Open Access or Legalized Piracy? Open Access and the Finch Report

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It seems we are to get Open Access in the UK whether we like it or not. It is, though, interesting to note how cavalier some people are about others’ intellectual property rights. A conspicuous absence from the Finch committee that reported on the issue was anybody who represented the interests of authors, from the Writers Guild or the Authors Licensing and Copyright Society, for instance. Similar bodies also seem to have been excluded from the EU discussions that have generated the proposed requirement for Open Access under the new Horizon funding programme. In effect, we are seeing a further extension of the indifference to the interests of content creators that marks a lot of current debates about the internet. ‘Content wants to be free’, we are told – yes, but content creators also want to be fairly rewarded. This is particularly relevant to those of us in the social sciences and humanities. Our biomedical friends get two bites at the cherry when it comes to intellectual property. They can give away their copyright knowing that they will benefit handsomely from any patentable product that emerges. Indeed, freer flow of scientific communication may even enrich them more quickly. For those of us in the social sciences and humanities, however, copyright is everything. The Department of Business, Innovation and Skills (BIS) are rightly keen to see intellectual property properly exploited – but Open Access expropriates authors’ rights in their own work. Legalizing copyright piracy in one context seems a strange position for a government department that is actively pursuing copyright pirates in others.

Mostly, we academic authors do not make a fortune from our work – but I admit to receiving a non-trivial sum every year from the ALCS, reflecting the copying of material that I have produced. I might be willing to see this right bought out with appropriate compensation but I cannot say that I am happy to see it confiscated. I am even less happy to see that any commercial re-use of my work will be permitted. Mash-ups are very fashionable in certain popular arts but I like to take some care about the company that is kept by my publications. Do I really want them collected into readers for sale alongside other authors whose work I consider to be intellectually shoddy or politically biased? Do I want to see some early-career work reprinted as if it still represented my current position? I can also see problems with the Finch view that scholarly monographs should be swept into the same system. This will present interesting challenges to disciplines with a crossover between academic and trade markets, like history or politics. Would I write a trade book from my research that ticked an impact box and might buy me some decent claret or would I write a scholarly book that would count in my performance metrics and yield me nothing? Is this system actually going to add to the abundant disincentives to write monographs? Have we really considered the scholarly costs of that – and of driving a wedge between those inside universities doing humanities research and those outside writing for a general public? Are academic authors actually going to be allowed to make that choice – a point to which I shall return in my next post.

Some of these quibbles might seem petty but they raise rather fundamental problems for the spread of Open Access. UK university managements are fond of saying that they really own all the copyrights in publications produced by their staff: they have simply never bothered to exercise this claim. In fact, the position is much less clear-cut, particularly as it is so well-established that journal and book contracts are signed without reference to university employers. This is a grey area, which may well differ from university to university depending on the precise terms of employment contracts. At the very least, one might have expected the Finch committee to reflect on whether institutions actually owned the rights that they are expected to give away.

This is important for some of the fantasies that are also entertained by that committee about the inevitability of the direction of travel towards Open Access in the rest of the world. Those of us who work in science and technology studies are well aware that visions of the future are mainly tools forged for use in political struggles in the present. In this case, for example, the committee seem to have failed to notice that the US has strong constitutional constraints on the expropriation of private property by governments without the payment of appropriate compensation – the doctrine is called ‘eminent domain’ and the relevant clause is the Fifth Amendment. Congress has already shown itself divided on the issue of mandating Open Access at the expense of the private rights of authors and publishers. It is far from clear that these can be as easily overridden in the US as BIS seems to think it can do here, taking advantage of the dominant position of the public sector in the provision of national research capacity and certain types of funding. As we have recently been reminded in the case of Barclays Bank, we do normally expect major institutions to respect the spirit of the law as much as its letter.

My next post will investigate whether Open Access will really promote or strangle innovation.