Does this phrase sound familiar? It is one of the well-known Toddlers' Rules of Possession, a clever and, unfortunately, all too true, description of a toddler's sense of ownership over anything they see, like, want, need, or grab, whether it belongs to them or not. Other amusing rules in the list include:
If I can take it from you, it's mine
If it's mine, it can never appear to be yours in any way
If I (think) need it, it's mine
If I want it, it's mine
If I say it's mine, it's mine
If I think I can play with it better than you can, it's mine
If I play with it long enough, it's mine
And more, but ending with:
If it's broken, it's yours.
Anyone who has spent time working in the current scholarly communication system, working with university faculty authors/researchers on their journal publication agreements, working with university copyright ownership policy development, and/or having spent years involved with reviewing academic library electronic resources, already know how the Toddlers' Rules of Possession could end up in this blog.
Having recently recovered (nearly) from the unpleasant crush of the end of fiscal year library license negotiation review, I realized that I had faced repeatedly reading what uses the "LAWFUL COPYRIGHT HOLDERS" did or did not allow of their materials. Additionally, the indigent tone expressed frequently by the "LAWFUL COPYRIGHT HOLDERS" in Plaintiffs' pleadings in the Georgia State lawsuit, in particular, set me thinking about the wisdom of taking that tone and tenor, indeed, suing not only a member of your major customer base, but also the very creators of the only thing you have to sell: content, research results, ideas, data. All collected, discovered, invented, theorized, and written, not by the "lawful copyright holders". The "LAWFUL COPYRIGHT HOLDERS" could not generate the type of content their business relies upon if their lives depended on it. If the researchers, the scientists, the scholars, the authors, the artists, the poets, the suppliers and interpreters of content suddenly stopped submitting their works to the "LAWFUL COPYRIGHT HOLDERS", those "LAWFUL COPYRIGHT HOLDERS" would be joining many of their fellow Americans out on the street in no time.
The true creators are the researchers, the faculty, the scholars. They do not deserve to be called thieves and pirates by the very people who depend upon them for a living.
In fairness, let's look at how the creators are able to do what they do. The authors of journal articles do not make their discoveries, collect data, conduct experiments or develop and test theories in a vacuum. Research and innovative thinking is primarily conducted at some facility - an educational institution, a corporation, an institute - that supports the creator both monetarily and through the provision of the special type of milieu or environment where collaboration of smart people, provocative discussions, and the general rich soup of ideas and interaction stimulate creativity and discovery.
Someone or something is providing the financial support that enables creators to create. Someone or something is paying them salaries, giving them benefits, providing the physical spaces and equipment in addition to funding that may come from external sources and grants.
The result is that almost everything that makes that published article even exist is supplied and paid for by entities other than the publisher. Even essential peer-review is provided by other scholars, often free of charge.
What does the publisher contribute? There are any number of articles describing what the publisher does to the article - reviews it, edits it, gives suggestions for improvement and polishes it up for publication. Before e-journal internet capacity, the publisher played an even greater role in distribution.
And, because the scholars own promotion and tenure system developed to include consideration of articles published in prominent journals, journal acceptance became vital to a faculty member's promotion and tenure process.
Now, I know that you all know this system backwards and forwards. I'm hoping, though, to have you think about it in a new light. As follows: Even if you credit publishers fully with all the value they claim to add to the journal article after it comes to them - assuming all of the descriptions are completely true with no exaggerations - is their contribution, relative to the other investments in this work so all powerful that it warrants giving the publisher the entire intellectual property rights to it?
That is, the work is the result of:
• The imagination, intelligence, education of the scholar(s)/researcher(s) plus who knows how many hours, months or years of disciplined research, experimentation, data gathering, studies, surveys, field work, etc., plus their analysis, questions, theories, conclusions, observations condensed by them into a written article or monograph;
• The overhead, salaried support, and investment of their employers who provide the equipment, lab, tools, support personnel, synergistic environment, not to mention salary, benefits, a job...
• Perhaps even the financial investment of a grant funding entity, private or public, in the thousands or hundreds of thousands, even millions of dollars;
• The time, experience, and expertise of the colleagues who peer review the work;
AND THEN FINALLY
• A company that is handed the results of the above contributions, edits it, formats it, manages it, packages it, and markets it...
Remembering also that today the internet is the greatest distribution system in history AND that preservation of the work has traditionally been the role of libraries -
Which of these contributions, assuming only one, is so essential, so important, so irreplaceable and unique that the entity responsible for that contribution ought to, deserves to own the intellectual property rights to the work? Honestly, think about it. All contributions are not equal. Which one should be able to profit from the work and completely control it? Tough, isn't it? Let's flip it then - maybe that's easier. Which contribution is, relatively speaking, the "least" in terms of time, talent, irreplaceability, imagination, and investment? Is that easier? It is for me.
I'm not saying that the publisher's activities don't improve the quality of the writing or presentation. But it doesn't significantly affect (or perhaps affect at all) the content and quality of the science or analysis. Let's say it does - somewhat. Does it still get one to the conclusion that the last contributor in the chain is entitled - for free - to the entire pie of intellectual property rights? And continuing, having somehow along history's path, convinced the other contributors that they should have all rights to the work, is it appropriate for that least contributor to effectively erase from memory all prior contributions to the origin and development of the work, and change from publisher to "LAWFUL COPYRIGHT HOLDER".
Then, as "LAWFUL COPYRIGHT HOLDER" (through the charity or inattention of the true copyright holders), to turn around and fence in and restrict access to the work from the very community it was intended to reach. To use their status of "LAWFUL COPYRIGHT HOLDER" to price their supplier, a.k.a., customer, right out of the market. Finally, to turn to the courts of law and courts of public opinion for sympathy and help in running to ground their supplier/customer/now "pirate" for attempting to make educational uses of "their" work.
This has been the system of scholarly communication for decades. It's architecture and basic characteristics as I've described developed mutually. The point we all know is that the system is dysfunctional and the relentless price increases by major publishers have received most of the credit or blame for the system's breakdown. I suggest here that common sense and fundamental fairness led to nowhere but the conclusion that the allocation of IP rights was ill conceived from the start. Failure to recognize their windfall (the transfer of copyright) and to exercise restraint in dealing with their benefactors with respect to pricing and licensing terms has arguably not only triggered our current situation but resulted in such polarized positions, opinions, and behavior that we seem to have slipped past the point of civil discourse and now face each other across the courtroom. It may be too little too late, but failure of the recipients of free, high quality intellectual property and its rights to tread with more care when dealing with their geese with golden eggs, as continually evidenced by current licensing terms, prices, and the almost righteous use of the phrase "LAWFUL COPYRIGHT HOLDERS", can only lead to the geese keeping their eggs.
By Peggy E. Hoon, J.D.
CIP IP Scholar
Scholarly Communications Librarian
University of North Carolina at Charlotte