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CHAPTER 1

The Commonwealth of Learning

In 2015, the scholarly publishing industry had its Napster moment. The quiet world of academic journals had run into something similar to the transgressive peer-to-peer sharing of music files, which so thoroughly rocked the music industry in 1999. This time, it took the form of Sci-Hub, a website and repository bearing the tag line "to remove all barriers in the way of science" and sporting the image of a raven, perhaps one of the Norse god Odin's information-gathering birds, holding a key in its beak. Sci-Hub first caught headlines on June 3, 2015, when Elsevier, the largest of the scholarly journal publishers, filed a lawsuit against the repository, which is now estimated to hold some eighty-two million pirated research articles, in the Southern District of New York Court. Alexandra Elbakyan has been forthright in declaring that she started Sci-Hub in 2011 as a frustrated graduate student in Kazakhstan, unable to obtain the research papers that she needed for her studies. She turned to those willing to send her papers taken from their library collections, in a process that she mysteriously developed into something much larger for others to use. In 2016, readers from every corner of the globe downloaded four million pirated papers a month from Sci-Hub, operating in the deep web outside the reach of court injunctions. That same year, Elbakyan made Nature's "Ten People Who Mattered This Year." If anything says that now is the time to find a sustainable way of opening access to this literature, it is having virtually all of it made freely and illegally available online.

"Of course, if scholarly publishers had a different business model," Elbakyan has stated, "then perhaps this project would not be necessary." That is certainly true, but still I was more than a little surprised to read in the letter that she sent in her defense to Judge Robert W. Sweet, presiding over the case, and for which Elsevier filed an injunction for fifteen-million dollars in damages on May 18, 2017: "What I [have] written here is not just my opinion — this topic is widely discussed in [the] research community. For example, a researcher John Willinsky wrote a book named The Access Principle: The Case for Open Access to Research and Scholarship where he discusses this problem." This was not exactly the sort of case I had in mind when I wrote that book, nor do I see Sci-Hub as a viable means of providing public access to this body of work. Still, I stand with those who believe that a new business model is called for when it comes to the circulation of science and scholarship. With this book, I want to add to the pressing sense that now is the time to find a way to open access to science and scholarship. But I want to do so by moving this access question out of the here and now, beyond the Napster-disruptions of the digital era, by asking: Where in the world did the idea that people have this sort of right to research come from?

It is not that the growing number of university faculty members and librarians who have been working over the past two decades on this issue have been short of answers to the question of why open access. The populists among them appeal to the taxpayers' investment in government-funded research, which surely earns the public a right to access the resulting work. Philosophers point to how scholars' unrestricted access to research and scholarship is a prerequisite for the work's very claim to knowledge. Jurists hold up learning's special legal status, with the legislative and common law recognition of education and research as copyright and patent exceptions.

The reasons given for pursuing an open access model of scholarly publishing are compelling. Yet they are also largely ahistorical. As such, they only lead to further questions about the origins of scholarship's economic sponsorship, cultural practices, and legal exceptions. In response, this book represents an immodest attempt to provide a greater historical awareness of how, and under what terms and principles, scholarly knowledge has circulated in the West. It covers the period from late antiquity, when learning in the Christian West was first getting under way, to the early modern era, when our contemporary notion of intellectual property rights first became part of the law, with a recognition of learning's special standing.

Questions about the basis and bearing of such distinctions have only become more pressing today as open access has established itself as a viable publishing model. Since the turn of the twentieth century, open access has moved from being vilified by scholarly publishers as irresponsibly threatening the future of science to official policy for the White House, UNESCO, European Commission, Gates Foundation, and many other organizations involved in supporting research. Faculty bodies at many universities have adopted open access policies to ensure that copies of their published work are publicly available; and they are engaged in editing, reviewing for, and publishing in the thousands of open access journals that are now operating across the disciplines. The large corporate publishing houses, such as Elsevier, Springer Nature, and Wiley-Blackwell, offer a growing suite of open access journals among the thousands of titles they continue to sell by subscription. Open access is now widely recognized as one of the principal pillars in an internet-inspired open science movement that includes open data, open instrumentation, open source software, and open educational resources.

All of this has been very encouraging for open access supporters. But the tension between the commons and commerce in the circulation of learned work is by no means resolved. The vast majority of scholarly journals remains closed to all but subscribing institutions. These subscriptions represent a ten-billion-dollar market for journals in science, technology, and medicine alone, suggesting how much is at stake in moving to open access. And in the fields in which open access is growing fastest, authors are being asked to pay open access journals an "article processing charge" (APC) often in the thousands of dollars. Such a price effectively excludes (as well as offends) those working in the grant-starved humanities and social sciences, while forcing many others in the Global South to apply for fee waivers.

Scholarly publishing, much like publishing in general, is undergoing radical changes, much as print thoroughly overtook and overturned the medieval manuscript culture five centuries ago (even as textual illumination in the century after the arrival of print arguably peaked in sheer artfulness). Thus a little historical reflection is in order — that is, reflection on the principles that should guide scholarly publishing going forward, as well as on the pitfalls that should be avoided. After all, scholarly work has always been a good of a different order. It thrives through the widest possible circulation, so that others can make something more of its project.

This book reviews these ideas over what is known as the Long Middle Ages in the West, roughly from the fifth to the eighteenth centuries. The story is told through the lives and learning of individual monks and nuns, clerics and scholars, chancellors and philanthropists. At the same time, it is as much a history of learning through institutional succession. It begins with the enclosed monastic world of late antiquity and the early Middle Ages. The book follows learning through the cathedral schools of the High Middle Ages, into the medieval universities, and on to the academies and societies of the early modern period. These often chartered and incorporated settings provided the learned with a place to study that was more or less apart from the world. Learning moved into the life of the city over time, and into more secular forms and concerns, while retaining traces of ecclesiastical privilege and support.

During this time the learned were developing what can be thought of, from our perspective, as concepts of intellectual property before there was any legal recognition of such property rights. The Christian West inherited many of its ideas about authorship and texts from antiquity. Ancient Greek writers had a sense of authorial ownership; they accused others of plagiarism. The Romans objected to the loss of credit resulting from the theft (furtum) of one's literary work. Pliny the Elder's first-century Natural History advises its readers that he consulted two thousand volumes in creating this work: "You will count as proof of my professionalism the fact that I have prefaced these books with the names of my authorities"; such a practice, he adds, "abounds with honorable modesty." None of this found its way into the body of Roman law — much as plagiarism, per se, doesn't have a place in copyright law today — but concepts of property and propriety in relation to texts did operate among the literary and learned. These concepts found their way into the law, we might say, only after printers and booksellers had gained sufficient economic and political force in the early eighteenth century.

I refer to this book as a prehistory because the term intellectual property did not enter the English language until the latter half of the eighteenth century (while this book concludes at the beginning of that century). Over the course of this history, which ends with the legal instantiation of intellectual property in 1710, I will demonstrate how the learned have treated texts in ways that foreshadow this later legislated governance of intangible goods. In many ways, scholars have long treated texts like property. For example, the learned were continually assembling a virtual registry of intellectual properties. They maintained that registry not in a single office, of course, but in catalogs, commentaries, compilations, and encyclopedias, distributed among libraries of the works themselves. They surveyed such properties, identifying with great precision who wrote what when, while noting the qualities or properties of the works. If the learned did not commonly refer to a text as a property (let alone as an intellectual property), they did refer to it as a work. In this sense the text resembles what a craftsperson or artist produces, and possesses value as such.

Adding to this historical sense of a proto-intellectual property is how the production and registry of these properties operated within institutional frameworks. In the history presented here, it begins with monasticism and concludes with the intersecting worlds of university and commerce. The scholars' use of such properties within these institutions is governed by learned norms, rights, and responsibilities, with evidence of this often found in accusations of misuse, misconstrual, misattribution, and forgery. Further distinguishing the standing of these works was their dependence on a system of patronage.

As I worked on this history of learning and its properties, it became clear to me that my original question about expectations of access to learning was only one part of the picture. Over the course of this book, I set out an expanded vision of how working with learned texts involves not only rights of access but includes five other distinctive properties as well: accreditation, autonomy, communality, sponsorship, and use. In each chapter I demonstrate how these properties are inherently an intellectual part of learning, from the medieval to early modern periods. It should be clear that I am drawing on the multiple meanings of property in association with learning and its texts. For example, I write about how texts use and credit one another for their intellectual qualities or properties; I refer to how people have a property (proprietary) claim on a text they have worked on, which is to say a property right of accreditation, whether they are its author, editor, translator, or commentator. They also have a property right of access and use as a reader. When describing the communality, sponsorship, and autonomy of learned texts, I refer to how a text is financed and valued within a property system, however loosely structured. In the process, I find that these six properties (access, accreditation, autonomy, communality, sponsorship, and use) reflect elements of regulation and economy that suggest a prototypical intellectual property system that has long operated within the culture of learning.

My work with this history has convinced me of three things concerning learning's intellectual properties. First of all, the particular regard for the properties of texts fostered by learning has come to play a major role in the modern legal construct of intellectual property, especially in its application to published work, beginning in the early eighteenth century. This is especially apparent in what is commonly regarded as the legislation that initiated the modern era of copyright, which is the Statute of Anne, passed by the British Parliament in 1710. The statute gives pride of place to learning. It is entitled "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, during the Times Therein Mentioned." Printers and booksellers had much to do with the passing of this act, as we shall see, but more than a few of the act's clauses are devoted to enshrining and protecting the intellectual property rights of learning. This act influenced, in turn, the intellectual property clause introduced into the United States Constitution at the original constitutional convention in 1789. This clause empowered Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Learning was front and center at the birth of the current legal sense of intellectual property. That is, however, where this book concludes.

The second thing that has become clear is that from the book's beginning, with Saint Jerome, works of learning can be seen to differ from other types of property, intellectual or otherwise. This difference is marked by the various sorts of institutional, economic, and legal arrangements afforded to learning over the course of this history, as well as by the way that scholars attend, above all, to what is intellectual about the properties at issue. This book presents the historical grounds for thinking of scholarly work as constituting a distinct order of intellectual property. These six properties help to set the learned book apart from a literary work or a craft secret, such as glassblowing. The development of this historical distinction is a crucial one in thinking about the rationale for open access to research and scholarship today. For, while I found that the emphasis on access to learning to be but one of the properties distinguishing this form of work, historical efforts to increase and improve access — through copying and translation, paper and printing, libraries and academies — were among the more constant and inventive activities of learned institutions.

A third factor running throughout this history is the extent to which the intellectual property most at issue for the advancement of learning is not my starting point of access to texts. It is the use of texts. The scholarly norm is that not just the text's authors, but everyone who works with that text, is engaged in supporting and facilitating the use of the work, from the author's original care in its composition, through processes of reviewing and editing, publishing and indexing, commenting and referencing. Breakthroughs, innovations, and other academic achievements often result from the brilliant use of others' texts, whether by extending, combining, or fault finding. As the modern legal structure of intellectual property is intended to provide an incentive to create works that instruct and delight the public, so with learning the prize comes from the use that others are able to make of a work. The "fair use" exception to copyright infringement, which is permitted under certain conditions, has its origins in the scholar's assumed right to such use of others' work, as well as the additional scholar's obligations of proper crediting.

In addition to the way in which I employ properties in this book, it should also be clear by this point that I use learning in the somewhat archaic spirit of Francis Bacon's The Advancement of Learning (or, as the 1605 edition had it, Of the Advancement and Proficience of Learning, or the Partitions of Science). Learning in this sense encompasses the liberal arts, scholasticism, theology, humanism, and natural philosophy. It involves the study of texts, especially as it gives rise to further texts; it involves recording and publishing observations of the night sky, as well as the day's weather and tides, whether for purposes of comparison with, or the compilation of, others' data. This use of learning offers me the further advantage of reconnecting the work of scholar and student, as learning today is more often ascribed to students than to scholars (while historically the "scholars" of the medieval university were students taught by masters). This connection is one of the educationally encouraging results of open access, as more of this scholarly learning is becoming available to current, future, and past students everywhere.

(Continues…)

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Excerpted from "The Intellectual Properties of Learning"
by .
Copyright © 2017 The University of Chicago.
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