Taylor Swift
T. Swizzle is pickin’ fights while pickin’ the banjo. Image via Eva Rinaldi.

The story of Sci-Hub continues to grind. Portrayed by its founder as an insurgency based on economic necessity, the theft and posting of millions of scholarly articles and entire books, scraping and republication of major academic sites, and filching of an unknown number of academic login credentials represents potential economic harm on a scale we’ve not seen before in our industry.

It’s a bombshell that seems to be exploding a little more each week, as instances of hacking of academic institutions and analyses of the effects on publishers emerge.

While Sci-Hub may be the topic du jour, another story exists as the elephant in the Sci-Hub room — that is, as expectations for free information have perpetuated, we’ve become accustomed to technology-driven and legally dubious economic damage. It has crept in all around us over the past so many years, and we show little backbone when it comes to resisting these problems.

One source of economic damage many risk-takers in information businesses face is the erosion of copyright laws, whether through active legislation, court findings, or via initiatives like Creative Commons (which may be just a Google business venture) or via our unwise practice of letting authors defend their copyrights.

The damaging erosion of copyright laws is not fanciful or theoretical — it has led to examples in Canada of publishers exiting the educational publishing market, after legislation made educational institutions exempt from paying fees for copyrighted materials. The primary effect has been for Oxford University Press and Emond Publishing to abandon the secondary school textbook market. Sales for Emond alone went from $1 million per year a few years ago to $100,000 now, according to the company’s CEO, Paul Emond.

It’s not just publishers being affected, of course — writers, artists, technologists, and editors are losing work, as well. In essence, everyone taking a risk in the creative market is being affected. What’s surprising is who is standing up and voicing concerns.

Scholarly publishers — who take the risks in our market, doing this on behalf of authors — have not been exactly vocal and unified. But writers in Canada are getting the picture. At a first-ever Canadian Writers’ Summit, the panel on copyright was reportedly standing room only:

Why the level of concern on the part of writers? Because according to a 2015 Writers’ Union survey, 80% of writers in Canada are making less than the poverty level now. They mostly blame this on loosening of copyright laws, and the attendant consequences — lower revenues for publishers, less paying work, and so forth. As one writer puts it concisely, echoing the textbook publishers:

If there’s no economy for our work, then the work simply won’t be done.

These writers are joining a growing chorus of artists in the music industry who have had it with what they say are technology companies marketing products “built on the backs of free, stolen content.” Taylor Swift, Paul McCartney, and Trent Reznor recently took out full-page ads in the Washington Post and other media to make their case:

The recent advertisement urging Congress to update the DMCA.

This is not the first time Swift has taken a technology company to task for exploitation and unfair practices, famously shaming Apple last year into paying fair royalties for their streaming service.

The main issue for the musicians is that the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) have turned into a loophole, allowing users to upload music to YouTube and other services while putting the onus on artists and their publishers to issue takedown notices. With millions of postings, the situation is unmanageable, and artists are losing. As the ad states:

[. . . the DMCA] has allowed major tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smartphone, while songwriters’ and artists’ earnings continue to diminish.

Music videos accounted for 38.4% of YouTube content in 2014, when this issue caused Google/YouTube to pledge to work more closely with artists and their representatives after initial complaints. Surely that percentage has changed, but most importantly the relationships seem to have deteriorated as YouTube’s influence has grown and artists have not shared in the spoils.

Similarly worrying discussions are going on in Australia, with authors and publishers both warning about the effects of weakening copyright restrictions. The Australian commission looking into adjusting copyright laws states:

Australia’s IP (intellectual property) system is out of kilter, favoring rights-holders over users and does not align with how people use IP in the modern era.

This is pure capitulation — essentially, the commission seems to be saying that because people are violating copyright, the laws need to match the practices of copyright violators. Much of “how people use IP in the modern era” is driven by technology companies who have created products that skirt or violate copyright.

Because of such training over the past two decades, the fundamental contributor to the erosion of copyright is the expectation for “free information.” This is an expectation the large technology companies have been happy to set and users have been happy to adopt. Technology companies, in their early hubris, used information however they could, skirting the law in many instances. The “open source” movement only added to viewing information as something they could use however they wanted. The code they wrote became their version of the law. However, technology companies may be realizing that their cavalier attitudes are no longer viable. As Urs Gasser, the executive director for Harvard’s Berkman Center for Internet & Society said recently:

If you look at the relationship between innovation and how society interacts with it, the emphasis has been on ‘code as law.’ Post-Snowden, there’s a renewed emphasis on ‘law as law,’ to regulate code.

This maturation is a good sign, but without active help, such new attitudes will be slow to seep into society as a whole, so the expectation for free information remains — ask a scientist or academic how to get a paper for free, and they will happily share a half-dozen strategies. These habits of circumvention erode a number of business factors, some of which are of value to any publisher (subscription or OA), including:

  • Usage data, to prove value to purchasers, funders, and authors
  • Site traffic, which can benefit advertising revenues to offset subscription or APC fees
  • Membership affiliation, which remains significantly based on access to journals and specialist content

Clearly, the erosion of copyright and direct usage means law-abiding and paying customers pay more, as they are now supplementing the bad habits of the scofflaws.

But the effects are even more subtle than that. In fact, the damage from expectations for free content can be invisible — as invisible as that journal never launched, that employee never hired, or that editor never recruited.

I recall a few years ago testing a new publication idea. We held three focus groups with the target audience, a total of about 40 individuals with distribution for age, sex, and training background. They all loved the publication, telling us it was exactly what they needed and exactly the high quality they expected from us. They felt even the rough prototype was superior to its competitors in the market, and they trusted us to execute to that level. The enthusiasm was palpable. When we asked them what they’d pay for it, they unanimously agreed they would not pay for it. They expected to receive it for free — somehow.

I’ve been party to many discussions, both in organizations I’ve worked at and within organizations I’ve been asked to advise, in which business people, editors, or leadership talk themselves out of developing new products and offerings simply because the economic and business environment is unfavorable or too uncertain. These unseen products may have made positive contributions to their fields, to the scientists and academics working in them, and to human knowledge generally. We will never know, and mainly because we have an information business that is not conducive to risk-taking. Risks are unlikely to pay off when everyone wants things for free and lax copyright benefits the mega-corporations.

As Robert Levine wrote in his 2012 book, Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back, the result has been:

. . . a race to the bottom, and the inevitable response of media companies has been cuts — first in staff, then in ambition, and finally in quality.

As in book and music publishing, all of this is hardest for the academic publishing mid-list — that is, the modestly sized organization. Mid-list artists and authors (those with modest sales, possibly even “best sellers” but falling far short of a Beyoncé or Adele) have virtually disappeared from music and book publishing, leading to a true consolidation around a few superstar acts and authors. In some creative cases, mid-list authors are laboring under the auspices of “big name” authors — just look at the authors writing as “Tom Clancy” or writing books for James Patterson.

These mid-list authors fought the trend for a while, but now have either abandoned their music or writing careers, or been subsumed by the mega-brands, writing songs for big name singers, ghostwriting for big name authors, and so forth.

Our mid-list organizations are doing little to tilt the table in their favor. In our world, Elsevier is doing battle for us with Sci-Hub and other interlopers. To the outside world, it appears Elsevier is alone in its concern about Sci-Hub, just as it usually appears that the “big publishers” (big commercial or big non-profits) are usually the only ones concerned with copyright law.

I’m not the first here to write about this particular issue, as Angela Cochran noted a similar sentiment in a post this past February:

. . . Elsevier is leading the legal fight against Sci-Hub and LibGen, and thank goodness they are. Publishers who have the means should be joining them. Those that don’t should be speaking out. If Elbakyan actually has over 47 million articles, then she probably has your stuff.

What’s worrying is that of all the publishers in our ecosystem, Elsevier and the other “bigs” are the least vulnerable to Sci-Hub and loosened copyright laws — they have the largest, most-diversified businesses out there, the easiest access to cash, and little to worry about in the short term from either source of risk. Meanwhile, the “mid-list” publishers like the American Association of [ImportantGroup] or [PrestigiousName] University Press has said little to nothing about piracy or changes in copyright laws. They are hiding behind Elsevier’s skirts yet again — which is illogical, as these smaller entities depend on content sales almost exclusively, have all their content on Sci-Hub for free, and risk the largest share of business from lax copyright laws, making them the most at-risk for financial losses and customer disintermediation.

They are not alone in abandoning the field of play just as the game starts.

Libraries and their institutions have every reason to distrust and work against Sci-Hub, which stole credentials through phishing and other schemes, stole papers and resources, and put contracts at risk.

Societies and their leadership have incentives to work against Sci-Hub and for better copyright protections — Sci-Hub threatens important revenues, journals, books and resources the society has spent years or decades developing, and editorial office budgets.

Mid-sized small and mid-sized publishers have every reason to stop Sci-Hub — these publishers’ existence depends largely on recalibrating the system so that it works into the future.

Yet, despite all these clear and aligned incentives, libraries and publishers have remained mostly silent about Sci-Hub (and copyright changes), with little organized resistance or complaint.

What might happen if we don’t do something? Tax revenues weaken, employment prospects dim, new products go unlaunched, standards fall, and so forth. Science budgets have been cut in order to compensate for economic problems in many countries (US and Europe in particular), despite the proven payback of investments in science. Library budgets continue to struggle as states reduce support to universities. Editorial standards seem to be drifting downward as financial pressures force concessions.

Together and separately, these problems erode trust in the future for people taking financial risks. As Yuval Noah Harari writes in Sapiens (a book I reviewed here recently):

The most important economic resource is trust in the future, and this resource is constantly threatened by thieves and charlatans. Markets themselves offer no protection against fraud, theft, and violence. It is the job of political systems to ensure trust by legislating sanctions against cheats and to establish and support police forces, courts, and jails which will enforce the law. When [leaders] fail to do their jobs and regulate the markets properly, it leads to a loss of trust, dwindling credit, and economic depression.

Trust in the future is the backbone of the modern economic world. The UK is taking a harsh lesson in this after the Brexit vote.

Interlopers like Sci-Hub represents economic death because they remove trust in an economic future. Thieves and charlatans like Sci-Hub and others who seek to siphon off economic value into a vacuum need to be resisted. How? Well, one simple way would be for societies, universities, editors, and leaders to boycott Sci-Hub and its ilk, and urge others to urge scientists and scholars to boycott it. Do you not have a Twitter account? Do you not have a voice? Speaking up is a simple and effective approach that Taylor Swift and others have used successfully — voicing concerns, rallying support, and putting the risk on the offending party rather than shouldering the risk themselves. Another way would be to support legal actions like Elsevier’s when it clearly aligns with your own interests. Part of the reason the entire publishing industry is perceived as “Elsevier” by detractors is because the large and varied industry as a whole has remained out of sight.

A positive outcome from the Sci-Hub debacle would be if we — as an industry and as organizations that take on risks on behalf of authors with important information to share — used this moment to find our collective backbone, get our users to understand why they should boycott Sci-Hub, and educate important constituencies about the importance of laws, economics, and the future.

Taylor Swift can do it. You can, too.

Kent Anderson

Kent Anderson

Kent Anderson is the CEO of RedLink and RedLink Network, a past-President of SSP, and the founder of the Scholarly Kitchen. He has worked as Publisher at AAAS/Science, CEO/Publisher of JBJS, Inc., a publishing executive at the Massachusetts Medical Society, Publishing Director of the New England Journal of Medicine, and Director of Medical Journals at the American Academy of Pediatrics. Opinions on social media or blogs are his own.

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Discussion

17 Thoughts on "Copyright, Expectations, and Economics — Can Taylor Swift Help Us Find Our Backbone?"

While I appreciate Kent’s clarion call for more action by rightsholders to protect their interests, I think he should recognize that organizations like the AAP (on whose copyright committee I have served since 1974) and the CCC (on whose board I have served since 1992) have been doing just that all along. The CCC, for example, has taken a lot of heat for funding the suit against Georgia State. The AAP has been in the thick of the battle on Capitol Hill and elsewhere for many decades. As for the AAUP whose copyright committee I chaired for a quarter century and served on from 1972 to 2015, it was in the battle beginning a very long time ago when I testified in Congress about fair use back in July 1973 (at which time the AAUP recommended a wording for Section 107 that would have given pride of place to the fourth factor, market impact, and made the other three factors subservient to it). He might want to visit the Penn State website where I have posted my articles about copyright (some 80 of them) that span the period from the late 1970s to the present. He should remember that Princeton University Press was the named plaintiff in the suit brought against Michigan Document Services for photocopying. But there is also a reality he needs to recognize that affects the effectiveness of presses as defenders of copyright on campus, viz., that presses do not have nearly the presence or power that libraries do; and of course every campus has a library while only some 80 have presses. Moreover, the trend of presses to be merged with libraries may effectively mute their ability to speak out even more. And they have no power to commit their universities to defending copyright; there is a reason why British university presses had to take the lead in the suit against Georgia State. Finally, as mission-driven publishers, university presses do not always share the same perspective as commercial publishers, which is why presses have also been leaders in and advocates of open access.

Please note that I made many of these points in the post. This is actually the problem — big organizations like the AAP, CCC, STM, and others are the voices we hear when copyright, identity theft, and other issues arise. Where is the Twitter storm against Sci-Hub from the mid-sized scholarly publishers, the uniquely identified universities, the editors, the librarians, and so forth? Unlike the prior decades of activity which Sandy mentions, today there is a real power to social media, grassroots activism, and distributed politics. Everyone has been embarrassed and exploited by Sci-Hub, yet we act as if it’s not something we need to shout down. Sci-Hub is not an open access initiative, but a hacker, pirate, and thief. Where is the outrage?

Thanks for this piece, Kent. You are correct that there is a lot going on in the music industry right now related to copyright — one very interesting development in this arena was announced by Berklee just last week:

http://www.open-music.org/#open-music-initiative-1

An extremely ambitious undertaking but it is great to see artists, universities, media companies and the music industry coming together in this initiative to address the problem of creator rights and appropriate compensation for artists.

You can’t equate the music industry with scholarly publishing. Not unless you start paying your authors. It’s a completely different game, with different rules. The work will get done while there’s a demand for it – but the demand comes from funders and hiring committees, not the desire for a profit. Ultimately the scholarly communication community cares about research being made widely available. It doesn’t care about whether it’s economically viable for the middle man. The middle man can go to the wall, as long as the research is made available. If we can do that without creaming off 30% of the cash to go in someone’s pocket, that’s a win.

You can equate risk-taking with other risk-taking. Scholarly publishers invest billions of dollars each year in hopes of generating an average margin of 15% — some make more, some make less. Overall, publishers are 0.5% of the entire scientific research economy.

Journal and book publishing both have authors and writers who are paid (for journals, these are mostly invited editorials and commentaries, but also review articles, and increasingly journalism and topical essays).

Research authors strike a different bargain, and paying them would only make them more prone to exaggeration and bias than they already are given their large, unpaid incentives for publication (see: https://scholarlykitchen.sspnet.org/2016/05/25/what-if-academic-and-scholarly-publishers-paid-research-authors/).

“Demand” in our market is multi-dimensional, and not as simple as you state. Authors want publication because it makes their work rivalrous and sets priority, advancing their careers. Funders want publication because they want to see their money producing results. Readers want publication because they want to know what’s going on in their field (the “gossip” of science). So there is demand everywhere. The fact that a profit is generated is seen as a positive by most people, as it ensures independence and sustainability. PLoS generates a tidy sum, as does BioMedCentral and Hindawi. There isn’t an unprofitable publishing model that lasts long, and being desperate for money often means compromising values.

Your notion of “someone else’s pocket” is also worth contemplating. Most scientific and scholarly publishers are non-profit societies or university presses — owned by or run by academics. An increasing number of these contract with large commercial publishers so that they can benefit from the sales, technology, and marketing scale of these organizations. The societies and presses are paid handsomely for these contracts. The flow of money is actually a sign of cooperation and alignment, and the pockets receiving a large chunk of the returns are often universities, and scholarly and scientific societies.

My point was to show that a grassroots effort in the music industry of aligned parties can make a difference. As I hope you see, there is more shared incentive than you believe with your model of exploitation and unfairness. Given the negotiated contracts, shared payments, and benefits to academia and scholarly societies, publishing is consensual and fair business. Contrast this with the ABSOLUTE exploitation and unfairness (hacking, stealing, and hoodwinking — all non-negotiable) of Sci-Hub. I’d take a good, fair, equitable business relationship any day over having stuff stolen by Russian and Ukrainian hackers (including university IDs, which are no doubt being sold for huge personal profits, and without anyone’s consent).

More and more, I feel like society publishers have very little representation when it comes to industry groups. The societies we join often have big publishers as members too and it seems like most initiatives or “statements” benefit the big guys and not necessarily the little guys. I am not saying that these groups don’t provide value to society publishers, but its not always the case that the best interests of societies are being addressed.

I think another big issue for some societies is that the society in itself may not allocate resources to publishing related legal issues or even lobbying campaigns. My guess is that this becomes worse if you are a society that has partnered with a commercial publisher or university press.

You are on target, Kent. I have spent the last 40 years (to the month) going where industries were being hammered, to try to help out. These have ranged from chemicals and electric power to consumer banking and education. I have never seen an industry as unresisting to being rolled as scholarly publishing. Perhaps it is the gentle nature of the people, but it does not bode well for the future.

The forces that want to destroy scholarly publishing are perfectly clear about their intentions. Resistance is not futile, just largely nonexistent.

The reference to “erosion of copyright laws” made me laugh out loud. Term extension to life +70!! Elimination of formalities such as renewal, so that millions of works are protected but not exploited, are not commercially viable and never will be!! The laws are not eroding, but users’ respect for them may be because the balance between creators’ and users’ rights is totally out of whack.

What’s wrong with a copyright benefiting one’s heirs? Can’t I pass on a house either? Money? A deed? A patent? Why not a copyright?

Renewals were eliminated as a way of grandfathering through changes in the copyright law, and then to decrease administrative burdens.

It’s not for you to say what is and is not commercially viable or exploited and never will be. If it never will be, then what’s the harm of copyright? If it was not commercially viable, then who wants it?

I don’t think users are disrespectful of copyright. I think technology companies have been pushing the envelope, anti-establishment types have been undermining the purpose, and short-sighted government officials have been cutting corners. Asserting that this is a grassroots rebellion against copyright flies in the face of the facts.

I would respectfully offer up that I would have a hard time looking our students and faculty here at Berklee in the eye and telling them in all sincerity that the balance of rights is currently heavily skewed in favor of the creator/artist. Couldn’t honestly do that with a straight face.

Please don’t conflate copyright law as applied to creative artists who make a living selling their works (be they writers or musicians) and as applied to scholarly works whose authors are essentially paid a salary by the state.

I too would be angry if my work wasn’t achieving it’s purpose because of people abusing copyright law… it’s just that the purpose of my work is to advance knowledge for the whole of society, not earn me money.

1) Not all authors of scholarly works receive governmental funding. Some receive private funding, and some receive no funding at all.
2) When I coauthored a scholarly textbook, I certainly appreciated the royalties it paid (and continues to pay). I have never, in my experience as an editor, heard a book author complain about being paid.
3) I suspect that for many authors, the “purpose” of authoring papers is to advance their careers and to bring in additional funding, at least as much as benefiting society. And that career advancement and additional funding generally earns an author more money, again something that I have never heard a researcher complain about.

Copyright (properly administered) protects the integrity of scholarly work. Too many times, I’ve seen works distorted or used to support a perverse commercial interest, and the only way to stop it was strong copyright. So, you may be angry if you were to see a piece of your research used to make a non-scientific or pseudo-scientific point, and have no recourse to stop it. Copyright can help advance knowledge by keeping charlatans and thieves at bay. And also keep academic careers on-track by not getting researchers and professors mucking about in controversies that waste their time or damage their reputations.

There has quite a lively debate about copyright law’s fair dealing proviso (analogous to the USA’s “fair use”) here in Canada. The arguments put forward at Toronto’s Writers’ Summit about the decline of textbook publishing as consequence of changes in copyright law are in dispute — for some recent articles supporting fair dealing and pointing out other reasons for the changes in the Canadian textbook market, see Michael Geist’s column: http://www.michaelgeist.ca/2016/06/fictional-claims-why-kids-are-not-suffering-with-canadas-copyright-fair-dealing-rules/ or Nair Meera’s blog post: https://fairduty.wordpress.com/2016/04/24/wrapping-copyright-in-the-maple-leaf/.

Dear Mr. Anderson, you last comment again shows that it is unproductive to mix creative works (songs, novels, textbooks) with information works(scholarly articles). The best way to deal with charlatans is not to control the information but to provide a free flow of information. Otherwise you are in the company of printing press detractors who said that common folk should not read the Bible as they will read it wrong.
In sciences, the current system, so far, worked well in providing the information flow, but it does not mean that the status quo shall be protected. Disruption and revolutions are not smooth and bloodless but they are caused by organic interests. The scientific community will always find an appropriate way to disseminate information, with or without publishers. Just because one business model will fail does not mean doom and gloom for all of us.

You seem to be making a classic error in thinking that publishers simply attend to distribution (“information flow” in your words). The primary role, I believe, is information vetting — that is, funders and researchers do their work, but who can generally tell them first how good it is? You need an independent (and independently funded) group of experts to do that. Readers want that. It’s consistently rated as the most important thing in the scholarly and academic publishing ecosystem. Publishers have created a business that brings such experts to bear on vetting works, creating signals of quality in brands, and so forth.

Common ground exists around risk. Printers of a Bible take financial risks; popular songwriters and singers and their publishers take financial risks; and scholarly publishers take financial risks before Paper 1 is published. Protecting the output is critical for those risks to have some certainty of paying off. In addition, authors generally want the integrity of their works to be assured, and taken off their hands. Publishers and copyright both help with this.

Organic interests include things like current textbooks by knowledgeable authors; successful musicians and artists; writers who astound and can make a living wage; and publishers who help to ensure scientific research is properly vetted and placed. I don’t think there’s a defensible organic interest in stopping the production of relevant and timely knowledge, forcing kids to learn from sketchy sources, having less music and theater in the world, and dumping unsorted articles out into search engines.

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