The New York Times is reporting that Carnegie Mellon has been awarded $1.2 billion in a patent infringement suit. The infringer is Marvell Technology Group, a publicly-traded company. This is good news for Carnegie Mellon, as its public statement indicates.
Now that we have a big win for intellectual property (IP) in the form of patents, should we not turn our attention to copyrights?
I have long been disturbed by what it is to me an imprudent rush toward open access (OA) by major research institutions. My objections to OA are not what we typically hear (i.e., it will undermine peer review, it is indiscriminate, it lacks a solid financial model), but that it simply is not in the interests of major research institutions to support the liberalization of IP policies when they are themselves the biggest creators of such IP in the world. Nor do I view OA from the point of view of the established publishers, whether for-profit or not-for-profit, who worry, with good reason, about collapsing business models. (I dread to see some of the comments I will get on this post.) My concern is simply that the biggest challenge facing research universities today is not access, but how to finance their operations.
Universities are, of course, highly resourceful institutions. It is impressive to see how they have succeeded in obtaining the funding for the work they do — that combination of research grants, corporate sponsorships, alumni giving, and even the establishment of commercial enterprises. Well, maybe it’s not all impressive. I am thinking, for example, of the huge debt loads that students carry, a situation that is calling out for our own Dickens to describe it. A visitor to a majestic campus may not make the connection between beautiful facilities and student debt, but it’s there. Perhaps there are things in the academy that should not be funded, if condemning a young person to years of paying off loans is the price.
While students are piling up debt, universities are giving away their IP. If the creation of IP were somehow democratic, with equal parts coming from all corners of our society, the case for this would be stronger. But the fact is that a small number of institutions produce the bulk of research, and most other institutions, not to mention corporations and some governmental agencies, both domestically and abroad, are free riders. Indeed, the traditional model of publishing, where users or their proxies pay for access, distributes the burden of funding more widely than the Gold OA model that is now becoming mainstream. Gold OA is, economically speaking, author-pays, and most of the authors come from a small number of institutions. Research, in other words, is top heavy. And the top seems to recognize this in all respects except when it comes to copyright.
Far more prudent for the large research institutions to adapt a new model for IP, one that enables them to monetize their development of IP and to use that money to fund their operations — and, one hopes, to reduce the cost of undergraduate tuition or even to elminate it. Now that would be a truly democratizing development. Note that I say “prudent,” not “visionary” or “ideal.” There is a place for prudence in every endeavor that is not existential in nature.
There are many ways to do this. I have long advocated for a significant, transformative development of the university press world in which the presses become larger publishers, with options on the output of their respective parent institutions. When I say larger, I mean very big by publishing standards: surely the reimagined presses at Harvard, Yale, and Princeton could be the equal in size of Elsevier, Springer, and John Wiley. But I have gotten no takers on this idea. The university press world in the aggregate (there are exceptions, of course) has not found its way to the center of any institution’s strategic thinking, nor am I aware of any press that is attempting to move in this direction. Saying that university presses are not pursuing this particular vision does not detract one bit from the outstanding work they are now doing, but what they are not doing is participating in the economic transformation of the funding model of the modern research institution.
There are other ways to go about this, though. There is the Oxford University Press (OUP) model, for example. OUP is essentially a commercial publisher in not-for-profit clothing. The fact that OUP also publishes some of the finest books and journals to be found anywhere is not incidental, and it is not an accident. To be a source of revenue in the IP area for the benefit of the parent does not mean wallowing in low-end commercial publishing. There will always be someone else to publish the next “Fifty Shades of Gray,” the Twilight books, and “The Hunger Games,” but we would expect an organization affiliated with a research university to partake of the aura of the parent’s branding.
Short of doing the publishing itself, a university could license options on its output to commercial organizations. How much would SAGE pay for the first option on the work of the faculty of the University of Chicago? How much is the life sciences research work at Berkeley worth to Springer? Such arrangements could be struck department by department or across an entire institution. These would be interesting negotiations, with commercial publishers attempting to assess the economic value of work that had not yet been written (a bit like much of trade publishing) and universities determined to assert control over how their works appear in the marketplace.
If this is a good idea, we should not be surprised that it will please no one. Advocates of OA will shout about the lockdown of IP by the institutions that sponsor it; representatives of traditional publishing will suddenly find themselves with a host of new rivals (about two dozen, by my estimate) and the requirement to pay for the rights to academic work. The parents who write tuition checks will most likely not be polled, nor will the former students who, at the age of 30, struggle to pay off student loans, can’t afford to buy a house, and must put off having children of their own indefinitely. Let’s call this the Grandmother’s Proposal, as it is drafted for their benefit.