As the cost of textbooks rises, students at higher education institutions are finding ways to minimize these expenses; students are buying used books, sharing with other students, finding cheap or free digital copies online, or deciding to forgo textbook purchases altogether.  As a result the publishing industry is facing declining sales and decreased revenue.

On June 5, 2012, the U.S. Patent and Trademark Office granted patent #8195571 to Joseph Henry Vogel, an economics professor at the University of Puerto Rico-Río Piedras.  Vogel’s patent is for a “Web-based system and method to capture and distribute royalties for access to copyrighted academic texts by preventing unauthorized access to discussion boards associated with copyrighted academic works.”

The system attempts to control copyright piracy by requiring a student to purchase a textbook with a unique code providing access to an online discussion board in which participation is a component of the student’s grade. Students that do not purchase the textbook and acquire the code receive a lower grade, although a student can still take advantage of second-hand or shared textbooks by purchasing a discounted access code from the publisher.  Needless to say, the potential impact of Vogel’s system has produced divergent reactions.

Supporters for this patent recognize the negative impact of copyright piracy on the publishing industry and this system’s potential to correct existing industry problems.  Recent survey data indicates students are purchasing fewer textbooks due to the rising cost of educational materials in higher education and the increased access to cheaper pirated copies online. As students purchase fewer textbooks, the academic community suffers from decreased publishing opportunities and royalties.  Adoption of this system by publishers would prevent students from using pirated materials and allow the academic community to benefit from increased royalty revenue.  Moreover, widespread use of a system that increases legal textbook purchases could have a decreasing effect on the price of textbooks in the long run.

Opponents to this system, however, contest the proposed benefit to the publishing industry based on its potential detriment to higher education objectives.  The system’s impact on the affordability of higher education is a highly contentious issue as the cost of textbooks rises along with tuition rates in the United States.  There is indication, however, that use of the patented system by the publishing industry would include discounted or waived access fees for students below a certain income level.

Critics have also expressed concern with the actual patent, suggesting that one-time use access codes in the video game industry could be considered prior art and that the four patent claims are broad and could easily fail the non-obvious test.

Additionally, there are concerns regarding the patent’s viability under copyright law.  Under 17 U.S.C. §109, the first sale doctrine provides a distributive right to an individual that purchases a book.  When a book is sold the copyright owner loses distributive interest in the book, allowing the purchaser to then resell the book, give the book away, rent the book out, or destroy the book.    By requiring a student to purchase an access code for used textbooks, the publishers and authors would receive a profit from these subsequent sales, which exceeds the scope of a copyright owner’s distributive rights under the first sale doctrine.

The Copyright Act also includes specific exceptions to copyright infringement for educational purposes.  Under 17 U.S.C. §110 there is no copyright infringement for nonprofit educational use of copyrighted material, while the fair use doctrine ensures that the use of copyrighted material for teaching, scholarship, and research are exempt from copyright infringement.

The relevant impact of this patent on the publishing industry, the academic community, and copyright law, however, depends on the implementation of Vogel’s system by publishers and instructors.  As the demand for open educational resources increases, and websites such as Khan Academy and Open Culture grow in popularity, publishers may be hesitant to adopt a system that limits access to educational resources.

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