Re: HathiTrust & five universities sued

Posting to Autocat

Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

I am not a great fan of the so-called “original intent” version of this kind of law, and I am certainly no expert, but one thing that has always struck me about the Constitution is that they went to great pains to describe why they decided to make each law. In this case, they prefaced it all with “To promote the Progress of Science and useful Arts”, which seems like a positive idea to me. And because of the overriding factor to continue this “Progress”, the founders wanted to secure rights to the authors and inventors.

Therefore, ensuring that authors and inventors have rights to their discoveries and writings was *not* to ensure that they would get rich, but rather to ensure progress for the society, because for authors to write, or inventors to discover, they must be properly remunerated. All this is fine and I have no problems with that.

But today, this has changed, especially for the scholarly community. If a scholar publishes an article, he or she receives precisely zero, along with the peer reviewers. You also have to give away your future rights to the publisher. Therefore, it is the publisher who is, and will continue to be, enriched by your writings. It all made sense at one time, but it must be questioned as to its actual effects today. This has been the case for a long time now. Consequently, the purpose of the original law has been turned on its head. Scholars publish articles not for the money from the article or for any rights–which they have been required to renounce–but in order to be cited. It is becoming a fact that if you put your article in an open archive free to all, the rates of your citation will go up, which only makes sense. As a result, many scholarly authors are beginning to realize that they are rewarded more by making their writings freely available.

This is one of the reasons why I think that copyright law must be reconsidered in this new universe we are entering: it is ceasing (or has already ceased) to perform its original function. The authors, at least the scholarly ones, get their rewards today not through their “rights” but through being recognized by others (or through citations). It is the publishers who are rewarded through the “original intent” of the copyright clause.

The current situation seems, at least to me, to be a very logical and almost inevitable outcome of current technology, and we will probably never return to the old ways again. Therefore, everyone becomes angry: the authors, who think they are being rooked in all kinds of ways, the publishers, who are losing the control they once had, the readers, who have all kinds of new expectations, and the librarians, who are caught in the middle of it all.

To return to the purpose of this list–of course, this all has huge consequences for libraries and catalogs, as I have tried to discuss in some of my podcasts.