If you are paid to write, you don’t own the content

No tax inspector or police officer can claim rights over what they write for their jobs, so why should academics, asks Gabriel Egan

September 7, 2017
Books in a pile
Source: iStock

In an innovative piece of recent research, Leibniz University of Hanover scholar Hartmut Ilsemann ran Shakespeare’s plays through a computer program. He found that when the Globe Theatre opened in 1599, the median length of speeches dropped from about ten words to about five.

Shakespeare is not around to complain about his works being data-mined like this, but what if I ran such tests on the writing of living historians? Would that be a proper use of their writing? Not according to the renowned digital humanist Marilyn Deegan. For her, data-mining is no way to treat monographs that are “creative works in their own right”. Their “carefully crafted arguments”, she argues, should not be subject to “atomisation and appropriation by others” (“Open access monograph dash could lead us off a cliff”, Opinion, July 27).

It is hard not to conclude that, in essence, Deegan is objecting not so much to open access principles as the condition of writing itself. There is simply no way for authors to control what happens once their works are launched into the wider world of readers. The author cannot be present everywhere to police how a text is consumed. Jonathan Swift (who is dead) cannot prevent undergraduates taking A Modest Proposal literally, any more than Rob Reiner (who is alive) can prevent audiences taking This is Spinal Tap for a documentary. Those are the hazards of creativity.

For advocates of open access, the overriding principle is that public servants whose contracts give them time to write are, by virtue of being paid to do it, no longer the owners of that writing. No tax inspector or police officer can claim ownership of what they write for their jobs, so why should academics?

Certainly, academics have considerable freedom to choose their own topics, and their writing is more “authored” than that of other public servants, which is typically anonymous. Even here, though, practice varies. Beeching, Dearing, Chilcot and Stern are certainly treated as the authors of their landmark reports for the UK government on, respectively, the railways, higher education, the Iraq War and climate change. Yet no one would argue that these reports were their authors' personal property, to do with as they saw fit.

If university academics feel this way, they need to make that case explicitly. They must explain why is not unjust that, collectively, our universities pay their employees to write books and then have to buy the same books back from publishers in order to stock their libraries. Academics may well feel that they have to play this game for the sake of career advancement, but that is no reason to defend the status quo in academic publishing.

Faced with these arguments, the opponents of open access usually fall back on one last defence: that academics write their books in their own time, not their university's. This certainly happens: ours is a profession in which much unpaid overtime is done in the evenings and at weekends. But, really, that is a separate fight. If we call this “overtime”, as the UK's University and College Union does, we are acknowledging that book writing is part of our contracted work, not a leisure activity. Only academics who have no research hours at all specified in their contracts can truthfully claim that their books are made entirely in their own time and hence are their own private property. Everyone else should acknowledge that the public pays for our works and should therefore not have to pay again to read them.

Aside from all else, there is an unassailable argument in favour of open access monographs from a global rights perspective. More research will get done more efficiently when all the raw materials for doing it are available for free on the internet, which (unlike research libraries) can now be accessed by more than half the world's population.

Who knows how many potential Deegans and Egans never got a chance to change people’s minds because they were born in the wrong part of the world?

Gabriel Egan is professor of Shakespeare studies and director of the Centre for Textual Studies at De Montfort University.

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POSTSCRIPT:

Print headline: To pen it is not to own it

Reader's comments (7)

This article misunderstands copyright practice and copyright law. Although in theory in law the employer owns writings created by an author in the course of their employment, IN PRACTICE universities have chosen not to exercise their rights, and have left publication decisions completely to their academics. Any attempt to change this long-standing custom and practice (often embedded within academics' contracts of employment) would cause major resistance. But even if such a change were to happen, there is a specific exception in UK copyright law permitting non-commercial text and data mining of copyright works. So I'm afraid my good friend Marilyn Deegan is incorrect in what she apparently said.
But Charles, I think the really interesting question is whether an attempt to change those 'long-standing custom and practice' WOULD cause 'major resistance'. I know many people think it might, but if the benefits to the circulation of scholarship were properly explained and understood, would it really? As scholars, can we not appreciate the greater good? With journal articles, we get no royalties or fees for our copyright, so it makes little financial difference to us if our university were to claim some/all rights, but it could make a very practical difference to the spread of OA (e.g. if the university were to insist on non-exclusive rights to make a digital version of the text available to all internet users globally). And if that is true of journal articles, are books so very different? (As an historian, I write books, and I work alongside lots of colleagues who care a lot about books. I know plenty of reasons why book authoring and publishing differs from journal articles. But in terms of the relationship to our employing universities, and our contractual obligations, it's the same, isn't it?)
Aileen, you raise a good point, but I suspect many academics WOULD object because they would see this as the thin end of a wedge. Next stage, the more paranoid or unpopular ones would think, would be that the employer, as owner of all their writings, will decide WHERE to publish it, or indeed to say "you cannot publish this". As ownership lies with the employer, the academic would have to comply. Not saying it will happen all the time of course, but it might. And there is another little twist. If an academic writes something that is potentially defamatory or infringes privacy, the academic is the one who has to answer in law. If the employer owns the stuff, then it is the one in the firing line. Just wonder if all Universities are aware of this implication and have taken legal advice accordingly.
PS, sorry, I should have signed the above: Aileen Fyfe (publicly visible is name hopefully now changed!)
Why should a best selling textbook's royalties go to a University and not the author? If it goes to the University then the author would have no real incentive to do the work and revise and update the book from time to time. A good up to date textbook can bring new students to the University and that is how the University can cash in too.
Interesting times. I tend to agree with Aileen on this one, and from the perspective of someone who both works in a Uni library and has written academic articles. OA monographs are going to become very much a feature of research in the future and the world is potentially going to change long term practice - but very possibly for the good.
And the difficulty is not just best-selling textbooks. Consider also the dream of every historian: the 'cross-over' book (academically respectable but also sells tens of thousands of copies). Virtually none of us will ever do it (see the figures in the 'Academic Book of the Future' report!), but we can all dream... And that is why books do seem more complicated than journal articles, because, just sometimes, academics do make money from them, and so giving them away for free seems more difficult. If there was a clear line between an 'academic monograph' and 'a book that might sell in Waterstones or to thousands of students', then persuading humanities academics of the advantages of OA monographs would be much easier.

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