Speaker: Bill Hagen (IEEE)

Panel Discussion: Intellectual Properties Issues

First of all, I would like to thank the APS Publications staff for their perseverance and their determination to have this meeting take place. Their response to the needs of their membership, as well as to the realities of publishing and electronic information dissemination, can be used as a model for those of us wanting to move quickly but carefully into this new and in some respects daunting area. To be honest, I saw my coming here as an opportunity not only to make a few simple statements, but, in fact, to ask questions of the APS staff and those of you who are already well along in this exciting endeavor.

I would like to congratulate Paul Ginsparg for his innovative use of the technology in bringing to the fore an aspect of information sharing that has already excited and/or challenged (and no doubt will continue to excite and/or challenge) everyone in this room and beyond. His high-energy physics database has shown not only how intense the need is to share research results promptly, but how much change (and even, perhaps, upheaval) may be necessary in traditional scholarly publishing. Constructive upheaval can and should be good for everyone, though it can be especially good for those involved in the pursuit and dissemination of knowledge. However, it seems that some of those involved with this pursuit might also want to see the demise of traditional publishing, including scholarly publishing, follow closely on the heals of this particular upheaval. Clearly, the HEP database sets the stage for a major re-evaluation of established publishing practices, but I would argue that it will be altogether counter-productive to see this effort as replacing entirely all that has preceded it. I believe that creativity, even radical innovation, is by nature conservative. It grows out of a tradition and is rooted in what has grown before it.

The HEP and other electronic preprint servers are certainly a revolutionizing concept and they are bringing about rapid and significant changes in how authors, publishers, and users think about the processes involved with sharing information. Publishers, in particular, will be put to the test to respond in a responsible and practical way to the implied and overt threats to their status quo policies and procedures. Obviously, the same old ways will not suffice. At the same time, however, the blatant "us versus them" position of many of the anti-publishers in recent discussions over the Internet on this subject will need to be modified in order to see that all best interests are served. If we are indeed in the midst of a potentially major transition, then it will be to everyone's advantage to see to it that these changes occur peacefully and smoothly.

I certainly wish the HEP and other e-print databases much success. Also, I think Steven Harnad's Subversive Proposal (that some scholarly electronic publishing be done on a non-trade, subsidized basis) has potential merit, especially if that is how a scientific society's membership and readership would prefer it.

However, there are several concerns that remain for me, especially when some of the discussions zealously advocate eliminating publishers and jettisoning current concepts and uses of copyright.

For example, if some publishers were replaced by author-based servers, wouldn't the successful e-print server require so much management after a point that this new management itself would need to take on the roles and aspects of Publisher? Specifically, database security and the guarantee of editorial integrity will no doubt require sophisticated, costly, and personnel-intensive systems. Publishers that remain responsive to the changes in information distribution should also be in a position not only to review and publish but also to dedicate immediate financial and personnel resources to the security and integrity of the literature.

Similarly, the responsive publisher (the publisher who not only implements new ways of collecting and conveying information, but who also quickly adapts its policies to accommodate the potential) will already have in place a peer-review structure so that the refereeing process need not be reinvented, only renovated. Once the publisher is freed from the onus of the long, slow schedule of the print-based review process, it would be to the authors', publishers', and users' benefit to leave as much of the current peer-review process intact and uncompromised as possible.

No matter what happens, copyright is going to figure in this discussion one way or the other. Again, it will probably be to everyone's benefit to leave this matter in the hands of the responsive publisher. For example, if it is given that the Internet is going to develop commercially, and if it is given that commercial development will be very much predicated on sufficient, if not even stronger, protection of the intellectual property on it, then it follows that the concept of copyright will have to take on even greater significance in this developing environment. If individual authors were to insist on holding on to the copyrights to their individual works, therefore limiting a publisher's opportunity to serve as a centralized intellectual property rights agency, then the wider availability of the material may also be limited, all in the name of providing greater access to the material.

Also, while it is true that scientific scholarly publishing does not have the same market value as trade or commercial publishing, I think it is insufficient to posit that so-called esoteric publishing has no market value. Obviously, each scholarly or scientific discipline will have its own readership to serve (and it's own set of short- or long-term values to place on the material), but I think it's fair to say that most scholarly publishing has a life beyond the initial publication of research results, that the value of the work lies not only in the first exchange between authors/researchers, but has ongoing archival value as well. This other market value is created by secondary publishers, librarians, and other information specialists, and the general research user. Of course, the expression "market value" need not always have a purely commercial connotation. In this context, information users make up markets whether or not fees or royalties are involved. The Internet is going to create and expand vast user markets, most of them profit driven. Using the new technologies and creating appropriate corresponding policies that see to the protection of the electronic property on the Internet is going to get a lot of attention. Consider, as just one example of the kind of attention being paid to the Internet these days, Assistant Secretary of Commerce Bruce Lehman's Green Paper on "Intellectual Property and the National Information Infrastructure". He proposes amending the copyright act so that "transmission" will qualify as "publication" (pp. 123-4). Also, he says "Therefore if sufficient numbers of actual copies of the work are offered for upload to bulletin board system operators or others for upload onto systems on the NII, publication may occur" (p. 16). This focus on electronic intellectual property will, of course, effect most scholarly information markets. Because of this increased attention on intellectual property, the responsive publisher will already be in a strong position to serve authors, members, and society by retaining after slight adjustments its traditional roles: reviewing, editing, and distributing the literature, and managing the attending rights.

IEEE's copyright policy has been informed by an interest in serving a majority of its authors' and members' needs. Because some areas within the electronic environment will remain somewhat fluid if not altogether anarchic (at least for the short term), continuation of these same basic tenets and policies takes on even greater importance.

Here are just a few examples of how IEEE's copyright policy has been used to constructive purposes in the recent past. I suggest that it will take only a modest leap of the imagination to see how this same rationale can be applied usefully in an electronic context.

Without a strong and unambiguous claim to copyright, IEEE would no longer be in a position to take or joint legal actions against infringers of copyright. Recently, IEEE provided important information in three separate cases of large-scale copyright infringement. IEEE's efforts in each of these cases were significant to the termination of the illegal activities, thereby insuring that IEEE's, it's members', and it's authors' material would not continue being abused, at least not by these three infringers. IEEE was asked to support these investigations not only because IEEE is a large and respected publisher, but because IEEE is the single owner of the material.

Without holding copyright to its published material, IEEE could not have entered into important agreements with major communications companies and major universities through which programs valuable information is made readily available to significant research and education.

While it is critical that authors have full rights to reuse and share their own material, I think it is also critical that the flow of information remains as unencumbered as possible. To have a central permissions authority and a single source of legal rights for entering into innovative and productive relationships provides the opportunity to offer more benefits to the industry and to society at large.

In addition, the unambiguous ownership of the material offers a practical response to otherwise potentially difficult ethical problems. I refer here, for example, to fraudulent reuse of the material and conflicts of interest. In these cases, copyright can be seen not only as conferring legal rights, but as marking off the ground on which ethics are based and on which troublesome ethical problems could be resolved. Putting it simply: copyrights bestows legal authority and ethical weight.

While it makes sense to maintain many past copyright practices, IEEE copyright policy has nevertheless shifted as required to keep up with the burgeoning electronic opportunities. It seems that it was only a few years ago that most publishers, including IEEE, could not even consider the kinds of uses of the material that we are discussing today. When reports of such uses began reaching us, I think that most publishers felt that if we closed our eyes hard enough, the e-print scenario would just go away for another couple of years. Today, the fact is that IEEE copyright policy is indeed responding to the changes taking place. Current e-print copyright policy was recently put in place in order to accommodate the growing number of e-print servers. Although at first there was a tendency in our thinking to restrain this type of use of the material (for example, by not accepting for review any papers that had been previously posted), we quickly decided that this kind of thinking was unnecessarily restrictive and likely to be counter-productive all around. Today, our e-print policy does not include any such restriction. We do depend on the author's willingness to transfer copyright to the IEEE. In addition, we ask that the author attach appropriate notices to the posted material indicating that the paper has been submitted to, accepted by, or published by the IEEE and we also ask that an IEEE copyright statement or notice be attached.

We trust that this policy will encourage the ongoing and timely exchange of important research results, while at the same time maintaining a reasonably compliant and responsive centralized authority for the published literature. We are attempting to find a balance between the intrinsic value of open, scholarly communication, and the benefits of service to the membership and to society that owning and distributing these publications allows.