The new AAUP Draft Intellectual Property Statement has nothing to say about works of scholarly publication. Are they not intellectual property? Or does some property count more than others? Faculty have always created content for their institutions. In the predigital world, there was far less tension between institutions and their faculty over who owned syllabi or course notes. The opportunity for mass distribution and potential profit beyond the institution was rare. Fast-forward to an age where faculty are widely producing online course content, as well as marketable inventions that might offer big returns to universities. To maintain peace on campus, it’s critical for institutions to develop ownership policies that guide how faculty content and patentable inventions are managed and shared. This is particularly important as higher education increasingly goes online and faculty seek clear rights to their video lectures and other content that is easily distributed and offered by other faculty at the same or other institutions. As higher education monetizes its intellectual goods, why are some scholarly assets being ignored?

Guidance from the AAUP

Since efforts to mediate how intellectual property is handled can be fraught with complex legal issues, it’s understandable that faculty might mistrust the administration. According to the American Association of University Professors (AAUP), faculty rights to the ownership of their intellectual property are under threat. To help faculty obtain fair rights to their intellectual property, the AAUP has drafted a statement that both parties—faculty and administrators—can use to establish institutional policy. While the statement identifies copyrightable content as intellectual property, it mostly ignores books and articles. Instead, it pertains mostly to patents, trademarks, software, and online course content. The AAUP believes a property ownership policy is needed because colleges and university are aggressively claiming ownership rights to faculty creations. According to Cary Nelson, the lead author of the AAUP report on faculty intellectual property rights, “the fight isn’t about money, it’s about principles.” In the same article in which Nelson is interviewed about this issue, other experts dispute that universities are taking advantage of faculty, but all agree that faculty should know their rights and sign agreements in advance of employment that clearly delineate the intellectual property rights they negotiate with institutions.

Money or Principles

Determining policies for how fairly to handle the distribution of returns on intellectual property is complex, and I certainly lack a thorough understanding of all the issues. But Nelson’s “it’s not about money” statement intrigues me, because if the principle was about securing and protecting faculty rights to their intellectual output, then why are some scholarly publications completely ignored? The draft statement makes no mention of the scholarly output that is routinely and at no cost handed over to publishers, as faculty typically sign away their rights and their institutions could not care less about it (except the librarians). Are scholarly publications some form of third-rate intellectual property not worthy of institutional ownership protections? It leads me to conclude that this is about money. Faculty and administrators demonstrate little concern over rights to journal articles and scholarly publications because they have no way to monetize the content. They’ve allowed the publishers to corner that market. In the absence of revenue-producing prospects, it’s apparent that principles count for little when it comes to certain kinds of intellectual property. What if that changed? What if faculty and institutions could suddenly earn profits from journal articles? How would the attitude change toward intellectual property that faculty willingly hand over year after year to publishers if it could suddenly contribute to the bottom line at colleges and universities?

Scholarly Pay for Use

Imagine if colleges and universities required faculty to turn over all their publications for inclusion in a pay per use system that was controlled by the institutions. An outlandish suggestion, perhaps, that defies current hopes for an entirely open access system, but what else is working? I suspect that if faculty saw university administrations making money off their scholarly production, they would experience a change of heart on retaining the rights to this intellectual property. This introduces a revenue-earning incentive the current system lacks. There is a marketplace of sorts for faculty scholarship, but the coin of the realm isn’t money. It’s prestige. That prestige can be used to earn tenure, promotions, invitations to give talks, and may be the ticket to a better job. The current broken scholarly publishing system, funded largely by academic libraries, supports this marketplace and keeps it operational.

It’s Already Happening

What if higher education decided to change the nature of the marketplace? If you look at the way SIPX is handling the delivery of content to faculty teaching MOOCs, you’ll see that a model for a pay per use system already exists. Faculty can easily locate or browse for titles and then make them available for their course, where students purchase only what they need—for a few dollars per article or chapter. While commercial publishers also offer pay per view, the costs are so outrageous and the purchases so limited that it’s probably considered gravy on top of what’s earned from library subscriptions. I’m thinking of a pay per use system so reasonably priced that higher education would benefit from high-volume sales, while eliminating the millions collectively spent on journal subscriptions. I suspect everyone involved on the administrative side of this system would show great interest in all that content we currently give away for nothing—except whatever prestige is earned by the authors.

Flawed But Still Better

I realize my pay for view system idea has more than a few flaws. For one thing, if universities amassed all the journal content, when and where would it go through the peer-review process? As flawed as the current system is, faculty would still demand some mark of acceptance and quality. It’s possible that revenue would offset the creation of an infrastructure, managed by the libraries and university presses, to add an editorial layer. Perhaps open peer review will provide the solution. The pay-for-all-use idea certainly undermines the concept of open access. Technology may allow a system like this to offer open access to specific market segments, such as higher education institutions, approved nonprofit organizations, or designated independent researchers. Even a higher education controlled pay per use system, affordably priced like digital music, would be a huge improvement over the current inequitable system, where those behind the paywall have unfettered access, while everyone else is forced to pay for individual articles at unreasonable fees for limited access.

Change the Proposition

The challenge is that scholarly output such as articles and books are currently treated as less valued copyrightable content, where it is left up to the author to do as he or she pleases. Holding none of the cachet of more highly valued patentable, revenue-generating property, this entire spectrum of intellectual property is will simply be given a pass by higher education institutions. This stumbling block will no doubt help maintain the status quo where the transition to open access evolves slowly and offers an imperfect solution to a tenure, promotion, and prestige system that values publication in closed, high-impact publications. While a pay per use system managed by higher education would introduce some barriers to access, I suggest we consider the possibility that the resulting revenue could stabilize or subsidize tuition. For me, that seems like a worthwhile trade-off. If higher education continues on its path to unaffordability and unequal access, we’ll have on our hands a far bigger problem than our broken scholarly publishing system.