4.1319 Copyright II: Competition & Monopolies (1/172)
Elaine Brennan & Allen Renear (EDITORS@BROWNVM.BITNET)
Mon, 6 May 91 08:56:57 EDT
Humanist Discussion Group, Vol. 4, No. 1319. Monday, 6 May 1991.
Date: Fri, 3 May 91 15:57:40 CDT
From: robin@utafll.uta.edu (Robin Cover)
Subject: Copyright II: Counterproductive Competition and Monopolies
Are current copyright laws hopelessly outdated and irrelevant to the subject
of intellectual property in electronic text? Ironically, groups which support
monopolistic control in the name of free enterprise, and those which think the
best interests of scholarship are not served by "ownership" tend to agree.
Advocates of privatization and commercialization think copyright is irrelevant
because it's technically unenforceable. Advocates of democratic access to
publicly-owned knowledge think copyright laws are too restrictive because they
present legal/economic barriers to the free exchange of ideas.
Thus, the struggle to "own, control and collect revenues" within the domain of
written academic research appears only to be part of a larger issue
highlighted by the technological revolution. The question revolves around
whether (commercial) competition for knowledge as a commodity, and ownership
of humanistically-relevant electronic knowledge bases are good for the
humanities. I think they are not. It is indeed possible under current laws
to establish monopolistic control over important electronic databanks which
are valuable for the progress of scholarship. Those who hold monopolistic
control are empowered not only economically but intellectually: they hold the
rest of scholarship in the palm of the hand, to dispense (access to) knowledge
at any price, or to completely withhold it from others. Here the values of
free enterprise appear to come into conflict with the best interests of
textual scholarship. An individual, a publisher or an academic institution
which comes into legal possession of a premium resource--through shrewd
negotiating, through exploitation of privileged relationships or academic
prestige, through hard work, through fortuity--may decide that the glory or
the money which derives from having SOLE possession of the scholarly resource
represents an important competitive advantage, and may resist democratizing
access to the knowledge in defense of private interests.
A key point of departure in this discussion is the conviction that electronic
text represents an expression of human thought and language quite distinct
from paper representation of that same text: electronic searching, retrieval,
and quantitative analysis of digital libraries constitute more powerful
methods of access to knowledge than mere human "reading" of a printed text. In
both large and small corpora of machine-readable text, elaborate historical
and literary-critical hypotheses may be tested using sophisticated query
languages and mathematical algorithms, yielding specific and generalized
results that could never be validated or quantified by humans merely reading
the printed text. Maintaining legal or economic control over electronic text
thus represents a form of scholarly empowerment and access to intellectual
tradition that is not usually at issue in traditional paper libraries.
Those who have eyes will see today many examples: commercial exploitation of
exclusive distribution rights to a certain "standard" text; jealous
institutional or private guarding of a corpus of machine-readable texts, a
linguistic database, or an archive of (excavated/purchased) ancient texts. Or
consider a museum which forbids taking pictures of a manuscript or bronze
statue--ostensibly on scientific-preservation grounds--when indeed they simply
wish to sell postcards, posters and expensive art books. A well-known example
of competition in the wrong domain was the initial endeavor to microfiche rare
books in major US archives for preservation and democratic access: the plan
was vigorously opposed by the elite eastern (US) schools who plainly did not
want anyone else to have what they had. Or consider the specter of Apple
suing Microsoft for "look and feel." It is a madness in which a embarrassing
amount of energy and money is spent simply preventing others from having what
you have. "Success is not enough: others must fail." "Wealth is not enough,
others must be indigent."
Suppose YYYYY (University) Press, in conjunction with the Bodl. Library,
approaches a young scholar and says: "Psssssst! Do you realize that a
critical edition of XXXXX <16th century literary work> has not been available
for over 150 years, and that we know of 12 manuscripts held by a couple
private individuals, as well as a few unpublished scraps in the Bodl. Library.
.. Now, if you were to make a new text edition, we (prestigious YYYYY Press)
would publish it in book form. Your edition will instantly become the
standard, and you will be able to ride this academic glory to just about any
academic post (a half-truth). Moreover, we will make the edition available in
electronic format with our proprietary software, and we will cut you in on the
profits. The data will be encrypted in electronic format, so no one can steal
it, and it will be accessible as text ONLY through our proprietary software.
We will not support the most sophisticated kinds of analytical tools into this
software, so that (with your more powerful general and specialized tools and
access to the electronic text in un-encrypted format) you can still publish
quantified studies on certain subtle aspects of this corpus. No one else will
be able to gainsay your data or your conclusions, nor test competing theories
using similar analysis. Your edition will have no competition since, well, we
feel sure that the two private owners of these twelve manuscripts (who wish
very much to remain anonymous) will not make these materials available anytime
soon to anyone else."
It's possible, since I'm no expert in law, that legal judgments can be brought
against extreme examples of such collusion. But many legal, or at least
unchallenged examples are already emerging today. If the law cannot touch
such situations, then the ethics policies of the academic community should.
The ethics policies should be reviewed and publicly supported by funding
agencies such that research and publication efforts not committed to such
public ethics will not receive public money. Just as being an "Equal
Opportunity Employer" is an important claim, the commitment of publishers to
"Public Ethics for Scholarly Publishing" would become critical to survival.
It seems imperative that the scholarly community take steps to carefully
define and proclaim a statement of public ethos in the area of electronic
knowledge: what values are consistent with the progress of textual
scholarship? We have not to ask, for starters, "How may we assure the
financial solvency of all publishers?" and "How may we guarantee the success
of venture capitalism in the creation of scholarly databases?" As humanists,
we have to ask rather: "What ethos best serves textual research and democratic
access to our literary past?" What text representations and forms of access
should be expected? In my view, encrypted data and bundled proprietary
software should be vigorously anathematized, castigated, excoriated,
belittled, boycotted and otherwise opposed -- just as we have for copy
protection schemes. In what realms/genres should private claims upon
representations of ancient culture (art, literature), however legal, will be
'tolerated,' and which will be publicly or privately 'censured?' What
sanctions will be imposed upon violators of the public ethos --whether they be
publishers, electronic publishers, commercial database developers,
individuals, academic institutions?
More positively, how can scholars actively take control in publishing so as to
minimize private monopolies over scholarly databases? In the first place,
there needs to be re-evaluation of the incentives and rewards for scholarly
work. Producing QUANTITIES of "published" work (the current situation) should
count for nothing; producing QUALITY work should be rewarded with increased
prestige, salary and responsibility for public funds. Competition for the
results of research should be opposed. The more monetary value placed upon the
knowledge itself, the more senseless energy is spent on depriving others of
access to knowledge, and making sure everyone "gets a fair return" in money.
As a current alternative, I favor the model of the Free Software Foundation
(GNU). I would encourage all HUMANISTS to acquaint themselves with the
charter and "copyleft" general license agreements of FSF. I will post the
relevant document to the HUMANIST listserv. Already, I see (SIMTEL/TRICKLE
PD1:<msdos.books>alice26a.zip) the Gutenberg group has adopted the copyleft
philosophy for promoting free public access to digitized texts. In this
scheme, protection is given to public property. The "copyleft" philosophy
does not imply that the data must be made available absolutely free of charge
(media costs are allowed when appropriate), but guarantees that no one can
establish ownership or control over the data, that no one may commercially
profit from its sale or distribution, that no one may restrict access to the
data. The receipt, use, duplication, modification and further distribution
are allowed ONLY on the terms that the original freedoms of the
text/data/program are passed on to others, in perpetuity. This legal
instrument encourages democratic access, use and enhancement of textual
knowledge but prevents monopolistic entrepreneurial control by anyone. If
someone screams "capitalism, free enterprise!" here I would say, "then go
build automobiles, but don't meddle in marketeering the fundamental resources
of humanities research."
Practically speaking (for electronic texts), I think this means having the
scholarly community--the Miltonists, the biblical scholars, the Indologists--
place in public access "copylefted" copies of the most important texts and
linguistic databases. Such won't happen overnight, but it can happen. When
the *BEST* version of a text is placed in 'public domain' no one will pay to
live under the tyranny of a commercial purveyor of knowledge. Competition may
then be focused upon gaining recognition through the production of public
knowledge and providing opportunities for all others to continue research.
The Free Software Foundation supplies an example of what can be achieved when
competition is shifted from un-productive domain to a productive domain. Most
UNIX machines, and many other computers, will have a regular-expression search
utility called "egrep" (or grep, fgrep); but as far as I know, the commercial
versions cannot compete with the speed and versatility of GNU's "egrep." GNU
"egrep" will be found on almost every UNIX computer, and the standard
commercial BSD or System V "egrep" utilities shipped with the operating system
will not be used. The same GNU text-processing utilities are available for
DOS, and again are generally better than the commercial versions. An entire
GNU UNIX platform is being built on this philosophy: that competition based
upon patent and copyright laws is actually deleterious to the health of
scientific and technical research. Now, we could debate the necessity and
desirability of GNU's agenda (only the commercial developers complain!), but
in certain sub-domains of textual scholarship, we have eminently greater
justification for making "public" text truly public along these lines. The
way to break up monopolies and to guarantee democratic public access is to
publicly 'copyleft' the best texts and scholarly text databases. I think this
ethos should pertain to the staples of the academic diet: electronic versions
of primary texts (original texts and translations), reference tools and
research databases of scholarship. Research and publication projects should
be funded with public money so as to make this possible. Concomitantly,
privately-sponsored commercial ventures to produce these tools of the staple
diet should be reviewed negatively by the academic community. (End Part II)
Robin Cover