Midnight in the Garden of Good and Evil: Academic Publishing, Copyright, and other Miasmas

[1]

by Ann Okerson

This essay explores how the information-provision roles of universities and their libraries are changing. Within that theme, I explore how academia might best manage its creative output in these complex and pivotal times, times during which the very mission, vitality, and future of higher education are again being probed.

In sum, when faced with apparently serious threats (described below) to their information futures, at least some members of US research universities have asserted that it is time to act and to secure greater control over their information destinies. In this paper, I summarize the numerous initiatives that have been proposed within and close to academia to address a set of complex problems.[2] These initiatives have been of the following types, all underpinned by the promise that powerful electronic technologies will transform scholarly and scientific communications:

• Problem/analysis projects.
• Solution through electronic projects and demonstrations.
• Solution through changing approaches to copyright and intellectual property ownership and management.
• Solution via marketplace strategies.

Then I will discuss why, after numerous reports and proposals, seemingly little structural change has occurred within academic publishing — or, more to the point, why the specific high-visibility national initiatives identified here have not ripened very well.

The Place of Copyright in Academia

The US Constitution expressly mentions copyright — with the intention "to promote the progress of science and the useful arts" — among the legislative powers of the Congress. Because copyright law both creates a category of "intellectual property" and offers statutory regulation of the competing interests of rights-holders and users, management of copyright in the academic community has become a flashpoint of disagreement when more complex issues in scholarly communication arise. Typically, copyright is seen as either obstacle, solution, or both. Some re-allocation of rights, forced either by statute or by concerted action of interested parties, is regularly offered as the most effective way to redress imbalances that are perceived to threaten the overall harmony of the world's system of scholarly communication. To talk about the future of scholarly communications it is necessary to talk about copyright, and to talk about copyright, it is necessary to talk about the wider context of these debates.

The Information or "Serials" Crisis

In the mid '80s it became fashionable — and appropriate — for librarians and academic institutions to speak of the "serials crisis," [3] which was manifested simultaneously through:

• Rapidly increasing numbers of scholarly journals, particularly in science, technology, and medicine (STM);
• Rapid growth in the size of those journals;
• Prices of those titles skyrocketing annually far beyond the Consumer Price Index and the ability of any institution to keep up with the prices; and, therefore,
• Numerous serials cancellations, particularly in STM journals.

This serials crisis in turn triggered a publishers' crisis in which:

• Publishers of STM journals offset cancellations in part by charging higher prices for the subscriptions and subscribers that remained;
• Academic library budgets skewed toward STM and away from other fields;
• Other publishers, such as those of scholarly books, experienced a decline in their academic library sales; and
• There was a rapid rise in interlibrary loan and document delivery services.[4]

For a few years it seemed that the "crisis" ought to abate, because market forces would either moderate prices or publishers' offerings, but in fact neither happened. The crisis ripened, and over the past decade it has become chronic. Again, several important factors contributed to today's ripeness:

• The publishing industry, or at least STM and other robust segments of it, continue to implement new technology and transform their operations. Their investment is not trivial and their pricing seeks to recoup at least some of it.
• At the same time, libraries and universities have ramped up their technology investments, making for a far better, but also of necessity (at least at this early stage) more expensive information infrastructure.
• The STM and scholarly journals market that exists is, in many ways, an imperfect one; its consumers, therefore, do not respond in a rational fashion to price increases (i.e., they cannot stop purchasing information when the price exceeds a certain amount). Each title or database is unique and few of the articles can be secured reliably from multiple sources.
• Academic positions are highly competitive; scientists and scholars seek reputable publication outlets to support their bids for tenure, grants, and other rewards, even in a technological environment that allows them to self-publish.

Calls to Action in the US Higher Education Scene[5]

Modern organizations sometimes thrive on crisis and response to crisis. American academic communities have repeatedly sought to raise awareness of measures designed to mitigate or eliminate some elements of the scholarly communications crisis. I sketch some of this history to show the resilience this particular crisis is displaying. The list here is not comprehensive, and it expressly excludes the galaxy of conferences, colloquia, and symposia that have been organized specifically to discuss the issues without plans to turn discussion into action. What is striking is the consistency with which a complex of issues, involving academic principle, academic sociology, and business economics, are brought back to copyright--its nuances, its management, and its possible modification--as the focus of discussion.

I. ARL Serials Prices Project, 1989[6]

In Spring 1988, the Association of Research Libraries (ARL)[7] commissioned two consulting reports to identify factors underlying rising serials prices and to suggest remedies. The first report reviewed price and page data from four major "commercial" publishers over 15 years' time against estimated publishers' costs. The consultants reported that over 1973-87, these (commercial, i.e., "for-profit") publishers' profits increased significantly more rapidly than the consumer price index, asserting that cost increases do not justify the price increases paid by research libraries.

The second report identified multiple factors contributing to the crisis, including publishers' pricing practices; exchange rate fluctuations; significant growth in the volume of published research; intense academic competition for promotion, tenure, and grants; market dominance of science, technology, and medical (STM) publishing by a comparative few commercial companies; and the monopoly-like characteristics of scientific publishing.

The second report proposed, and in its May 1989 Spring Meeting the ARL membership affirmed, certain aggressive recommendations:

• ARL should lead efforts with numerous academic, not-for-profit stakeholders, to communicate the nature of the crisis and the actions needed to address it.
• ARL should work to introduce greater competition into the journals marketplace.
• ARL should partner with scholarly groups to examine the scholarly publishing process and find ways to better manage the explosion in research and knowledge, with particular focus on new-tech ways of information distribution.

Neither of the above two reports identified copyright or intellectual property as either problems or solutions to the identified concerns. That was yet to come. The ARL established a Senior Program Officer position and an Office of Scholarly Communications to facilitate the initiatives described above.

II. Consortium for Electronic Publishing (CEP)[8]

In 1992, as an outcome of ongoing discussion with several other not-for-profit groups (including the Association of American University Presses and the American Mathematical Society) the ARL Scholarly Communications program developed and presented to the ARL Board the vision of a central, dedicated consortium with a clear charter to make electronic publishing work. Such a group would create and make available to all members of its broad-based community of presses, societies, and libraries, a set of standard working systems suitable for electronic publishing, particularly on the networks. Commercial publishers would benefit from these advances through the development of a large, new standardized market.

One unique benefit of a broadly-based, not-for-profit consortial approach to electronic publishing was that it could work toward a set of common technical systems and standards, widely available to all members. The document stated prophetically, "Such acceptance would greatly accelerate the acceptance of the new mode of networked publishing. The specific needs of the research and not-for-profit communities are currently well in advance of the capabilities and investments of commercial publishers. Waiting for the development of systems by the commercial publishing world fritters away opportunities now available to the not-for-profit community, and might never produce satisfactory results."

The CEP's facilitating and enabling objectives were stated as:

• To provide mutual support, development, and growth in scholarly electronic communication and publishing. This would be accomplished by pooling the expertise and resources of CEP members to develop operational electronic publishing systems for their common benefit.
• To build on the efforts of specific organizations that have undertaken networked publishing development and to leverage those efforts for the good of many organizations, in a practical and cost-effective manner.
• To provide specific, targeted, and specialized consulting services to individual members or groups of its members.
• To develop and license new solutions, train staff, and install and startup new applications, with the objective of sharing in the cost of systems development and ongoing maintenance.
• To provide a central advocacy and "space" for electronic publishing, through planned educational programs, meetings, training, marketing, and seminars.

The proposal included a business plan and a rollout schedule. With seven years' hindsight, the consortium's goals of broad-based participation and introduction of new technologies to numerous stakeholders with interests in scholarly publishing seemed most appropriate for the time. The proposal could have resulted in a more coherent, electronic, academia-influenced information world for the late 90s than exists today. But it did not advance to fruition, in part because it was the "early days" for electronic publishing and the proposed partners had no history of working together on substantive projects, with significant budgets from diverse sources. The ARL members were concerned about starting a new program and taking funds from their own already strained resources.

III.The Andrew W. Mellon Foundation Study [9]

In 1989, the well-known American philanthropic organization, The Andrew W. Mellon Foundation (whose President, William G. Bowen, is an economist with passionate interest in the relationships between economics, libraries, and technology)[10] began a study of the economics of research libraries, a study that addressed both (1) the scholarly publication explosion and the rapid escalation of prices for these materials and (2) the rise of information technologies that make it possible to revolutionize the way in which libraries do their business. In addition to deepening some of the findings in the ARL reports above, the Mellon study, published in late 1992 and distributed widely throughout higher education and related communities in 1993, observed the following important structural points, for the first time introducing to copyright among them:

• Scholarly publishing is coupled with academic prestige, a combination that encourages a strong conservatism and reluctance to make institutional changes.
• The potential distribution of electronic texts is immense and costs are uncertain.
• Traditional roles will undergo transformation.
• Adaptation of current copyright practices to the new electronic environments will be complex.

As a followup, the Foundation launched a focused and disciplined effort to map the current electronic scholarly communications landscape. It aggressively offered program grants designed to support and track sample electronic publishing initiatives in American academia — interestingly emphasizing, but not limited to, the humanities — and in spring 1997 conducted a conference in Atlanta that brought together grantees and others to discuss the lessons learned so far. [11]

IV. AAU/ARL Task Forces[12]

In 1992, the Association of American Universities and the ARL joined to explore how research universities ought to address the major issues described in the ARL and Mellon reports, as well as to take a leading role in the high-tech information environment beginning to take shape. In the set of final reports, the notions of intellectual property management and ownership were tackled head-on.

The AAU presidents who comprised the Steering Committee of what became the initiative's Phase I established three task forces to describe current conditions and identify action strategies: (1) Foreign Acquisitions, (2) Scientific and Technological Information, and (3) Intellectual Property. In spring 1994, their reports were enthusiastically received by AAU and then ARL. The Foreign Acquisitions recommendations gradually took on a project life of their own, while the other two were combined into one for second-phase followup. In short, the recommendations of the Intellectual Property Task Force, which harmonized in many ways with that of the Scientific and Technological Information Task Force, emphasized a new and different information ownership mode for members of academia and began to suggest how this might be done. The distribution mode and the IP policies of the Los Alamos National Laboratory High Energy Physics archive, created by Paul Ginsparg and already influential in the physics community, served as an inspiration to the STI and IP task forces.[13]

The IP-centered recommendations derived from the notion of academic values. One of the primary functions of universities is to foster scholarship and research and disseminate it efficiently, cost effectively, and as widely as possible. After extensive deliberation, both task forces independently concluded that the current dissemination of many academic works was neither broad nor cost effective enough, and that the most significant barrier to wider dissemination (or perhaps more competition) is the routine and thoughtless transfer of copyright to publishers because of the (under-informed or mistaken) views held by academics that (1) the full rights of ownership must be transferred with each work in order for a publisher to formally publish that work; (2) that such publication is the most effective method of distribution; and (3) the needs of academic authors dovetail nicely with those of all publishers. In fact, the task forces were not hostile to the notion of formal publication of academic authors' works. What they observed, however, was that full, unbundled transfer of all creators' rights subsequently prevented members of academia from unrestrictedly re-using their works in the classroom or with colleagues and from mounting them on their own web sites as they might choose. If academic authors chose to do such things (which come naturally to creators, after all), they might be chided or threatened by their prospective journal publishers and persuaded to remove the materials from their own servers. And if the University through, say, the Library, wished to make the works of its faculty available online as a public service, the fact that academia no longer owned any rights to its creations made this impossible. Interestingly enough, it was the electronic environment that had brought many of these ownership and copyright transfer issues to the fore.

In short, the Intellectual Property Task Force Report made recommendations at several levels:

• Fair use in an electronic environment, particularly as it relates to teaching, learning, research, and scholarship, needs to be explored and affirmed.
• Electronic scholarly publishing outlets need to be created or strengthened, in order to encourage competition.
• Universities ought to recognize the different and complex interests that operate at various levels and strive to reconcile them. To this end, the Intellectual Property Task Force offered four possible scenarios (it frankly was unable to reach consensus on any single one), each one upping the ante of the scenario before:
• Enhance current practices through such means as campus education about copyright and copyright transfers, encourage authors to act "smart" in the copyrights they assign and to act in ways that "do no harm" to the institution and its mission.
• In addition to (a), encourage faculty to retain ownership of their creations and license them to producers, remaining free to reuse their works themselves, to make available within their own institutions, or by colleagues and readers elsewhere.
• Establish joint faculty/university ownership of copyrights. This scenario would take (a) and (b) a step further, by affirming that for the common educational good, faculty and universities would share in ownership of academic creations.
• Establish joint faculty/consortium ownership of copyrights. This scenario imagined the creation of a large AAU publishing consortium into which faculty deposit their works on a non-exclusive basis. The database would be available to all who wish to use it, at modest cost, to defray the cost of supporting the system. The faculty would deposit on a non-exclusive basis, being free to have the works published elsewhere as well.

Possible objections to each scenario were anticipated both within the report and later raised by its readers. For example, faculty were skeptical that universities could behave in an altruistic and non-controlling manner with their creations. They were more likely to regard even the most high-priced publishers as their allies (after all, the editors-in-chief and editorial boards were their colleagues), than the universities' presidents, provosts, and deans. Appreciating the goals of the recommendations, some university presidents were nonetheless skeptical that universities could develop a competitive electronic publishing capacity, particularly for STM. Most of all, the notion that universities might try to tell academics how they should treat their creations — let alone suggest some form of ownership or co-ownership, was a dogfight waiting to happen. Clearly, any concept of changed ownership that would give universities rights they did not have before, would need to be carefully presented, discussed, and jointly agreed to. It was clear that AAU presidents did not relish the possible downsides of such highly charged discussions, in which the "patent battles" of the '70s might be re-enacted.

With that in mind, in Phase II of the AAU/ARL Task Force (this time the steering committee included research library directors as well as presidents), a reconstituted IPTF intended to develop a proposal for multi-player, collaborative, electronic publishing projects as a way of advancing publishing experiments. The hope was that successful experiments would lead to proof of the concept that copyright ownership could be shared or managed in new ways. In April 1996, the Electronic Scholarly Publishing (ESP) proposal was presented to the AAU/ARL Steering Committee by IPTF II. ESP called upon each of the 60 AAU presidents to contribute $30,000 toward a venture-capital fund which would fund meritorious and interesting new startups by academic players (university presses, societies, libraries, faculty) to bring competitive e-journals to the academic marketplace. This proposal at the last moment failed to garner sufficient support from the Steering Committee, and both ESP and the AAU/ARL Steering Committee faded from the scene. The Steering Committee lamented that the proposal was too little, too late.

V. IScAN (International Scholars Academic Network)

Following the demise of ESP, one of the AAU/ARL Steering Committee members, along with a small working group of ARL library directors, invested considerable time developing for the ARL Board a proposal more ambitious in scope than ESP might have been. Though it proposed a network rather than a project approach, IScAN was not altogether clear and did not sufficiently distinguish itself from earlier proposals. Without a substantial constituency, it was overtaken by events of 1997, which included an AAU presidential focus on Internet II, and national and international copyright/database legislation.

VI. AAU Committee on Digital Networks and Intellectual Property

By early 1997, the AAU had redefined its interests in the information arena, creating a new standing committee on Digital Networks and Intellectual Property. In addition to leadership by AAU presidents, the new committee included some provosts, chief information officers, research library directors, and law professors. It was charged to focus on issues in the areas of networks, intellectual property, distance education, and legislative and regulatory policies. It was not clear in what proportion this Committee would concern itself with matters of intellectual property ownership on campuses vs. the national legislative arena. This Committee has a counterpart in NASULGC (National Association of State Universities and Land-Grant Colleges, the higher education association that represents the interests of the so-called "land-grant" or chartered, state-funded universities). [14] NASULGC addresses interests not dissimilar to AAU's and likewise seeks to speak with one voice. NASULGC also created a Presidential Advisory Group on Information Technology, which identified Intellectual Property as one of its key issues for deliberation. The presidential membership of the two (AAU's 60 and NASULGC's approximately 190) overlaps to some extent. As both Associations moved to "bigger issues," the focus on specific university copyright management matters lost some of its sharpness.

VII. Other Simultaneous, Ongoing Actions and Initiatives at Individual Institutions

Throughout the 1990s, university faculty and librarians within individual institutions also began to consider different kinds of management or ownership of faculty copyrights. Just as new technologies had caused the AAU task forces to view IP management in new ways, so new modes of publication and dissemination (using the Internet, the World Wide Web, and email to foster and disseminate numerous online collaborative ventures, classroom teaching tools, numerous university-based e-journals, working papers, and successful disciplinary-based preprint servers) had helped to identify similar issues and potentials within specific institutions. For example:

In July 1993, the Triangle Research Libraries Network's joint faculty/library committee developed a model copyright statement that encouraged faculty to retain their copyrights when publishing with organizations whose pricing practices would restrict widespread access to research results (i.e., commercial for-profit publishers).[15] Such retention would make it possible to distribute that information in alternative high-tech modes.

In September 1994, a group of librarians, scholars, university press publishers, and technologists met at Columbia University to draw up recommendations for concerted action to base electronic publication more firmly on the academic campus, where presumably it would be more responsive to the academic and economic exigencies that libraries feel.[16]

The CETUS Project (CUNY/SUNY/CSU systems) began in 1995 and has released several discussion documents including one on the future role of libraries and, more to the point here, a document that explored options for university and faculty ownership.[17] It advocated the unbundling of rights as part of a strategic approach to academic copyright management

In 1995/96, a small working group of faculty and university officers at Stanford developed a short but incisive statement of principles to guide its activities in the copyright assignment arena. These include:

• Do No Harm to core missions of teaching, learning, research
• Protect for return on investment for both individuals and institution
• Incite and kindle entrepreneurship
• Constantly refresh knowledge base; i.e. continue to create and disseminate new knowledge.

According to the Stanford University Librarian, Michael Keller, "The principles are very likely going to be the basis for some new policies at Stanford intended as much to improve the returns on Stanford's investments in its faculty, its programs, its facilities as much as to protect the institution from encroachment by others on its investments and their potential for return."[18]

The Committee on Institutional Cooperation institutions (CIC, otherwise known as the Midwest's Big 11, after the college football league in which they compete) over the last years have organized a substantial library initiative whose goal is to treat the member's libraries, to the extent possible, as one (for example, shared online catalogs, wide delivery of documents, joint electronic licensing). A representative group of the CIC institutions met in 1996 and recommended that a working group be established to articulate a statement of principles and a framework for developing comprehensive campus policies on intellectual property. This group reports to the provosts of the CIC.[19]

Georgia Harper, Copyright Counsel for the University of Texas System, advocated revisions of the Texas ownership policy to more effectively meet academic goals and to distinguish it from those of the entertainment industry. The work of this office and the information on this site have been exemplary in providing support for librarians, faculty, and users with respect to intellectual property policy on campus.[20]

Running in the background of all these formal conversations has been an informal ongoing "subversive conversation" carried out simultaneously in numerous Internet salons (discussion lists), spearheaded by a handful of key players, including Stevan Harnad (a psychologist and innovative electronic journal editor at the University of Southampton) and Paul Ginsparg (creator of the controversial and indispensable high-energy preprint archives at Los Alamos). In short, a large minority of academics, especially in the sciences, affirm that research results can be distributed quickly and freely through the e-waves, resulting in a "subversion" that will forever change the scientific information culture.[21]

Indeed, evidence of such subversion can be found in many very important corners of cyberspace. Many important resources are funded by governments and institutions, content being made available freely to all end users. Some examples include the notable LANL HEP preprint archives, which have added other subjects to the site and have been cloned in many fields. (The latest proposal that builds on the LANL's efforts comes from the National Institutes of Health and, if implemented, would have the NIH create a preprint archive for biomedical research literature.[22]) Such institutionally and federally funded projects place little to no restriction on use, and license negotiations are either absent or implicit.

In sum, though there have been and continue to be scattered, serious attempts to modify the way that academic creations are owned and transferred, the traditional ownership policies in US universities continue and they affirm that faculty members create and own their own works, except when those works are specifically works-for-hire or significant university resources are used to create them. In that case, some defined form of shared ownership comes into play. [23] In actual practice, though, faculty members tend to transfer copyright to publishers. There are signs, however, that academics and institutions are taking these discussions increasingly more seriously, even though there is not yet much to show for them.[24] At the same time, much of the publishing community, upon examining its broad, value-added role in the information chain, now takes a more relaxed stance about articles appearing simultaneously on personal web sites or preprint servers as well as in their published journals.

The Most Recently Organized Proposals or Initiatives

VIII. De-coupling the Peer Review and Publishing Processes

First, given significant air time and shape at the Cal Tech Scholarly Publishing Conference of March 1997, the "de-coupling" initiative -- perhaps better called a suggestion -- proposes that peer review of scholarly research can be separated from its eventual formal publication for archival purposes. [25] A number of the participants in that meeting, well aware of the revolutionizing effect of the LANL preprint archive, searched for ways to expand its stunning success to other fields -- if not as a series of centralized disciplinary servers, then as widely distributed web sites, mounted by scholars at their own institutions. In order to be successful, such a "de-coupling" initiative would require a new model for academic credentialing and new ways of funding both preprints and peer review, utilizing existing scholarly societies as the mechanism and university technology as the distribution mode. The academic "seal of approval" could be affixed to an electronic version of a work held on an academic's own web site. Print publication would not be necessary for tenure and promotion review purposes.

IX. SPARC (Scholarly Publishing and Academic Resource Coalition) [26]

This initiative of the Association of Research Libraries seeks to create competition in the marketplace by encouraging organizations that share the values of the scholarly community to develop innovative publications that take full advantage of the new technologies. In October 1997, the SPARC proposal was endorsed and promulgated by the ARL Board. SPARC seeks to identify partners and collaborate with them, to develop and fund new publishing ventures, endorse new publications and information products, and recruit authors, editors, and advisory board members. The stated priority is to enter the journals marketplace in disciplines where the prices are highest and there is greatest need for alternative models of research communication. SPARC has garnered a great deal of interest in its early days and has supported several competitive STM journal initiatives. Some are confident that it will materially affect the scholarly communications landscape; others are not so sure; still others are concerned about its position vis a vis antitrust legislation. Most of its story remains to play out in the future.

X. Pew Round Table, November 13

On 13-14 November 1997, in Baltimore, Maryland, a "Pew Roundtable," sponsored by the Pew Charitable Trusts and facilitated by Robert Zemsky of the University of Pennsylvania's Institute for Research in Higher Education, brought together academic leaders under the aegis of the AAU and ARL, once again, to review the central issues of the crisis. Once again, the conviction on which the conversation was based is that copyright and the management of copyright offer leverage to affect a broad range of academic and social forces.

Meanwhile, Reality Intrudes

It can seem to those who read this summary, as it does to some of us who have lived its history, that nothing changes. But consider just this set of facts.

In 1991, the ARL edited and published the first directory of electronic scholarly journals ever.[27] In that first slim volume, 110 e-journals and newsletters were identified. That work is now in its 8th edition at ARL. In 1993, impressed by the boom in such publishing, a colleague (Dave Rodgers at the American Mathematical Society) and I began the internet announcement list NewJour, which daily publishes brief notices of new electronic journals, magazines, and newsletters. Two years later, in January 1995, the list archive contained 250 journals. Today, six years later, the total of items in that archive[28] is passing 7500, and we know that we are still missing at least the 1100 -1200 on-line Elsevier journals -- for we depend on limited student labor and ourselves (after 11 p.m.!) to maintain the list and its archive, and we have simply been swamped by the flood, not just of Elsevier titles, but of Springer, Wiley, Blackwell Scientific, and many others. That means there are now at least 10,000 substantial e-serials in the world, and dozens more (it seems) appear daily. While academia speaks endlessly of the possibilities of e-publication, the reality has burst into life -- with all the attendant ambiguities and complexities.

The new electronic journal reality looks a lot like the old print reality in some disheartening ways. The commercially published journals garnering premium prices in paper are increasingly available to libraries in e-form, but often at a further premium. There are some exceptions to this development and some noble experiments, such as the one by the Optical Society of America,[29] but the overall trends are not cheering. This essay is not the place to recount in detail the consumer-proactive ways in which libraries are responding to new pricing and licensing modes; I have written elsewhere on the strategy we have chosen at Yale, for example, of negotiating aggressively, particularly within consortia of libraries, for fair and affordable licenses to use e-resources.[30]

Common Threads

In our review, we see that history repeats itself even over short stretches of time; at least there are common threads among many of the above initiatives.

The usual suspects. Leaving aside the observation that many specific individuals play recurrent parts in these discussions, it is more significant that this essay has described a series of discussions in which essentially the same categories of participants, in roughly the same mix, appear over and over. Given the significance of the academic issues involved, it is striking that relatively few faculty and fewer academic officers (deans, provosts, presidents) find these issues sufficiently riveting to compel their ongoing attendance and participation. At times, representatives of the for-profit publishing communities are invited and attend, nervously, as they see their own economic practices discussed by outsiders. Publishers are the most variable set of participants at these tables: sometimes for-profit publishers are welcome, sometimes not; sometimes university press publishers find their interests addressed, often not.

The one group most consistently represented -- indeed, if I am not mistaken, never not present in strength in all these initiatives -- is the library community. Always present, often convening, librarians clearly find a stake in these issues far more sharply than other groups. There are three reasons for this pre-eminence.

• (a) Librarians are middlemen, caught with limited resources between a near-infinite supply of information from publishers and a near-infinite demand for information from their users. It is librarians' necessary role to intervene and manage reasonable use of these demands and resources.
• (b) Libraries have long been the impartial acquirers, servicers, and archivers of information, funded by universities or the public as a commons.
• (c) Librarians know we live in a culture of technologies of disintermediation. Librarians have acute reason to think that their own roles may disappear or, what is in some ways worse, be reduced in status to functionaries. A move away from this relatively altruistic role and institution, without anything comparable to replace it, is an unacceptable prospect for society.

Ritual behavior. The IP and publishing initiatives reviewed here typically begin by identifying problems. The literature of "crisis" amply supplies material, and nothing is so familiar as the sudden zealotry of the academic or publisher who has just discovered what the rest of the participants in these gatherings have discussed for years.

Not infrequently, the most common next step is to short-circuit discussion by scapegoating. There is a large social science literature on the role of the scapegoat in the community; one cause for scapegoating is impatience. If there are problems then someone must be at fault, and placing the blame can lead to solution. The most commonly identified villains are the large commercial, for-profit publishers. The compliment is, of course, often returned by publishers who accuse librarians of undermining the economic stability of the system with theft palliated by the legal cover of "fair use" and Interlibrary Loan. Other villains can be faculty/scientists, who so badly need formal publication that they will transfer ownership simply to be published in a journal of their choice, without regard for after-consequences of such a transfer; or the academic rewards system, which drives authors to selfish acts; or librarians, who do not cancel subscriptions or behave as a real market.

Once the villains are identified, proposed solutions take one of two forms: raise the bridge or lower the river; i.e., either reduce the price of information (the preferred academic solution) or increase the funding for libraries (the preferred publishers' solution) in order to ensure access to information for users. In a way, both proposals are impractical (which suggests to a sober observer that resolution will happen in other ways), but that does not make them less attractive. On the academic side, in particular, there is a strong belief that electronic dissemination must reduce costs, if only academics and not businessmen control the process. That hypothesis has not been rigorously tested.

Copyright: if it isn't the problem, is it the solution? In the division of opinions, a standard repertoire of positions about copyright may be discerned. Academics and librarians fasten on the fair use principles of the US Copyright Act and struggle to use them to create sufficient flexibility and space in which to allow freedom of movement for information in support of academic goals. As a second step, the same parties scrutinize with care the present institutional management of copyright, seeking acceptable changes that would bring benefits to academia. The leitmotif of those conversations is the remark that universities pay to create information that faculty give away to publishers who sell it back to the universities at shockingly high prices.

But on the other side of these tables, copyright is no less a prop and stay for the case that publishers make. They insist on the owners' rights created by copyright law and argue for clearer statement of these rights and for more effective enforcement. If leakage could be stopped (fair use leakage, interlibrary loan leakage, photocopying leakage), their argument runs, a saner economic balance would be achieved.

Boundaries of the Labyrinth

The recommendations that emerge from the sorts of ventures described above are various. Often the recommendations have included suggestions that specific model publishing projects be undertaken. This was a bolder suggestion in 1992, when there were a handful of e-journals, than in 1999, when the flood is upon us.

What is it that has kept academia trapped in the labyrinth, like the three men out of their boat and in the Hampton Court maze, expending so much effort, with so little change to show for it? It may be that we have not yet asked the right questions and therefore our answers are flawed. For example:

Is the need well defined? That is, are academics and scientists genuinely unable to secure access to research information that is important to them? Are serious researchers unable to find outlets for their work? If either of these questions were answered in the affirmative, we might reasonably expect to see more active researchers clamoring to join our discussions. We run the risk of struggling to solve a problem that does not exist precisely as we have defined it.

Have we chosen the most effective strategies, given the problem statement (to make information ubiquitous and more affordable)? Does changing the way in which faculty manage and assign their copyrights to publishers, provide the path to the solution of problems identified above? Does changing the ownership mode from faculty to university or to a shared arrangement, carry the solution to information access? How can we find out?

Is it possible to change an entrenched kind of publishing culture? Established practices of publication, let alone copyright transfer, die hard. The rewards for scholarly publication (promotion, tenure, salary, better positions at other institutions, research grants — to say nothing of advancing one's field of research and scholarship) are substantial and may effectively render researchers cautious in the face of change. On the other hand, the publication outlets we know today, particularly in STM, have existed mostly since the 1950s, only 40+ years at most.

Is appropriate concertment of action possible? Few real solutions to systemic problems can come from actions of individuals or individual institutions (although they can set a good example of leadership for the rest); multi-institutional synergy and cooperation are needed. The United States is a large country whose social, economic, and educational organization is deliberately pointed towards incoherent and unstructured, and therefore market-based, solutions. There is no central organization to mandate action (AAU and ARL, for example, are voluntary associations). Universities are funded by states and by diverse sources of income such as tuition, grants/contracts, private giving, corporate partnerships, etc. Private universities receive no direct state support and hence are immune to most forms of government incentive. It is difficult to generate a common will. (It may indeed be easier to generate such commonality of purpose in smaller countries or those with more centralized structures, or perhaps even in the European Community. The US may need to follow, not lead, in this domain.)

Are so-called "academic values" shared by all within academia? Just what are those values? University faculty and scientists identify primarily with their scholarly interests and societies and only secondarily with their universities, of whom they are suspicious. Attempts by deans or provosts to turn institutional patriotism into concerted action may founder if that patriotism is faintly felt.

Are self-interests well defined? For example, the notion of academic freedom is deeply embedded in the fabric of US academia and there are fears that structural changes such as giving up or sharing of copyright ownership will lead to loss of academic freedom. Further, there are some disciplines in which faculty are acutely aware of the economic value of their work — or at least believe in the prospective economic value of their work strongly enough to be reluctant to sign away even just the possibility of a large advance, substantial royalties, and commercial success.

What is the marketplace doing as we continue our prolonged academic explorations and discussions? Continued consolidation of publishers, particularly the large conglomerates such as Reed-Elsevier, with emphasis on professional and scientific publishing, makes for tough competition. At the same time anti-competitive regulations, at least in the US, say that consumers cannot gang up on producers and agree to not buy their wares; no systematic, organized cancellations are possible for the library marketplace.

vHow high a priority is the "crisis" for senior university administrators such as presidents and regents? University leaders do not number information provision among their top priorities: they are preoccupied by such substantive and costly matters as capital infrastructure (buildings, maintenance), competition for the best students, attracting top faculty at affordable prices (for salaries, facilities, etc.), the costs and challenges of technology infrastructure, and even the dizzying prospect of outright commercial competition (e.g., the for-profit University of Phoenix is gaining in success and visibility and is mentioned with increasing nervousness in some very august academic circles).[31]

Can universities act in an agile, entrepreneurial way vis-a-vis academic publishing? Universities are not generally set up to be entrepreneurial, though there are exceptions (such as Stanford's HighWire Press [32]), and most are making or have made their capital-poor university presses self-sustaining. An organization that needs to support itself and has not the capital to undertake risky ventures will naturally stay with proven successes, even if the returns on those successes are dwindling.

What Is To Be Done?

My observations here have fallen into two categories: historical observation of the progress of the "crisis" discussion and the lack of consequent action on the one hand, and an interpretation of the causes on the other. Some solutions would directly implicate copyright and intellectual property; others seek to change the mode of publication; still others, to influence the marketplace. If, as a long-standing regular participant in many of these discussions, I am guardedly skeptical about our prospects, I can at the same time try to outline some directions for success:

First, patience and persistence. We have set out on a path and may be much closer to its beginning than we would like. If we truly believe in our academic institutions, their idealistic (though perhaps not universally agreed-upon) missions, and their advancement, then steadiness is important. A few years of relative immobility offer important opportunities for reflection and renewed analytical discussion, but they ought not be in themselves reason to surrender.

Second, we have come to a point at which thinking about individual demonstration projects is probably losing its point. Too many scaled-up undertakings are already proving their worth, loudly. Better that we learn as we observe closely the usage and the economics of the projects under way, both those in the academic community (the Mellon Foundation is doing this with a number of projects it supports and monitors) and those in the commercial environment. The boom in new electronic journals may well be followed by a shakeout as publishers discover what is sustainable and what is not: in that moment, opportunity may well come for change. The most encouraging academic movements now in view are those that do not merely toy with the idea of action, but act themselves. Johns Hopkins University's Project MUSE has decisively changed the way one University Press deals with its journals.[33] Stanford University's partnership between library and press, and the Library's venture supporting HighWire Press, has in a very short time made itself a serious force in journal publishing on the net. What both projects have in common is clear vision and the willingness to venture real resources in support of vision.

Third, the real issue inside American academia is to call the question of intellectual property with the academic leadership of our institutions. The responsibility still remains with librarians and other interested parties to take copyright management issues into the wider forums of academic debate convincingly and boldly. If presidents and provosts take up these issues, then change can occur. But until and unless all the players in the dialog distill what we have learned from all our conversations in a way that compels the attention of our leaders, we will still be very limited in what we can achieve. One key way to gain and merit that attention is to work with technologists and administrators on campus to educate faculty better about copyright and its management, encouraging them to unbundle the rights they now mostly sign away, to retain as many as are expedient for their work and their institutions, and license publishers. The shift in pedagogy from traditional classroom to remote teaching, from traditional materials to multimedia, creates new issues in ownership of copyrights and their management. Those issues are the opportunity for opening a wider conversation.[34]

Fourth, academic and scientific publications are part of a changing marketplace. Libraries are in fact joining together in consortia (and we now even have regular meetings in the States of an "International Coalition of Library Consortia" [35] to discuss common issues), to leverage their economic power and their influence with publishers in legal and responsible ways. The traditional mode for purchasing, say, a print journal, is for each library to engage in a single-title transaction with a publisher, a situation in which a publisher of multiple and particularly important journals holds every marketplace advantage. With the emergence of substantial electronic databases and journal collections, it has rapidly become the practice for publishers to negotiate with regional or state consortia. This path has three advantages: (1) it levels the marketplace playing field because the negotiators at the table both represent large-scale resources; (2) it avoids obsession with the so far intractable issues of copyright management; and (3) it is an action mode; thus, it diminishes the time spent in scapegoat mode and increases the emphasis on publishers and librarians as possible partners and colleagues in a more equal buyer/seller relationship. The energetic consortial negotiations of today have also made possible significant user/copying rights in electronic licenses, rights not infrequently exceeding those offered by national copyright law. [36]

The Progress of Science and the Useful Arts

In summary, the controversies that drive academics and publishers to think of copyright law as either obstacle or solution to their difficulties are complex and multidimensional. As is well known, in 1995, the US Government's "Lehman Commission" presented a set of so-called modest — but as it turned out controversial and, at the time, un-enactable — recommendations for modification of the US Copyright Act of 1976.[37] My view is that it is a good thing that these recommendations failed; that is not because they were bad recommendations (though flawed), but because the time was not yet ripe for statutory intervention in our crises. Much thought needs to be given to just what a revised copyright law needs to do to embrace electronic information ownership and distribution.[38]

For one thing, we know too little of the new electronic environment and how it will work, either technically or socially, to be sure that new enactments will be truly apposite. To take one example: there was much discussion surrounding the Lehman Report of the question of when an electronic "copy" is actually made. Many readers and discussants of the report took a quick and self-styled expert view about precisely when a copy of a WWW document is made. The disparity of views and the obsessiveness of the technical discussion that followed were a warning that statutory law was addressing matters at a level of detail unlikely to lead to good practice or good jurisprudence. To base new law on the imperfect technical knowledge of lawyers — let alone lack of practical experience — in a rapidly changing environment is a dangerous thing. Changes in network technology or in computer technology could well alter the facts on which national law would be based, in unpredictable ways that could leave us with new law but worse problems.

Bernt Hugenholtz astutely observed, "Paradoxically, most modern copyright laws have more problems in adapting to the new electronic media than their 'antiquated' counterparts. Traditional old-media exclusive rights and limitations are mostly defined in platform-independent ways... By contrast, legislators attempting to keep up with current technological development are faced with narrowly defined, platform specific rights and limitations, that can not be easily stretched to fit in the digital networked environment."[39] We run the risk of intensifying our problems by premature action.

But the real reasons to think the legislative recommendations premature are not technical but social. What strikes me most forcibly in reviewing this academic history is that all parties assume that the various roles they now play in scholarly and scientific publishing will persist in a new environment in more or less similar form to today's. We all — and I emphatically include librarians here — believe in such persistence and fear the possibility of disruption. Hence, we assume that we know something about the future and urgently hope that our particular role can be enhanced or at least maintained in that future.

Frankly, it is unlikely that all our hopes can come true. Think of it this way: if today one takes a piece of intellectual property and stores it securely for later consultation, one acts in a way that a librarian would recognize as her own. If one takes a piece of intellectual property and disseminates it to a wide audience, one acts in a way that a publisher would recognize as her own. But if one takes an HTML-based document and saves it to a specific location on a networked server, one is doing both things at once. Is one then a librarian or a publisher? Or rather, if we did not have the pre-existing categories "librarian" and "publisher" in mind, what would we call that type of dissemination? We cannot answer these questions today, but it is certain that such technical conundrums will lead to significant reallocation of social roles. Before we can begin the delicate business of statutory or large-scale social reallocation of legal and property rights, we must abide a while to see what happens in the broader reallocation of roles. This is a recommendation that we let a kind of market play its part and refrain from attempting, on too little knowledge and with too little wisdom, to force the future to flatter our self-esteem.

If we consider instead the goals the US Constitution adduces for giving authority to the management of intellectual property — what genuinely promotes the progress of science and the useful arts — we may be able to think a little less of ourselves and our short-term agenda and see things we would otherwise miss.

The lesson to be drawn from the history outlined here is simple: we have failed to take concerted action for good reasons. We will succeed, if we do, when we know our own minds better, and when reasonable concerted action is genuinely open to us. This does not mean that we face no crisis: far from it. It means that we do not yet have appropriate tools to influence it. This is a hard and unwelcome lesson in some ways, but we would be wise to accept it.

[Note: An earlier version of this essay was given as a talk at the conference "Universities and Copyright," November 1997, and published in Universiteit en Auteursrecht, ed. P. B. Hugenholtz, Otto Cramwinckel, Amsterdam, 1998.]

Endnotes

1. Midnight in the Garden of Good and Evil, by John Berendt. This book has been on the best-seller lists in the United States for over four years in hard cover. In it, persistent mystery in a miasma of unpredictable conduct characterizes a tradition-bound community that might think itself immune to such goings-on.
   
   
2. "Scholarly Communication and the Need for Collective Action; an ARL Discussion Paper." October 1997.
   
   
3. Ann Okerson, "Periodical Prices: A History and Discussion," Advances in Serials Management, Volume 1, November, 1986: 101-134.
   
   
4. For numerous charts and data that document the service and buying trends in Association of Research Library institutions, see the annual publication ARL Statistics, Washington DC, Association of Research Libraries. The most recent in the series is 1998-99: pp. 5-19. Over the years, important analysis has been presented by Kendon Stubbs (ARL's Statistics and Measurement Consultant and partner, as well as Deputy University Librarian, University of Virginia) and more recently by Martha Kyrillidou of the ARL. The Statistics are available also through an interactive WWW edition, with data back to 1962-63, maintained and supported by the Geospatial and Statistical Data Center at the University of Virginia. See: http://fisher.lib.virginia.edu/newarl/ for these data.
   
   
5. I am indebted to ARL's publications, its web server http://www.arl.org, and my extensive files from 5.5 years as its scholarly communications program officer. All these sources helped to reconstruct this history. Mary Case's (current Director of the Office of Scholarly Communications) recent summary (see Endnote #2) proved most helpful.
   
   
6. The Report of the ARL Serials Prices Project, Washington DC, Association of Research Libraries, May 1989, includes two contractor reports: Economic Consulting Services, Inc., "A study of Trends in Average Prices and Costs of Certain Serials Over Time; and Ann Okerson, "Of Making Many Books There is No End." The compilation also includes an overview and the membership's resolutions and recommendations for further action.
   
   
7. The Association of Research Libraries is a 122-member organization of the major research libraries in North America (US and Canada). Its mission is to shape and influence the forces affecting the future of research libraries in the process of scholarly communication. For more information, see: http://www.arl.org
   
   
8. ARL. An unpublished document distributed to members, Spring 1992.
   
   
9. University Libraries and Scholarly Communication; a Study Prepared for the Andrew W. Mellon Foundation, Washington DC, Association of Research Libraries, November 1992. For an overview, see the "Synopsis" chapter by Ann Okerson.
   
   
10. For more information on The Andrew W. Mellon Foundation, see their home page: http://www.mellon.org/
    
    
11. Scholarly Communication and Technology; Papers from The Conference. Atlanta, Emory University, April 24-25, 1997.
    
    
12. Association of American Universities Research Libraries Project, in collaboration with the Association of Research Libraries. Reports of the AAU Task Forces, Washington DC, ARL, May 1994.
    
    
13. arXiv.org E-Print archive
    
    
14. For information about NASULGC, see their web site: http://www.whes.org/members/nasulgc.html
    
    
15. "Model University Policy Regarding Faculty Publication in Scientific and Technical Scholarly Journals; A Background Paper and Review of the Issues." The Copyright Policy Task Force of the Triangle Research Libraries Network. Durham, Raleigh and Chapel Hill, North Carolina, July 1993.
    
    
16. Agendas, reports from this meeting in the ARL files, as unpublished documents.
    
    
17. CETUS is the Consortium for Educational Technology in University Systems.
    
    
18. Michael Keller, "Capitalizing on the Library Investment," a presentation on April 12 1996. Keller is University Librarian, Director of Academic Information Resources, and Publisher of the HighWire Press.
    
    
19. "Conference on Collective Strategies in Approaching Copyright Issues Affecting CIC and Regent Institutions," Final report, August 25, 1996.
    
    
20. For the introduction to this work see: http://www.utsystem.edu/OGC/IntellectualProperty/
    
    
21. Ann Okerson and James O'Donnell, eds., Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing; An Internet Discussion About Scientific and Scholarly Journals and Their Future. Washington, DC, Association of Research Libraries, 1995. See also: http://www.arl.org/scomm/subversive/index.html
    
    
22. "NIH Weighs Bold Plan for Online Preprint Publishing," by Eliot Marshall, Science, March 12, 1999: 1610-1611.
    
    
23. Some widely available online copyright policies can be found at: http://www.library.yale.edu:80/~okerson/copyproj.html
    
    
24. For a Yale University discussion document, for example, see a position paper dated March, 1998, at: http://www.library.yale.edu/~llicense/bennett.html
    
    
25. Charles E. Phelps, "The Future of Scholarly Communication: A Proposal for Change." May 30, 1997. An unpublished paper.
    
    
26. SPARC's web site is at: http://www.arl.org/sparc
    
    
27. Ann Okerson, ed. Directory of Electronic Journals, Newsletters and Academic Discussion Lists, 1st edition. Washington DC, Association of Research Libraries, July 1991+; since 6th edition, 1996, Dru Mogge, ed.
    
    
28. The NewJour list now runs in partnership with James O'Donnell and the University of Pennsylvania. The web archive is updated daily at: http://gort.ucsd.edu/newjour
    
    
29. The OSA's experimental e-title, Optics Express, charges $300-$350 per submission from each author and makes that journal available to all readers for free. http://www.osa.org
    
    
30. See articles on licensing at: http://www.library.yale.edu/~okerson/alo.html
    
    
31. James Traub, "The Next University: Drive-Thru U. Higher Education for People Who Mean Business." The New Yorker, October 20 and 27, 1997: pp. 114-123. The article describes a relatively new but highly successful educational concept of the "para-university," focused pragmatically on training for jobs in business. Traub writes, "It has the operational core of higher education—students, teachers, classrooms, exams, degree-granting programs—without a campus life or even an intellectual life." Participants in this conference can take particular pleasure in the next sentence: "...the most recent issue of the university's only academic journal contained but a single academic article, about copyright law."
    
    
32. HighWire Press is the internet imprint of the Stanford University Libraries.
    
    
33. Information about the Johns Hopkins Press e-journals can be found at the Project Muse home page.
    
    
34. An excellent discussion of these issues with lucid recommendations and discussion has been published by the Consortium for Educational Technology for University Systems (C.E.T.US), a joint activity of the California State University, SUNY, and CUNY systems. http://www.cetus.org/ownership.pdf
    
    
35. ICOLC website at: http://www.library.yale.edu/consortia/
    
    
36. Ann Okerson, "The Transition to Electronic Content Licensing; the Institutional Context", paper presented at the Scholarly Communication and Technology Conference sponsored by The Andrew W. Mellon Foundation, Emory University, April 24-25, 1997.
    
    
37. Bruce A. Lehman, The Report of the Working Group on Intellectual Property Rights. September 1995.
    
    
38. Ann Okerson, "Who Owns Digital Works?" Scientific American, July 1996: 80-83.
    
    
39. B. Hugenholtz, "Adapting Copyright to the Information Superhighway," The Future of Copyright in a Digital Environment (1996), ed. B. Hugenholtz, p. 99.