BALANCING "FULL AND OPEN ACCESS" WITH INTELLECTUAL PROPERTY RIGHTS
R. Stephen Berry
The University of Chicago

This discussion addresses the publication of results of research sponsored by government agencies.  It may marginally touch on issues of proprietary research, but the central issue is one of a general principle of economics.  Governments support certain research because the results of that research constitute a public good when they become available.  Public goods are goods whose value to others is not diminished when someone uses them.  In fact, rather than diminishing like a consumable good, because of the cumulative nature of science, the value of results of scientific research grows with use!  This aspect of "public" science is the basis of the logic of what follows.

The goals of a government and its agencies that support research, and the goals of the researchers supported by those agencies, are consistent and compatible, even if they differ in shades of detail.  These are maximizing the dissemination of ideas, and the opportunity for the results of the research to be recognized and used by others.  The goals motivating protective structures for intellectual property are guarding the rewards of intellectual effort from misuse, e.g. plagiarism and theft. Thus the purpose of copyright was protection of authors of original, creative works.  The authors of works written to produce income--of textbooks and novels, for example--have motivations coincident with or at least compatible with those of the publishers of those works.

There are two problems at issue here.  One is reconciling the goals and needs of the author and the publisher (and possibly even the patron agency as well) of a scientific paper based on government-supported research.  The other is finding suitable means to reconcile scientific, scholarly and educational needs with the commercial publication of databases.  We shall examine the latter only briefly, and then devote most attention to the former.

The database issue needs special attention because of its recent history, beginning with the Faist case in the U.S. Supreme Court;  the final opinion in this case deemed databases which are only "sweat-of-the-brow" efforts, and not intellectual creations, not to be deserving of the protection of copyright.  The response to this, both within the U.S.A. and internationally, was one of the most retrograde, inhibitory and ultimately self-destructive series of actions in the arena of science and public goods generally.  The European Union Database Directive in particular is so constructed that it either holds back the progress of science in Europe (if science budgets do not accommodate to the privatization of databases) or it uses the scientific enterprise as a means to pass funds from governments to private database publishers (if the budgets were to increase enough to allow scientists to purchase the data they need).  This Directive may become a wedge that shuts European scientists off from the rest of the world scientific community.  It is difficult for us in the U.S.A. to understand why the European scientific organizations and individuals have not risen in fury against it. Scientists in the U.S. and elsewhere in the world can probably  go their own way with only minor difficulties.  Perhaps the deepest irony of the response to the Faist case has been the move to give databases even greater protection than that of copyright, entirely contrary to the logic underlying the Faist decision.

Now we return to the main line of discussion, of scientific articles that qualify for copyright.  Here we face the issue of reconciling the publisher's incentive for profiting from the value added by publication and all that entails, with the author's incentive to achieve the widest possible dissemination of the information.  From Gutenberg until the 1980's, printed paper publication was the standard and clearly the best means to achieve the ends of author and publisher;  reconciliation of their goals was a non-problem.  Now, however, the existence of electronic communication and specifically the Internet have changed that.  Personal pages on the World Wide Web and e-print archives such as "xxx.lanl" have given scientists a new set of ways to reach audiences far beyond those of journal subscribers and library users.  Authors and publishers are now trying to invent ways the new medium could and should be used to achieve their ends, and how decisions about electronic distribution will affect each group.

"Full and open access" does not mean "Cost-less access."  How the costs should be paid is a question of economic efficiency.  The answer may well vary among the various sorts of scientific information--books, papers, evaluated data, raw data sets, among others.  Whether those costs should be paid by the funding agency, the researcher-producer, or the user depends on the structure of the particular field, on who the users are, and how much of the use is public-good use and how much serves private enterprise. Multiple pricing systems and even pay-for-publication are well established practices in some sectors.  Journals have generally added value, often enormous value, to scientific information by what they do in distributing and archiving indexed, collected sets of refereed articles.  Most journals produce some revenue beyond their costs, which may go as profit to private investors or to professional societies that sponsor journals.

The crux of the tensions over who can post articles on electronic media is whether postings by authors of their own works published in printed journals  (and, in more and more cases, posted in electronic forms of those journals) will be seriously detrimental to the income of the journal publishers.  There are secondary issues regarding whether posting of unrefereed articles will have a harmful influence by lowering the quality of the scientific literature, of how postings of authors' revisions will be related to or influenced by restricted publication in traditional journals.  These other issues can be dismissed easily;  we already know that there is a hierarchy of journals, according to quality, and that virtually any article, logically consistent or not, can probably find some venue for publication. Serious working scientists simply don't have time to look for the occasional good paper in the journals at the bottom of the list.  Self-selection by the community does a very adequate job of handling the marginal articles in traditional publications.  In e-print archives, that mechanism and the process of open commentary keep the level of literature-put-to-use high.  Incidentally, of the citations in the physics literature in 1995, 6% were citations of articles in the Los Alamos e-print archive.

Two similar proposals have been made to enable authors to post their articles electronically.  Both propose that authors retain copyright to their articles and give publishers licenses to publish the works.  One form, described in a Policy Forum paper in the September 4 issue of Science, suggests that funding agencies recommend or require their grantees to retain the copyrights that inhere when they write the articles.  The other, described in an article in the 18 September Chronicle of Higher Education, suggests that universities expect their faculty to retain those copyrights.  The goals are the same;  the two proposals differ only in what agent stimulates the author to choose to retain copyright.

Precedents exist for publishers to not hold copyrights to articles. Articles based on research done in U.S. government laboratories cannot be copyrighted.  Some private firms have agreements with publishers to permit the firms to retain copyright to articles that come from their employees. There seems to be no logical necessity for publishers to hold the copyrights.

Furthermore there are divergent policies among publishers.  The American Physical Society permits its authors to put their articles onto electronic media, while the American Chemical Society and the American Association for the Advancement of Science do not.  Those that do allow postings look on them as advertising;  those that do not see postings as potential sources of competition that would undercut their ventures.  It has become common knowledge that when the U.S. National Academy Press (NAP) made all its publications available on the World Wide Web, in full text, its sales increased 30%.  (NAP sales done from the Web offer a 20% discount from the list prices.)

From the perspective of the working scientist, so long as journal publishers find ways to provide significant added value that neither personal Web pages nor e-print archives can give, the journals will continue to be worthy of support.  The capabilities of e-print servers are growing, so the publishers are being challenged to find more ways to provide that added value.  From the perspective of the librarian, personal Web pages have nothing to do with general access or to archiving;  e-print archives are now in a sort of limbo in the library world, because they allow direct access by their scientist-users.

The issue of what will assure a permanent, secure archive for electronically-placed information is a very serious one.  Redundancy, by creation of mirror sites in distributed locations, is one piece.  Retention of means to read information in obsolete forms and to translate that information into current formats is a problem often discussed but not yet addressed in any way that gives confidence to the scientific community. This issue is tied to the question of who pays for scientific information and how it should be preserved, and thus circles back to whether journals--and libraries--as we know them now will continue to exist.

The scientific and publishing communities will indubitably try many experiments during the coming years.  We may expect to live with a multiplicity of "solutions" to the question of how scientific results will be validated and made known.  It will be fascinating to look back, in as little as fifteen or twenty years, to see how much or little foresight we have now about what we could to try to optimize the outcome.