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Who Owns Our Work?

Hello, and thanks for that very kind introduction. You have no notion how glad I am to be here; if you really want the gory details, ask me afterwards. Now, I’ve been asked to give a sort of view-from-thirty-thousand-feet context for some of the discussions we’ll be having today, and so I found myself pondering four short words: “who owns our work?” because they’re such simple words and yet they add up to such a very vexed question.

And the more I pondered, the more I hated this question, because the less it seemed to capture.

  • Who is the “we” here doing the work? We authors, we reviewers, we editors, we copyeditors and typesetters, we librarians, who?
  • Is ownership really the question here? Putting my cards on the table, I think “ownership” is a proxy for what the stakeholders really want out of all the various actions and transactions involved in the scholarly literature.
  • And when we say “work,” are we talking about actual labor, or the tangible product of that labor? In the case of actual labor, who’s doing what work that they expect to be paid for, and must they have an ownership stake in the result to get their money? Concerning the products of labor, what forms are ownable? When in the process does an ownable product emerge?
  • And what happens when the who isn’t a who, but a what? How do governments, corporations, funders fit into this question?

So after revisions, I ended up with the title “Who or what has a stake in the intellectual and craft labor and the products of that labor represented in the scholarly literature in all its forms?”

This is just a bit unwieldy as a title.

And honestly, the process of putting together this talk has left me with more questions than I started with, certainly more questions than answers. Let’s walk through the process, then—again, from thirty thousand feet—and see what we can learn.

We will start with Dr. Professor, doing an experiment in his lab. This is the paradigm case of science, the lone genius in a laboratory pumping out discoveries and inventions—yet already we’re in trouble, because much research not only is not but cannot be done this way. The level of collaboration necessary for much of modern science is unprecedented, and it’s only growing. This, you may well imagine, complicates questions of ownership.

Look at the sign on Dr. Professor’s door: “KEEP OUT! EXPERIMENT IN PROGRESS.” A quick question: why is that sign there? Whom is our researcher excluding, and from what? Well, if you ask Dr. Professor, he’ll tell you that he’s defending his IDEAS, from nefarious scientist-ninja competitors who might steal the credit for his ideas, and perhaps from industry who might steal the commercial value of his ideas.

So let’s talk about ideas and how they are owned, legally. When we say “idea” at this early, pre-publication stage in the game, we’re talking about methods, tools, study populations, preliminary results, that sort of thing. A lot of this, if it’s fixed at all, is only fixed in the form of a more or less unpublishable lab notebook. So as you’d expect, copyright doesn’t have a lot to say here. Ideas are not copyrightable, only their expressions are. Instead, the patent system governs the kind of idea that our researcher is afraid of having stolen. And that pretty much leaves the scholarly publishing industry out of the ideas picture. The only thing publishing can do to a patent is invalidate it if done too soon. Libraries have little place here either. We search patents, we hold patent databases, but that’s pretty much it.

But that state of affairs may not last, because the model in which a principal investigator owns all ideas associated with a research project is already too simplistic to live. People from system administrators to poor desperate postdocs to disciplinary colleagues and collaborators—even the occasional librarian—all contribute to the ideas that Dr. Professor supposedly owns. And because credit and prestige are hugely important to these contributors as well, they want some kind of credit.

In some disciplines, there are rules about the construction of author lists, such that some of this work would be recognized, but not all disciplines have these rules and even those that do find that they’re a crude instrument; they just don’t solve this problem. So we get all kinds of arguments about who “deserves” to be in the author list. While publishing didn’t create this inequity, publishing may be asked to help solve it. One thing I’ve seen suggested is a movie-like “credit roll,” where contributors are recognized by name and by contribution. Will it work? I don’t know, but I find the question a fascinating example of the “sole ownership of ideas” paradigm changing, into something closer to a recognition of intellectual and craft labor.

This played itself out recently in the emerging digital humanities area, with Tom Scheinfeldt of George Mason’s Center for History and New Media asking how to reward the “third way” of doing digital humanities, the way that’s more concerned with tools and applied methodologies than with ideas per se. Bethany Nowviskie of the University of Virginia Scholars’ Lab followed up shortly thereafter asking explicitly about compensation for this kind of work!

Now, let’s be clear, neither Tom nor Bethany is talking directly about money. They’re talking about credit and prestige, the other academic currency. The lesson for the publishing industry is this: if you folks don’t find some way to get Tom and Bethany what they’re looking for, Tom and Bethany will find another way to get it—and that means that the publishing industry’s stranglehold on career prestige may be broken.

Pre-publication

Posters, conference presentations, unrefereed conference papers, slideshows, working papers, preprints—everything that libraries call “grey literature” happens when Dr. Professor wants to talk to people about his findings for whatever reason before he runs the journal gauntlet.

Note that at this point, Dr. Professor absolutely is creating copyrightable objects. But I’ve never heard of a copyright lawsuit over a conference paper or a slide deck, and I honestly doubt I ever will, because that’s not how ownership works itself out in this arena. Instead, you either get completely open dissemination, usually over the Internet these days, or it’s treated as a sort of trade secret, as at some scientific conferences that tell people not to blog or tweet conference sessions. (By the way, you’re all welcome to blog or tweet this one. Please do!)

Another thing worth noting is that pretty much all the work that goes into grey literature is done by Dr. Professor and his colleagues. Editors, peer reviewers, publishers, librarians—all that work comes later. So it’s quite clear at this point that what Dr. Professor made, Dr. Professor owns. There are no competing claims. Exceptions, yes—there are a few stick-in-the-mud publishers who won’t publish anything that’s seen the light of day in any form previously. They are few in number, their small number is shrinking further, and by the end of my career, I wouldn’t be at all surprised to see that number hit zero. Dr. Professor really isn’t going to put up with prior ownership claims on his half-finished work much longer.

Another question, incidentally, is to what extent this pre-publication literature is coming or will come to serve as a substitute good for the published literature. As acquisitions budgets continue to fall, as subscription costs continue to rise, how many Dr. Professors are going to satisfice with a working paper, rather than maximizing via an expensive-to-acquire published article?

There is also a new kind of grey literature a-borning, called Open Notebook Science. Steve Koch and his students post their lab notebooks online, with their methods and equipment lists and data and everything. Where is the ownership of ideas here? Well, if you think about it, part of what’s happening with Open Notebook Science is that people are still claiming their ideas, planting their flags—they’re just doing it earlier than publication and online. Again, what does that mean for publishing’s lock on career prestige?

Who owns all this? Is it even ownable? In the United States, as a “collection of facts,” a dataset is entitled to only the loosest of copyright protections, if any at all. Moreover, unlike a publication, a dataset is mostly useless by itself, in isolation from other data. In fact, almost the only time that an individual dataset becomes useful on its own is frankly when it’s being used to try to detect scientific malfeasance! This is not the ordinary case, I hope! No, what we’re learning about digital data is that they’re useful precisely because they can be combined and recombined and re-evaluated and evaluated over time. All ownership can do for data, all access controls can do, is put up a roadblock that keeps data from being used, from being useful. So journals who are collecting data, libraries who are collecting data, take very careful note: as Adam Bly remarked yesterday, data really want to flow freely in order to help create knowledge.

(For those interested in data and data licensing, I recommend the Panton Principles, also of course Science Commons.)

You might well ask how Open Notebook Science solves the credit problem I mentioned earlier. Well, it’s easy to pop some credits onto a wiki page! The infrastructure to measure these contributions doesn’t exist yet—there is no bibliometrics for data—but that’s probably coming, and this is the first step.

Notice also that in addition to credit happening much earlier in the research process, credit can accrue to other things than formal publications. Publications might cite something like this, or might include it some other way, but the publishing industry needs to be thinking about this, because it seems to me a data citation means something different from a literature citation, which says “I read this and it was useful.” A data citation means “I used this.” Lots of juicy implications there, but I don’t have much time, so let’s move on.

Publication

So what happens when these ideas do run the gauntlet and are transformed into formal published journal articles? In whatever form you like, paper or pixels. Well, what happens is that new stakeholders show up!

  • peer reviewers
  • scholarly societies
  • publishers
  • aggregators
  • funders
  • libraries
  • governments, and of course
  • readers

All these folks want to do things with the published results that appear to require some degree of ownership. So the dilemma of our time in publishing is how to get all these players what they want while containing costs, and while avoiding calling any of the players in this business pirates or other nasty names, because that is not a polite or productive way to behave.

The unfortunate result is that all these stakeholders start throwing up roadblocks in each others’ way, talking about ownership all the while, even though ownership is in my view only a proxy for what the stakeholders really want. I’ll give you some examples.

In the typical publishing transaction, in the course of turning ideas into print or pixels, Dr. Professor’s control over his ideas is broken completely, transferred to his publisher or scholarly society. And Dr. Professor is fine with that most of the time, because having established primacy over his ideas by publishing them, he doesn’t have to worry about who owns the publication. And in fact historically, he hasn’t worried, and he’s only starting to now. The reason he’s starting to now is the question of reuse. Researchers reuse their work and that of others constantly: classroom reuse, republication in another format, dissemination beyond what the publication venue reaches, and so forth. Dr. Professor’s lack of ownership of the publication can throw a roadblock in the way of what are today very ordinary, very normal uses and reuses.

Yet neither the publisher nor the scholarly society has any intrinsic interest in preventing reuse! It’s no skin off their back if ideas circulate! No, what they want is to be paid for their work, their production and management labor, and for many, it seems as though the only way to achieve payment is by claiming ownership and policing reuse. This is, to say the least, unfortunate. Libraries should be able to ensure that university classes can have articles on electronic reserve without being sued. Researchers who want to start a journal club shouldn’t have to panic about copyright. Publishers shouldn’t have to feel that they have to restrict use and reuse in order to cover their costs. The whole permissions market, securing reuse rights or trusting to fair use or fair dealing, is a source of significant friction and frustration for researchers. That’s the world we’re in right now. It would be nice to move beyond it.

Another locus of ownership conflict today pits research funders on the one hand against publishers and scholarly societies on the other. Now, when I say “funder” I’m speaking broadly; I don’t just mean grant funders, though of course they play an important role in developments; I’m also talking about institutions of higher learning themselves. Now, what funders are after in all this is impact; since they’re funding research, they want to be sure it makes its proper mark, both in the research world and outside it among practitioners and policymakers and so forth. Some are also looking for broader access to the results of research, typically government funders on both sides of the pond who are keen to see taxpayers get their money’s worth out of government research funding.

Once again, neither publisher nor scholarly society has any intrinsic objection to these laudable goals that I’m aware of. It’s quite difficult, in fact, to argue against so self-evident a public good as public access to publicly-funded research. The problem again is money. Publishers fear that if they don’t hold on to ownership for all they’re worth, they won’t make back their nut.

And who gets stuck in the middle of this strife? Poor old Dr. Professor! On the one hand, his funders are telling him that no, he can’t give over all his ownership rights to his publishers, because the funders need him to reserve some! On the other hand, his funders really aren’t giving him a whole lot of help in this negotiation process, and since he feels that his publishers have a lot to say about the course of his career, he is understandably loath to play hardball with them. All this ferment creates even more day-to-day headache for Dr. Professor, and if there’s anything Dr. Professor neither wants nor needs, it’s more friction.

Again, this is deeply unfortunate. Researchers feel whipsawed, funders can get a bit self-righteous about all this, and publishers are stuck playing the heavy. What I’d like us all to take away is the idea that access is not the problem, impact is not the problem—it’s really publishers’ rents at issue here.

Another locus of ownership conflict is between libraries and publishers. There’s a key difference here, though, which is that ownership of copyright is not much at issue here. Libraries almost never hold copyright in the material they make available—of course, now that libraries are ourselves becoming publishers, that is changing somewhat, but even so—and we’re fine with that. What we care about is appropriate ownership in the copies we purchase, and that has become a significant bone of contention as scholarly publishing has moved electronic. Whether it’s interlibrary loan rights or Big Deal bundles or being stuck with grotesquely bad search interfaces because that’s the only route into necessary content, libraries are finding that not having very many rights over their purchases is causing problems both for us and our patrons.

We don’t have the option of just going back to print. Researchers and students have spoken loudly and clearly: they want electronic access, and most of them are not even interested in print! So we can’t in libraries go back to owning print, tempting though those first-sale rights are. We have to move forward, and sort out what to do with electronic journals and databases.

Another arena in which ownership, or lack of it, matters is preservation. In the print world, preservation was explicitly a library issue; save for the question of archival-quality materials, it was clear that publishers published and libraries preserved. In the digital realm, of course, publishers who want to lease digital materials have no choice but to preserve them. As a librarian, this scares me. As someone who used to work in electronic publishing, it scares me even more, because I met and worked with any number of publishers who don’t know a RAID array from an air raid.

Still, I’m happy to say that in this area I am seeing progress, and it’s a result of collaboration between libraries and publishers. I love to see Portico and controlled LOCKSS and the Directory of Open Access Journals collaborating with the national library of the Netherlands. I say to both libraries and publishers, if you are not participating in initiatives like these, you are abdicating your responsibility! So get involved today. In a larger sense, though, these collaborations prove that we don’t have to quarrel over ownership to get work done! Yet we so often do.

Now, here is an unpalatable truth about libraries: we are terrible negotiators, and we really don’t like to cause trouble. So the perilous fix we’re in, with acquisitions budgets dropping and awareness of our services among researchers at an all-time low, is substantially our own fault. Not entirely, because publishers and aggregators have enforced some information asymmetries and offered us very limited choices, but largely.

I see signs that the worm may be turning, though. Librarians that I would never have suspected of any kind of radicalism, ordinary collection developers and liaisons, definitely not frothing-at-the-mouth open-access advocates like me or “liberation bibliographer” Barbara Fister, are starting to say words like “boycott” louder than a whisper. We’re almost ready to confront Dr. Professor and tell him we can’t afford his favorite journal or database any more. We are almost ready to speak out in public against the worst abusers, the price-gougers, the unconscionable limitations, those who refuse to release metadata for metasearch and other improved discovery tools. I could be wrong—the signs I’m seeing are still very faint—but I urge you to take this possibility seriously.

One final note: researchers are mostly not talking with each other about this (or about anything else, really) on the Web. The recent Ithaka report made that pretty clear. Librarians are, however; we are talking to each other and we’re starting to engage the public, and you need to take that seriously, because we do have an audience there and we do support and reinforce each other’s decisions.

And on that subject, a word of advice for publishers, aggregators, and other library vendors. Let me recommend that you learn to engage in public on these issues—not behind proxies or sock puppets, not one-on-one. Start blogs. Show up on Twitter and Friendfeed and in comments on blogs. The thing not to do is use private email or the telephone, and especially do not involve workplace chains-of-command. When you do that, it looks like you have something to hide, and word will get out—these are bloggers, after all! When you do this, it can look like you are trying to shut down open discourse, or even intimidate your detractors, which is not an image you need to project. So engage publicly, not in secret. You can’t hush us up, and you don’t own our words.

Here’s the thought I want to leave you with: These days, being a roadblock is a very poor business model. It’s said of the internet that it views censorship as damage and routes around it. I would change “censorship” to almost any form of path-blocking or gatekeeping—and we librarians are instinctive gatekeepers, but we’ve had our noses rubbed in the fact that our patrons do not want us getting in their way. The same is true, I think, of the relationship between researchers and publishers. Publishers do a signal service, and researchers recognize that… but when publishers use ownership rights to throw roadblocks in the way of access and reuse, and especially when they create difficulties around researcher compliance with funder mandates, they are increasingly damaging their own brands.

Back in the day, this didn’t matter so much, because the traditional roadblocky kind of ownership model was the only game in town. But now it’s not. Now there are repositories and open-access journals that provide a lot of the same services roadblocky publishing does, but without the roadblocks. I do believe that open content will create ever-greater gravitational pull, such that closing off access will become a genuine liability for publishers looking to make arguments about impact and prestige. I do believe that barriers will continue to fall, and the ownership question will continue to shift away from publishers back toward researchers and the public, over the course of my career in libraries.

Whether you believe that or not, I hope I’ve given you something to think about, and a useful way to think about it. Thank you!

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Source: https://purplesquirrel.dsalo.info/2009-2010/who-owns-our-work/