Applying the Logic of Intellectual Property Incentives Outside the Law

One common interpretation of intellectual property law is that it is not so much about protecting a creator’s natural law property rights (as is the case with bicycles and beachfront properties). Rather, intellectual property law is about motivating individuals to create and invent for the benefit of all. It has been carefully structured and revised over the years, by this reading, to spur on individual and corporate investment in fostering and consuming novelty. In the eighteenth century, when intellectual property took its modern legislative form, the intent was boldly declared to be the encouragement of learning and to promote the progress of science and the useful arts.

That was then, and this is now. And for now, what encourages learning and promotes science’s progress amounts to a legal work-around that largely circumvents the law. For example, the Canadian Institutes of Health Research Open Access Policy (following the example of NIH in the US) insists that the Canadian research it sponsors be made publicly available one year after publication, rather than 50 years after the author’s death prescribed by law as a necessary incentive to stimulate science. Or consider the widespread use of Creative Commons licensing that similarly works around the automatic application of lifetime-plus restrictions to encourage the ready and free use of the content. when it comes to promoting the benefits of research and scholarship, funding agencies and universities find little incentive in the law.

In earlier blog posts, I have suggested that this is reason enough to revisit the law, and my goal for the coming academic year is to begin in earnest just such a Sisyphean uphill push for legal reform. But in the meantime, I have become caught up in applying the logic of incentives to motivate scholarly publishing’s stakeholders to move from trafficking in the restricted access of consumer goods to supporting the open access of a public good.

The result is a proposal for what I am terming a Library+Funder Model of Open Access. It starts with research funders, such as CIHR, cited above. These public and private organizations have, after all, been leading in the call for open access to the fruits of their grants and awards. Up to this point, funders’ support for scholarly publishing has been irregular and indirect, with some subventions of journals and books, support for publication charges at the author’s discretion, and the payment of varying overhead charges to institutions that send some it to the library that then pays publishers. In contrast, I propose that funders pay publishers directly to make the work immediately and fully open access and they pay in proportion to the number of articles for which the funders are the research’s sponsor. In science publishing, funders are behind 70%; in mathematics 60%; in anthropology 30%. The incentive? Funders gain a much higher level of accountability. They know when and where the work they sponsor is published and for how much.

If the funders pay their share, then the libraries need only cover the costs of publishing unfunded research and other items on an open access basis. This means that the libraries that subscribed to the journal can get the same, if not greater, benefits for their academic community and the public at large, in moving the journal to open access as they will now pay a funder-reduced rate to the journal, which is that much less than its subscriptions costs would have been.

For publishers, the assurance of a revenue-neutral shift to open access supported by libraries+funders also offers the prospects and means for growing the market for their services, as open access increases readership and attracts authorship in ways that they can readily establish in making appeals to libraries and funders that go beyond the original participants in the model.

And for authors – forgive me for making those who are first in this process last in this incentive rationale – the resulting open access maximizes their work’s circulation ; it increases their access to others’ research’ it frees them from worries about article processing charges, embargoes, and draft-only limits to posting papers.

As to whether such incentives are sufficiently enticing, some colleagues and I are giving it a public hearing in anthropology with, to our surprise and delight, 60 or so funders, publishers, editors, and scholarly society officials in this field have thought it promising enough to agree to come to MIT on April 24, 2019 to discuss whether such a model might motivate what copyright law cannot in its current state, namely, the pursuit of a universal intellectual property good for the benefit of humankind. Here’s the Library+Funder proposal, with examples, that we’ve shared with them in advance.

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