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[This post is based loosely on my comments on a panel on 2 April 2014 for Terry Fisher's CopyrightX
course. Thanks to Terry for inviting me to participate and provoking this piece, and to my Berkman
colleagues for their wonderful contributions to the panel session.]
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 "the progress of Science and the Useful Arts". The idea is that the
direct financial benefit of exploiting those rights provides incentive for the author to create.
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: in particular, academia. It's not that
academics who create and publish their research don't 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's not all altruism.
In such cases, a different social contract can be in force without reducing creative expression. When
the public underwrites the research that academics do - through direct research grants for instance they can require in return that the research results must be made available to the public, without
allowing for the limited period of exclusive exploitation. This is one of the arguments for the idea of
open access to the scholarly literature. You see it in the Alliance for Taxpayer Access slogan
"barrier-free access to taxpayer-funded research" and the White House statement that "The Obama
Administration agrees that citizens deserve easy access to the results of research their tax dollars
have paid for." It is implemented in the NIH public access policy, requiring all articles funded by
NIH grants to be made openly available through the PubMed Central website, where millions of
visitors access millions of articles each week.
But here's my point, one that is underappreciated even among open access supporters. The
penetration of the notion of "taxpayer-funded research", of "research their tax dollars have paid for",
is far greater than you might think. Yes, it includes research paid for by the $30 billion invested by
the NIH each year, and the $7 billion research funded by the NSF, and the $150 million funded by
the NEH. But all university research benefits from the social contract with taxpayers that makes
universities tax-exempt.
The Association of American Universities makes clear this social contract:
The educational purposes of universities and colleges - teaching, research, and public service - 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.... 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.
It's difficult to estimate the size of this form of support to universities. The best estimate I've seen
puts it at something like $50 billion per year for the income tax exemption. That's more than the
NIH, NSF, and (hardly worth mentioning) the NEH put together. It's on par with the total non-
Blind application of the copyright social contract would not be the likely outcome.
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