COLLOQUY

THE QUESTION

RESPONSES

BACKGROUND

Several entities have interests in the publication of refereed [or other] work. The journal wants to retain its reputation as a source of quality work, and maintain its list of high-paying subscribers. High prices are due more to the small number of subscribers for its tiny niche than to publisher greed. It can't keep even those few subscribers if all its articles are available in nearly-identical form, easily printed by the reader, on a Website.

The author of the peer-reviewed article has a stake in keeping the journals happy because refereed publication is the price of tenure. Until the universities alter their demand for articles published in journals [often only certain journals "count" for tenure], faculty seeking tenure will be wary of making demands on publishers, lest it reduce their chance of publication and, with it, the hope of tenure. Full Professors [presumably tenured] like Prof. Harnad are exempt from this need -- and the journals know it. If a tenured professor offers an article, the journal knows it has no hold over the author, so will accept terms it would not accept from others. In short, his experience deleting copyright clauses is no basis for encouraging a beginning Asst. Prof. to do the same.

The university has two dominant interests in the research and writings of its faculty: publicity and money. For faculty members to become important in a field -- usually by extensive publication -- helps the university gain students, donations, and prestige.

A fact unmentioned so far in this discussion is that many U.S. universities, especially those who see themselves as prestigious, have a clause in faculty contracts which assigns to the university All patents and copyrights for work the faculty member does while there. The theory is that it's "work for hire" in the recent copyright law sense of the term: part of the work for which the person is hired, is bought and paid for by his or her salary. Learning of this abuse appalled me. It means a Physics professor who wrote a popular song [as an example of work unrelated to the employment] would lose copyright to it under such a contract. Just being employed as faculty at the institution would deprive the writer of any benefit from writing of any kind. This is asinine in its blind greed.

The university's interest in publicity from faculty work is increasingly overshadowed by the hope of financial gain. This hope grew when universities started to sell technology developed by faculty to industrial clients or, in some cases, start groups on campus -- sometimes on the excuse of experience for students -- that sought to profit directly from developments by faculty. This was only possible when contracts assigned all patents to the university, claiming [as companies do, often more justly, I should note] that the developer would have been unable to develop the patentable work without the facilities of the institution. This is a separate "can of worms" which I'll dodge for now.

Now that Websites let universities post and access copyrightable work, money becomes an issue in written work as well, by raising the hope of reduced library subscription costs. While Net/Web access presage a major change in scholarly publishing, the change will come regardless of the university decisions about faculty copyright. It will take a few years to sort it all out, but it will happen.

Under U.S. copyright law, copyright is held by the creator of the work from the moment of creation. Registration is preferable, but not required. There is no reason for anyone but the author to hold or share copyright, since copyright can be assigned, long- or short-term, to a publication or institution. Retaining copyright and only assigning it to another for a specific publishing purpose is the sensible course, since the author could then benefit from any reprint in an anthology [more likely to make a profit]. Universities could require faculty to assign copyright for work done in their disciplines while working there [with a university-wide rights-clearing office for reprints], but would be obliged to pay the author at least half the royalties from any such publication. Essentially, the university would become an "agent" for work by faculty members.

The benefit of juried publication to disseminate work could justify not expecting payment for it, but might justify publishers' giving the university library a reduced subscription price to reflect publication of work by the university's faculty in the previous year.

On leaving the university, however, the faculty member should be able to take his or her copyrights that weren't in current use [publication or whatever] and get a greater share of the proceeds of those that were in use.

I doubt either universities or academic publishers will fancy this approach, since it goes "too far" in acknowledging the role of the developer in developing valuable work; but it would give faculty the help of the university's influence with publishers, would provide proper copyright ownership, and would give academic publishers and universities alike a role more in keeping with their often stated purposes.

-- E.M.B.G. Hughes, Ph.D., CEO, HLE Communications (posted 9/18, 3:21 p.m., E.D.T.)

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