Harvard Business Review’s underhanded game

For our first-year seminar, we wanted to get the students to read some the hyperbolic articles on data science. A classic example is the Harvard Business Review’s Data Scientist: The Sexiest Job of the 21st Century. However, when we downloaded the PDF version through the library proxy, we were informed:

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

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 it seems that for a single article we’d have to pay extra, and since “any other means of incorporating the content” is also a violation, we couldn’t tell the students that they can go to the library website and look up an article in a publication whose name sounds like “Schmarbard Fizzness Enqueue” on sexy data science.

My first thought on seeing this restriction is that it would definitely not pass the fair use test, but then the fine folks at the American Library Association say that it’s a little murky:

Is There a Fair Use Issue? Despite any stated restrictions, fair use should apply to the print journal subscriptions. With the database however, libraries have signed a license that stipulates conditions of use, so legally are bound by the license terms. What hasn’t really been fully tested is whether federal law (i.e. copyright law) preempts a license like this. While librarians may like to think it does, there is very little case law. Also, it is possible that if Harvard could prove that course packs and article permission fees are a major revenue source for them, it would be harder to declare fair use as an issue and fail the market effect factor. In other cases as in Georgia State, the publishers could not prove their permissions business was that significant which worked against them. Remember that if Harvard could prove that schools were abusing the restrictions on use, they could sue.

Part of the ALA’s advice is to use “alternate articles to the HBR 500 supplied by other vendors that do not have these restrictions.” Luckily for us, there is no absence of hype on data science, so we could avoid it.

Given Harvard’s well-publicized open access policy and general commitment to sharing scholarly materials, the educational restriction on using materials strikes me as rank hypocrisy. Of course, maybe HBR is not really a venue for scholarly articles. Regardless, I would urge anyone considering including HBR material in their class to think twice before playing their game. Or to indulge in some civil disobedience, but this might end up hurting the libraries and not HBR, so it’s hard to figure out what to do.

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