We are delighted to host another guest blog post from Dr Elizabeth Gadd, Research Policy Manager (Publications), who works in the Research Office of Loughborough University. She has been working in the field of copyright in higher education for over 20 years and we’re very pleased to be able to publish her thoughts on the tensions between academics and their institutions over ownership of research outputs. This post follows on from her extremely thought provoking Scholarly Kitchen article discussing the differences between copyright culture and scholarly culture which for us has highlighted one of the key challenges of spreading the message of copyright literacy.
In 2016 a group of academics at the University of Konstanz referred their University’s Open Access policy to court. The academics felt that by requiring them to take advantage of Germany’s newish secondary right of publication (the law makes this voluntary), the University had impinged upon their academic freedom – a freedom enshrined in Germany’s constitution. The case has now been referred to the federal constitutional court to consider whether this is essentially a copyright matter, and as such, whether it would better be decided there.
The concept of ‘academic freedom’ is precious to academics. Many feel they have made a deliberate choice to pass over a lucrative career in industry where they are ‘owned’ by their employer, in favour of less-well paid jobs in academia where they are ‘free’. But free to do what? Well it would seem that the term ‘academic freedom’ is used to describe a whole range of freedoms: the right to say what they want (whether politically expedient or not); the right to research what they want; the right to teach what and how they want; and, importantly, the right to publish what they want, where they want and when they want. We will leave aside a discussion as to whether they really are free to do all these things in modern universities. Instead we will observe that whenever academic freedom is most vehemently fought for, it is often in the arena of intellectual property (IP): academics want the freedom to manage and control their own IP.
Thus, in 2002 when Cambridge University sought to introduce a new IP policy in which the university took a larger stake in the ownership of inventions, such was the outcry from academics that it was swiftly dropped. Similarly, the American Association of University Professors (AAUP), who are staunch advocates for academic freedom, were up in arms at the prospect of universities owning MOOC content generated by their academic staff. Davies’ 2015 study on the state of academic freedom in UK universities took as its barometer the extent to which those universities claimed ownership of the IP in teaching outputs.
The most sacrosanct form of intellectual property of all is that of scholarly works: journal articles, conference papers and monographs. In the UK only 6% of universities even attempt to assert ownership of such works (although 87% make the point that under law they have the right to do so, and 20% seek to share ownership of such works through licensing). The matter of who owns the copyright in scholarly works is frequently addressed by scholars in the global literature. Indeed two UK studies in recent years used case law to dispute any claim universities might make over the copyright in academics’ scholarly works (Pila, 2010; Rahmatian, 2014). These concerns are perfectly understandable in isolation. They are less easy to understand in context. Because when those same academics are asked by publishers to relinquish all their rights in their scholarly works in exchange for publication, they often do so without a second thought. And this despite the fact that many publishers’ copyright agreements leave academics without the right to re-use their own works or to share them with the wider world in line with scholarly practice.
So why are academics so quick to give their scholarly works away to publishers but strongly resist any interest from universities? Well the main argument is that publishers give them something in return, namely, the kudos of publication in a scholarly journal. But universities also give academics something in return: a salary, a position, and all the kudos and support that goes with that. So perhaps this is just another example of academics being misled by publishers into believing that their scholarly interests align to a greater extent than they actually do (I’ve written about this here). If so, it would explain why academics are so hasty to give their rights away to an entity for commercial purposes, when most studies show that academics are vehemently opposed to the commercial re-use of their scholarly works (Van Noorden (2013); Frass et al (2013); Gadd et al, (2003)). Universities on the other hand (despite being increasingly business-like in their modus operandi), are not commercial entities. And yet, and yet, academics appear to be more suspicious of their own university’s interests in their IP than publishers.
It is almost as though academics view universities as less of an alma mater (literally: ‘nursing mother’) and more as a wicked step-parent, just out to steal their inheritance. However, the fact that an institutions’ fortunes are inextricably tied up with those of their academic staff would give the lie to this. If an academic succeeds, so does their institution. To me, it would seem more appropriate if universities were seen as a ‘benign grandparent’: a party interested only in supporting (and funding) their activities and protecting them where necessary.
Coming back to the University of Konstanz case, I would suspect that by asking academics to make use of Germany’s secondary right of publication, the university is seeking to improve access to the scholarship of its academic staff. This will increase its visibility and result in a citation advantage – something most academics would be pleased to see. The University stands to gain nothing for itself in adopting this policy. (Although I guess in the very long term, they might see a reduction in their inter-library loan bill – something that will ultimately benefit academics as more funds are left over to buy books for the Library).
So the only logic I can see in academics objecting to this policy is that it has been imposed, rather than chosen by them. In the current scholarly culture, academics are generally free to dispose of their copyright as they see fit. Giving away their intellectual property to commercial publishers may not provide academics with re-use and sharing rights that would probably benefit them (and the wider world), but at least they get to exercise their own free will. Mandatory open access policies leave no room for choice. Indeed Peter Mandler made just this point in his well-cited editorial objecting to the CC-BY licence as required by RCUK when it funds an APC. He argued that such licences were designed to be applied by individuals to their works and their imposition by funders meant that they were not being used according to their original intention. As such, they robbed academics of some of the copyright protections offered by law – and of their ability to manage their own IP.
So where does this leave us? We have academics who don’t like being told what to do; universities who generally don’t like telling academics what to do (happy staff make for a happy university); but policies which make the world a better place, even for academics. Going back to my earlier analogy, we might ask, ‘What would a grandparent do?’ Essentially, I think the answer is to properly engage with academic staff on IP and OA policy issues and let them decide. And although that may sound like a weak solution, I think it is very rarely attempted, mainly due to universities’ fear of the cry for academic freedom.
Now, I know that OA policies vary along geographic boundaries. The right of secondary publication is available to some; the need to publish OA to be submitted to a national research assessment exercise is an issue for others. Some funder requirements span geographic boundaries (Gates Foundation); others do not (RCUK). But one thing is common to them all (or at least to those living in countries where academic freedom is prized): academics often have a fundamental objection to such policy being imposed on them. They, understandably, see their intellectual property as their own, and want the freedom to make it available when and where they want. However if academics want to get funding, get published, and reap the career benefits of being submitted to national research assessments, they usually need to engage with government, funder and publisher OA policy frameworks.
The sad thing is that I believe there may have been a time when universities and academics could, together, have avoided the need to be subjected to externally-imposed OA policies. If only universities had been brave enough to sit down with their academic communities and outline the problems facing scholarly communication. They could then have considered how a jointly agreed approach to IP management and OA might bring a resolution in which scholars got to set the terms and conditions on which their work was made available. Individual academics acting alone would not have succeeded; and we can see in the University of Konstanz case, that universities acting without the full support of academic staff can be precarious too. If this had happened, governments and funders may not have felt the need to wade in as they did and impose their own solution, and publishers would not have responded accordingly with ever-more complicated policies of their own. That clearly didn’t happen, and the chance has gone. However, there is still time for universities to engage with their academics as to how they respond to external OA policies.
It is this sort of joined-up approach that we see happening in US universities such as Harvard, and those following in its wake with ‘Harvard-style’ OA policies. It is also what we are seeing happening in the UK with the UK Scholarly Communication Licence. Here at Loughborough University, the UK-SCL is providing us with an unprecedented opportunity to have these discussions with academic colleagues both individually and en masse. It’s a consultation. The problems are explained: the policy stack; the cost of journals; the fact that the copyright is theirs, but it’s ending up being sold back to them. We ask if this is what they want? If not, is UK-SCL the solution they want? It is quite possible to have these conversations and it is important that we do have them.
Now, I’m not naive enough to believe that 100% agreement amongst academic staff is likely (although the Harvard OA policy was famously voted in unanimously) and it might be that the majority of academics at the University of Konstanz are in accord with their OA policy and we are hearing from a dissenting few. However, I am naive enough to hope that if academics, supported by their universities, have an informed debate about IP, OA and academic freedom, that there will be enough agreement to lead us towards something better than the situation we find ourselves in now.
It seems to me that academic staff and their universities need to rediscover each other. They need to recognise that their interests align to a far greater extent than any other two parties in the scholarly communication game. Suspicions need to cease. Conversations need to start. The law bestows copyright in scholarly works on academics and universities, not publishers, funders or governments. Such rights give academics and universities the power. If they work together they can change the face of scholarly communication.
Acknowledgements:
I am grateful to Chris Morrison, Charles Oppenheim and Jane Secker for their comments on a draft of this piece.
We’d be interested to hear others’ thoughts on this topic. Do you agree with Lizzie’s points? Is it possible to have a meaningful conversation about copyright and academic freedom, or have we missed our opportunity? What solutions might work to break the deadlock? Please leave us a comment or let us know if you’d like to write a response post.
Copyright Literacy 
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