Academic Personality and the Commodification of Academic Texts

Transcription

1 Academic Personality and the Commodification of Academic Texts Andrew Alexandra Senior Research Fellow Centre for Applied Philosophy and Public Ethics Working Paper Number 2001/6 Centre for Applied Philosophy and Public Ethics (CAPPE) CAPPE Melbourne CAPPE Canberra Department of Philosophy GPO Box A260 University of Melbourne Australian National University Parkville, Victoria, 3010 Canberra, 2601 Phone: (03) Phone: (02) Fax: (03) Fax: (02)

2 The Centre for Applied Philosophy and Public Ethics Working Paper Series The Centre for Applied Philosophy and Public Ethics (CAPPE) was established in 2000 as a Special Research Centre in applied philosophy funded by the Australian Research Council. It has combined the complementary strengths of two existing centres specialising in applied philosophy, namely the Centre for Philosophy and Public Issues (CPPI) at the University of Melbourne and the Centre for Professional and Applied Ethics at Charles Sturt University. It operates as a unified centre with two divisions: in Melbourne at the University of Melbourne and in Canberra at Charles Sturt University. The Director of CAPPE and the head of the Canberra node is Professor Seumas Miller. Professor C.A.J. (Tony) Coady is the Deputy Director of CAPPE and the head of the Melbourne node. The Centre concentrates, in a single unit, the expertise of applied philosophers working in diverse fields of research. The Centre promotes community discussion and professional dialogue concerning key ethical problems facing Australia today. It is Australia's leading centre of research excellence in this area and it has extensive links with international institutions and scholars. The Centre has also established collaborative projects with a number of Australian and overseas universities. The Melbourne division of the Centre, in its previous form as CPPI, has conducted business ethics consultancies and roundtables with many of Australia's leading companies, including Shell, Telstra, BHP, Sydney Water and Western Mining. Such activities continue in CAPPE - it sponsors workshops, conferences and public lectures on topics of current public interest. The Occasional Paper Series was developed by CAPPE as a forum for the dissemination of ideas prior to publication in academic journals or books. It is hoped that publication in this series will elicit constructive criticisms and comments from specialists in the relevant field. Inclusion in this series does not preclude publication elsewhere. Michael O Keefe, Series Editor Andrew Alexandra, Published by the Centre for Applied Philosophy and Public Ethics, Draft Only: Not to be cited without permission 2

3 Academic Personality and the Commodification of Academic Texts Abstract: This paper explores the nature of, and justification for, copyright in academic texts in the light of recent developments in information technology, in particular the growth of electronic publication on the internet. Copyright, like other forms of property, is best though of as a cluster of rights. A distinction is drawn within this cluster between first order 'control rights' and higher order 'commodity rights'. It is argued that copyright in academic texts is founded on its role as a means to allow academics to fulfil their role responsibilities. While the possession and exercise by academics of commodity rights can be thus justified in the case of mechanical print-based publication, since this helps make possible the reproduction and dissemination of academic texts, they cannot be so justified in the case of electronic publication. There are nevertheless good reasons to retain various control rights. Key words: Copyright, intellectual property, electronic publication, internet, university, role morality, academics, institutions 1 Introduction By law and custom academics have possessed property rights in the fruits of their academic labours. In the case of texts, copyright is the most important legal protection for these property rights. In the past, though copyright has been vested in the first instance in the creator of an academic text, such creators have had to alienate at least some of their rights, particularly the right to reproduce and sell copies of their text, to print based publishing houses, in order to make possible its reproduction and dissemination. Decisions about what was to be published, and most of the financial rewards of publication, have been in the hands of these publishing houses. The development of electronic publishing on the internet, however, means that in academic publishing, as elsewhere, it is becoming possible to cut out the middlemen who have mediated between producers and consumers: the original holders of copyright are increasingly in a position to send their work directly to readers. Electronic publishing also makes it possible to reproduce and disseminate such materials electronically far more cheaply - indeed virtually without cost - than by traditional means At the same time the interactive nature of the internet means that much larger numbers of people can gain access to university education than in the past, fuelling demand for academic texts. Decreasing production costs and increasing 3

4 demand for academic texts is making copyright over such texts more commercially attractive. A good deal of recent disputes between academics and universities as to where copyright actually lies 1 has been clearly animated by the desire to gain or retain access to the perceived commercial value of academic texts, a desire that is also undoubtedly playing a role in the move by a number of media companies to foster more intimate relationships with universities. However important these disputes, they presuppose that copyright in something like its present form can be justified in the case of electronically published academic texts. The aims of this paper are to examine this presupposition and to explore the rationale for copyright in academic texts in order to understand the ways (if any) in which current practice should be adjusted in the light of recent developments in information technology. In effect the paper is an inquiry into an aspect of academic role morality - the question is what justification for copyright in academic texts can be offered to academics qua academics, rather than, for example, whether copyright in academic texts is desirable all things considered. II. Property Rights and Justification Institutional Rights Like other forms of property, copyright should be understood as an articulated 'cluster' of rights. Before looking at copyright in particular it will be useful to make some observations about some relevant features of rights. Though there may be some fundamental human right to possess property, actual systems of property rights are conventional to a high degree. As Rawls points out, systems of property are examples of what he calls institutions, where an institution is a public system of rules which defines offices and their positions with their rights and duties, powers and immunities, and the like. These rules specify certain forms of action as permissible, others as forbidden; and they provide for certain penalties and defenses, and so on, when violations occur. 2 An institution in this sense can be described independently of the particular people who actually embody it at any given time and thus can persist even when those people leave it. 1 For a discussion of some of the legal issues here see Ann L. Monotti Ownership of Copyright in Traditional Literary Works within Universities Federal Law Review Vol. 22, No. 2, 1994, For a discussion of some of the ethical and practical issues, particularly as they relate to materials produced specifically for teaching purposes see Andrew Alexandra and Seumas Miller Copyright in Teaching Materials Educational Philosophy and Theory Vol. 33, no. 1, 1999, John Rawls A Theory of Justice Oxford: Oxford University Press, 1972, p. 55 4

5 The actual property rights that we have, then, are instances of institutional rights - rights we have in virtue of our participation in an institution, rather than simply human rights - rights we have in virtue of being human. There are a number of features of institutional rights of use in helping understand the putative justification of copyright in academic texts 3. Firstly, we should notice a distinction between what might be called constitutive and facilitative institutional rights. Some institutional rights (wholly or partially) constitute the institution in which they have force - to deny their justifiability is to deny the justifiability of the institution. Thus, the institution of marriage is constituted in part by the right to consensual sexual intercourse with one's spouse. Other rights are not constitutive in this sense, but rather facilitative, they are justified because, and to the extent that, they allow role bearers to undertake actions that are means to the achievement of the defining ends of the institution. In the case of facilitative rights, the interest of an institutional role bearer in these ends is one but not the only grounding reason on which the justifiability of such rights rests - there are at least two other sorts of grounding reasons. Firstly, there must be reason to believe that possession and exercise of the right will actually conduce to the realisation of the role bearer's interest in achieving their institutional ends. Secondly, there must be reason to believe that the benefits to the institution consequent on granting the right are not outweighed by countervailing institutional considerations. Both of these latter sorts of reasons rest in part on contingent facts. As these contingencies change, so the strength of the grounding reasons which they partially constitute may also change. Importantly, then, facilitative rights are potentially dynamic: they can come into or go out of existence within the life of an institution - certainly they can become more or less justified over time, and have more or less weight relative to other claims. So academics at the inner-city university at which I work have the right to obtain a permit to park on-campus. Given such facts as the widespread use of car transport and the shortage of car parking spaces in the inner city, this right is justified since it makes it easier for academics to get to and remain at work. As these facts change, however, or if the cost of providing such parking becomes prohibitively expensive, the justification for the right may disappear. Finally, institutional rights can themselves be among the grounds for deriving other institutional rights. If academics have a right to have internet access provided to them, for example, this is grounded on their right to keep abreast of the literature in their 3 The approach to rights taken here has been stimulated by the discussion in Joseph Raz The Morality of Freedom Oxford: Oxford University Press, 1986, Ch. 7 The Nature of Rights, pp

6 field. One right is core relative to another, when it figures as one of the grounds we appeal to in justifying the second derivative right. Four of the rights-cluster that currently constitutes copyright are particularly salient to the concerns of this paper: so-called 'moral rights' of the author of a text, such as the right of attribution (the right to be acknowledged as the author) and the right of integrity (the right to prevent the text being altered or used in ways that distort the author's intentions); the right to control the reproduction and dissemination of the text; the right to profit from the right to control the reproduction and dissemination of the text; and the right to transfer the right to profit from the right to control the reproduction and dissemination of the text. Moral rights and the right to control the reproduction and dissemination of the text are examples of 'control rights', first order rights, that determine who can do what to a good, in this case the text. The right to profit from the right to control the reproduction and dissemination of the text, and the right to transfer the right to profit from the right to control the reproduction and dissemination of the text on the other hand are 'commodity rights', rights that help make possible the status of a good as a commodity, something that can be bought and sold in the market. As the description given of them indicates these rights are higher order rights, rights over rights (in Hohfeldian terminology they are powers.) In terms of their logical relationship, then, control rights are prior to commodity rights: commodity rights cannot exist without access rights; while access rights can exist, and in some cases do exist, without commodity rights. The relations of justification between these different sorts of rights are more complex. Though, as I have claimed, control rights are logically prior to commodity rights, it does not follow that they are prior in order of justification and sometimes, particularly in cases of property in abstract objects, commodity rights actually are core and control rights derivative. Patterns of justification These different patterns of justification can be seen at work in the standard economic justifications for property rights in concrete objects (such as apples and cars) on the one hand and abstract objects (such as text types) on the other. In both cases the justification appeals at least in part to certain facts about scarcity. As Jeremy Waldron puts it, 'Scarcity, as philosophers from Hume to Rawls have pointed out, is a presupposition of all sensible talk about property.' 4 Many desirable objects are scarce more are demanded than are available. As Waldron says, given such scarcity individuals... are going to disagree about who is to make which use of what. These disagreements are often serious because, in many cases being able to 4 Jeremy Waldron The Right To Private Property Oxford: Oxford University Press, 1988p.31. 6

7 make use of a resource is connected directly or indirectly with one's survival. A problem, then... arises in any society which regards the avoidance of serious conflict as a matter of any importance. This is the problem of determining peacefully and reasonably predictably who is to have access to which resources for what purposes and when... property rules are ways of solving that problem. 5 On this approach the primary task of a system of property rights in concrete objects is to allocate control rights. Commodity rights in such objects are derived rights they are justified because they lead to a more efficient distribution of goods, say, or because it is held that in a commercial society of the kind we inhabit giving people the right to treat the things they own as commodities is an extension of their right to decide how to dispose of their property. The concern of this paper is with property rights in academic texts. The word 'text' is ambiguous - it can refers both to a type and to a token. In the first instance intellectual property laws such as copyright grant ownership rights in the type: it is in virtue of this ownership that one can come to have rights in tokens of that type. The kind of story told immediately above about the justification of property rights in terms of demand exceeding available supply gets no grip in the case of rights over abstract objects, since such objects possess what economists call jointness - they are not diminished through consumption. The imposition of property rights (whether control rights or commodity rights) over some good has the effect of restricting access to that good. In the case of joint goods such restriction seems, at least on the face of it, to be both unnecessary, since one person s access cannot be diminished by another s, and economically inefficient, since it deters people from consuming goods, where such consumption would make them better off, and others at least no worse off. (In fact, for many intellectual goods, each person may become better off the more others consume. If more people went to philosophy lectures, for example, I would have more people to talk to about philosophy.) There is nevertheless an argument in favour of granting property rights in abstract objects, indeed in favour of making commodity rights the core of the property rights granted over such objects. Not having enough of a good to satisfy all potential users is not the only kind of scarcity we face. We also often have problems in producing desirable new kinds of goods. This is particularly true in the case of abstract objects. The nature of abstract objects is such that in many cases it is hard to restrict access to them. But without such restriction it is impossible to exploit them commercially - noone will pay for what they can get free. Consequently, so the argument goes, there tends to be under-investment in, and hence under-production of, such objects. 5 ibid. p.32 7

8 Property rights in abstract goods impose a kind of barrier that means that potential consumers must pay to get access, and so provide commercial incentives for their production. Short-term scarcity is induced in order to stimulate long-term plenty 6. In these kinds of cases there appears to be reason to grant commodity rights over a kind of good, even where there is no independent reason to grant control rights to that good. This seems to be the reasoning generally animating the granting of ownership rights in abstract objects, as exemplified in patenting laws, and the recent imposition of Plant Breeders Rights in a number of jurisdictions, where plant types can be owned, and owned as commodities, for the first time. Turning something into a commodity is likely to encourage investment and hence innovation in that kind of good, and hence increase the total stock of kinds of desirable goods. In terms of the distinction between core and derivative rights, then, it appears that here commodity rights are the core rights and control rights derivative control rights are necessary in order to give commodity rights value. Furthermore, taking commodity rights to be prior in order of justification has implications for the answer we give to the question of to whom property rights should be granted to those who will in fact treat them as commodities 7. Whatever its general merits this kind of consequentialist argument - that the allocation of commodity rights is necessary in order to provide incentives for the production of abstract goods - does not seem likely to have the same force when we are speaking of intellectual goods produced by academics. Commercial organisations (qua commercial organisations) have no interest in the production of abstract objects per se, just as they have no interest in the reproduction and distribution of the concrete particulars in which these objects are embodied per se. They are interested in distributing such particulars in as much as they are likely to profit from doing so, and they are interested in producing abstract objects in as much as the particulars in which they are embodied are commercially attractive. On the other hand, as I will argue in the next section, inherent in the role of the academic is an interest in the production, reproduction and distribution of academic texts, while an interest in the realisation of 6 For an influential example of this sort of justification for intellectual property rights see Kenneth Arrow 'Economic Activity and the Allocation of Resources for Invention' in R.R. Nelson (ed.) The Rate and Direction of Incentive Activity; Economic and Social Factors Princeton: Princeton University Press, 1962, pp In the case of Plant Breeders Rights as well as patents failure to make goods available as commodities leads to possible legal forfeit or at least dimunition of property rights; and in the case of Plant Breeders Rights ownership rights are granted in the first place on the basis of demonstrated willingness to treat the good as a commodity so e.g. the owner does not have to be the person who first developed a new variety, but rather the person who first indicated their willingness to market the variety. See the International Convention for the Protection of New Varieties of Plants in e.g. the Australian legislation, Plant Breeder s Rights Act

9 their commercial value is at best instrumental. In any case it seems unlikely that economic incentives for the production (as distinct from the reproduction and dissemination) of academic texts are necessary to overcome scarcity, since if there is a problem related to the production of academic texts it is surely a problem of over- not under-production, and it is hard to believe that this is largely a consequence of economic incentives, given the typically risible size of such incentives in the case of academic texts. Neither of the standard economic arguments justifying property rights in terms of scarcity appears viable, then, in the case of academics' ownership of the texts they produce. How then, if at all, can copyright in academic texts be justified? III Copyright in Academic Texts In order to understand the nature and limit of academic copyright we need to look more closely at academic role morality. The academic role is a role within an institution - the university. The distinctive rights and duties that constitute academic role morality are determined by reference to their part in helping to realise the defining ends of the university. The University as a Formal and Informal Institution In fact, academics are (typically) members of two intertwined institutions, that both go under the title of 'university'. 0n the one hand they are members of the particular academic institution (such as Oxford University or the University of Queensland) that employs them; on the other they are members of what is sometimes called 'the University' or 'the Academy'. Working with the broad Rawlsian notion of an institution we can distinguish between what might be called formal and informal institutions. Formal institutions (such as Parliaments) possess systems of coercive authority, laying down and enforcing rules regulating membership of the organisation and the standards of behaviour for current members. Informal institutions (such as games), on the other hand, lack such coercive authority even though members of such institutions share, and recognise each other as sharing, internalised norms regulating their behaviour and the way they treat each other. H.L.A. Hart's distinction between primary and secondary rules can be used to illuminate the difference between formal and informal institutions. Formal institutions possess both primary rules - rules specifying what behaviours are required or forbidden for members of the institution - and secondary rules - rules specifying the powers that members of the institution have to introduce, change, and adjudicate on the primary rules 8. Informal institutions, on the other hand, possess primary but not secondary rules. 8 H.L.A Hart The Concept of Law Oxford: Oxford University Press, 1961,

10 On this account, the University is an informal institution. The distinctive nature of the academy is largely a consequence of the nature of its defining ends, the discovery, promulgation and preservation of truth or more broadly understanding. The pursuit of these ends typically depends on the cooperation of others and presupposes a body of pre-existing knowledge and techniques. Furthermore, given the limitations of human powers and the contingent nature of the world, the discovery of knowledge is an end that can never be finally realised, so the academy is necessarily an institution that should try to reproduce itself. Individual academics, then, find themselves enmeshed in a web of relationships with other members of the academy, beholden to those who came before them and to their peers, and responsible to those who come after them to pass on relevant knowledge, skills, techniques and norms of behaviour. Academic personality Integral to the functioning of the academic community is the possession by each academic of what might be called an academic personality - a certain standing within the academic community. There are two aspects to academic personality. Firstly, there is the academic s own knowledge, skills, expertise, accomplishments, and deficiencies as well as their understanding of these. Secondly, there is the recognition of, and response to, these by other members of the academic community. These aspects are interrelated since it is largely in the light of the response of other academics that one develops one s skills and capacities and one s assessment of them. The right to ownership of one s academic products is founded at least in part on its role in the formation and identification of academic personality. Control of an intellectual space in which one is able to develop and revise one s thoughts is integral to the development of academic personality, as is the existence of a stable and identifiable record of one s intellectual output that facilitates dialectical examination of that output. The lack of such a record, in retarding the development of academic personality, obviously handicaps the individual academic in achieving the end they are supposed to be pursuing. But it also makes it more difficult for others, both inside and outside the academic community, to identify relevant expertise and make informed judgments about the likely reliability of information that is being passed on through academic sources. Academic publication should be seen as more than simply the presentation of a record of (true or illuminating) claims. It is actually a form of testimony 9, in which the utterance (in the form of publication) of these claims by a particular person is evidence for the truth of those claims, given the known possession by the utterer of relevant credentials. 'Credentials' here encompasses not simply expertise in the area of discourse, but also the motivation to deploy that expertise, report findings accurately and so on. 9 In the sense given to that term by C.A.J. Coady in Testimony Oxford: Clarendon Press

11 Ownership does not only imply privileges relative to others, it may also imply certain duties and liabilities. In the case of academic texts, ownership implies - and makes possible - responsibility for false or otherwise flawed output. This is not to say that being held to account for poor work is necessarily to the academic s disadvantage. It may well in fact benefit them, since the possibility of being so held is integral to the development of academic personality, in that it provides a disincentive for production or dissemination of substandard work, and the opportunity to recognise and improve such work and rectify any lack of skills or knowledge from which it stems. In any case, it is clearly desirable from the point of view of the academic community, and the broader society. Furthermore, not only is the individual academic liable for the errors and deficiencies in their output, they have a duty to promulgate this output, since such promulgation is the precondition for the kind of response integral to the formation of academic personality. These liabilities and duties do not simply happen to be bundled together with the rights that constitute ownership of one s academic product. They derive from just the same considerations that justify those rights. Making use of the terminology introduced by Joel Feinberg, the control rights that academics have over their texts should be understood as 'mandatory', not 'discretionary' - that is, they are bound to exercise them. The writer of a novel, for instance, has a right to publish her novel, but does no wrong if she does not. The author of an academic text on the other should publish (provided the text is of satisfactory standard etc.) 10. My claim, then, is that academics should, and do, recognise themselves as members of an informal institution, and that this institution is at least partially constituted by the existence of norms of behaviour including rights and duties that regulate their behaviour, including their behaviour in relation to the rights that currently constitute copyright. Particular universities, on the other hand, are formal institutions that exist (or at least should exist) to further the ends of the institution as a whole 11. And, no doubt, the existence of these universities does tend to serve the ends of the academy in 10 See Joel Feinberg 'Voluntary Euthanasia and the Inalienable Right to Life' in Sterling M. McMurrin (ed.) The Tanner Lectures on Human Values: 1 Cambridge: Cambridge University Press, 1980, , 11 Arguably, the formation of European universities and many of their characteristic organisational arrangements were informed by a conception of a transcendent Academy. See for example the account of the formation of the University of Paris given by Stephen C. Ferruolo in The Origins of the University: The Schools of Paris and their Critics, Stanford: Stanford University Press, From the time of the formation of the European university, academics were organised into guilds. Two features of the self-understanding of guilds are particularly relevant here: the idea that the knowledge and skills definitive of the guild belonged to the guild members as a group, and the obligation of particular guild members to pass their knowledge and skills on to neophytes. See Margaret. R. Somers The Misteries of Property: Relationality, Rural-Industrialisation and Community in Chartist Narratives of Political Rights in J. Brewer and S. Staves Early Modern Conceptions of Property London: Routledge, 1995,

12 a number of important ways. There are obvious practical advantages for academics in belonging to large organisations that will provide resources for academic work. Furthermore, the possession by such organisations of coercive authority makes it possible to overcome a problem inherent in the structure of informal institutions. Coordination problems in such institutions tend to be resolved by way of the establishment of customs. But custom is by its very nature sticky it is likely to persist even where the problem to which it is a solution has disappeared, and will evolve only slowly in response to new problems. Informal institutions, then, are prone to undue conservatism. The existence of recognised authorities, with the ability to recognise and respond to changing contingencies and promulgate new rules of behaviour 12 can obviate this sort of problem. However, whatever the advantages to the academy of the existence of particular universities, it cannot be identified as simply the sum of the particular universities. Firstly, the classes consisting of members of the academy on the one hand and salaried academics employed by particular universities are only roughly coextensive. More importantly, academics have rights and duties in virtue of their membership of the academy that transcend the rights and duties they have in virtue of their membership of a particular university and which may on occasion come into conflict with the interests of that university. To the extent considerations deriving from academic personality provide reasons for vesting ownership in intellectual goods in their academic creators, they license in the first instance a rather restricted set of property rights. Academic creators possess certain sorts of claims against others (and especially other academics), in particular the claim that they be recognised and acknowledged as the author of the text, and that the integrity of their texts be respected. In turn they incur certain sorts of responsibilities and liabilities, in particular the responsibility to produce accurate and accessible work, and to communicate this to others, in the first instance to other academics, but also to the wider community, as well as to acknowledge and change any mistakes in their work. They also incur liabilities for failure of discharge of these responsibilities. In short, the argument from academic personality justifies the granting of control rights to academic creators. Copyright and commodification Under current copyright laws academic creators possess further (legal) rights. They have the right to profit from the right to control the reproduction and dissemination of the text; and the right to transfer the right to profit from the right to control the reproduction and dissemination of the text. These legal powers are fundamental to the commercial advantage conferred by copyright laws - in other words to the commodification of academic knowledge. Given the exigencies of print-based 12 One of Hart's secondary rules - 'rules of change'. The Concept of Law,

13 publishing these power can be rationalised as conducive to the ends of the academic community outlined above, and to the discharging of duty of individual academics to promulgate their output. Given that publishing is costly it will generally speaking only be undertaken where there is the opportunity to recoup costs at least. By purchasing the right to exclude others from reproducing the same work, and to charge for access to it, publishers gain this opportunity and are thereby provided with an incentive to publish. There is an obvious prima facie tension between the responsibility of academics to communicate their findings as widely and freely as possible and their having and exercising higher order rights that have the effect of denying access to their work to those who have not paid for such access, a tension which as I indicated in the first section of this paper is being exacerbated by recent developments in information technology. What I have just tried to show is that this tension can be resolved in favour of the possession and exercise of the rights at least in the case of print publication, since they are actually means to the promotion of publication, and to that extent desirable. In other ways, however, they are undesirable. Decisions about what gets published - and hence, given the realities of academic life what gets written - are perforce influenced by commercial considerations 13, not purely academic ones. This must have a distorting effect on academic life. Publication tends to confer status. In the era of mechanical publication, since some things that deserve to be published are not, while less deserving works are, less meritorious academics will achieve higher status than they should academic personality will be distorted. Furthermore commercial publication depends on the imposition of costs that will deter potential readers. In the terms defined in the discussion of institutional rights in Section Two above, I have in effect been arguing that property rights in academic texts are facilitative rights for members of the academy, and that control rights in academic texts are core relative to derived commodity rights. I have further argued that these derivative rights can be justified in the case of print publication. However, in the case of electronic publication, the need for these rights (or at least the general need for them - there may be certain sorts of situations where they are desirable) 14 seems to me to disappear. There are no financial barriers to electronic publication and dissemination, since they 13 The problem here is not simply that too much weight is given to considerations of market appeal, and not enough to academic quality, in decisions about publication. The fact that a book on some particular topic has recently been published may make it impossible for another book, completed at a later date, to be published, even where this later book would have reached a broader audience if released first. 14 For example, it might be thought that if others wish to commercially exploit an academic text by e.g. charging people to explain it to them, then the academic creator should be in a position to license (or refuse to license) them to do so. 13

14 are effectively free 15. So commodity rights cannot be justified as necessary means to the promotion of electronic publishing and dissemination - they can only function to prevent activities of this kind that would otherwise occur. They are, then, clearly contrary to the rationale of the defining end of the academic community. The justification for the derivative right for electronically published academic texts to be commodified is, at least, weak 16 IV Conclusion Whatever the force of the arguments just presented, it seems unlikely that the legal situation is likely to change soon. Here we face a problem of over-determination. Just as our personalities are not exhausted by our academic role, so we derive rights from a variety of sources, which can over-determine our possession of rights. This seems to me to be true of commodity rights in academic texts. There are of course legal commodity rights in texts in general and as we have seen there are arguably good reasons for granting such rights in terms of incentives for production. Furthermore the interests of particular universities, at least as they tend to be conceived by current university administrators, are likely to be served by the continuation of commodity rights in academic texts, whether those rights be vested in the first place in the university or the academic 17. So though, as I have claimed, the justification the granting of commodity rights in academic texts based on academic personality has at least weakened in the case of electronic texts there are other forces holding the right in place. At the same time, as claimed above, the very nature of informal institutions such as the academy tend toward conservatism of practice. There are, then, powerful forces entrenching a right that in my view should disappear or at least be seriously weakened. At the very least, academics should accept that there is a standing 15 This is not to deny, of course, that there are costs involved with the production or reception of electronic texts. It is costly to support academics while they do their research and writing. And it is costly for users of academic texts (or those supporting them) to obtain the equipment necessary to gain access to the internet etc. and perhaps to download electronic texts. The claim is simply that once a text has been written it is now possible to reproduce and disseminate it without incurring any further costs, and to that extent the educational rationale for profiting from these activities is undermined. 16 At the moment, of course, many texts are or could be available in both printed and electronic forms. In such cases there appear to be reasons both for and against academics claiming commodity rights in their work. I do not believe that there is a general recipe for the resolution of this conflict, rather it has to be addressed on a case-by-case basis. What I have tried to do in this paper is to show that there can be such a conflict, and point to some of the issues which are relevant to it. 17 Different universities have jumped different ways in their intellectual property policies with some claiming that the rights over intellectual property created by academics in their employ are vested in the first instance in the university, while others concede that they remain with the academic creator. But the difference seems to be tactical they reflect differences in judgement as to which regime is likely to most benefit the university. 14

15 presumption against exercising their legal rights to profit from electronic publication, or to transfer to others that right. References Andrew Alexandra and Seumas Miller Copyright in Teaching Materials Educational Philosophy and Theory Vol. 33, no. 1, 1999, pp Kenneth Arrow 'Economic Activity and the Allocation of Resources for Invention' in R.R. Nelson (ed.) The Rate and Direction of Incentive Activity; Economic and Social Factors Princeton: Princeton University Press, 1962, pp C.A.J. Coady Testimony Oxford: Clarendon Press Joel Feinberg 'Voluntary Euthanasia and the Inalienable Right to Life' in Sterling M. McMurrin (ed.) The Tanner Lectures on Human Values: 1 Cambridge: Cambridge University Press, 1980, pp Stephen C. Ferruolo in The Origins of the University: The Schools of Paris and their Critics, Stanford: Stanford University Press, H.L.A Hart The Concept of Law Oxford: Oxford University Press, International Convention for the Protection of New Varieties of Plants in Plant Breeder s Rights Act 1994 (Australia). Ann L. Monotti Ownership of Copyright in Traditional Literary Works within Universities Federal Law Review Vol. 22, No. 2, 1994, pp Margaret. R. Somers The Misteries of Property: Relationality, Rural- Industrialisation and Community in Chartist Narratives of Political Rights in J. Brewer and S. Staves Early Modern Conceptions of Property London: Routledge, 1995, pp John Rawls A Theory of Justice Oxford: Oxford University Press, Joseph Raz The Morality of Freedom Oxford: Oxford University Press, Jeremy Waldron The Right To Private Property Oxford: Oxford University Press,