As the Law Is Blind to Research’s Intellectual Property Distinctions

This is the third in a series of blogs based on excerpts from an early and ongoing draft of a book (here for comment) in which I develop a case for amending copyright in the United States so that it is once again serving research and scholarship. The book’s working title is Copyright’s Constitutional Violation: When the Law Fails to “Promote the Progress of Science” (While Promoting Practically Everything Else). What follows is a key piece of the argument for reform. For now that there is an agreement that open access serves science best (as per my last blog on the open access consensus), this can only be achieved, and publishers fairly compensated, by having the law recognize research articles as a distinct form of intellectual property. That distinct form, once accepted in the law, could then be subject to both open access requirements and publisher compensation from its principal users.

To begin, consider what sets the work of researchers apart from that of other writers, especially in the case of the ubiquitous research paper or article. Researchers receive no royalties for their articles, but are sustained by the universities, labs, and institutes that employ them, as a result of those publications. It is not the publisher’s revenue but the further citation and crediting of the researchers that leads to the prizes and prized positions. This is in contrast to how the writers’ fortunes are linked to those of the publishers’ success through the payment of royalties for other forms of writing (including a scholar’s monographs and edited volumes).

Researchers further distinguish their work by explicitly positioning their work within that of others, with each citation in full bibliographic detail a credit to others. This crediting emphasizes the field of study from which the paper draws its value. This communal aspect of the scholarly paper is also subject to an unpaid peer review process, in which colleagues further assist and act as a check on whether the paper has, or could better have, established its contribution to something larger than itself. As a historian of medicine, Frederic L. Holmes at Yale has emphasized this integral-part-of-the-whole aspect of most scientific writing: “The literature of a scientific specialty area is the accumulated corpus of research articles contained in the journals of the field, and it is regarded as the primary repository of the knowledge that defines the state of that field. Rarely is that literature examined in the same way as ‘literature’ proper is examined, for its form as well as its content, its style as well as its meaning.”

As a result of this tight integration into this accumulated corpus, what researchers treasure and what they literally profit from is not subject to copyright. Certainly, their publishers utilize copyright in building a subscription market for their journals. But what researchers value (and are valued for) is the citation of their findings, methods, data, concept-naming, and so on. This acknowledgement of their contribution is the coin of the realm. Nor does copyright ensure the accuracy of the attribution to their work. Rather, it is every scholar’s duty (and often pleasure) to enforce this recognition. The credit at issue is most often at the level of ideas, which is again beyond copyright’s domain. Copyright is not the final arbiter of priority claims of discovery, although it can play a part. And finally, scholarship’s infamously drawn-out attribution disputes are as good an indication as any that a different economy is at work than with other forms of writing. In sum, researchers have little to no pecuniary interest in copyright’s legal power to limit access to their work and have much to potentially gain, both intellectually and financially, from removing such restrictions on their own work, as well as in gaining access to others’ work.

All of which is to say that the law, as it stands, is not be serving science and its benefits for humankind as well as it might. It is a different story for their publishers, who pursue no end of copyright profit in some cases, and that is why provisions for their “fair compensation” will need to figure in this reform to sustain their service to science (rather than the vice-versa that might seem the case today). That the law has been blind to the differences that set scientific publications off from other forms of writing may have been tolerable for science for the better part of the print era. Now, with the internet, the legal array of restricted and compromised forms of access to research and scholarship appear considerably more costly for the progress of science. It no longer makes sense to seek further manipulation of fair use’s legal concessions and the trade-offs of open access policies. It is time, rather, to amend the law. This involves recognizing that science operates within a sponsored institutional economy that warrants its own legal structure, if the law is going to continue to promote the progress of science, as per the injunction of the United States Constitution.


  1. “‘[A]ccumulated corpus of research articles contained in the journals of the field, … regarded as the primary repository of the knowledge'”. This could also be said of libraries. “Now, with the internet, the legal array of restricted and compromised forms of access to research and scholarship appear considerably more costly for the progress” not just of science but of many other fields. Compromised forms of access to research and scholarship not only undercut but also undermine libraries. Libraries and archives primarily those in the public domain are a fundamental part of open access and play an important part in upholding democracy — public libraries are democratic institutions. Should these entities cease to exist, what becomes of this information and knowledge? Libraries and archives are important in preserving knowledge for not only the present but also the future. There is a reason why the “Bad-Ass Librarians of Timbuktu”, as Joshua Hammer describes them, risked life and limb to ensure the safety and preservation of ancient manuscripts.

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