Who owns John Sutherland?

John Sutherland

It is the dream of entrepreneurs to corner the market but, fortunately for the consumer, few commodities lend themselves to it. Ideally, from the entrepreneur’s point of view, a commodity should be scarce, vitally needed, highly priced, short-lived and regularly (but not too easily) replenished. In the new field of information technology, scientific research has become a tempting target for the would-be cornerer. The current battles being fought over its ownership have implications that extend a long way beyond the laboratory.

Over the last fifty years, the system of professional refereeing by which careers in the American academy are advanced has been contracted out to commercial journals. The submitted paper is sent out (blind, if the journal is conscientious) to two or more disinterested experts. Peer review, fairly applied, eliminates nepotism and malice, and acts as a safeguard against plagiarism, which is the cancer of academic life. Outside refereeing also protects an institution from law-suits, which are the nightmare of academic life.

On acceptance, an article or paper is edited by the journal – a useful service in a profession where many practitioners are non-English speakers (and many others functionally semi-literate). Journals distribute published research efficiently through an arterial system of subscribing libraries, and for the end-user the contents of the journal are ‘free’, guaranteed fresh and delivered in timely fashion to his institution’s door step. Most important, they have indexes and shelvable back-numbers. This makes for easy retrieval, cross-reference, correction, confirmation, argument and contradiction. Traditionally, the archive has been stored by the library in the form of open-access volumes.

In ‘hard’ subjects (science, social science, medicine, law) publication in a leading journal is the currency in which professional worth is measured. In a tenure review, or job interview, at a self-respecting American university ‘refereed articles’ count heavily. In humanities subjects (English, history, modern languages) they don’t carry the same weight. This disciplinary difference was at the heart of the Sokal affair. What Sokal was up in arms about was that his fake article hadn’t been properly refereed. Physica, for instance, would have sent it out to readers, who would instantly have sniffed out the scientific balderdash. The defence – provocatively stated by John Sturrock in these pages – was that humanities journals don’t work that way.

In return for their services to the academy, science journals have traditionally demanded exclusive copyright from authors. This allows the publisher to control and charge for any subsequent use of the published material – even by the authors themselves. The material can be sold on for reprinting or, as is increasingly the case, profitably converted into an electronic database or ‘e-journal’ form.

It’s a sweet deal for the publisher, who pays none of the costs of originating his material. Those costs, which can run into millions of dollars and years of salaried time, are picked up by the authors’ institutions or by grant-awarding bodies. Authors are paid nothing for the publication of their work. Nor do journals normally pay for the confidential peer reviews which guide their selection. The publisher thus gets an excellent product gratis, and all he has to do is package it. And, sweetest of all, his running costs and overheads are covered by subscriptions, the level of which he himself sets. Effectively, this means that he can make universities pay through the nose for something that the universities have paid to produce in the first place.

Hitherto the commercial journals have served the academic community well enough, but the system is now crumbling under the impact of changes in copyright law, electronic technology and commercial practice. Agglomeration and predatory takeovers in the publishing world have created the prospect of monopoly ownership. One publisher in particular, Elsevier Science (a division of the Dutch-based Reed Elsevier), is dominant. Near-panic was caused in the scientific community in late September when it was rumoured that Elsevier was about to be taken over by Microsoft, where Bill Gates has already successfully targeted picture archives as a cornerable commodity. Together, Microsoft and Elsevier would be the ultimate 800-pound gorilla, able to do what they liked.

Elsevier is notorious for jacking up subscription rates for their journals, so that keeping up with the cutting edge of science has become cripplingly expensive. Some fifteen hundred titles are listed in the current Elsevier Science: 1999 Subscription Price List. Prices range from a modest £4000 for an annual subscription to Analytica Chimica Acta with Vibrational Spectroscopy, through £8000 for both sections of Nuclear Instruments and Methods in Physics Research, to a cool £30,000 for Excerpta Medica. If you subscribe to all the journals on offer the total cost would be – as I roughly calculate – between one and two million a year and rising. (Elsevier adds twenty-odd journals to its stable every year; between 1998 and 1999 subscriptions rose 19 per cent, as costed in guilders.)

Increasingly, Elsevier is moving into electronic journals – where the future of academic publication lies. Their new ‘Science Direct’ package offers ‘an innovative and rich web-based environment’ with immediate access to up to a thousand journals. It is available only to institutions and no prices are quoted in the catalogue. Elsevier call by and decide how much you can afford.

Why does Elsevier charge so much for what is essentially a printing and distribution service? Because they can. In an unfettered market prices rise to the maximum level the customer can bear. Universities must have these publications if they want to stay in the game. If the Economist, for example, raised its annual subscription from £60 to £6000, competitors would jump in to pick up its readers at the old price. Bioorganic and Medicinal Chemistry Letters with Tetrahedron Letters can cost £6000 because there isn’t enough cutting-edge research to support rival journals. Inertia also comes into it. Running an established journal is cheap: establishing one prohibitively difficult and expensive. Acquiring a stable of such journals is something only a multinational conglomerate can afford.

The cost of science journals has had a catastrophic effect on academic libraries in the US. If their research programmes are very ambitious, they may have to divert up to 50 per cent of their acquisitions budget to buying Elsevier’s products. Humanities subjects suffer correspondingly from frozen or reduced budgets, those twin toads of academic life. The argument is that students of the humanities can live on their stored resources – all those old books cluttering the shelves. But there has also been a knock-on effect in academic publishing in the humanities. When library sales are eroded, prices for new books are raised, print runs cut and publishers’ lists shortened. The litany is familiar, but the trail doesn’t lead back to insufficient funds: the fact is that too much money now goes on science journals.

All this is bad enough, but prospective changes in copyright law means there may be worse to come. Universities could lose proprietary control of the knowledge base which is their reason for being. Where will the archived scholarship of the future be located? The proposed World Intellectual Property Organisation Treaty would give publishers ownership in perpetuity of material in their electronic databases, which will, in the not too distant future, replace the traditional university library. On open shelves in free facilities? Or as something equivalent to ‘pay-per-view’ TV, with Bill Gates, Rupert Murdoch or Don King calling the shots? If you subscribe to a printed journal and then stop doing so, at least you have your back numbers. ‘Unsubscribe’ from an electronic database and you have nothing. ‘Access denied’ – the bleakest of electronic messages.

Worse still, American ‘content’ industries (producers of movies, photographs and sound recordings) are lobbying to have the ‘fair use’ option removed. On the principle of ‘fair use’ researchers can at present take, for example, graphs, tables, illustrations or factual data from copyrighted sources, for the purpose of scholarly argument or exposition. If the threatened changes go through, a payment to the copyright-holder (i.e. the publisher, not the originator) will be levied. Again, universities will be charged twice: for producing the research, and then for using it. Any scholar who has used a picture library in the last few years will be painfully familiar with the astronomic price increases which occur when these facilities are privatised and aim for maximum profit. (How a sumptuously illustrated book like Hilary Spurling’s biography of Matisse can be produced at a less than Elsevier price I don’t know. But such books are an endangered species.)

The scientific community in America is reacting to these developments with growing alarm. The California Institute of Technology has taken the lead in picking a fight with the publishers. A few years ago, it launched a boycott of the more exorbitantly priced journals – with little success. More recently, it has done what institutions rarely do: looked at its own regulations. What it discovered was interesting. Caltech requires all its faculty to sign a contract on joining, giving the institution part-ownership of any ‘product of the mind’ they produce while in salaried employment.

Like other humanists at Caltech, I signed that agreement with the arch inquiry: ‘Does this mean you want half my royalties?’ No, I was told – but if you invent a better mousetrap … Traditionally, academic institutions like Caltech have been watchful of their subsidiary interest in patentable materials (notably scientific discoveries), much less so where copyrightable materials (writing) are involved. There is, however, no legal reason why they should not assert prior institutional co-ownership of articles, books or reviews. Technically, as I understand it, Caltech as copyright co-owner could claim a share of the fees this journal paid me while I was in the Institute’s employ.

This, tentatively and non-coercively, is what Caltech now proposes to do. In the short term the Institute wants all its faculty to agree that they will publish in journals only on the basis that they and Caltech, as joint copyright-holders, lease the material to the publisher for a limited period (reversion after two years has been proposed). The proposal is attractive insofar as it takes the fight to the publishers and has institutional muscle behind it. Other aspects are less attractive. Splitting any profits would be unwelcome. Even more unwelcome would be the thought of an institution (less benevolent than Caltech currently is) using its ownership to censor or interfere with what its employees chose to write and publish. The necessary register of publications could very easily become an instrument of institutional control.

Ideally, what Caltech proposes in the long term is to set up an Internet site (or electronic environment) for the free exchange of scientific information among an enrolled community. This community would, over time, resume the functions of peer review, adjudication, archiving and debate which have been surrendered to the academic journals. As a first step, a ‘Hyperforum’ site has been constructed (with a hefty grant from the Markle Foundation). Anyone can visit it (http://mars2.caltech.edu), but only those with Caltech e-mail addresses can get inside to the discussion area. The initial aim of the Hyperforum, as the Institute’s hand-out describes it, is ‘to build consensus through deliberative discourse’ (‘sounds like a bullshit name for a chat room,’ as one faculty member languidly put it).

All this may seem of interest only to an enclave of specialists, but it won’t be long before there are comparable changes in non-specialist journal and magazine publishing. The Internet and its digital conversions is upsetting the old order of things, and the crucial, infinitely vexing question is whether putting something on the Net or onto CD-Rom constitutes ‘publication’ or ‘circulation’. No one seems to know. A few weeks ago, the LRB reproduced an article of mine on its website. ‘The Drudge Report’ has been ‘visited’ a gratifying 890 times. The LRB sought my permission to convert the piece from print to digitised electronic form in its pro-forma way, with a postcard notification. The journal assumed, I assume, that (like Elsevier) ‘first serial rights’ covered this secondary version. This is not a question that would have arisen ten years ago. It arises now not because it’s as yet important but because it will be so in a future, comprehensively electronic publishing environment.

Since October 1997, the TLS has been offering ‘free exclusive on-line access to the Times Literary Supplement archive’. That is, to the full text of the paper from October 1994. It is ‘free’ only to subscribers. Your password into the electronic archive comprises the expiry date of your current subscription and ceases to operate once that date passes. The service not only entices new subscribers: it reminds old subscribers to renew. As the archive grows, it will become more attractive and, in the course of time, an eminently saleable commodity in its own right. At present you can get an annual subscription in CD-Rom form from Chadwyck-Healey, for £295.

I have, as I calculate, a small volume’s worth of words (some 40,000) on that archive. No one asked my permission to convert and put them there, or paid me. Presumably, the legal advice was, once again, that ‘first serial rights’ covered it. But to my un-legal mind it represents a separate, and transparently commercial, exploitation of my work. The Sutherland share of the global totality of the archive is infinitesimally small. But those words are the product of my brain, not Rupert Murdoch’s. If you got all the writers who have passively contributed to the archive into the Albert Hall and asked for a show of hands as to whether they agreed to give their work to Times Supplements Ltd, gratis and for ever, I suspect that the vote would go against the Dirty Digger. In your dreams, authors.

In using an electronic archive as bait for prospective subscribers, the TLS is following a trail blazed by American newspapers, notably the Los Angeles Times (I’ve a few thousand words on that archive as well which no one asked my permission to use). At the moment these resources are embryonic. But they are growing at remarkable speed. Journals and newspapers are beginning to realise that the Internet gives them the ability to sell their product many times over. Yesterday’s newspaper is no longer today’s fish-and-chip wrapping, it is an archive. And, as time passes, access to those archives will become more necessary and higher charges will be exacted.

The British organ which has been most forward in expropriating the products of its contributors’ brains is the Guardian. Every freelance contributor is required to sign an agreement, giving the paper perpetual rights to everything they ever have or ever will write for the paper. This has led to well publicised grievances, since the Guardian, unlike other London newspapers, does not pay authors anything for syndication or reprinting elsewhere.

In doing this, the Guardian is following the example of the most aggressive American dailies, notably the New York Times. And I suspect they are less interested in reprint fees (although they scoop those up with the heartlessness of a Las Vegas croupier) than in secondary, digitised ownership of what they publish. The Guardian and Observer were the first newspapers to create a CD-Rom archive (in 1990), which is sold as a commercial product by Chadwyck-Healey and costs £415 a year. This works out at £1.15 a day, as opposed to the Guardian’s news-stand price of 45p. It has manifestly been a profitable enterprise for the paper. I’ve got a small-volume’s worth on that archive, as well, that no one in the Farringdon Road asked my permission to reproduce. I quite understand why. If the newspaper had been required to get permission from thousands of freelance contributors, the archive would never have got off the ground. The short cut, as American newspapers have realised, is to get rid of the ‘author’, or ‘freelance’ contributor and reclassify him or her as a salaried journalist, whose work belongs to the proprietor.

One has to weigh advantages. The growth of databases and electronic archives is something to be encouraged. On the other hand, it would be unnatural not to feel alarmed at the commercial stranglehold which their creation permits. The state of science publishing – the first sector to take the brunt of the new technology – is bad and getting worse. There are more subtle anxieties, too. Freelance authors, as the romantic name for them implies, are less constrained than employees. Subservience is as corrosive in journalism as it is in academic research. Freedoms of thought and expression are at risk. Is this a price worth paying for the new conveniences of knowledge?