In the Autumn 2009 issue of The American Scholar, William J. Quirk writes an absolutely fascinating reflection on the finances of F. Scott Fitzgerald, whose tax returns and yearly financial ledgers were preserved and form the basis for Quirk’s essay called “Living on $500,000 a Year.”

The essay will be of interest to many people who are not obsessed with copyright issues, but one line struck my obsession very deeply.  According to Quirk, when Fitzgerald died in 1940, “his estate was solvent but modest – around $35,000, mostly from an insurance policy.  The tax appraisers considered the copyrights worthless.”  Fitzgerald’s copyright, of course, were not worthless over time.  As Quirk tells us elsewhere, the royalties from the sale of The Great Gatsby continue to generate about half a million dollars every year for the trust set up by Fitzgerald’s daughter Scottie to benefit her children.

This would seem to be one of the rare cases where the long term of copyright protection (Gatsby, published in 1925, will be protected until 2020) continues to benefit the descendants of the author.  Usually, of course, copyrighted works have ceased to generate any income at all after only a few years, and those who inherit the rights generally neither know that they hold them nor get any benefit.  Fitzgerald, however, arguably presents a strong, if unusual, case for long-lasting copyright protection.  But when we look deeper, we see that the incentive that copyright is supposed to provide probably was overblown even in this case.

First, it is not very likely that the knowledge that his writings would make his grandchildren wealthy really played any part in Fitzgerald’s decision to write his novels.  Indeed, Quirk’s essay tells the story of a man driven to work partly by the need to make money to keep a roof over his head from day to day (which is why he wrote short stories) and partly by the need to express himself (which is what he wrote his novels to do).  The copyright incentive worked in the short term – it made it possible for Fitzgerald to sell his stories and novels for relatively healthy sums – but all of that incentive was immediate.  The thought of riches two generations in the future was no part of what made Scott write.

Also, if the copyrights were considered worthless at his death, it is hard to see how Fitzgerald could have imagined profits for his grandchildren.  Even in this case, the incentive argument for an average copyright term of 95 years rests on the absurd assumption that authors can predict future success in the face of present failure (or perhaps that they are even more deluded than the rest of us).

Even if the copyright incentive can work in some cases, of course, it must remain in the hands of the authors.  If Fitzgerald had transferred his copyright to publishers, as is common practice today, there is little chance that his grandchildren would be enjoying all of that money, especially since there was a substantial period of time during which no one could anticipate the rebirth of interest in his books.  Once again we come to the inescapable conclusion that the justification for strong copyright protection, which is the incentive it provides to authors, is only valid if copyright remains in the hands of those authors.  To be effective at all, copyright must be, and remain, an author’s right.

First there are these stories about file-sharing of scholarly articles amongst medical researchers – one from the Chronicle of Higher Education here and the other from Techdirt here.  The Chronicle is particularly scolding in its tone, and it evokes the misnomer “piracy” in its title.  But aside from that commonplace rhetorical strategy, I want to emphasis two points raised by these reports.

First, the estimate of how much money journal publishers would lose by this practice, which the Chronicle sets at $1.4 million per year, should be taken with a ton of salt.  As has become very well known in recent times, these estimates are usually built on false assumptions.  The recording industry, for example, often assumes that each unauthorized song download costs the industry the full price of a CD.  But there is no reason to believe that that is true; the consumer might be unwilling to pay for an entire CD to get one song and prefer to forgo the music altogether or pay to download a single track if the free option were not available.  Likewise, an article shared over a peer-to-per network does not translate to a lost subscription or even, necessarily, to a lost per-article fee.  We just do not know how much access would be worth to a consumer, and the copyright monopoly has prevented us from ever getting reliable market data.

Second, we should remember that there is a big difference between music file-sharing and the swapping of academic journal articles.  In the latter case, academics are on both ends of the transaction; they are the authors as well as the consumers of the articles that are exchanged.   If it were not for the academic practice of giving away copyright to publishers, this would be no big deal at all.  Because of the lack of a financial incentive for academic authors, file-sharing of academic articles causes no economic lose to producers.  What makes it newsworthy, and, from the academic point of view, necessary, is that copyright is held by entities other than the authors.  By transferring copyright wholesale, instead of granting temporally-limited licenses to publish, academic authors have help create the access problem they are now trying to solve with file-sharing networks.  That doing so is potentially an infringement of copyright is evidence of how harmful this practice has become to the fundamental mission of colleges and university.

And this gets me back to the point about copyright as an author’s right.  For copyright to function, it must serve the needs of creators; if it does not, its fundamental purpose, which is to create incentives that encourage authorship and other forms of creative expression, is defeated.  When academic authors give away their copyrights, and then have to resort to “illegal” file-sharing to get access to fundamental research, the copyright system has broken down.  Only by reclaiming their copyright entitlement can academic solve this problem.

In a few days I will look at this problem of copyright as an author’s right from a very different perspective, based on an article about the finances of F. Scott Fitzgerald.

One of the persistent criticisms — or perhaps reservations is the correct word — about the Creative Commons licensing scheme has been that one of the major terms used in CC licensing — non-commercial use — is too vague and subject to varying interpretations.  The core purpose of the Creative Commons, of course, is to allow copyright holders to license their works in a way that assures subsequent users that they can make use of the works within defined parameters.  Two of those parameters are attribution, which is protected by CC licenses even though not adequately ensured under U.S. copyright law alone, and, often, a restriction to non-commercial uses.  But if there is no agreement on what it means to call a use non-commercial, then there is a real problem with the licensing scheme; it would fail to provide that assurance, which reduces the need for transaction costs involved in seek permission, that is its basic purpose.

Now the Creative Commons has released a voluminous report it commissioned to study this potential problem.  Although “Defining Noncommercial” is a massive document that I have not read in its entirety, it is clear from the executive summary and a perusal of the survey data that the situation is not really as serious as some feared.  The report suggests that although a comprehensive definition of noncommercial remains elusive, there is not a major problem with its use in CC licensing.  Basically, most people seem to agree that “they know it when they see it.”

Two specific findings in the report struck me as particularly supportive of the continued use of “non-commercial” as a licensing term.  First, the marketing firm that did the research found that there was broad agreement on what non-commercial meant.  Most creators and users agreed that a use that made money for the user or involved advertising was commercial, while those that did not, were not.  This broad agreement helps explain why the millions of items licensed under CC licenses have generated so little litigation in the eight years since its founding.

Even more interesting was the finding that showed that when creators and users disagreed about whether or not a use was commercial, it was the users who were more likely to err on the side of seeing a use as commercial, and thus not covered by an “nc” license.  The reason this is such an encouraging finding is that it suggests that users will ask permission in doubtful cases, even when the creators (who hold the rights) do not think permission is needed in the particular situation.  Thus CC licenses can reduce the transaction costs involved in seeking permission, but they will not eliminate all need for permission and users are likely to ask when they are in doubt.  CC licensing, of course, facilitates asking permission as well, since works so licensed will have an identifiable rights holder.

This finding is consistent with our experience at the Duke University Libraries, where we placed most of our web pages under a CC license over two years ago.  We still do receive some requests for permission, even for pages that carry the CC license.  I try to inquire about why people are asking when the page carries a prior permission that almost always covers the proposed use.  Invariably I am told (mostly by other librarians) that they consider asking both the cautious and the courteous thing to do.  So while we believe that the license empowers many users and reduces transaction costs, we also see that users who are in doubt feel free to contact us for clarification.  This confirms that the non-commercial term is not the problem that some have feared.

Creative Commons has always striven to make its licenses effective and useful, and this study is one more tool for understanding how those licenses are and can be employed.  The CC itself suggests three lessons that we can take away from this study:

the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use.

Good advice, available for those who want to be sure that, in regard to non-commercial use, we “know it when we see it.”

As far as the copyright issue is concerned, it seems pretty clear that the professor does not really have a claim here, at least not if all he did was to pose a problem for his students to solve.  Ideas, we must recall, are not protected by copyright, only expression is.  Computer code is protected by copyright from the moment it is fixed; the Copyright Office considers software a “literary work.”  That protection is vested in the author, and no interest is owned by a person who merely set the parameters of the work or suggested ideas which might be used.  Patents, which are also available for software, do protect ideas, and perhaps the SJSU professor is confusing the two very different kinds of protection (although there is no indication that anyone has sought a patent).  Unlike a patent, there is no need to apply for copyright protection.  That protection is owned by the author of the expression.

Which brings me to the most important reminder to be taken from this case.  It is that students own the copyrights in the works they create at our institutions.  As the digital age offers new opportunities to disseminate scholarship, including student scholarship, we need to remember that students own their copyrights (just as professors own theirs) and formulate appropriate policy to respect those rights and facilitate use and sharing as needed.

On the plagiarism charge, I think it is clear that SJSU was correct to affirm the ability of students to share their work.  If open access sharing is thought to be a problem because of the mere potential for plagiarism, all publication would pose a similar threat.  And especially in the area of computer science, where open source code is a common norm, it is important for students to learn the value of sharing in terms of the ability of a community to review and improve a scholar’s work, and to develop judgment about when a particular work is ready to be shared.

There are many reasons to share scholarship, and very few reasons to keep it secret.  Scholarship that is not shared has very little value, and the default position for scholars at all levels ought to be as much openness as is possible.  There are a few situations in which it is appropriate to withhold scholarship from public view, but they should be carefully defined and circumscribed.  After all, the point of our institutions is to increase public knowledge and to put learning at the service of society.  And there are several ways in which scholars benefit personally by sharing their work widely.  The SJSU student hoped that potential employers would see his work and be impressed; how can a university object to that hope?  Indeed, it reflects the professional ambitions of most scholars, and they, like our student, benefit in that ambition if they share their work as openly as possible.  Openness should be the default for academic work, and closed access only an alternative when there are clear and coherent reasons that justify it.  In this case, the student has something important to teach the professor about the important values of academia.

An approprate way to close this reflection is to point to the web site for the Open Student organization, where students are working constantly to remind the academy that openness and public access are key elements to embodying our educational mission.

First, there is this announcement of a conference at Duke Law School to celebrate a new book by copyright scholar David Lange and Constitutional expert H. Jefferson Powell.  The book is called “No Law: Intellectual Property in the Image of an Absolute First Amendment,” and the tag line for the conference is “what part of “No Law” don’t you understand?”  At the very least, this shows that Falzone is neither alone in his concern that copyright’s monopoly can jeopardize fundamental American values, nor particularly radical in his proposed solution.  Falzone focuses his work on defending fair use as a safety valve for free expression, a role the US Supreme Court has acknowledge for that exception and that many courts have upheld.  For Lange and Powell, however, the concern goes much deeper, and their book proposes the much more radical re-visioning of copyright and patent protections that would be needed if we took the First Amendment seriously in the context of incentives for creativity and innovation.  The question that is seldom asked, but that is beginning to rise up, is whether copyright as it is currently shaped discourages more socially valuable expression than it encourages.  If the answer is that it does, and that seems like a pretty easy case to make in an age when Internet users are being sued right and left for creating their own content, it is time to take seriously proposals like that of Lange and Powell to rethink IP from the ground up.

Next up is another new book that I haven’t yet seen, just read about.  According to this news release from Washington University in St. Louis, two economists at that fine institution have just published a book arguing that copyright and patent law are not just inefficient, but self-defeating, from an economic point of view.  “From a public policy view,” says author David Levine, “we’d ideally like to eliminate patent and copyright laws altogether.”  Apparently the book argues both that these intellectual property monopolies are harmful to society, which is becoming a fairly common point, and that there are workable alternatives to protect creators and encourage innovation.  I have to admit that I will take some convincing, especially on the latter point; I tend to believe that copyright law needs pretty drastic reform, but not outright abolition.  Indeed, based on the remainder of the article it appears that that is really what Boldrin and Levine are calling for, since they argue that it should be much harder to get intellectual property protection than it now is, but not that it should always be unavailable.  I look forward to reading the full argument; the book is Against Intellectual Monopoly by Michele Boldrin and David Levine, from Cambridge University Press, and the author’s also maintain a blog on the topic at www.againstmonopoly.org.

Finally, I want to note a pithy comment made at the end of this blog post written by Peter Jackson, the chief scientist and vp at Thompson Reuters publishing.  In some ways the post is a little mundane, mostly focused on the joys of e-books.  But the last line caught my eye and suggested a context for these other items I have discussed.  “In the future,” Jackson writes, “the book is no longer a product; it’s a service.”  I am not sure that Jackson would agree, but it seems to me that if we take this service emphasis seriously, it grows harder and harder to see why the monopoly protection of copyright is either necessary or efficient in most cases.  Surely service industries florish in a competitive market; if content is ubiquitous and “publishers,” whatever they will look like in the future, offer reliable access and convenience, those services will not depend on the artificial environment of scarcity that copyright was designed to enforce, nor will they thrive therein.

I told my colleague that I would discourage faculty from linking to such sites whenever I was asked, both because they so clearly infringe copyright and because they are inherently unstable; what is there today may not be available tomorrow.  I would love to see much more scholarly content available for free on the Internet, but the way to accomplish this is for faculty authors to retain their rights to post and license their own work, not to encourage these kinds of pirate sites.  Unfortunately, this approach puts me once more in the position of saying no to instructors who want to take illicit advantage of the benefits of the digital realm because our out-dated approaches to copyright have not caught up with that potential.

Why should we discourage piracy of academic work?  One contributor to an e-list discussion of the article asked a legitimate question — “Is it the same crime to spread knowledge by illegally making university press books available as to offer Harry Potter for download?”  I am inclined to respond that it is not the same, since the interests of academic authors are more in being read than in making money; they seldom profit from academic publication, and profit is almost never the incentive that gets them to write in the first place.  This is why our copyright system, and a publishing structure built on the transfer of exclusive rights, serves the academy so poorly.  But authors are interested in controlling the texts of their writings that are available, making sure the readings they assign are stable, and getting appropriate credit for their work.  For all these concerns, responsible rights negotiation and licensing, not pirate havens, are the right solution.

Moving beyond mere condemnatory hand-wringing, I am inclined to think there is a lesson to be learned in the fuss around these sites.  One of the reasons faculty are tempted by such things is that libraries are increasingly unable to meet their demands for online resources, either because the resources are too expensive (either for subscription or for permission), the libraries simply cannot get permission to place materials online, or the publisher does not offer an online version of the work.  The Association of Research  Libraries has recently addressed these concerns about declining budgets in a document aimed at starting a conversation with publishers to preserve as much access as possible in a time when massive cancellations are inevitable.  This document is a good start, but it only addresses one of the three problems listed above.

In many cases, it is the universities that are creating the digital files that students will use, because publishers have failed to do so.  Several of the texts I found on the pirate site I looked at are simply not available as e-books.  But libraries’ ability to fill this demand is severely limited by a narrow interpretation of fair use and extremely high permission costs for digitization that exceeds that interpretation.  One thing that must be understood is that the money an institution spends on permission fees in all likelihood comes out of its collection budget.  So even as those budgets are being slashed, the buying power of what remains is further reduced as permission fees go up.  Education suffers, and so, in the long run, do the publishers, from whom we can buy fewer and fewer new works.  Certainly the purpose of copyright law — to provide an incentive for new creativity — is left in the dust.

I wonder if there is room for a separate agreement between universities and university presses that would look more realistically at fair use for those works produced by the very faculty authors who want to make use of them and also at the cost of permission when the uses involved really are not within a reasonable understanding of fair use.  The interests of both the scholars and the university presses are very different from those of J.K. Rowling or Disney or Random House; our conversations together ought not to be burdened by the perceived needs of the entertainment industries.

Why should the university publishers agree to even discuss this idea?  Because library e-reserves and permission services are a bulwark against piracy, and the risk of piracy is increased when those services frequently must refuse requests made by faculty, either because they cannot obtain permission or cannot afford it.  It is not that libraries would resort to intentional infringment, but that students will find what they need wherever they can, and their instructors may not be inclined to make fine distinctions about the sources of material.  Academic presses also need to recognize that faculty authors feel a legitimate sense of ownership over the products of scholarly publishing, even when they have not retained legal ownership.  It is simply difficult to convince some scholars that obvious academic uses of academic work are not permitted, so it may be hard to discourage all use of pirate sites unless we can provide higher education with a legal alternative that is at least as useful.  This, of course, is what the music industry waited too long to do.  In the long run, then, it is in the best interests of all parties to negotiate the contours of both legal ownership and legal use, and it is the presses that are likely to suffer most if we fail to do so.

All that aside, the story is an object lesson in the problems with transferring  copyright without careful consideration, and versions of this problem are occurring everyday in academia.

What happened to Death Cab for Cutie is that they posted an embedded YouTube video of themselves singing one of their own songs on their own website.  Except, of course, that they do not own the rights in their own music, having transferred those rights, in one way or another, to their record label.  So, as this report indicates, they received a “takedown” notice alleging copyright infringement from their own label, Warner Music Group.  The video is gone now, and DCFC is not able to share their own music with their fans, even though all sides must realize that doing so would increase sales.

Likewise, numerous academics have assumed that they can post their own work to personal websites, even after they have signed publication agreements.  When those agreements transfer copyright, however, this assumption is likely to be wrong.  There are lots of stories, unfortunately, of academic authors receiving similar “cease and desists” letters to the one the band got, where their own publishers inform them that, as the (now) owners of the copyright in the scholars’ work, they do not permit the authors to post the works they wrote.

The lesson here is twofold.  First, once you sign a publication agreement, it controls the distribution of rights and it is dangerous to assume you can continue to use your own work as you wish.  It is important to read these agreements and to abide by their terms.  Second, however, is the equally important lesson that one can negotiate the distribution of rights within these agreements.  Don’t wait till after the fact to read the agreement; read it before you sign and negotiate for the right to use your own work in ways you will want or need in the future.

Death Cab for Cutie probably had little flexibility in their relationship with their record label and, unfortunately, they did not learn until late in the game that they had sold their rights.  For academic authors it is much more likely that, with a little forethought, similar problems can be avoided.  All it takes is attention to the terms of a publication agreement and consideration of exactly what rights will be beneficial for you, as an author, to retain.

In these post-Goggle Books settlement days, we should not be surprised to see that limited open access is beginning to be seen as a technique to push more eyeballs onto pay-per-use sites.  And as with the Google settlement agreement, I find myself very conflicted in my reaction to this trend.

It is worth noting that RNA Biology, which is published by Landes Bioscience, is not an unmixed supporter of open access.  Based on their copyright policies, the SHERPA RoMEO database lists this as a “white” journal, meaning archiving is not formally supported.  Like all of RoMEO’s color categories, however, this does not adequately convey the complexity of the situation.  RNA Biology does make its entire contents available in open access one year after publication, and it offers an “author pays” immediate OA option for a relatively low price — $750, reduced to $500 if the author’s institution subscribes to the journal (at institutional rates that are 9x higher than individual subscriptions).  Finally, RNA Biology acknowledges, in its copyright transfer agreement, that authors retain the right to deposit their manuscripts in PubMed Central, as required by the NIH’s Public Access Policy.

All of this sounds good, but it is in that same copyright transfer agreement that one finds the policies that cause SHERPA to give this journal its lowest OA rating.  The journal requires a complete transfer of copyright from its authors, and essentially gives back only two, very limited rights.  Authors are allowed to use their article in subsequent publications, such as a dissertation or monograph, and are allowed to make photocopies of the article (not digital copies) to distribute in classes they teach (even though this could well be a fair use anyway).  Notably, there is no provision for self-archiving either pre-prints or post-prints (which is why they are a RoMEO white journal), and it seems that only Landes Bioscience, not the author(s), are entitled to create derivative works from the article.  That provision (or lack of provision) is, to me, the most worrisome for scholarly authors, who seldom drop a topic “cold turkey” after publishing one article.

From all this I think there is an ambiguous message to be gleaned.  On the one hand, it is a good sign that publishers are beginning to see open access as a supporter of scholarly publishing rather than a competitor to it.  The recent experiment by university presses in publishing traditional books alongside on-line OA versions — James Boyle’s “The Public Domain” is an example — will show, I believe, that OA can increase awareness of a book or a journal and thus support sales of traditional publications.  But on the other hand, if OA is structured entirely with this purpose in mind it can prove to be a detriment rather than a support to the interests of scholarship and scholarly authors.  The CTA that authors for RNA Biology must sign suggests that this is the case here, and the Wikipedia mandate seems unlikely to ultimately benefit the academy as a whole, although I hope to be proved wrong in that prediction.  In any case, I think a close examination of all of the conditions around publication in this journal supports the continuing need for authors to negotiate and retain a right to self-archive, since that alone is a sure guarantee that OA will genuinely serve the interests of the author.

First, there is a case from Canada that allows us for once to be grateful for at least one aspect of US copyright law. In a case involving a parody newspaper that made fun of the coverage of the Middle East provided by the newspapers of Canwest, one of Canada’s leading media conglomerates, the Supreme Court recently ruled that there is no exception to infringement for parody. The court went on to cite its own earlier decision that freedom of expression is not a defense to copyright infringement. In that case, the court wrote that “the Charter [the Canadian Charter of Rights and Freedoms]does not confer the right to use private property – the plaintiff’s copyright – in the service of freedom of expression.”

The law in the US is entirely the other way on this point – parody is a well-established purpose that is favored in the fair use analysis, and fair use as a whole has been recognized as the safety valve in copyright law that supports free speech. It is easy to see way this is so; if a copyright owner could prevent parody by claiming copyright infringement, it would be possible to suppress a lot of speech that would otherwise be constitutionally protected. Consider the case of the parody of “Gone With the Wind” that tells the story from a slave’s perspective and is called “The Wind Done Gone.” The estate of Margaret Mitchell wanted to prevent publication of “The Wind Done Gone” and succeeded in convincing a district court to enjoin the book on the basis of a copyright infringement claim. Fortunately, the 11^th Circuit Court of Appeals understood that our copyright law is not intended to suppress speech, and that sometimes use of another’s copyrighted work is necessary in order to express a particular point, especially when parody is afoot. Free speech, in this sense, trumps copyright ownership, and, on that point at least, Canada could take a lesson from the US.

The other case is from Great Britain and involves the ownership in the copyright to a classic song from the 1960’s – A Whiter Shade of Pale by Procul Harum. Unlike the Canadian case, this one applies a law very similar to US copyright law, but it does so to a very unusual and unexpected set of facts. Apparently, the justly famous organ part played at the beginning and in the middle of the song was written during studio rehearsals by a new member of the band, Matthew Fisher, who was hired to play a Hammond organ. After almost 40 years, Mr. Fisher challenged the copyright ownership in the song, claiming that he was a joint author with Gary Brooker, who originally wrote the song and has collected royalties all these years. There is a nice summary of the case here.

I rather think that I disagree with the result reach by the Court of Appeal back in April, but the decision is interesting and instructive for several reasons.

First, the judgment tries to divide the attribution right (a declaration that Fisher is, indeed, a co-author) from the right to receive royalties on the song in the future or to enjoin its exploitation without Fisher’s permission. This fundamental point is where the decision seems unwieldy and mistaken to me, but it is an interesting reminder of how other countries view the “moral” right of attribution, which the US does not recognize.

Second, Lord Justice Mummery (really!) does a very nice, careful job of picking apart the various threads of creativity and copyright in order to arrive at a reasonable decision about joint authorship. His decision is worth reading in order to understand the complexity of music copyright and the ways in which copyrights in different versions can layer on top of one another.  Since joint authorship is often a very important and debated issue for scholars, the careful and clear treatment of it in this case can be very useful.

Finally, there is a fascinating suggestion in the decision that “proprietary estoppal” might apply to defeat Fisher’s claim. This notion is ultimately rejected (although the same result is reached by a different route), but the discussion itself seems very significant to me. The concept being used here is very similar to “adverse possession” in the law of real property, and the effect of its application would be to give a user some real interest in a copyright if no objection has been made to the use over a long period of time. Essential, Mr. Brooker argued that his exploitation of the whole copyrighted work over forty years gave him a “constructive” right in the organ portion that Fisher could not disclaim after 40 years. I have suggested several times that something similar to adverse possession could be applied to copyright law to solve the orphan works problem, but this is the first case in which I have seen a court (albeit, not an American court) take that possibility seriously.

It is interesting to compare Anderson’s post with the op-ed that appearred in the Sunday New York Times from author James Gleik on “Publishing Without Perishing.”  Both pieces challenge publishers to step up to the challenge posed by online availability.  Gleik points to a return to beautiful, durable books as the best hope of traditional publishing, while Anderson clearly envisions a very different response, although his advice is less clear than Gleik’s nostolgic vision.  Anderson suggests emulating Google, Facebook and Amazon, so he is clearly asking for a digital solution, not a return to producing print artifacts.

There are several points I agree with heartily in Anderson’s post, especially the call for traditional publishers to look for the value they can add to content, rather than trying to pare their offerings down to bare bones as so many newspapers have done.  Yet he does not seem consistent about that point when he cites Google as one of the successful models that publishing should emulate.  What value, we might ask, does Google add to content beyond easy of access?  Anderson refers to Google’s “appropriation” of the “STM impact factor model,” but surely Google’s relevance-ranking algorithm is a very different thing, employed for the very different purpose of facilitating access to the content that a searcher is most likely to want.  The impact factor model will not really have been “appropriated” until academic institutions start recognizing that downloads of an online work is itself a legitimate metric for evaluating the quality of the work and the career of the creator.

Which brings me to where Anderson really goes wrong — his comments about how open access and institutional repositories are “anti-publishing.”  To get to this claim one must define publishing very narrowly, based on a traditional, “the way we have done it in the past,” standard;  Anderson sounds a lot like Gleik at this point.  On-line, open access distribution IS publishing, of course, as the many peer-reviewed open access journals clearly prove.  What is most astonishing about Anderson’s discussion of these “anti-publishing” trends, however, is his claim that open access “devalues” scholarly content by “treating it as less than a commodity.”  How can one make such a claim about scholarly content when authors have been expected to give their writings away for free to publishers for many years?  Scholarly authors are used to thinking about the value of their work in terms other than economic, and those terms have been dictated, in part, by the business model of traditional scholarly publishing.

The value of scholarly work, for scholars, has never been based on the money it could earn, since they never saw a penny of that money and were, in fact, expected to pay for access to their own writings.  Often they were even expected to pay “page charges,” which makes the author-side fees now charged by many publishers for open access seem very familiar.  The point is that access and use, not economic gain, define the value of scholarly writing because they serve the scholarly authors’ need for recognition and impact; the cost of the wrapper in which the work was contained (the commodity) has never been a marker for value in the academic world, and it has lately become an impediment.

I fervently hope that scholarly publishers can find ways to add value to academic content, as Anderson challenges them to do.  But that task will be much more difficult if it is based on a narrow view of the value of academic work that begins and ends with the traditional way publishers have done business.  Tthe search for new models of scholarly publishing will have to take into account the things that actually matter to academic authors and scholarly institutions.