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  • Scholarly Communication:a Lament and a Call for Change
  • Charles B. Lowry, Ph.D. (bio)

We are all familiar with the current scholarly communication landscape, but dramatizing the implicit contradictions will point to a "path forward" and point to some remedies. I cannot help but oversimplify this complex landscape. Were it possible for the academy to design a scholarly communication system from scratch, it would not resemble the one we have today, except for two features—it would employ a scheme of vetting for quality, and it would emphasize the value of openness in support of the exchange of scholarly information. The present publishing system is suffering from entropy and is badly endangered.

Even ten years ago, this discussion would have been considerably different than today, when we are entering the final stages of a revolution in how we transmit the results of research scholarship and how we look at the full life cycle of scholarly output. The main shift is format transition, illustrated by Reed-Elsevier data. In 2000, 64 percent of its income was derived from print formats, and 22 percent from electronic. That, by 2011, had reversed.1 In simplest terms, there are three separate systems that interact with, but are independent of, one another. They are badly out of sync internally and in the ways they interact. This essay reviews key issues in all three areas—copyright, publishing, and research universities—and outlines potential steps toward achieving a new system.

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Intellectual Property—Law and Practice

It is within the legal and legislative intellectual property landscape that we find one of the cornerstones of the current conflicts in the scholarly communication system. Research institutions devote minimal resources to either managing the ownership of their copyright intellectual property or to fully exercising their right to educational fair use. By contrast, efforts to maximize the value of copyrights transferred to publishers by researchers is tenacious and relentless and backed by large resources. In particular, we find that actors interested in this side of the equation use several strategies to increase profits. Some come readily to mind:

  • • Lobbying aimed at legislation to increase the profitability of copyrights at the expense of use;

  • • The threat of legal action to dampen legal uses and stimulate alternative methods of access that create new profit streams; and

  • • Lawsuits aimed at minimizing legitimate and legal practices of educational fair use with the full range of legal imagination to find innovative ways to create infringement where there is none.

How do these strategies manifest themselves? Trying to recount the history is not possible here. But some examples are worth considering as a prelude to suggesting how these strategies differ from the values of research scholars and the academy, in general, and my view that it is past time for us to reclaim control of the intellectual property created by academic research.

First, the system of intellectual property law has evolved through legislation and practice to comprehend fundamentally different and, really, contradictory purposes. I am going to ignore patents and trademarks and confine myself to U. S. copyright, for which the original term fixed by Congress in 1790 was 14 years, after which these works passed into the public domain. There have been four extensions of the copyright term in the last two centuries, and not one was the result of the efforts on the consumer side. To appreciate the imbalance in the way legislation and legal decisions have evolved, it is very important to keep in mind the original wording of Article I of the U.S. Constitution, which established federal authority over copyrights. It reads, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."2 It seems pretty clear that the purpose of granting limited copyrights was not to ensure profits but to ensure the advancement of knowledge, in other words, the "common good." At least that is what James Madison and other founders explicitly had in mind. The "Copyright Clause is the only clause granting power to Congress for which the means to accomplish its stated purpose are specifically provided. The exact limitations...

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