{"id":2060,"date":"2014-04-04T13:55:24","date_gmt":"2014-04-04T17:55:24","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/pamphlet\/?p=2060"},"modified":"2014-04-04T13:55:24","modified_gmt":"2014-04-04T17:55:24","slug":"public-underwriting-of-research-and-open-access","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2014\/04\/04\/public-underwriting-of-research-and-open-access\/","title":{"rendered":"Public underwriting of research and open access"},"content":{"rendered":"\n\n\n\n
\"Cover<\/a><\/td>\n<\/tr>\n
\u2026a social contract\u2026<\/span>
\n
\nTitle page<\/a> of the first octavo edition of Rousseau’s Social Contract<\/a><\/em><\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[This post is based loosely on my comments on a panel on 2 April 2014 for\u00a0Terry Fisher<\/a>‘s\u00a0CopyrightX course<\/a>. Thanks to Terry for inviting me to participate and provoking this piece, and to my Berkman<\/a> colleagues for their wonderful contributions to the panel session.]<\/em><\/p>\n

<\/em>Copyright is part of a social contract: You the author get a monopoly to exploit rights for a while in return for us the public gaining \u201cthe progress of Science and the Useful Arts<\/a>\u201d. The idea is that the direct financial benefit of exploiting those rights provides incentive for the author to create.<\/p>\n

But this foundation for copyright ignores the fact that there are certain areas of creative expression in which direct financial benefit is not an incentive to create<\/em>: in particular, academia. It\u2019s not that academics who create and publish their research don\u2019t need incentives, even financial incentives, to do so. Rather, the financial incentives are indirect. They receive no direct payment for the articles that they publish describing their research. They benefit instead from the personal uplift of contributing to human knowledge and seeing that knowledge advance science and the useful arts. Plus, their careers depend on the impact of their research, which is a result of its being widely read; it\u2019s not all altruism.<\/p>\n

In such cases, a different social contract can be in force without reducing creative expression. When the public underwrites the research that academics do \u2013 through direct research grants for instance \u2013 they can require in return that the research results must be made available to the public, without<\/em> allowing for the limited period of exclusive exploitation. This is one of the arguments for the idea of open access to the scholarly literature<\/em>. You see it in the Alliance for Taxpayer Access<\/a> slogan \u201cbarrier-free access to taxpayer-funded research\u201d and the White House statement<\/a> that \u201cThe Obama Administration agrees that citizens deserve easy access to the results of research their tax dollars have paid for.\u201d It is implemented in the NIH public access policy<\/a>, requiring all articles funded by NIH grants to be made openly available through the PubMed Central<\/a> website, where millions of visitors access millions of articles each week.<\/p>\n

But here\u2019s my point, one that is underappreciated even among open access supporters. The penetration of the notion of \u201ctaxpayer-funded research\u201d, of \u201cresearch their tax dollars have paid for\u201d, is far greater than you might think. Yes, it includes research paid for by the $30 billion invested by the NIH each year<\/a>, and the $7 billion research funded by the NSF<\/a>, and the $150 million funded by the NEH<\/a>. But all<\/em> university research benefits from the social contract with taxpayers that makes universities tax-exempt.1<\/a><\/sup><\/p>\n

The Association of American Universities makes clear this social contract<\/a>:<\/p>\n

The educational purposes of universities and colleges \u2013 teaching, research, and public service \u2013 have been recognized in federal law as critical to the well-being of our democratic society. Higher education institutions are in turn exempted from income tax so they can make the most of their revenues\u2026. Because of their tax exemption, universities and colleges are able to use more resources than would otherwise be available to fund: academic programs, student financial aid, research, public extension activities, and their overall operations.<\/p><\/blockquote>\n

It\u2019s difficult to estimate the size of this form of support to universities. The best estimate I\u2019ve seen puts it at something like $50 billion per year<\/a> for the income tax exemption. That\u2019s more than the NIH, NSF, and (hardly worth mentioning) the NEH put together. It\u2019s on par with the total non-defense federal R&D funding<\/a>.<\/p>\n

And it\u2019s not just exemption from income tax that universities benefit from. They also are exempt from property taxes for their campuses. Their contributors are exempt from tax for their charitable contributions to the university, which results ceteris paribus in larger donations. Their students are exempt from taxes on educational expenses. They receive government funding for scholarships, freeing up funds for research. Constructing an estimate of the total benefit to universities from all these sources is daunting. One study places the total value of all direct tax exemptions, federal, state, and local, for a single university, Northeastern University, at $97 million, accounting for well over half of all government support to the university. (Even this doesn\u2019t count several of the items noted above.)<\/p>\n

All<\/em> university research, not just the grant-funded research, benefits from the taxpayer underwriting implicit in the tax exemption social contract. It would make sense then, in return, for taxpayers to require open access to all<\/em> university research in return for continued tax-exempt status. Copyright is the citizenry paying authors with a monopoly in return for social benefit. But where the citizenry pays authors through some other mechanism, like $50 billion worth of tax exemption, it\u2019s not a foregone conclusion that we should pay with the monopoly too.<\/p>\n

Some people point out that just because the government funds something doesn\u2019t mean that the public gets a free right of access. Indeed, the government funds various things that the public doesn\u2019t get access to, or at least, not free access. The American Publisher\u2019s Association points out<\/a>, for instance, that although taxpayers pay for the national park system \u201cthey still have to pay a fee if they want to go in, and certainly if they want to camp.\u201d On the other hand, you don\u2019t pay when the fire department puts out a fire in your house, or to access the National Weather Service forecasts<\/a>. It seems that the social contract is up for negotiation.<\/p>\n

And that\u2019s just the point. The social contract needs to be designed<\/em>, and designed keeping in mind the properties of the goods being provided and the sustainability of the arrangement<\/em>. In particular, funding of the contract can come from taxpayers or users or a combination of both. In the case of national parks, access to real estate is an inherently limited resource, and the benefit of access redounds primarily to the user (the visitor), so getting some of the income from visitors puts in place a reasonable market-based constraint.<\/p>\n

Information goods are different. First, the benefits of access to information redound widely. Information begets information: researchers build on it, journalists report on it, products are based on it. The openness of NWS data means that farms can generate greater yields to benefit everyone (one part of the fourth of six goals in the NWS Strategic Plan<\/a>). The openness of MBTA transit data<\/a> means that a company can provide me with an iPhone app to tell me when my bus will arrive at my stop. Second, access to information is not an inherently limited resource. As Jefferson said, \u201cHe who receives an idea from me, receives instruction himself without lessening mine.<\/a>\u201d If access is to be restricted, it must be done artificially, through legal strictures or technological measures. The marginal cost of providing access to an academic article is, for all intents and purposes, zero. Thus, it makes more sense for the social contract around distributing research results to be funded exclusively from the taxpayer side rather than the user side, that is, funding agencies requiring completely free and open access for the articles they fund, and paying to underwrite the manifest costs of that access. (I\u2019ve written in the past about the best way for funding agencies to organize that payment<\/a>.)<\/p>\n

It turns out that we, the public, are underwriting directly and indirectly every<\/em> research article that our universities generate. Let\u2019s think about what the social contract should provide us in return. Blind application of the copyright social contract would not be the likely outcome.<\/p>\n

\n
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    \n
  1. Underappreciated by many, but as usual, not by Peter Suber, who anticipated this argument, for instance, in his seminal book Open Access<\/em><\/a>:
    \n

    All scholarly journals (toll access and OA) benefit from public subsidies. Most scientific research is funded by public agencies using public money, conducted and written up by researchers working at public institutions and paid with public money, and then peer-reviewed by faculty at public institutions and paid with public money. Even when researchers and peer reviewers work at private universities, their institutions are subsidized by publicly funded tax exemptions and tax-deductible donations.<\/em> Most toll-access journal subscriptions are purchased by public institutions and paid with taxpayer money. [Emphasis added.]<\/p><\/blockquote>\n

    \u21a9<\/a><\/li>\n<\/ol>\n<\/div>\n

     <\/p>\n","protected":false},"excerpt":{"rendered":"

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Thanks to Terry for inviting me to participate and provoking this piece, and to my Berkman colleagues for their wonderful contributions to the […]<\/p>\n","protected":false},"author":2110,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[618,116,68],"tags":[],"class_list":["post-2060","post","type-post","status-publish","format-standard","hentry","category-open-access","category-policy","category-scholarly-communication"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p5pLfN-xe","jetpack-related-posts":[{"id":712,"url":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2011\/02\/14\/dissertation-distribution-online-my-comments-at-the-aha\/","url_meta":{"origin":2060,"position":0},"title":"Dissertation distribution online: my comments at the AHA","author":"Stuart Shieber","date":"Monday, February 14, 2011","format":false,"excerpt":"I spoke at a panel last month at the annual meeting of the\u00a0American Historical Association devoted to the question of electronic dissertations and intellectual property rights entitled \"When Universities Put Dissertations on the Internet: New Practice; New Problem?\" My co-panelists included Edward Fox, professor of computer science at Virginia Tech\u2026","rel":"","context":"In "open access"","block_context":{"text":"open access","link":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/category\/scholarly-communication\/open-access\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1533,"url":"https:\/\/archive.blogs.harvard.edu\/pamphlet\/2012\/10\/08\/open-access-week-2012-at-harvard\/","url_meta":{"origin":2060,"position":1},"title":"Open Access Week 2012 at Harvard","author":"Stuart Shieber","date":"Monday, October 8, 2012","format":false,"excerpt":"...set the default... 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