ithout some better understanding and resolution of intellectual property
issues there won't be much scholarly information on the information
superhighway, as is pointed out in recent work
by the Association of American Universities/Association of Research
Libraries (AAU/ARL) project entitled Intellectual Property Rights in an
Electronic Environment.
We all know the general outline of the problem: Colleges and
universities have, certainly since the 1970s and 1980s, paid a fair
amount of attention to patent policy, and striking it rich in
biotechnology has been on the wish list of every research university
development officer. Copyright policy, on the other hand, has not
captured similar attention on the part of institutional administrations,
which have generally seen it as part of the faculty role in research
output--something with little or no market value. What has generally
been overlooked is the role of faculty members as consumers in their
teaching and scholarship roles.
The impact of faculty as consumers of scholarly information certainly
hasn't been lost on our institutional libraries, which have contended
with double-digit inflation in science, technology, and medical serials
for most of the past decade. Nor has it been lost on print publishers,
many of whom find the packaging of faculty scholarly output to be quite
profitable. At the same time, abuse of intellectual property rights has
been downright painful for some, particularly software publishers.
Lost revenue by software copyright holders alone is estimated to be in
the hundreds of millions of dollars. As a consequence, we have witnessed
an increasing effort on the part of owners of intellectual property to
seek the stronger protection of patent. As we are all painfully aware,
the U.S. Patent and Trademark Office has not been prepared to deal with
software as "invention" and has awarded several highly questionable
patents for processes that most have considered prior art. In fact, the
patent office recently moved to overturn a patent it granted within the
past year and is considering similar action on at least one other patent
also recently granted.
One would have to conclude that copyright is not working very well--for
either the consumers or the owners of scholarship. As we deal more and
more with multimedia forms of scholarship, we can only expect the
situation to worsen.
The AAU/ARL report calls for several activities to be undertaken by our
colleges and universities. All are long overdue. The report encourages
the academic community to come to consensus on what should constitute
fair use rights in an electronic environment. It calls for a study on
the creation and strengthening of competitive university- and society-
based electronic publishing outlets. And it calls upon institutions to
volunteer to create model policies for themselves both as copyright
users and as creators of copyrightable materials.
All this is good, but I think we need more, and I think what we need is
less likely to come from our historical community of scholars than from
the networking community in the same general way the Internet protocols
did--by way of experiment, consensus on what works, and common agreement
on what is useful.
The print paradigm is one that invests heavily in up-front effort
because it is expensive to typeset, determine reasonable press runs,
maintain inventories, miscalculate the number that will be sold, and
distribute artifacts of tangible weight and dimension. Much as most of
our financial activities were preaudited before computers, our print
media have been preeverything for similar reasons. In the electronic age
it is not even clear that editorial judgment should be exercised before
"publication." It may be the case that some of the ideas that are needed
to make copyright work in the information age are already being tried on
the Internet and bulletin boards such as the Well.
There is currently a fair amount of research being done on how to
transfer copyright royalties on the net. There are likely more folks
than we know who are experimenting with embedding copyright indicators
in message headers or checksums. I'm sure some folks are experimenting
with knowbots or agents that carry and disseminate information about
copyright. A number of perceptive students of the Internet and copyright
have already made the observation that the time value of information
might be recognized in an electronic environment by decreasing royalties
over the life of copyright for certain kinds of ephemeral scholarly
materials--particularly the results of current research in science and
technology.
So, by all means, let's pursue the AAU/ARL agenda. But let's also try to
understand the ways in which the new electronic environment is a whole
different world with new problems and new opportunities.