Despite what Dan Cohen averred yesterday, Steven Shavell is apparently not arguing that we should abolish copyright for academic works. His title is a question — “Should Copyright of Academic Works Be Abolished?” — and it is a question that he claims to explore, not answer:
On the basis of a number of empirical judgments – notably, that universities and grantors would tend to subsidize publication fees – I suggested that ending academic copyright would be socially beneficial. The reader may, of course, make different empirical assessments and come to a different conclusion. My principal goal was not to persuade the reader that my empirical judgments are correct but rather to identify and clarify the factors bearing on the social desirability of ending copyright of academic works. (54-5)
It’s a good thing he’s not trying to persuade, because he hasn’t. I could wish that he had met his principal goal, but I’m afraid he hasn’t met that, either. There’s not much that’s clear about this article.
What is it that bothers me so much about this piece? It can’t only be the style: it’s not fair to judge someone for writing in an approved idiom, no matter how idiotic that idiom may seem to others. I am not, after all, a lawyer. It can’t only be the suggestion that ending academic copyright would be socially beneficial, because I’m predisposed to be friendly to that view. I think perhaps that what most bothers me is the discontinuity between the style and the argument. The proposition that copyright should be abolished for academic works is a dramatic one, and yet Shavell writes as though the question is, well, merely academic. Just a suggestion, not an actual persuasive argument that might have human consequences. For instance, Shavell’s list of the “social benefits from eliminating academic copyright – deriving from the free availability of academic works” is limited to some very dull things:
Faculty and students do not have ready access to all articles on the Internet and often face costly-in-time hurdles to locate what is in theory freely available. The assembly of teaching materials from articles and the printing of them is often seriously constrained by copyright. Further, many academics and students in institutions without substantial resources (including many small colleges and junior colleges in the United States and teaching institutions in other countries) cannot afford to pay for more than a narrow segment of journals. Additionally, there are numerous individuals who are not members of the university community but who wish to read academic works. When one takes these observations into account and aggregates the benefits of a copyright-free world over the relevant populations and the huge number of articles that are published, my supposition is that the sum would be substantial. (36)
These are “social” benefits? These, only these, are the “social” benefits to be brought about by an unprecedented and extremely unlikely transformation of U.S. law? They hardly seem worth it. They seem largely limited to universities, moreover. Let’s see some rhetorical life, here, some blood and spit! The ill, cured by free medical research! The inconsolable, cured by free philosophy! Climate change skeptics startled by a sudden rain of environmental studies! Cultural criticism at last ungated to the culture it critiques! Rivers in India cleansed of bacteria! Wells in Africa dug! Global dissemination of enlightenment!
I see that irony has suffused those last sentences, which just shows the bad karma of mocking another’s writing style. Suffice it to say that one can believe that academic research should be given to the public while also believing that both academics and the public are human and thus resistant to perfectibility.
Well, if it’s difficult to make a significant contribution to human perfectibility through the production or consumption of academic research, it’s fairly easy to summarize, and everyone’s always grateful for that. Shavell’s argument runs thus (the following is redacted but verbatim, save for material in brackets, which I have added):
 Academic authors would still have a strong affirmative motivation to publish in the absence of copyright – to gain scholarly esteem and to advance themselves professionally.
 Publication fees, however, would probably be charged by publishers in the absence of academic copyright, and the fees would be more than nominal.
 If academics would have to bear publication fees in the absence of copyright, their incentive to write and to publish would fall.
 If, however, academics would not have to bear publication fees – because universities or grantors would pay them – their incentive to write and to publish articles would tend to rise, and so might their incentive to write and publish books.
 Universities and grantors would have a motive to subsidize publication fees in a world without copyright. [This motive, according to Shavell, is that library costs would fall dramatically, since libraries would have to pay a dramatically lesser amount for books and journals.]
 The effect of elimination of academic copyright on the level of publication depends on the extent to which universities and grantors would subsidize publication fees. Because of the motive of universities and grantors to subsidize these fees, it is plausible that the number of published works – especially articles – would increase, and in any event, would not decline substantially.
 To the degree that publications would be discouraged by the elimination of academic copyright, the social losses would be limited because the publications would not ordinarily be of high quality.
 The social loss from a discouraged publication would also be limited because an unpublished work could be posted on the Internet.
 To the degree that publications would be encouraged by the elimination of academic copyright and subsidy of publication fees, either social gains or losses could be engendered. The latter problem might be offset by university and grantor efforts to condition subsidy on quality.
 Summary – the effect of elimination of copyright on authors’ incentives to publish might not be negative overall – it might lead to more publications, due to subsidy of publication fees – and to the extent that it would discourage publications, the loss in social welfare would probably be limited.
Without going through all ten points above (though I’m tempted), I’d say that the chief problem with this argument is how puppetlike the motivations of the interested parties seem. Academics, publishers, universities, all have rational motivations in the above argument, which they certainly do not in the academic world I live in (bless our imperfect little hearts). Take point 5, especially, that universities would have a motive to subsidize publication fees for faculty members if the library subscription costs were to plummet dramatically. That, my friends, is logical, which means that it’s entirely unrealistic. If library costs were to plummet dramatically, “the university” is just as likely to take the money and spend it on a football stadium or scholarships for need-based students or the salaries of upper-level administrators or health insurance for its protesting and about-to-strike graduate student lab assistants and teaching assistants. A university is a complex place, with the left hand frequently strangling the right hand. It’s already the case that “the university” simultaneously a) requires junior faculty to publish before it promotes them, and b) strips funds from its university press if it has one, thus making it harder for anyone and everyone to publish. There’s a great deal in Shavell’s argument that depends not on law, but on organizational policy.
Another of my general objections to Shavell’s piece is his unquestioning and undefined use of terms such as “an academic.” As someone who would like to reserve the right to write academic works without necessarily being an academic, this bothers me. Think of “journalist”: we never quite realized until recently that we defined a journalist as “someone who is employed by a media company”; those were the only people who could be journalists, and therefore we never thought much, as a culture, about it. Now, of course, when almost anyone can start up a blog and do a form of journalism, we’re starting to realize that we might need some kind of content-based, purpose-based definition of journalism, so that we know who can have journalistic privileges such as the right to keep a source private.
Similarly, it seems to me very unwise to tie a law of this magnitude to the assumption that “an academic” is a definable entity, not to mention “a publisher” or “a university.” Is a grad student an academic? Is a library with an institutional repository a publisher? Is Tech U of America a university? Is the law going to be asked to determine these things? According to Shavell, an “academic work” could be known by “whether its authors are usually academics; whether its readers are mainly academics; the degree to which its content is academic in character (displays sophistication and knowledge of prior learning); and, most important, the magnitude of any royalties received by authors (low or no royalties would favor classification as academic)” (48-49). Great. Another four-factor test. To be administered by an “expert extra-judicial body” (49). And, as you’ll note, dependent on definitions of “academics,” which to my knowledge are not already legally determined. I might be more receptive to the argument that works produced by non-profit entities should be without copyright; that’s an existing legal structure. Finally, how would the amount of royalties (or, in the case of journals, other money not paid) be a factor in determining whether a work was academic given that if the law were passed, no one would receive any royalties?
Kathleen Fitzpatrick has outlined what I think is a much more realistic proposal for scholarly publishing, one that takes into account real human and institutional motivations and behaviors. In her paper at the Digital Humanities 2009 conference, she argued for a “hybrid” economic model for the university press, a model that is “neither a wholly commercial nor a wholly gift-based economy, but rather one that creates value for users by offering services they desire, thereby encouraging them to contribute their labor to the enterprise” (106). She outlined a persuasive model in which “presses return to their earlier, service relationship to authors within their own institutions, in order to more firmly cement their position within the heart of the university’s overall mission” (106). In other words, since universities do indeed want their faculty to publish, universities might be persuaded to turn university presses back into what they used to be: a means of disseminating their own faculty’s work. This, granted, is also an ambitious proposition, though it’s not on the level of abolishing copyright for academic work. But Kathleen is aware of that: she writes that her argument is a “radical shift” for presses. She clearly knows that part of her job in writing such a paper is indeed to persuade. Thank heavens for that. (Not to mention her clarity.)
What, then, divorced from Shavell’s treatment of it, of the idea that copyright ought to be abolished for academic work? Let’s also set aside its feasibility, which is minimal at best. On the whole, I don’t particularly like it. I want to retain my copyrights, if only to give them away with my own hand. I CC-license my work for non-commercial purposes only (although that too is an elastic term); however unlikely it may be, I don’t want someone taking my work and selling it directly, which can easily happen when there’s no copyright at all on a work. Shavell, by the way, seems always to assume that uncopyrighted work means free work, which is simply not true. My favorite example is the 9/11 report, which, as a government document, was and is in the public domain, yet it was a bestseller for the publisher Norton, who made tons of money on it by printing it up and distributing it through bookstores.
And, although I might be risking something or another by saying so, I’ll also admit that I think it might not be a bad idea for tenure-track faculty members to give their copyrights to universities. (With their own hands.) As I understand it, academics’ writings would be considered “work-for-hire” under the law, except that most universities and colleges explicitly disclaim their right to it as a matter of policy. In this changing publishing environment, I think it’d be a good idea to rethink that. It might help Kathleen’s model gain traction, for one thing. Junior scholars, as we all know, often loathe themselves for how eager they (we) are to publish their (our) way into a modicum of career advancement; I’d bet that there are plenty who would be more than willing to give copyright to the university, instead of to a press or journal. This would work best on the “publish, then filter” model of peer review, in which scholars’ work is published and then reviewed. Just imagine how freeing it would be to stop worrying about whether your work will be published. It would give you so much more time to worry about whether your work is any good.
And that can only be good, right?