When I wrote a few weeks ago suggesting broader latitude for fair use in the case of academic and scholarly works, I contrasted that position to the more “revolutionary” one proposed in the title of Steven Shavell’s recent article “Should Copyright of Academic Works be Abolished?” Shavell, who is professor of law and economics at Harvard, premises his argument on the same phenomenon that I stressed in my blog post — the lack of incentive provided by copyright for academic authors. He builds an elaborate economic model to demonstrate that authors would be as happy or happier to continue to create their works and society as a whole would be better off if academic copyright were eliminated, as long as, he suggests, publication costs were subsidized by universities or grantors. He writes, “if publication fees would be largely defrayed by universities and grantors, as I suggest would be to their advantage, then the elimination of copyright of academic works would be likely to be socially desirable.” Read in its entirety, however, this position is not as revolutionary as it might seem, and probably is less desirable from the perspective of academic authors than the suggestion I have made about broad fair use.
For one thing, a broad interpretation of fair use would help address one of the problems that Shavell is trying to solve with his proposal — the labor and permission costs associated with providing material for students in colleges and universities. But more important, Shavell’s proposal that academic copyright be abandoned addresses neither all the legitimate concerns of academic authors nor all of the problems with the publication system as it now exists.
When Shavell speaks of universities defraying the costs of publication, it is important to remember that efforts at open access on campuses are one way in which universities are already doing this. Shavell is well aware of this, and discusses open access movements at some length. He ultimately concludes that such movements will be too slow because of what he calls the individual versus social incentive problem. Each individual lacks sufficient incentive to make the change, even though the result would benefit society as a whole. The result is that Shavell decides that a change in the law is needed, removing academic works (which he is at pains to define) from the scope of copyright protection.
My biggest concern with this proposal is that it neglects one benefit which academic authors do gain from copyright, the ability to control the dissemination of their work and, especially, the preparation of derivative works. Of course, that control is of little use as things stand today, because copyright is so freely given away by academics who must then hope that the commercial publishers to whom they cede their rights exercise those rights for the best interests of the authors. That is happening less frequently, unfortunately. One of the reasons the Creative Commons license is such a benefit to academics is that it allows authors to both authorize broad reuse of their work and to assert control over that reuse, especially in regard to attribution, which American copyright law does not protect. In order to use a CC license, however, one must be a copyright holder; copyright is the “teeth” that enforce the license. So any analysis of the incentive structure for academic writing must factor in the potential loss of control when considering abolishing copyright in academic works. This is one reason I have suggested broadening fair use for academic work rather than eliminating copyright altogether.
To me, what this suggests is that the problem with academic publishing is not copyright per se, but the transfer of copyright to corporate entities whose goals and values are usually quite different than those of academic authors. Because he does not really consider open access a solution to the problem he outlines, Shavell assumes that the publishing structure would remain very much intact under the no-copyright regime he suggests, simply with a different mechanism for paying the bill. But at least one open access option — a prior license granted to the institution by faculty in their scholarly writings before they submit those works for publication — could restructure publishing in the right direction without losing those benefits that academics really do get from owning copyright.
Shavell does briefly mention such prior licenses, such as those adopted by Harvard and MIT, but does not treat them extensively and does not recognize that some of the difficulties he finds with open access movements would be mitigated by the prior license mechanism. He cites two major problems that would prevent open access from quickly solving the problem he finds with scholarly publishing — the fact that authors will not insist on open access if they have to pay for it and the alleged fact that open access journals lack prestige. Neither of these problem exist for the prior license scheme, which, when combined with a broad latitude for fair use of academic writing, offers, at the very least, a significant intermediate step toward resolving the dilemma of scholarly publishing.
It may be that copyright should be eliminated for academic works, but it would hardly be easy to accomplish. Nevertheless, Shavell’s analysis of the state of academic publishing, and its future, is complex and interesting. But while we wait for Congress to move in the direction he suggests (if it ever does) the adoption of institutional licenses for open access to faculty writings and a broad latitude for fair use of those writings, both of which could be implemented immediately, are intermediate steps that would return a great deal of control to the authors for whom that is the major incentive.