a matter that falls outside the government’s control.”

Now I take it, the wording of the letter was provided by civil servants, and that Ms Donelan knows sweet FA about copyright law. All I can say is that either her civil servants are also totally ignorant about copyright law, or they aren’t, but deliberately misled Ms Donelan. This is because of s144 of the Copyright, Designs and Patents Act 1988. This section, which is entitled “Powers exercisable in consequence of report of Competition and Markets Authority”, and confirms the powers of the Secretary of State for BEIS to be able to cancel or modify conditions of licences in licences granted by the owner of copyright in a work restricting the use of the work by a licensee or a “refusal by a copyright owner to grant licences on reasonable terms”. So, that BEIS statement to Ms Donelan that it is usually up to the rights holder to decide on how their works may be used was correct, whilst her civil servants’ interpretation, that licence terms are none of government’s business, is unambiguously incorrect. Her misleading statement is all the more egregious because her civil servants could, and should have told her that a reference to the Competition and Markets Authority (CMA) has already been made regarding the cost and terms of ebook licences; right now, the CMA is considering the matter.

There’s still more from Ms Donelan. You can imagine her shrugging her shoulders as she adds “Ultimately, copyright licences are private, commercial agreements between the parties concerned and the government plays no role in them……the Office of Students…has adapted its regulatory approach to support providers at this time [she’s referring to the Covid pandemic here] and reduce the regulatory burden.” By “providers”, she’s referring to Universities, and not publishers, but she could equally in practice to referring to publishers. Assuming she does mean Universities, why is reducing the regulatory burden on them relevant to the fact that they are being asked to pay extortionate amounts of money for ebook licences?

She then goes on to state that Universities must ensure that all students “have the support they need to succeed and benefit from HE” and reminds them of their obligations under the Equality Act that learning is accessible to all students. Universities must “provide sufficient and appropriate learning resources” and that it is a matter for individual Universities “to ensure that students have the support they need to succeed and benefit from their HE experience.” She shows here that she doesn’t understand that excessive ebook licence fees are preventing Universities from fulfilling their legal obligations.

So how does one sum up this lengthy “nothing to do with me, guv” excuse of a letter? The Minister is either ignorant about the law, or is deliberately misleading on it. She shows no awareness of the anger in the sector, or the fact that a reference to the CMA on the matter has been made. She seems to have no interest in fighting for her Department against the forces of the private sector and offers no support to the organisations she is meant to protect and improve; so, what is the point of her being in the post she holds? She is more concerned about protecting the publishing industry (which is not an exclusively UK-based industry anyway) than the UK-based organisations she is meant to be protecting and fighting for.

So, what happens next? In addition to the current reference to the CMA, I know that individuals, such as Jane Secker, and organisations, such as the Libraries and Archives Copyright Alliance, are keen to support a campaign to challenge the current prices for ebook licences, and one can hope that Alex Chalk will not be satisfied with the Minister’s response and will demand a face-to-face meeting between the two of them, plus other interested parties. Maybe the Chartered Institute of Library and Information Professionals, CILIP, Universities UK and The Russell Group can all be persuaded to join in. This is the start of a process, not the end.

Over the years when I was an academic, I had to mark many student submissions. Sometimes – very rarely – I would give a piece of work 0% and would add the comment “this is an interesting answer, but does not address the question as set”. The Minister’s letter gets 0% from me.

Professor Charles Oppenheim

19 March 2021

i https://feweek.co.uk/2020/02/26/whos-who-your-guide-to-the-new-ministerial-line-up-at-the-dfe/
ii He sent the email to her on 18 November 2020
iii https://academicebookinvestigation.files.wordpress.com/2021/03/2020-0065408-alex-chalk-mp-costs-of-accessing-e-books-for-universities.pdf
iv https://blogs.ucl.ac.uk/open-access/2021/03/17/ebooks-webinar/ provides a recording of the event and a summary of the issues raised.

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