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Managing Intellectual PropertyThe Pew Higher
Education
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In November 1997, the Pew Higher Education Roundtable, the Association of Research Libraries and the Association of American Universities sponsored a day-and-a-half-long discussion among a variety of participants on the university community's role in managing intellectual properties created by its employees, principally university faculty members. The participants had actively worked over a long period of time to bring the problems of our current system of copyright management to light and discover solutions. As most would agree, however, their efforts to this point were largely "collective hand-wringing." The purpose of the Roundtable discussion was to crisply define the problem, determine what should be done and how to go about doing it, and to set the wheels in motion to accomplish the task. The results of the Roundtable discussion have been published in the March 1998 issue of Policy Perspectives, entitled "To Publish and Perish." To facilitate discussion within the University of Texas System prior to the publication of Policy Perspectives, I wrote the following summary of the Roundtable discussion, including references to additional materials helpful to an understanding of these problems.
For many readers, the term "copyright management" may be new. It means actively engaging in thoughtful actions to deploy intellectual property rights to achieve specific university goals: scholarship, research, teaching and learning. Currently, we manage our copyrights by giving them to others to manage for us. Most universities give them to faculty members. They in turn give them to publishers.
This has created problems for us. There have been at least 15 major conferences devoted to these problems in the last five years and five major research/task force projects undertaken by such entities as the Mellon Foundation, the Association of Research Libraries (ARL) and the Association of American Universities (AAU). As a result, there is a wealth of information describing the problems, over, and over, and over again. Still, they persist. It seems that scholarly communication is organized in such a way as to shield many of those involved from knowledge of their roles in the creation of the problems that threaten to undermine the system. Therefore, the first task will be to facilitate better understanding of the problems among the university departments and individuals involved in the process of scholarly communication.
This year's Convocation Speech by David Shulenburger, Provost of the University of Kansas and a participant in the Roundtable, is one of the most comprehensive presentations of the problems we face in scholarly communication today. Among the startling points he made to his faculty are these:
As David Shulenburger states it, the problem is that "universities cannot afford to buy access to the knowledge which they paid to have created" because "the private sector is rapidly taking over publication of journals from scholarly organizations and is charging what the market will bear."
He notes that one university can do little to solve this problem. Were it to try, it would merely disadvantage its faculty members' efforts to publish. He also notes an alarming trend among scholarly societies to license publishing rights in their members' works to for-profit publishers, thus putting another source of scholarly information beyond the reach of many in the academy.
Another Roundtable participant, Stanley Chodorow, Provost of the University of Pennsylvania, presented a paper on the Specialized Monograph in Crisis at an ARL/AAU/ACLS symposium in September in which he highlighted another aspect of the problem: the intricate association of the refereeing and editing process with print publication. In effect, we have turned over to print publishers the job of certifying candidates for tenure in our institutions. He notes, however, that the electronic environment offers universities an opportunity to reconsider this relationship and perhaps uncouple it.
While not a Roundtable participant, Sandy Thatcher, Director of the Penn State University Press, has contributed valuable insight into these problems too. He emphasized in a presentation at the same ARL/AAU/ACLS Symposium that there are important interdependencies that we have ignored in our decision-making affecting scholarly communication. Some examples of these interdependencies include:
He reminds us that when government money began to pour into scholarly scientific publishing several decades ago, universities stood by while for-profit publishers capitalized on the enormous opportunity. We may say, "who knew?" and perhaps comfort ourselves that this mistake was understandable. We will not, however, be able to say that again. He warns that we must not let distance learning materials follow scholarly works - "out of our grasp and beyond our effective control."
Decision making within a university is largely decentralized. We often make decisions that make sense from one viewpoint, but not necessarily from the viewpoint of the institution as a whole. Seen from a systematic perspective, the problems of scholarly communication and copyright management are certainly university problems. In fact, they are university community problems. But until now, they have been variously described, depending upon the part of the problem one might be focusing on, as a "library problem" (journal price increases and shrinking budgets for monographs); a "press problem" (rejection of scholarly valuable monographs with a limited audience); a "tenure and review problem" (quantity not correlating with quality); a "fair use problem" (compliance with copyright laws for teaching and research copies); or a "licensing problem" (acquiring electronic access to scholarly works with sufficient user rights to meet patron expectations). Decentralization has meant that the tenure committee does not know the role it plays in escalating journal prices by requiring more and more publication of junior faculty members; that faculty do not know the role they play in allocating library budgets or the cost to acquire the journals in which they publish; that libraries do not know the role they play in belt tightening at scholarly presses; and that universities do not know the role they play in escalating journal prices by giving away copyright in materials created on their campuses. Since these information "disconnects" are a big part of the problem, curing them is a big part of the solution. We must begin today to share departmental information with each other so we may act for the good of the institution and community as a whole.
These problems did not happen overnight, so we can expect that solutions will take time. More importantly, however, we must think systematically as we work to solve these problems. If we do not, anything that's worth anything will be taken out of our control by commercial for-profit entities because they can and because it makes sense for them to. This is particularly true when what we produce has independent commercial value. If we give it away, the price to get it back will be controlled by what commercial entities can pay to acquire it, not by what nonprofit educational institutions can pay. For example, much of the increase in prices for scholarly journals in scientific, technological and medical fields is driven by what the market will bear, but the market is Texaco, IBM and Amgen, not Harvard, MIT and UCLA. All American universities together only account for about 25% of the market for scholarly journals.
Many believe that the inflated prices we pay for access to scholarly journals will seem a pittance when we see the price tags on our basic educational materials, gladly taken off our hands for free and sold back to us at whatever price for-profit entities are willing to pay for them. This could be the future in distance education if we do not make changes now.
It is clear that these problems cannot be solved by individual action: neither individual faculty members, nor single institutions, and probably not even a handful of the most influential institutions can change the forces that affect prices of access to scholarly materials for research and teaching. We must build a consensus around any solution.
The participants further realized that universities are not the only judges of the value of publishing imprimatur. Because granting agencies rely on the same measures of value as universities, we will have to work together to explain our predicament and our proposed solutions and obtain their support. Since considerable federal grant money goes to support publishing, federal agencies are likely to share university concerns that public funds provide a benefit to private entities for which there may not be adequate consideration.
Three facts lie at the heart of for-profit dominance of and dramatic publisher price increases for scholarly journals: most scholarly literature is non-fungible, the demand for it is primarily from commercial entities (75% of the market world-wide) and that demand is fairly inelastic. Universities' gift to commercial publishers of complete control over any and all use of our scholarly works makes any hope that we might affect prices impossible.
The only leverage universities have to change this circumstance is copyright. In contrast to our small share of the market for scholarly journals, American universities contribute well over three-fourths of the content to these publications. This means that we do have some hope of affecting prices if we use our leverage to facilitate the growth of nonprofit publishing alternatives. For example, instead of freely assigning these rights away and paying increasingly outrageous prices to buy back our works as a consequence, we could use our copyrights to license publishing in two different markets: we could license nonprofit publishing within the university community and permit sublicensing to for-profit publishers of a royalty-bearing right to distribute outside the university community.
Since university personnel already referee, largely gratis, the scholarly literature in all fields, there should be little doubt that it is within our power to establish the value and prestige of nonprofit alternatives.
For these reasons, the participants unanimously concluded that in order to control costs, universities, as a group, would have to assert ownership of copyrights in scholarly works and educational materials created on their campuses. They also realized that the most important factor in implementing this solution would be clarifying for all members of the university community why this is necessary.
Finally, the participants recognized that universities will have to address some increasingly dysfunctional requirements to publish to obtain tenure and promotion. Most acknowledged that this will be a difficult task, but one that will be made easier if we succeed now in asserting ownership of copyright in the materials created on our campuses. Since the active encouragement for nonprofit publishing alternatives necessary to affect prices in the marketplace will necessarily involve taking full advantage of the refereeing and editing capabilities already within our community of university presses and scholarly societies, ultimately, these two problems are closely related and should be viewed systematically, as earlier suggested.
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