Clearing up some confusions

The press of daily business yesterday made it harder than I expected to watch and listen to the entirety of the House Committee on Oversight and Governmental Reform’s hearing on the Federal Research Public Access Act.  Documents from the witnesses can be found here, on the page for the Committee’s Minority members.  Perhaps unfortunately, most of what I heard was from the panel of folks opposed to the legislation.  From that group there were several pretty egregious comments about the state of scholarly research and publishing, and it seems like clearing up some of the misapprehensions might be worthwhile.  There is lots to choose from, but I will focus on three seriously misguided claims.

First, I was truly shocked to hear the official from the American Psychological Association let stand the assumption, made by a committee member, that part of the value added to a published article was the clearing of rights in any third-party owned material that is incorporated in that article.  When the Congresswoman asked if that was part of the service that publishers provided, and opined that it was a significant contribution that would be a burden for individual authors, Mr. Beckler agreed with her and went on in general terms about all the value publishers add.  Except, of course, publishers do not do this; authors do, and it is a burden.  Indeed, virtually all scholarly publishers require that authors warrant, in their publication agreements, that they have received permission from any owners for incorporated content.  This is as true of APA as it is of other publishers.  Here is the APA’s publication rights transfer document; in the paragraph above the signature, item (b) is the author’s affirmation “that written permission has been obtained for all previously published and/or copyrighted material contained in this manuscript.”  So the claim that this is value added by publishers is, like so many such claims, really just free-riding on the labor of scholarly authors.

A similar kind of claim was the one made by all of the panelists in this group that publishers add copyrightable content to the scholarly articles they publish.  This was again in response to a question about editing and peer-review and it led all three to affirm that publishers make a contribution that is entitled to copyright protection independent of the copyright which they get from the authors via forced transfer.  I have published several peer-reviewed and edited scholarly articles in my career, and every word of those articles was my own.  Editors sometimes suggested changes (more often peer-reviewers did), but I created the protectable expression that incorporated those changes.  Even copy editors usually obtain the author’s permission for changes beyond correcting a typo.  I continue to be amazed and confused by the claim that there is some protectable contribution made by publishers, and I suspect that if there really were such a contribution it would be to the detriment of the scholarly record, since no publisher is as expert on the topic at hand, whatever it is, as the authors are.

In this report from the Chronicle of Higher Education, this claim about protectable contributions is repeated in the form of AAP attorney Allen Adler’s assertion that published articles are “partly the product of publisher’s labor.”  There are two basic copyright principles that need to be asserted to understand why whatever work publishers put in on an article does not translate to copyright protection.  First, copyright protects expression, not ideas.  Whatever suggestions for revision come from publishers — and most of them come from independent, volunteer peer-reviewers — those suggestions do not translate into a copyright claim.  Only expression, which is, or should be, the work of the authors, is entitled to copyright.  Second, the Supreme Court has reminded us that no copyright can be earned simply for “sweat of the brow.”  No amount of labor on an article earns a copyright interest unless it results in original expression, which the labor of publishers almost never does.

Finally, there was the odd little speech given by one of the Committee members about how important it was that we do not allow foreign governments and companies to “steal our intellectual property.”  When I heard this I want to shout that the Member did not understand the bill they were considering.  FRPAA applies to published research which is already available for sale through various subscriptions and database.  Foreign companies can already get their hands our “our” IP if they are willing to pay the prices for subscriptions or individual article downloads.  Presumably Chinese companies, for example, that want to compete with the US are willing to pay the sky-high prices charged by STM publishers; it is the cost of doing business for them, and the publishers are happy to take their money.  What FRPAA would remedy is the lack of access for smaller US companies and less wealthy educational institutions, as well as individual patients and others who need or are interested in the latest scientific research.  Understood properly, FRPAA is not so much a threat to US competitiveness as it is a necessary step to maintain that competitiveness.  As Sir Richard Roberts said in his remarks, if high school students, community colleges students, students at small colleges and researchers at smaller labs and companies can all get access to cutting edge scholarship, US research and development will accelerate.  If they cannot, our economic future does not look good.