February 2003
Volume 18
Number 11
Information as Product and Property
The current academic year has seen a number of intellectual property controversies make national headlines. RoweCom, a major subscription service for scholarly journals, encountered "financial difficulties" that left many academic libraries in doubt as to whether their journal subscriptions would be honored. Elsevier Science withdrew journal articles and then after expressions of concern from scholars adopted a new policy for online noting of retracted articles. The Sonny Bono Copyright Act, which extends the term of copyright to the life of the author plus seventy years, was upheld against challenge (Eldred v. Ashcroft) in the U.S. Supreme Court. Webcasters, including some college and university radio stations must now participate in a royalty payment service. The Recording Industry Association of America (RIAA) is seeking out P2P infringers on campus networks and sending notices to senior administrators.
The intersection of law, commerce, and technology is raising multiple, simultaneous challenges to how information flows through institutions of higher education. Colleges and universities have found that publishing interests and lawmakers have been more highly motivated and organized on these matters than the educational community. Generally, the movement in law and commercial practice has been in the direction of solidifying the treatment of published materials as property. While the technology of copying has grown strongly, the holders of copyrights have responded, in some cases vigorously, to block copying via legal constraints. In the case of library periodical subscriptions, the possibility that large amounts of aggregated fees may be lost is focusing attention on the vulnerability of scholarly assets when the acquisitions process leads through a few high-volume fiscal agents.
Behind these headline stories are extensive issues of information as product and property. Most of the attention has gone to commercial publication: paper and e-texts, music, images, and video. The authors of most of these materials are not academics. But with the advent of digital production technologies, increasing numbers of faculty and students are joining the ranks of authorship in these same media.
Makers and users
In the public marketplace, producers and consumers tend to be
distinct. Gradually we have come to accept that expressions and forms of
information are like other manufactured goods. The case is clearer for
books and CDS, less so when the same works are network-accessible and
within our means to copy.
In education, the distinction between readers-users and authors-makers shows signs of becoming less polar. Most scholarly work and increasing amounts of artistic work as well is produced or at least represented and stored in digital form. These works see little use or visibility beyond the circumstances where they were created. Still, term papers and senior theses – many abandoned in place on academic web servers – are still retrievable, typically without the author’s awareness. Faculty class notes, article drafts, online discussion texts, and online instructional materials all have potential lives beyond the immediate needs for which they were made.
The movement of intellectual property, copyright, and fair use law toward of stronger producer-consumer distinctions is not a good match for the direction that intellectual work is taking through today’s technologies. Those in education, both teachers and students, want wider and easier access to others’ information. At the same time they are becoming copyright holders, though perhaps not yet thinking about themselves in that way. Students, in particular, have grown up with an extent of information access that they find uncomfortably constrained by concepts of ownership and the illegality of copying at will.
Institutions and finance
Colleges and universities are finding themselves in roles in the
intellectual property struggle for which they are ill prepared. They have
not responded enthusiastically to the need to raise student awareness of
the increasingly restrictive copyright laws. And they have been reluctant
to examine the electronic files kept by students and other campus
community members. The chore of policing copyright is not settling well.
So far, in response to RIAA challenges, most schools are confronting
individuals found with copyrighted files in a P2P environment but have not
yet launched pro-active campaigns to find others not reported by outside
sources. These institutions find themselves in a bind because they have
created high-bandwidth campus networks and reasonably good connections to
the Internet. For the most part, individuals using these networks do so
anonymously and in virtual privacy. Network sign-on authentication is
still more the exception than the rule. The files stored on individual
computers – whether privately or institutionally owned – are treated
as private. No college or university is searching out MP3 files on its
own. Although the threat has not yet been raised, colleges and
universities could next become the targets of lawsuits seeking to force
them into a more active role in detecting improperly used copyrighted
materials.
Caught between roles
Another mismatch of institutional roles in the stewardship of
intellectual property becomes more apparent as the number of periodicals
titles and their subscriptions costs grow. Institutions of higher
education are largely content to let their faculty publish as individuals
– finding their own book deals, signing away copyright on articles, and
sometimes even needing to subsidize journal publication. Then the college
or university buys books and subscriptions through the library at prices
it finds increasingly uncomfortable. In this way, cost avoidance at one
end of the chain of publication comes back in the form of costs over which
control has passed outside the academic world.
University presses and journals are probably the closest higher education has to a example of participation at the front end of scholarly publication. These presses often have precarious economic viability. That they might serve as models for ways to publish a wider range of work originating on campus is probably a long shot.
Process and production
Publishers exist because there is work to do to edit, manufacture, and
distribute books and other materials. Editors and layout designers need to
be paid. Printing to paper is essentially an industrial process. Sales and
distribution are a business in themselves. Yet there is good reason to ask
whether in an era that has seen audio studios challenged by
microcomputer-based production facilities and page layout software become
an off-the-shelf common product, how much of the industrial side of
publication is still strictly necessary.
Editors and designers increasingly work free-lance. Already, editorial review boards do much of their work via e-mail. Bookstores and libraries purchase online and receive shipments via common carriers. At the same time, publishing houses find their profit margins thin for the materials wanted by the academic community. Is a paradigm change at hand?
Faculty are normally compelled to sign away to publishers their copyright. Academic libraries then pay those same publishers for the right to obtain and circulate those articles. Hard questions should be asked now about whether the production circuit that leads off campus from faculty and comes back in through the library serves institutions of education.
In the past twenty years research universities have set up "technology transfer" enterprises for potentially lucrative intellectual work/property. While these have at most just skimmed off a few projects they are worth examining as ways of using the resources of the institution to develop intellectual property in a space that is neither purely commercial nor academic.
MIT’s Open Knowledge Initiative is perhaps the most original instance of a university exploring a new role as a disseminator of academic information, essentially by-passing the creation of products, and entirely setting aside the usual sense of "property."
And, maybe it is also time to bring back the oldest artifact of cooperation in academic IT: the shared code library. Some who work in support of instructional technology are talking about ways that clearinghouses for code modules might be established as an outgrowth of the open source movement.
Precedents and models for publishing, distributing, and sharing key academic information are plentiful. What is not yet at all clear is whether any of them can become mainstream practice.
Gaps in the scheme
On most campuses there is at best a loose connection among IT
services, the faculty, and the library. Roughly speaking, IT’s role is
provide the technology to support instruction and administration. Faculty
make use of parts of that technical base and infrastructure. The library
remains largely the steward of materials acquired from outside.
Despite years of effort, IT organizations have not become partners of the faculty in developing intellectual works. In rare occasions these collaborations do occur, but those are exceptions. IT is principally viewed as the "fix my computer" crowd, not welcome to participate in the actual work of instruction and the preparation of teaching materials. Faculty have proven very insistent that only they will control the process and the products of technically-assisted instruction.
In equal measure, faculty have not been very interested in enlisting the assistance of libraries to organize and preserve those same materials. But without some concerted help vast amounts of teaching materials – lecture notes, quizzes, classroom graphics, bibliographic and web resources, student writings and correspondence – will continue to disappear, as they have in the past.
Unlike the past, today many faculty and students amass large amounts of information involving classwork. Between IT and the library there are ample resources and expertise to save and catalog many of those materials. The experience developed in that effort could then lead to ways to publish selected work.
New realities
The new technological defaults are store, transmit, and copy. Students
now have grown up with these capabilities and do not have to be urged to
use these capabilities. These are in fact the very survival requirements
that scholarship has faced as long as civilization has existed. Our
problem now is that educational practices, to say nothing of commercial
and legal codes, are failing to evolve ways to use these capabilities for
intellectual work.
What does MP3 piracy have to do with using technology to support the work of the mind? In two words, wasted opportunity. Students know how to use information technology, and they also spend vast amounts of money in the consumer economy. Why has nobody figured out a way to sell commercially-produced music via the new medium?
Variant forms of licensing and copyright are being explored outside the mainstream of the publishing industries. These would govern usage in ways flexible enough to meet the range of needs that fall short of outright possession or permanent access. It happens that many of these instances occur in the process of instruction.
When will there be a workable arrangement to show in class or in an online module a film clip longer than the snippet allowed now under fair use? Why can’t we distinguish between an instructional use and a lost opportunity to sell a whole copy of the film in question? If law and marketing do not find ways to channel technological capabilities into new, more flexible uses they will drive a new cycle of technological development that will focus on filtering communications, monitoring the contents of storage devices, and blocking the ability to copy.
The problem is that new realities on the technical side are outpacing our ability to revise commercial and legal frameworks, leaving higher education a growing obligation to enforce usage restrictions.
The role for IT
IT organizations seem to have gone to ground on campus. Rarely do they
even appear in the top-level web pages; they’ve become something akin to
janitorial services. At one time they seemed destined to or help transform
instruction and research, or least lead the campus in an interesting
adventure. Is it not possible to regain a role in deliberating on how
colleges and universities deal with the "information" issues in
information technology?
IT organizations can find opportunities on every campus to play a stronger role in shaping how intellectual products and property will evolve. Authenticating and securing the traffic of network users can lay a foundation for a new level of trust with licensors. Developing storage and access archives for instructional materials would help reduce the waste and loss that discourage many faculty. Partnerships with libraries – at the campus level – to build digital collections would get IT back on the front page. TW
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