Connecting the Dots

The American Association of University Professors is an important organization, and its emphasis on protection the intellectual property rights of academics is admirable.  It is precisely because their work is so important, and because they often seem to be right on the verge of connecting all of the dots related to copyright, publishing and academic freedom, that their statements sometimes frustrate me.

In November the AAUP issued a report on “Academic Freedom and Electronic Communications” that has been widely and justly praised for addressing the revolution in scholarly communications in the digital age in a comprehensive way and keeping the issue of academic freedom firmly at the center of the discussion.  As this article in Inside Higher Ed puts it, the AAUP is updating long-standing commitments in light of a “whole new world.”  For example, the AAUP has recently reaffirmed its position that the copyright in online courseware should remain in the hands of the faculty creators of those courses, a position that was also endorsed by the Duke Academic Council last week.

It is because the AAUP sees that copyright ownership is an integral part of academic freedom that I find its new report just one dot short of a complete picture.  The juxtaposition of two quotes in the Inside Higher Ed article underscores just how close the AAUP gets to seeing the core of the problem:

“While the expanding digital world has promised to make information freely accessible to a global community, commercial forces have locked up most research behind paywalls and ever-more-restrictive licensing agreements,” the report reads. “Any consideration of open access” must conform with the organization’s 1999 “Statement on Copyright,” which concluded that “”it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes.”

The AAUP wants faculty members to own their own copyrights, with which I agree.  And they recognize that commercial interests are locking up research, which is undeniable.  But two facts go unacknowledged in the report — the fact that commercial interests can lock up research only because faculty do not retain their copyrights but give them up for free to those interests and the fact that this surrender of copyright to commercial publishers is a huge threat to academic freedom.
If we needed additional evidence for this second assertion, we got it last week as the news came out (see stories here and here) that publisher Elsevier was sending “take down notices” to the website demanding the removal of article PDFs that the authors have posted to that site in an effort to share their research and facilitate scholarly conversation.  The move is sure to generate bad publicity for Elsevier; one commentator called it an “unforced error.”  The publishing giant just seems unable to comprehend that they depend on academic authors to give them for free the content that they then sell at a huge profit.  But don’t get me wrong; Elsevier is within its rights to do this; as the copyright owner in these articles it can allow or forbid whatever covered uses it wants, and its general copyright transfer agreement with authors does not allow those authors to post the final PDF of articles they have written.
This is precisely my point, of course — because authors have given their rights away to Elsevier, it is Elsevier and not the faculty authors who can determine the scope and depth of any subsequent scholarly discussion about the article.  Faculty options for pursuing their own work are limited by the ownership of copyright by Elsevier and other publishers.  Academic freedom suffers from this common practice of copyright transfer.
The AAUP focuses, in my opinion, on only a part of the problem, and the lesser part of it at that.  They are concerned to protect authors from claims over their work by the universities that employ them, which is a real but infrequent threat.  In the process, however, they ignore the much greater threat posed to academic freedom by the commercial interests that routinely are the recipients of uncompensated copyright transfers.  If the AAUP is really serious about a discussion of copyright ownership and its relationship to academic freedom, they need to be willing to discuss this “third rail” of that conversation, this practice of giving copyright away.  In short, open access, or, more accurately, leaving the decision about access in the hands of faculty authors, is not an optional part of the discussion.
So let’s have a discussion of open access that conforms to the AAUP’s 1999 Statement on Copyright.  But let’s be honest about “prevailing academic practice,” which has been to treat faculty members as the owners of copyright for only a very short time, after which control of the dissemination and use of scholarship has routinely been surrendered to organizations with little or no accountability to faculty members or their representatives.  Perhaps in the print age that surrender did not matter and did not impede academic freedom.  But in a digital age, when faculty have so many more opportunities to share their work and advance their own scholarship, ceding control over copyright is a big problem, with big implications for academic freedom, as the Elsevier attack on proves.  This is the elephant in the AAUP’s living room, and they need to address it by encouraging faculty members to retain their rights beyond initial publication.
For a moment, let’s try a thought experiment.  Suppose a new university is being founded, Innovative University.  At IU the “start from scratch” copyright policy does exactly what the AAUP fears and asserts that all faculty scholarship is work made for hire.  If, at that point, faculty authors had to go to IU to ask permission for ever use they wanted to make of their own works, that would be essentially the same situation that is in place now, once the authors have transferred copyright to the publishers.  If the university did not want a paper to be posted to, they could demand that the article be removed, exactly as Elsevier has been doing.  Both these scenarios are, it seems to me, equal impositions on academic freedom and both, I believe, should be the focus of attention from the AAUP.
But we can carry our thought experiment a bit further and imagine that IU would not want the burden of granting permission for every publication or re-posting.  To avoid that, they give a license to all faculty authors which allows them to post and publish their works wherever they wish and to retain the profits from those publications, if any.  The only restriction on this license is that no copyright transfer or perpetual exclusive license may be granted by the faculty member to a third party without permission.  In that imaginary situation, it seems to me that faculty authors would actually be better off than there are in the current reality, in which copyright is transferred as a whole to commercial interests.  They would have greater certainty and greater flexibility regarding use their own works than they do under the current system, and a much easier channel through which to seek any permission that would be necessary in extraordinary situations.  The University and the public would certainly be better off.  The copyright would not be held by the author, as it is not currently in nearly all cases, but it would be in the hands of an institution whose goals and values are much more aligned with scholars and scholarship than is currently the case.  In short, one can easily image a situation where the worst fears of the AAUP are realized, yet the threat to academic freedom is still less than it is when, as now, commercial interests hold copyright in academic works.
In spite of my thought experiment, I agree with the AAUP that the best alternative is for faculty to retain their copyrights in most cases, as long as they really retain them, so that they, the authors, maintain control over the future of scholarship.  That, after all, is what we mean by academic freedom, isn’t it? Instead of focusing on only one aspect of the copyright issue, a discussion led by the AAUP about IP rights and academic freedom should focus on the potential to more fully exploit copyright ownership to the benefit of its faculty owners.  That means talking about authors’ rights, publication negotiations, promotion and tenure evaluations, and even open access.

3 thoughts on “Connecting the Dots”

  1. Many publishers have taken works for hire into account in their copyright transfer contracts (otherwise called “agreements”) by requiring that the author ask for the institution’s agreement to the perpetual transfer. Not allowing that would reduce the author’s academic freedom. A great deal of faculty education will need to take place before the benefits of open access and the harm of the current model will be realized.

  2. One aspect that you did not mention, perhaps out of an excess of humility, is that if the university were holding the copyright, at the point when the publisher asks for a transfer of copyright, the question would be directed to a person at the university knowledgeable and experienced in negotiating such things, such as Duke University currently has. Thus the real needs of the publisher could be addressed in the negotiations (I’m thinking like the need for some exclusivity in publishing a book, or the ability to include all published articles in long-term fulltext databases, etc) without giving away the store, or needlessly delaying or stopping publication.

    Of course, some publishers would not like the change in the power structure, and sometimes authors would see better opportunities in open access, etc., when consequences were laid out to them–but it would likely lead to better outcomes, even for the authors who choose to publish with commercial publishers.

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