Since I posted my thought experiment about how to create a revolution in two not-so-easy steps, several colleagues have sent me responses and additional material, and it is clear that further discussion is called for. That is good news, as far as I am concerned. Talking about a revolution, in the scholarly communications space, is a lot more profitable than merely complaining about the status quo.
Several commentators have suggested that the first revolutionary step I proposed, asserting institutional ownership over faculty scholarship under the work for hire doctrine and then granting back to the authors broad reuse rights, would create an outcry and be impossible to implement due to “political” opposition. The latter point may well be true — that is why this is a thought experiment — but I am not sure that in reality the proposal would create a situation that is very different from the current state of affairs for scholarship. Most academic authors actually hold their copyrights for a very short time — they transfer them to publishers nearly as soon as a work is complete and often retain next to nothing in terms of rights to reuse. In practice, the situation I proposed would be more advantageous for authors, not less; authors would hold broader rights than they do now, and the copyright would be in the hands of an entity with a vested interest in seeing the reputation of the author — that specific author rather than merely a journal title — grow.
One colleague sent me a link to an article about academic ownership of copyright that is found on the AAUP website. The article strongly asserts the need for individual ownership of academic work and asserts a “parade of horribles” that would result if institutions asserted ownership over ANY faculty work (the specific work that it mostly focuses on is syllabi). My colleague suggested that it showed how strong opposition to such an assertion of institutional ownership would be. But as I read the article, I found that it made such a strange argument that I doubted its ability to represent mainstream opinion amongst academic authors.
Consider two of the horrible examples offered as to what might result if universities forced faculty members to make just their syllabuses openly accessible (something many institutions already do, with an eye toward assisting students in selecting classes to take). The authors of the AAUP article illustrated the alleged danger of having syllabi available to the public by citing a claim made by right-wing political activist Phyllis Schafly in 2007 that allegedly blamed the mass shootings that took place on the Virginia Tech campus on a “feminist professor” from the killer’s major department whose syllabus, Schafly said, illustrated how the “mixed-up kid” might have become further “confused.” Surely this is poor argumentation — we can hardly allow nutty assertions about what takes place in college classrooms to force us into “bunker” mode, where we hide from publicity lest someone, somewhere, calls us kookie eggheads or worse. In fact, being more public about the scholarship that is pursued on our campuses ought to have the effect of countering the frequent claims made by pundits and the media alleging academic bias, indoctrination or just plain wackiness.
Another attempt to tar open access and institutional ownership with the brush of controversy comes much later in the essay, when the authors express doubts that the University of Colorado would have wanted copyright ownership in Ward Churchill’s controversial “little Eichmanns” essay. The implication is that copyright ownership somehow would make Colorado even more responsible for Churchill’s views than they would already be considered, simply as his employer. But this is not true, of course. Many different industries, employing all kinds of authors, own copyright without being responsible for the content of the writings they own. And a University is always going to be blamed or praised for the work of its faculty members, regardless of where the copyright in that work is held.
The real issue raised by this essay is academic freedom. If the University of Colorado was the copyright owner in Churchill’s essay, could they have declined to allow it to be published, or even forced alterations? Would work for hire mean that universities would have control over the content of faculty scholarship, as well as its distribution?
The first answer to this very legitimate question is that it would depend on how the work for hire assertion was managed. The contractual relationship between a university and its faculty, for example, could not only grant broad reuse rights to the authors, it could also guarantee publication of faculty-authored publications in whatever venue the faculty member stipulated, as long as the venue met tenure or promotion requirements. Articles that were not to be considered in the promotion and tenure process would not qualify as work for hire because they would be outside the scope of the employment. A provision such as this would separate scholarship, in which the institution has a significant interest and for which it provides the principle incentive, from other kinds of writing.
The second answer to the worry over academic freedom is that the current system also poses threats to faculty independence and self-governance. For over a year now, the publication contracts that faculty authors sign with journals owned by Elsevier contain provisions that condition the rights that those authors retain over their work on the nature of the policies that the faculty on a particular campus have adopted. If your faculty policies meet with Elsevier’s approval, you are granted a moderately generous reuse right. But if your campus policies are such that Elsevier disapproves of them, those rights are not granted. This intentional intrusion on the right of faculty to set policies for themselves that they believe are in their own best interest and the best interests of the academy has been met with surprisingly little outcry, perhaps because it is buried in the fine print of contracts most authors never read. But it is stark evidence that commercial interests can also pose a threat to academic freedom, especially in the digital age.
In any case, all of this concern over who owns scholarship may be unnecessary. Another commentator on my original post about two steps to revolution made the excellent point that the first step might not be necessary. If the goal is to cut out the commercial publishing interests that are making a mess of scholarly communications, that can be done simply by deciding that only articles (and books?) that are openly available and subject to article-level assessment techniques will be considered in the promotion and tenure process. No change in ownership is actually needed, and this one-step solution gets us around the (manageable, nevertheless) worry over academic freedom.
Is this one-step revolution possible? As I mentioned in the previous post, at least one university, in Liege, Belgium, has put this policy into practice. As this translation of a memo from Rector Bernard Rentier says, at Liege,
starting October 1st, 2009 only those references introduced in ORBi [the institutional repository at Liege] will be taken into consideration as the official list of publications accompanying any curriculum vitæ in all evaluation procedures ‘in house’ (designations, promotions, grant applications, etc.)
So it seems pretty clear that such a policy is possible and practical. But to be honest, it probably is very difficult to implement in a context where most open access opportunities exist only in the STEM disciplines. Faculty in the humanities, especially, are likely to feel disadvantaged by any such policy. One possible solution, of course, which is what Liege has adopted, is to make the institution’s open access repository the focus of the policy, so that articles published anywhere can be considered for promotion reviews as long as they are also in the repository. But open access, and its role in P&T, will be easier for many to accept when the options available for OA publication in the humanities begin to catch up with those in the STEM fields.
That is why the announcement made by Amherst College earlier this week of a digital, open access press being founded in the College library to focus on peer-reviewed monographs in the humanities is so exciting (there is also a story about the project from Inside Higher Ed here). Experiments that facilitate open access in the humanities are important as much psychologically as they are practically; they will help make more scholars more comfortable as they wean themselves from dependence on commercial publishers and “reader must pay” models. And they will demonstrate, I hope, that open access monographs are as viable as journals.
At the end of all this, I think I want to revise my two-step revolution. While I still think that the issue of copyright ownership deserves in-depth discussion, the two-steps that seem most important to me now are, second, that promotion and tenure processes limit themselves to consideration of openly accessible works, And, first and foremost, that colleges and universities follow the lead Amherst, “giving light to the world,” has provided by supporting new ways in which scholarship can be produced and disseminated.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
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- Jim Neal on Free speech, fair use, and affirmative defenses