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Who owns our work? (notes)


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Who owns our work? (notes)

  1. 1. ? es ,” tim hat e w or om a “ ho” s s r, ? t’ a “w i t ou ct ab du o ose? l o n wh pr Who owns our work? has a whic stak h work e in ? Dorothea Salo University of Wisconsin UKSG 2010Hello, and thanks for that very kind introduction. You have no notion how glad I am to be here; if you really wantthe gory details, ask me afterwards. Now, I’ve been asked to give a sort of view-from-thirty-thousand-feetcontext for some of the discussions we’ll be having today, and so I found myself pondering four short words:“who owns our work?” because they’re such simple words and yet they add up to such a very vexed question.And the more I pondered, the more I hated this question, because the less it seemed to capture. (CLICK) Who isthe “we” here doing the work? We authors, we reviewers, we editors, we copyeditors and typesetters, we librarians,who?(CLICK) Is ownership really the question here? Putting my cards on the table, I think “ownership” is a proxy forwhat the stakeholders REALLY want out of all the various actions and transactions involved in the scholarlyliterature.(CLICK) And when we say “work,” are we talking about actual labor, or the tangible product of that labor? In thecase of actual labor, who’s doing what work that they expect to be paid for, and must they have an ownershipstake in the result to get their money? Concerning the products of labor, what forms are ownable? When in theprocess does an ownable product emerge?(CLICK) And what happens when the who isn’t a who, but a what? How do governments, corporations, funders fitinto this question?So after revisions, I ended up with the title “who or what has a stake in the intellectual and craft labor and theproducts of that labor represented in the scholarly literature in all its forms?” *pause* Which is just a bit unwieldyas a title. (CLICK) And honestly, the process of putting together this talk has left me with more questions than Istarted with -- and certainly more questions than answers.Let’s walk through the process, then -- again, from thirty thousand feet -- and see what we can learn.
  2. 2. Photo: jurvetson, start with Dr. Professor here, doing an experiment in his lab. This is the paradigmcase of science, the lone genius in a laboratory pumping out discoveries andinventions -- and yet already we’re in trouble, because much research not only is notbut CANNOT be done this way. The level of collaboration necessary for much ofmodern science is unprecedented, and it’s only growing. This, you may well imagine,complicates questions of ownership.So, a quick question as you look at this sign... (CLICK)
  3. 3. IDEAS KEEP OUT? Keep whom methods, tools, objects of study, preliminary results out of what? ideas explicitly left out of copyright patent, instead publishing does not touch the patent system (except to impede it if done too soon) libraries don’t, either IDEAS. except as sources of patent information... why is that sign there? Whom is our researcher excluding, and from what?(CLICK) Well, if you ask Dr. Professor, he’ll tell you that he’s defending his IDEAS,from nefarious scientist-ninja competitors who might steal the credit for his ideas,and perhaps from industry who might steal the commercial value of his ideas.(CLICK) So let’s talk about ideas and how they are owned, legally. When we say “idea”at this early, pre-publication stage in the game, we’re talking about methods, tools,study populations, preliminary results, that sort of thing. A lot of this, if it’s fixed atall, is only fixed in the form of a more or less unpublishable lab notebook. (CLICK) Soas you’d expect, copyright doesn’t have a lot to say here. Ideas are not copyrightable,only their expressions are.(CLICK) Instead, the patent system governs the kind of idea that our researcher isafraid of having stolen.(CLICK) And that pretty much leaves the scholarly publishing industry out of the ideaspicture. The only thing publishing can do to a patent is invalidate it if done too soon.(CLICK) Same with libraries. We search patents, we hold patent databases, but that’spretty much it.
  4. 4. “I own my ideas” already leaves a lot of contributors and contributions out! IDEAS. Author lists are a crude instrument at best. Can publishing redress this inequity? Does a “credit roll” do the job?But that state of affairs may not last, because the model in which a principalinvestigator owns all ideas associated with a research project is already too simplisticto live.(CLICK) People from system administrators to poor desperate postdocs to disciplinarycolleagues and collaborators -- even the occasional librarian -- all contribute to theideas that Dr. Professor supposedly owns. And because credit and prestige are hugelyimportant to these contributors as well, they want some kind of credit. (CLICK) Insome disciplines, there are rules about the construction of author lists, such thatsome of this work would be recognized, BUT not all disciplines have these rules andeven those that do find that they’re a crude instrument; they just don’t solve thisproblem. So we get all kinds of arguments about who “deserves” to be in the authorlist.(CLICK) And while publishing didn’t create this inequity, publishing may be asked tohelp solve it. One thing I’ve seen suggested is a movie-like “credit roll,” wherecontributors are recognized by name and by contribution. Will it work? I don’t know,but I find the question a fascinating example of the “sole ownership of ideas”paradigm changing, into something closer to a recognition of intellectual and craftlabor.
  5. 5. This played itself out recently in the emerging digital humanities area, with TomScheinfeldt of George Mason’s Center for History and New Media asking how toreward the “third way” of doing digital humanities, the way that’s more concernedwith tools and applied methodologies than with ideas per se. (CLICK) BethanyNowviskie of the University of Virginia Scholars’ Lab followed up shortly thereafterasking EXPLICITLY about compensation for this kind of work!Now, let’s be clear, neither Tom nor Bethany is talking directly about money. They’retalking about credit and prestige, the other academic currency. The lesson for thepublishing industry is this: if you folks don’t find some way to get Tom and Bethanywhat they’re looking for, Tom and Bethany will find another way to get it -- and thatmeans that the publishing industry’s stranglehold on career prestige may be broken.
  6. 6. PRE-PUBLICATION Often creates copyrightable objects! But treated either as IDEAS. completely open or as faux-“trade secrets” Minimal third-party processing at this point Ergo minimal competing ownership claimsPosters, conference presentations, unrefereed conference papers, slideshows, working papers, preprints --everything that libraries call “grey literature” happens when Dr. Professor wants to talk to people about hisfindings for whatever reason before he runs the journal gauntlet.(CLICK) Note that at this point, Dr. Professor absolutely is creating copyrightable objects. But I’ve never heard of acopyright lawsuit over a conference paper or a slide deck, and I honestly doubt I ever will, because that’s not howownership works itself out in this arena. Instead, you either get completely open dissemination, usually over theInternet these days, or it’s treated as a sort of trade secret, as at some scientific conferences that tell people notto blog or tweet conference sessions. (By the way, you’re all welcome to blog or tweet this one. Please do!)(CLICK) Another thing worth noting is that pretty much all the work that goes into grey literature is done by Dr.Professor and his colleagues. Editors, peer reviewers, publishers, librarians -- all that work comes later. So it’squite clear at this point that what Dr. Professor made, Dr. Professor owns. There are no competing claims.Exceptions, yes -- there are a few stick-in-the-mud publishers who won’t publish anything that’s seen the lightof day in any form previously. They are few in number, and their small number is shrinking further -- and by theend of my career, I wouldn’t be at all surprised to see that number hit zero. Dr. Professor really isn’t going to putup with prior ownership claims on his half-finished work much longer.Another question, incidentally, is to what extent this pre-publication literature is coming -- or will come -- toserve as a SUBSTITUTE GOOD for the published literature. As acquisitions budgets continue to fall, as subscriptioncosts continue to rise, how many Dr. Professors are going to satisfice with a working paper, rather thanmaximizing via an expensive-to-acquire published article?
  7. 7. is an example of a new kind of grey literature a-borning, what’s being called Open Notebook Science. SteveKoch and his students post their lab notebooks online, with their methods and equipment lists and data andeverything. Where is the ownership of ideas here? Well, if you think about it, part of what’s happening with OpenNotebook Science is that people are STILL claiming their ideas, planting their flags -- they’re just doing it EARLIERTHAN PUBLICATION and ONLINE. Again, what does that mean for publishing’s lock on career prestige?And who owns all this? Is it even ownable? In the States, as a “collection of facts,” a dataset is entitled to only theloosest of copyright protections, if any at all.Moreover, unlike a publication, a dataset is mostly useless by itself, in isolation from other data. In fact, almostthe only time that an individual dataset becomes useful on its own is frankly when it’s being used to try to detectscientific malfeasance! Which is not the ordinary case -- I hope. No, what we’re learning about digital data is thatthey’re useful precisely because they can be combined and recombined and re-evaluated and evaluated over time.All ownership can do for data, all access controls can do, is put up a roadblock that keeps data from being used,from being useful. So journals who are collecting data, libraries who are collecting data, take very careful note: AsAdam Bly remarked yesterday, data really want to flow freely in order to help create knowledge.(CLICK) For those interested in data and data licensing, I recommend panton principles dot org, also of courseScience Commons.(CLICK) You might ask, how does Open Notebook Science solve the credit problem I mentioned earlier? Well, it’seasy to pop some credits onto a wiki page! The infrastructure to measure these contributions doesn’t exist yet --there is no bibliometrics for data -- but that’s probably coming, and this is the first step.Notice also that in addition to credit happening much earlier in the research process, credit can accrue to otherthings than formal publications. Publications might cite something like this, or might include it some other way --but the publishing industry needs to be thinking about this, because it seems to me a data citation meanssomething different from a literature citation, which says “I read this and it was useful.” A data citation means “IUSED this.”Lots of juicy implications there, but I don’t have much time, so let’s move on.
  8. 8. IDEAS IDE AS IDEAS. £££So what happens when these ideas *do* run the gauntlet and are transferred intoformal published journal articles? (CLICK) In whatever form you like, paper or pixels.Well, what happens is that new stakeholders show up! (CLICK) Peer reviewers,scholarly societies, publishers, aggregators, funders, libraries, governments, and ofcourse READERS. All of whom want to do things with the published results thatappear to require some degree of ownership!So the dilemma of our time in publishing is how to get all these players what theywant while containing costs, (CLICK) and while avoiding calling any of the players inthis business pirates or other nasty names, because that is not a polite or productiveway to behave.So what kind of ownership clashes do we get with all this new participation?
  9. 9. Photo: Old Sarge, the unfortunate result is that all these stakeholders start throwing up roadblocksin each others’ way, talking about ownership all the while... even though ownership isin my view only a proxy for what the stakeholders REALLY want.I’ll give you some examples.
  10. 10. IDEAS X X IDE ASREUSE PAYMENTSo in the typical publishing transaction, in the course of turning ideas into print or pixels, (CLICK) Dr. Professor’scontrol over his ideas is broken completely, (CLICK) transferred to his publisher or scholarly society. And Dr.Professor is fine with that most of the time, because having established primacy over his ideas by publishingthem, he doesn’t have to worry about who owns the publication. And in fact historically, he HASN’T worried, andhe’s only starting to now.(CLICK) And the reason he’s starting to now is the question of reuse. Researchers reuse their work and that ofothers constantly. Classroom reuse, republication in another format, dissemination beyond what the publicationvenue reaches... Dr. Professor’s lack of ownership of the publication can throw a roadblock in the way of what aretoday very ordinary, very normal uses and reuses.And yet neither the publisher nor the scholarly society has any intrinsic interest in preventing reuse! It’s no skinoff their back if ideas circulate! (CLICK) No, what they want is to be paid for their work, their production andmanagement labor, and for many, it seems as though the only way to achieve payment is by claiming ownershipand policing reuse!This is, to say the least, unfortunate. Libraries SHOULD be able to ensure that university classes can have articleson electronic reserve without being SUED. Researchers who want to start a journal club shouldn’t have to panicabout copyright. Publishers shouldn’t have to feel that they have to restrict use and reuse in order to cover theircosts. The whole permissions market, securing reuse rights or trusting to fair use or fair dealing, is a source ofsignificant friction, significant frustration for researchers. And yet that’s the world we’re in right now.It would be nice to move beyond it.
  11. 11. £££ vs.ACCESSIMPACTAnother locus of ownership conflict today pits research funders on the one hand against publishers and scholarlysocieties on the other. Now, when I say “funder” I’m speaking broadly; I don’t just mean grant funders, though ofcourse they play an important role in developments; I’m also talking about institutions of higher learningthemselves.(CLICK) Now, what funders are after in all this is IMPACT -- since they’re funding research, they want to be sure itmakes its proper mark, both in the research world and outside it among practitioners and policymakers and soforth. (CLICK) Some are also looking for broader ACCESS to the results of research, typically government funderson both sides of the pond who are keen to see the taxpayer get his money’s worth out of government researchfunding.Once again, neither publisher nor scholarly society has any intrinsic OBJECTION to these laudable goals that I’maware of. It’s quite difficult, in fact, to argue against so self-evident a public good as public access to publicly-funded research. The problem again is money. Publishers fear that if they don’t hold on to ownership for allthey’re worth, they won’t make back their nut.And who gets stuck in the middle of this strife? (CLICK) Poor old Dr. Professor! On the one hand, his funders aretelling him that no, he can’t give over all his ownership rights to his publishers, because the funders need him toreserve some! (CLICK) On the other hand, his funders really aren’t giving him a whole lot of help in thisnegotiation process, and since he feels that his publishers have a lot to say about the course of his career, he isunderstandably loath to play hardball with them. All this ferment creates even more day-to-day headache for Dr.Professor, and if there’s anything Dr. Professor neither wants nor needs, it’s more friction.Again, this is deeply unfortunate. Researchers feel whipsawed, funders can get a bit self-righteous about all this,and publishers are stuck playing the heavy. What I’d like us all to take away is the idea that access is not theproblem, impact is not the problem -- it’s really publishers’ rents at issue here.
  12. 12. vs.Another locus of ownership conflict is between libraries and publishers. There’s a key difference here, though,which is that ownership of *copyright* is not much at issue here. Libraries almost never hold copyright in thematerial they make available -- of course, now that libraries are ourselves becoming publishers, that is changingsomewhat, but even so -- and we’re fine with that. What we care about is appropriate ownership in the *copies wepurchase*, and that has become a significant bone of contention as scholarly publishing has moved electronic.Whether it’s interlibrary loan rights or Big Deal bundles or being stuck with grotesquely bad search interfacesbecause that’s the only route into necessary content, libraries are finding that not having very many rights overtheir purchases is causing problems both for us and our patrons.We don’t have the option of just going back to print. Researchers and students have spoken loudly and clearly;they want electronic access. They’re not even interested in print, most of them! So we can’t in libraries go back toowning print, as tempting as those first-sale rights are. We have to move forward, and sort out what to do withelectronic journals and databases.So another arena in which ownership -- or lack of same -- matters is preservation. In the print world,preservation was explicitly a library issue; save for the question of archival-quality materials, it was clear thatpublishers published and libraries preserved. In the digital realm, of course, publishers who want to lease digitalmaterials have no choice but to preserve them. As a librarian, this scares me. As someone who used to work inelectronic publishing, it scares me even more, because I met and worked with any number of publishers who don’tknow a RAID array from an air raid.Still, I’m happy to say that in this area I am seeing progress, and it’s a result of collaboration between libraries andpublishers. I love to see Portico and controlled LOCKSS and the Directory of Open Access Journals collaborationwith the national library of the Netherlands. I say to both libraries AND publishers, if you are NOT participating ininitiatives like these, you are abdicating your responsibility! So get involved today. In a larger sense, though, thesecollaborations prove that we don’t *have* to quarrel over ownership to get work done! And yet we so often do.Now, here is an unpalatable truth about libraries: we are TERRIBLE negotiators, and we really don’t like to causetrouble. So the perilous fix we’re in, with acquisitions budgets dropping and awareness of our services amongresearchers at an all-time low, is substantially our own fault. Not entirely, because publishers and aggregatorshave enforced some information asymmetries and offered us very limited choices, but largely.
  13. 13. I see signs that the worm may be turning, though. Librarians that I would never have suspected of any kind ofradicalism, ordinary collection developers and liaisons, definitely NOT frothing-at-the-mouth open-accessadvocates like me or “liberation bibliographer” Barbara Fister, are starting to say words like “boycott” louder thana whisper. (CLICK) I captured this tweet during Ted Bergstrom’s talk yesterday, and show it by permission. We’realmost ready to confront Dr. Professor and tell him we can’t afford his favorite journal or database any more. Weare almost ready to speak out in public against the worst abusers, the price-gougers, the unconscionablelimitations, those who refuse to release metadata for metasearch and other improved discovery tools.I could be wrong -- the signs I’m seeing are still very faint -- but I urge you to take this possibility seriously. Andone final note: researchers are mostly not talking with each other about this (or about anything else, really) on theWeb. The recent Ithaka report made that pretty clear. LIBRARIANS ARE, however; we are talking to each other andwe’re starting to engage the public, and you need to take that seriously, because we do have an audience thereand we do support and reinforce each other’s decisions.(CLICK) And on that subject, a word of advice for publishers, aggregators, and other library vendors. Let merecommend that you learn to engage in public on these issues -- not behind proxies or sock puppets, not one-on-one. Start blogs. Show up on Twitter and Friendfeed and in comments on blogs like Meredith’s. The thing NOTto do is use private email or the telephone, and ESPECIALLY DO NOT involve workplace chains-of-command. Whenyou do that, it looks like you have something to hide --and word will get out -- these are bloggers, after all!When you do this, it can look like you are trying to shut down open discourse, or even intimidate your detractors.And this is not an image you need to project. So engage publicly, not in secret. You can’t hush us up, and youdon’t own our words.
  14. 14. Here’s the thought I want to leave you with: These days, being a roadblock is a very poor business model. It’s saidof the internet that it views censorship as damage and routes around it. I would change “censorship” to almost anyform of path-blocking or gatekeeping -- and you know, we librarians are instinctive gatekeepers, but we’ve hadour noses rubbed in the fact that our patrons do not want us getting in their way.The same is true, I think, of the relationship between researchers and publishers. Publishers do a signal service,and researchers recognize that, BUT. But when publishers use ownership rights to throw roadblocks in the way ofaccess and reuse, and ESPECIALLY when they create difficulties around researcher compliance with fundermandates, they are increasingly damaging their own brands. Back in the day, this didn’t matter so much, becausethe traditional roadblocky kind of ownership model was the only game in town.But now it’s not. Now there are repositories and open-access journals that provide a lot of the same servicesroadblocky publishing does -- but without the roadblocks. I do believe that open content will create ever-greatergravitational pull, such that closing off access will become a genuine liability for publishers looking to makearguments about impact and prestige. I do believe that barriers will continue to fall, and the ownership questionwill continue to shift away from publishers back toward researchers and the public, over the course of my careerin libraries.Whether you believe that or not, I hope I’ve given you something to think about, and a useful way to think aboutit.
  15. 15. Thank you! • All clip art by “nicubunu,” via IDEAS. • This presentation is available under a Creative Commons Attribution 3.0 United States license. • • Twitter: LibSkrat • thank you very much; please get in touch, and these slides are licensed for reuse, so pleasereuse them!