I am not much of a drinker, but I guess I can be intemperate in other ways. The Chronicle of Higher Education called my last blog post, about the lawsuit filed against Georgia State University, “fighting words.” I think that is journalistic hyperbole, but I do want to take the opportunity to make a couple of clarifying points and direct readers to some of the healthy debate that is going on.
First, about the free-rider problem. Sandy Thatcher, who is Director of the Penn State University Press, explains the issue as publishers see it in this reply to the quote from my post in the Chronicle. I want to be clear that I am not necessarily defending the practices at Georgia State; I cannot do so because I only know one side of the argument. One of the advantages a plaintiff gets in a lawsuit is a fairly long period to make their case publicly while the defendant is constrained from replying. But even if “free-riding” applies to the practices at GSU, it is important to note that our law tolerates and even encourages some degree of free-riding on intellectual property as a necessary condition to further creativity. That is the logic behind a long list of exceptions and restraints on the exclusive rights conferred by both copyright and patents, including fair use. My point about free-riding, however, is that it occurs at several places in the system of academic publishing. If GSU free-rides on the publishers, the publishers have likewise taken a unpaid ride on the labor of the University and its faculty when it acquired content from them without payment. Because this free-riding occurs at the very base-point of scholarly publishing, it really cuts off any argument against whatever is happening at GSU based on the incentive system copyright is supposed to create. The incentive for creation that copyright is supposed to offer simply does not exist because publishers absorb all the profits without passing them on to authors.
An exchange in the comments on my own post discusses this point in some depth. Monica McCormick argues that there is still an incentive system for authors, based on two points. One is the small amount of money that is usually paid to academic authors who publish monographs, and the other is the “stability” of the publishing system which advantages authors through promotion and tenure. Regarding the first point, there are some interesting replies from Prof. Kathleen Wallace, whose article “Marketing Ideas” addresses the issues of the scholarly communication system from the perspective of neither librarian nor publisher, but faculty author — the very person about whom we are arguing. So I leave that part of the incentive argument to Prof. Wallace and hope her article will generate some helpful discussion. As for the “stability” of the publishing system, I would note first that this advantage, insofar as it exists, does not seem to be a necessary creation of the copyright system as it is currently put into practice. It is certainly possible to image an equally serviceable system that does not rely on the uncompensated relinquishment of rights. Also, what stability there is in the system — based on effective evaluation and strong reputations — is partially itself the result of uncompensated labor done by faculty members working as reviewers and editors.
Finally, stability in scholarly publishing is currently very much in doubt, largely because of the astronomical prices changed by commercial publishers for academic journals. As more and more of a university’s budget goes for journal content, which often must be purchased repeatedly in different formats, less money is available to serve as incentive in other parts of the system. It is harder and harder to publish a scholarly monograph because sales have dropped so low; a decline that is directly attributable to funds being drawn away from monograph acquisitions by journal prices. McCormick’s point that we should distinguish between large commercial publishers and smaller academic ones, as well as between monograph and journals publishers, is exactly right. The problem is that the actions of the large commercial publishers — and we have to include Oxford and Cambridge Press, who are plaintiffs in the GSU suit, in this category even though the maintain a nominal affiliation with universities — are destabilizing the remainder of the system. It is simply not the case that all would be well of academics would just stop “pirating” their own works from victimized publishers.
Lastly, I want to comment on how all this should play out in the GSU lawsuit. If that case every reaches the stage of arguing the fair use defense, I hope the court will look very hard at the second fair use factor — the nature of the copyrighted work. Previously, the action on this factor has been minimal and has largely focused on published versus unpublished works and how much originality is necessary for “thick” or “thin” protection. But the economics of a particular segment of publishing, especially one as dysfunctional as scholarly publishing, ought to be considered when analyzing fair use, and factor two is a good place to do that. If the system is structured in a way that undermines the whole incentive purpose of copyright, as I have argued the scholarly publishing is, factor two, which really focuses on the expectations of creators of different types of works, should strongly favor an expansive application of fair use. After all, it is, uniquely, the creators themselves who are being sued here and who are asking for a space to make fair use of their own works. The court must determine what that space will look like, but it should be reminded that scholarly publishing simply does not function the way other systems of intellectual property creation do.