Who owns our work? (notes)

sometimes it’s a “what,”labour, ornot a “who”whose?product?Who owns our work?has a stake inwhich work?Hello, and thanks for that ve?Dorothea SaloUniversity of WisconsinUKSG 2010ry kind introduction. You have no notion how glad I am to be here; if you really want the gory details, ask me afterwards. Now, I’ve been asked to give a sort of view-from-thirty-thousand-feet context for some of the discussions we’ll be having today, and so I found myself pondering four short words: “who owns our work?” because they’re such simple words and yet they add up to such a very vexed question.And the more I pondered, the more I hated this question, because the less it seemed to capture. (CLICK) Who is the “we” here doing the work? We authors, we reviewers, we editors, we copyeditors and typesetters, we librarians, who?(CLICK) Is ownership really the question here? Putting my cards on the table, I think “ownership” is a proxy for what the stakeholders REALLY want out of all the various actions and transactions involved in the scholarly literature.(CLICK) And when we say “work,” are we talking about actual labor, or the tangible product of that labor? In the case of actual labor, who’s doing what work that they expect to be paid for, and must they have an ownership stake in the result to get their money? Concerning the products of labor, what forms are ownable? When in the process does an ownable product emerge? (CLICK) And what happens when the who isn’t a who, but a what? How do governments, corporations, funders fit into this question?So after revisions, I ended up with the title “who or what has a stake in the intellectual and craft labor and the products of that labor represented in the scholarly literature in all its forms?” *pause* Which is just a bit unwieldy as a title. (CLICK) And honestly, the process of putting together this talk has left me with more questions than I started with -- and certainly more questions than answers.Let’s walk through the process, then -- again, from thirty thousand feet -- and see what we can learn.Photo: jurvetson, http://www.flickr.com/photos/jurvetson/2798315677/We start with Dr. Professor here, doing an experiment in his lab. This is the paradigm case of science, the lone genius in a laboratory pumping out discoveries and inventions -- and yet already we’re in trouble, because much research not only is not but CANNOT be done this way. The level of collaboration necessary for much of modern science is unprecedented, and it’s only growing. This, you may well imagine, complicates questions of ownership.So, a quick question as you look at this sign... (CLICK)IDEASKEEP OUT?Keep whommethods, tools, objects of out of what?study, preliminary resultsideas explicitly left out of copyrightpatent, insteadpublishing does not touch the patent system(except to impede it if done too soon)libraries don’t, eitherIDEAS.except as sources of patent information... why is that sign there? Whom is our researcher excluding, and from what?(CLICK) Well, if you ask Dr. Professor, he’ll tell you that he’s defending his IDEAS, from nefarious scientist-ninja competitors who might steal the credit for his ideas, and perhaps from industry who might steal the commercial value of his ideas.(CLICK) So let’s talk about ideas and how they are owned, legally. When we say “idea” at this early, pre-publication stage in the game, we’re talking about methods, tools, study populations, preliminary results, that sort of thing. A lot of this, if it’s fixed at all, is only fixed in the form of a more or less unpublishable lab notebook. (CLICK) So as you’d expect, copyright doesn’t have a lot to say here. Ideas are not copyrightable, only their expressions are.(CLICK) Instead, the patent system governs the kind of idea that our researcher is afraid of having stolen.(CLICK) And that pretty much leaves the scholarly publishing industry out of the ideas picture. The only thing publishing can do to a patent is invalidate it if done too soon.(CLICK) Same with libraries. We search patents, we hold patent databases, but that’s pretty much it.“I own my ideas” already leaves a lot of contributors and contributions out!IDEAS.Author lists are a crude instrument at best.Can publishing redress this inequity?Does a “credit roll” do the job?But that state of aairs may not last, because the model in which a principal investigator owns all ideas associated with a research project is already too simplistic to live.(CLICK) People from system administrators to poor desperate postdocs to disciplinary colleagues and collaborators -- even the occasional librarian -- all contribute to the ideas that Dr. Professor supposedly owns. And because credit and prestige are hugely important to these contributors as well, they want some kind of credit. (CLICK) In some disciplines, there are rules about the construction of author lists, such that some of this work would be recognized, BUT not all disciplines have these rules and even those that do find that they’re a crude instrument; they just don’t solve this problem. So we get all kinds of arguments about who “deserves” to be in the author list.(CLICK) And while publishing didn’t create this inequity, publishing may be asked to help solve it. One thing I’ve seen suggested is a movie-like “credit roll,” where contributors are recognized by name and by contribution. Will it work? I don’t know, but I find the question a fascinating example of the “sole ownership of ideas” paradigm changing, into something closer to a recognition of intellectual and craft labor.This played itself out recently in the emerging digital humanities area, with Tom Scheinfeldt of George Mason’s Center for History and New Media asking how to reward the “third way” of doing digital humanities, the way that’s more concerned with tools and applied methodologies than with ideas per se. (CLICK) Bethany Nowviskie of the University of Virginia Scholars’ Lab followed up shortly thereafter asking EXPLICITLY about compensation for this kind of work!Now, let’s be clear, neither Tom nor Bethany is talking directly about money. They’re talking about credit and prestige, the other academic currency. The lesson for the publishing industry is this: if you folks don’t find some way to get Tom and Bethany what they’re looking for, Tom and Bethany will find another way to get it -- and that means that the publishing industry’s stranglehold on career prestige may be broken.PRE-PUBLICATIONOften creates copyrightable objects!IDEAS.But treated either as completely open or as faux-“trade secrets”Minimal third-party processing at this pointErgo minimal competing ownership claimsPosters, conference presentations, unrefereed conference papers, slideshows, working papers, preprints -- everything that libraries call “grey literature” happens when Dr. Professor wants to talk to people about his findings for whatever reason before he runs the journal gauntlet.(CLICK) Note that at this point, Dr. Professor absolutely is creating copyrightable objects. But I’ve never heard of a copyright lawsuit over a conference paper or a slide deck, and I honestly doubt I ever will, because that’s not how ownership works itself out in this arena. Instead, you either get completely open dissemination, usually over the Internet these days, or it’s treated as a sort of trade secret, as at some scientific conferences that tell people not to blog or tweet conference sessions. (By the way, you’re all welcome to blog or tweet this one. Please do!)(CLICK) Another thing worth noting is that pretty much all the work that goes into grey literature is done by Dr. Professor and his colleagues. Editors, peer reviewers, publishers, librarians -- all that work comes later. So it’s quite clear at this point that what Dr. Professor made, Dr. Professor owns. There are no competing claims.Exceptions, yes -- there are a few stick-in-the-mud publishers who won’t publish anything that’s seen the light of day in any form previously. They are few in number, and their small number is shrinking further -- and by the end of my career, I wouldn’t be at all surprised to see that number hit zero. Dr. Professor really isn’t going to put up with prior ownership claims on his half-finished work much longer.Another question, incidentally, is to what extent this pre-publication literature is coming -- or will come -- to serve as a SUBSTITUTE GOOD for the published literature. As acquisitions budgets continue to fall, as subscription costs continue to rise, how many Dr. Professors are going to satisfice with a working paper, rather than http://pantonprinciples.org/http://sciencecommons.org/This is an example of a new kind of grey literature a-borning, what’s being called Open Notebook Science. Steve Koch and his students post their lab notebooks online, with their methods and equipment lists and data and everything. Where is the ownership of ideas here? Well, if you think about it, part of what’s happening with Open Notebook Science is that people are STILL claiming their ideas, planting their flags -- they’re just doing it EARLIER THAN PUBLICATION and ONLINE. Again, what does that mean for publishing’s lock on career prestige?And who owns all this? Is it even ownable? In the States, as a “collection of facts,” a dataset is entitled to only the loosest of copyright protections, if any at all. Moreover, unlike a publication, a dataset is mostly useless by itself, in isolation from other data. In fact, almost the only time that an individual dataset becomes useful on its own is frankly when it’s being used to try to detect scientific malfeasance! Which is not the ordinary case -- I hope. No, what we’re learning about digital data is that they’re useful precisely because they can be combined and recombined and re-evaluated and evaluated over time. All ownership can do for data, all access controls can do, is put up a roadblock that keeps data from being used, from being useful. So journals who are collecting data, libraries who are collecting data, take very careful note: As Adam Bly remarked yesterday, data really want to flow freely in order to help create knowledge.(CLICK) For those interested in data and data licensing, I recommend panton principles dot org, also of course Science Commons.(CLICK) You might ask, how does Open Notebook Science solve the credit problem I mentioned earlier? Well, it’s easy to pop some credits onto a wiki page! The infrastructure to measure these contributions doesn’t exist yet -- there is no bibliometrics for data -- but that’s probably coming, and this is the first step.Notice also that in addition to credit happening much earlier in the research process, credit can accrue to other things than formal publications. Publications might cite something like this, or might include it some other way -- but the publishing industry needs to be thinking about this, because it seems to me a data citation means something dierent from a literature citation, which says “I read this and it was useful.” A data citation means “I USED this.”Lots of juicy implications there, but I don’t have much time, so let’s move on.IDEAS.IDE ASIDEAS£ ££ ££So what happens when these ideas *do* run the gauntlet and are transferred into formal published journal articles? (CLICK) In whatever form you like, paper or pixels.Well, what happens is that new stakeholders show up! (CLICK) Peer reviewers, scholarly societies, publishers, aggregators, funders, libraries, governments, and of course READERS. All of whom want to do things with the published results that appear to require some degree of ownership!So the dilemma of our time in publishing is how to get all these players what they want while containing costs, (CLICK) and while avoiding calling any of the players in this business pirates or other nasty names, because that is not a polite or productive way to behave.So what kind of ownership clashes do we get with all this new participation?Photo: Old Sarge, http://www.flickr.com/photos/old_sarge/100926333/And the unfortunate result is that all these stakeholders start throwing up roadblocks in each others’ way, talking about ownership all the while... even though ownership is in my view only a proxy for what the stakeholders REALLY want.I’ll give you some examples.IDEASXIDE ASXREUSEPAYMENTSo in the typical publishing transaction, in the course of turning ideas into print or pixels, (CLICK) Dr. Professor’s control over his ideas is broken completely, (CLICK) transferred to his publisher or scholarly society. And Dr. Professor is fine with that most of the time, because having established primacy over his ideas by publishing them, he doesn’t have to worry about who owns the publication. And in fact historically, he HASN’T worried, and he’s only starting to now.(CLICK) And the reason he’s starting to now is the question of reuse. Researchers reuse their work and that of others constantly. Classroom reuse, republication in another format, dissemination beyond what the publication venue reaches... Dr. Professor’s lack of ownership of the publication can throw a roadblock in the way of what are today very ordinary, very normal uses and reuses.And yet neither the publisher nor the scholarly society has any intrinsic interest in preventing reuse! It’s no skin o their back if ideas circulate! (CLICK) No, what they want is to be paid for their work, their production and management labor, and for many, it seems as though the only way to achieve payment is by claiming ownership and policing reuse! This is, to say the least, unfortunate. Libraries SHOULD be able to ensure that university classes can have articles on electronic reserve without being SUED. Researchers who want to start a journal club shouldn’t have to panic about copyright. Publishers shouldn’t have to feel that they have to restrict use and reuse in order to cover their costs. The whole permissions market, securing reuse rights or trusting to fair use or fair dealing, is a source of significant friction, significant frustration for researchers. And yet that’s the world we’re in right now.It would be nice to move beyond it.