[Editor’s note: This post is the edited transcript of a presentation Joe Esposito delivered to the Professional and Scholarly Publishing division of the Association of American Publishers in New York City on October 12, 2012.]

What I would like to do today is to focus on some policy issues as they concern publishers and publishing. This is not something I typically do: I am more interested in solving problems — and taking steps to reduce the likelihood that problems will arise — than in debating how publishers should think about their public context. But as this is an audience of publishers, some thoughts on policy are not out of place.

As for the title of this presentation, I have changed it several times. I finally decided to use the word “mojo” after reading a splendid satirical piece by Andy Borowitz on President Obama’s lost mojo. “Mojo” is one of my favorite words, as it connotes magic and incantatation. The publishing industry could use some magic right now.

Let me begin by reading an excerpt from a recent blog post by Peter Brantley, which appeared in the online version of Publishers Weekly. I could have used any number of other sources, but I selected Peter’s as a representative case for the simple reason that I know him. He is smart and lively and always a provocateur. But in matters concerning publishers’ prerogatives, he and I agree to disagree:

Clearly, library engagement on these issues [that is, making ebooks available to libraries for lending] must move to a new level. An organized economic boycott of ebooks by libraries would have little impact because it is painfully obvious that many publishers would be happy enough for libraries not to have access to ebooks at all. Instead, a public education and communications campaign must be initiated that highlights how large international media- and publishing conglomerates are turning their backs on our communities, steadily eliminating the opportunity for all readers to have full and equal access to the world’s learning and literature.

However, I am afraid that even public relations will not re-empower libraries to fulfill their missions. It may be time to encourage Congressional hearings that would entertain the possibility of legislation to support public libraries. Rather than rely on a private sector that clearly does not always align with public needs, maybe the best long-term strategy will be to require the deposit of published books with one or more national digital libraries that would then provide ebook hosting services for the nation’s public libraries.

Whatever the resolution, it is imperative that library actions be escalated in order to obtain a comprehensive national solution to enable publicly funded libraries to meet the needs of the citizens they are chartered to serve.

As you all know, coming up with a useful marketing model that would put ebooks into libraries, especially public libraries, is no easy task. But the challenge that is being presented by Peter and many others is not about the complexity of selling digital materials to libraries but but about the positive requirement that these books be available. People, with libraries as their representatives, have a right to access all published material and if the publishers stand in the way, well, let’s agitate, let’s take ’em to court, let’s pass a new law.

I hope it is clear to everyone how radical this is. A publisher invests in intellectual property, but it’s not really the publisher’s to own. The assumption is that the act of publishing, unlike any other business enterprise, is a community activity and that the community thus has certain prerogatives. In this view, publishers are like hired help; they perform a task, but if they don’t serve that community, they can and should be replaced or discarded.

Thus we are working in an environment where copyright is threatened at every corner, where the open access movement is gaining momentum, and where the economic interests of the tiny publishing industry are lumped together with the likes of investment banks and the oil industry. Note that reference in Peter’s piece about international media conglomerates. This is a critique of publishing born of a very specific political persuasion.

So I ask myself: How did we get here? When I first got into the business, which admittedly was a long time ago, being a publisher was a mark of distinction. It was an occupation to be proud of, unlike, say — well, I will forebear to mention any unglamorous professions. But times have changed: now publishers are seen by many to be the moral equivalent of tobacco executives. We publishers are said to steal things from authors and then deny readers of their natural rights.

It would be easy to find someone to blame for this; we can line up our own set of “outside agitators” or self-interested rivals or any number of hobgoblins, from the introduction of destabilizing technology to the postmodern critique of the authoritative text, which is a publisher’s stock in trade. And we can also try to argue the publishers’ side point by point. This is what the trade associations are doing, and it’s not working. The fact is that publishers themselves have to take responsibility for having lost control of the discourse around their own industry. What we need to do is adopt a new strategy.

So what I want to do today is to propose a three-point plan. I will not be proposing who should implement these three steps or any specific programs. My aim is to articulate some broad principles that all publishers, large and small, can use to inform their own activity and their involvement with policy issues.

The three points are:

1. Preemption
2. Cooptation
3. Innovation

I will be explaining what I mean by these three points and will provide some examples.

First we have preemption. By “preemption” I mean taking steps to initiate programs and policies before rivals lay claim to them. The reason to preempt certain programs, even when you may not like some aspects of them, is that many of these programs are inevitable and if they get implemented by rivals, the terms of their implementation may be uncongenial to publishers. An example of preemption is making scientific articles available for free or at a low cost in the Third World. That’s a much better program for publishers than having those countries or their agents declare that copyrights are not valid in those countries. The key to preemption is to give something away in a modest but sufficient amount in practice without having to yield on principle.

I want to cite a few examples of preemptive possibilities that publishers did not pounce on, using the Google Books program as an instance of a rival introducing a program because publishers had not. I am not going to get into the thicket of the litigation or the details that have been made public in the recent settlement between the plaintiffs and Google.

Let’s begin with mass digitization. The people at Google are not the only ones who walked through university libraries and wondered why all those books were not online. Librarians have been saying it for 15 years or more.  Why didn’t publishers listen? On their own, libraries would never have been able to come up with large-scale programs to digitize their holdings. They didn’t have the money, the technology, or the battalions of lawyers to do this. Publishers could have helped. Publishers could have set up pilot projects with libraries. Let’s imagine, for example, the digitization of all books in political science or any other field. Such a project could have been set up with money from publishers and philanthropies.  It would be a controlled environment, where librarians and publishers alike could study the process of digitization and the opportunities for better discovery of texts. If enough of these pilots were in place, effectively controlled by publishers, Google may have turned its appetite elsewhere. And we would have done a better job. We would not have tolerated the terrible metadata that Google attaches to each scanned book, for example. There is an artisanal aspect to publishing, which technology companies are simply not interested in.

I say publishers should have listened to the librarians, and that’s because the librarians were not saying what Google ultimately came to say. In digitization, librarians were primarily interested in preserving their collections as print books wore out or got lost and in the enhanced discovery process that full-text search makes possible. Google, on the other hand, had a different agenda. Google was interested in a radical expansion of fair use and the assertion of the right for machine reading exempt from copyright law.  This last point is very significant. The argument is that copyright only covers what humans can read but exempts what is known as “non-expressive use” by machines. Google is, among other things, a data-mining company and wants no obstacles to its non-expressive use. With its mass digitization project, Google was attempting to give a free hand to all its data-mining initiatives. Of course, a publisher might ask, isn’t the non-expressive use by a machine itself an expression of interest by the people who own and control the machine?

The point here is that librarians and Google forged an alliance based on totally different goals. What the librarians wanted would not have disrupted publishing; what Google wanted potentially changes everything. Wouldn’t it be better to ally with librarians on their terms rather than to fight with Google on Google’s terms? That is the role of preemption.

Let’s take another example from the Google program, the interest in establishing the copyright status of orphan works and of making those works available electronically. This issue is not dead. I was asked to participate in a group that was exploring legislative solutions to the orphan works problem. What I discovered was that some members of the group had already concluded that the right course of action was simply to assert that the digitization of orphans was legitimate under fair use. At this point a publisher might ask, Is there anything that you can’t do under fair use? Publishers can still preempt this by coming up with their own orphan works program now. The important thing for everyone to bear in mind about orphan works is that books go out of print for a reason — that is, because they have been passed over by the marketplace — so having a big fight over orphan works makes no sense. On the other hand, a big fight over the enlargement of the fair use provisions would be absolutely necessary. But publishers should not have to be told by Google that orphan works are a problem. Publishers and librarians alike have none about this for years, but it took Google, with its own agenda, to tackle the orphan works situation. This should have been a publisher program.

One last example from Google and then we will move on: the Book Rights Registry. There is nothing sexy or novel about this; it would simply be a place you can go online to find out the rights situation for a particular title. Why doesn’t this already exist? Not only would this facilitate the use of works in the public domain; it would also open up new subsidiary rights opportunities for publishers. Here again Google stepped into the breach. It is in no one’s interest for the rights situation for particular titles to be obscure, but would you rather have such a registry managed by publishers or their trade associations or by a technology company that thinks publishers are a form of interference? Such a registry would be a natural extension of the work of Copyright Clearance Center. It’s not that big a stretch. Why wait for Google to do this for us?

You can provide more examples of services that came into existence without publishers’ support — how about Mendeley, HathiTrust, and the phyics arXiv at Cornell, which is the most significant of all — and the point is that every one of these services satisfies a need but has been developed outside the purview of the publishing industry. The real choice is between preemption and capitulation, and right now capitulation is the default option.

I want to turn now to the second part of this proposal, what I call “cooptation.” If you don’t like that word, you can call it “forging strategic partnerships”; or you might simply think of it as finding common ground with authors. The fact is that authors have as much at stake as publishers as some of the new views about publishing and copyright gain traction. It may be a good idea to educate authors about their own interests.

Let me provide an illustration. In recent years a number of universities have promulgated policies that mandate that the faculty deposit a copy of all their articles into a university-approved repository. This obviously creates problems for publishers, who have to spend money monitoring these repositories. Are these repositories undermining the publisher’s commercial efforts? There is the matter of version control:  will readers be led to to a wrong version of an article? And let’s not forget the important usage statistics, as Google can point users to a repository as easily as to the publisher’s authorized site.

What caught my attention with regard to these mandates was that some of the votes for the mandates were said to be unanimous. Putting aside the absurdity of having a unanimous vote for a mandate — if it’s unanimous, why do you need a mandate at all? — I ask everybody to think long and hard about what it would take to get a unanimous opinion from academics on any subject whatsoever. A unanimous vote is a cover for a situation where opinion is divided, and that division represents an opportunity for publishers. Divided we stand.

Let’s think for a minute about the economic interests of a faculty member at a research university. At one time the appointment to such a position was a ticket to a life of enormous freedom. But then things began to tighten up. First came the rules about patents. A faculty member might invent something, but he or she did not have clear title to that invention; some portion of those patent rights were retained by the institution and in some instances, by funding agencies. Over the years other restrictions came up. For example, universities began to market videos of courses. This raises an interesting question: Who owns the rights to those videos? Now those videos are becoming interactive online courses, and universities are flocking to any number of organizations, both for-profit and not-for-profit, to exploit them. Is the faculty member’s interests fully represented in these arrangements? Does a professor need an agent to negotiate with the provost? Or is academic work slowly sliding into the world of work-for-hire?

Now with copyright considerations we have new impingements on the prerogatives of faculty authors. A researcher may get a grant to run an experiment, but now the formally published results of that work have to be written up and posted online for free. We will be seeing more and more of this. But we may ask ourselves why it is that the IP rights of the faculty can be so easily taken away, and we may also ask the faculty that same question.

Everywhere you turn you see the rights of faculty authors being curtailed. First patents, then online courses, then articles based on research funded by government agencies and certain philanthropies, now mandates for depositing articles. Is it not fair to ask if this is the slippery slope? Should we not be asking these authors where this will lead?

We should be doing all that, but we should also be painting a picture for what is next. A small number of authors will protest mandates on philosophical grounds, but the question should be brought to the well-paid editors of distinguished STM journals and the authors of college textbooks. When I lived in California, I became friendly with a mathematics professor, who had written a successful calculus textbook. He lives in a stunning house with a view of Monterey Bay. He did not buy that house on what he made from his salary as a college instructor. At what point will his textbook royalties be taken away from him?

Once you begin to move in this direction, more and more economic activity comes into view. The faculty of the graduate business schools routinely makes money working as consultants. Should that money be taxed by the university? How about the faculty of the law school? Lawyers do not have to be told what a slippery slope is. They have to be made aware that they are standing on one.

A useful activity would be to begin to set up events where faculty IP rights are discussed. This should not be done by dramatizing the publishers’ plight but by engaging people on the matter of the proper balance of the rights of faculty and the institutions that employ them. Since publishers are publishers, at a minimum they should be publishing books and articles on these topics. (They should also be publishing books and articles that argue against what is in a publisher’s interest. If publishers stop doing that, then it’s time to get a new job.)  They should use their publicity machinery to bring these discussions to other media. We have seen countless articles in the New York Times on open access publishing, but we have yet to see a piece on the diminishing IP rights of authors who happen to work at universities.

What must be made clear is that the central conflict in scholarly communications today is not between publishers and universities but between institutions and their faculty. Should a member of the faculty not have the right to exploit intellectual property that he or she created? Should such an individual somehow be prohibited from entering into contracts for that property with third parties? Making common cause with authors is really about defending IP rights.

I have touched on preemption and cooptation, but I want now to focus on my third point, which trumps all the rest, and that is innovation. Part of the problem we have as publishers is that we are not seen as being innovative. How many articles do we have to read about how the book business is hopelessly backward when it comes to information technology? How often do we hear how slow-moving we are? I don’t know how to measure innovation, so I can’t say whether or not these charges are true, but I do know that the image they portray is damaging.  This is but another instance of having the discourse about the publishing industry controlled by others.

Innovation is the best strategy — innovation is always the best strategy — because it not only propels an organization into the future but it can discombobulate rivals who are not prepared for the changes. It also distracts critics: rather than harping on an organization’s shortcomings, they, like everybody else, focus their attention on the new new thing. Innovation solves business problems and PR problems at the same time.

Part of the problem in this industry is that we tend to associate innovation with editorial activities, an aspect of the editorial fallacy. So we publish a path-breaking book — as we should. We see the content of that book as innovative because it is new.  But others see that content as simply another installment in the book business.  In order to appear innovative, we have to be innovative about the business side of things, not just in the editorial department.

What would innovations in publishing look like? I leave innovation to the innovators, but I personally would like to see more work in the area of shorter works released exclusively in digital form. I would also like to see content tailor-made for the experience of reading on a smartphone. This means working with short segments and a very powerful bookmarking feature, since you read on a smartphone only in brief bursts.  I would also like to see academic and professional information linked to current events in real time — serving as a curated Wikipedia, as it were. And perhaps the biggest opportunity for innovation is in direct-to-consumer marketing, which would establish an end-to-end marketing relationship between publishers and the people who actually use their products. But the specific ideas are not what is important.  What is important is to have a program dedicated to ceaseless innovation. Publishers have to burnish the brand of their industry, and innovation is the way to make that happen.

Preemption, cooptation, and innovation can take us a long way — innovation in particular can take us all the way, but it is hard to do. Even the most innovative organizations can’t do everything, so it is probable that there will still be recourse to the two “Dark Side” strategies: litigation and legislation. I wish I had more confidence in these strategies. Publishers have in recent years taken to the courts, and by my scorecard, they have mostly been dealt thumping setbacks. I doubt I am the only one who was astonished by the outcome of the recent lawsuit with Georgia State University over the use of copyrighted materials in an academic setting. I was dead wrong about that case. While it would be imprudent for any organization to say that it will not resort to the courts, litigation should be the last-gasp strategy. Better to preempt than to litigate.

As for legislation, I leave it to others to determine whether or not it is a good idea to communicate to government officials that increased regulatory oversight of the published industry is a good thing. Please, think long and hard before establishing that precedent.

When I think about the publishing mojo, I am reminded of one of my earliest luncheon conversations soon after I got into the business. It was a date with the late Albert Guerard, who had written a seminal introduction to Joseph Conrad’s “Heart of Darkness.” After that book appeared, Conrad began to be picked up by the academic mainstream; the paperback editions of Conrad went on to sell hundreds of thousands of copies. How exciting to be part of an enterprise that helped to bring the work of Conrad to a wider audience! The publisher did not write Conrad’s books, but the publisher did have the insight to retain Guerard to write that introduction and to publish the book in an inexpensive mass-market format and to make it available everywhere. That was a real innovation, and publishers got the credit for it.