Do we need academic copyright? Some historical perspective

It is commonly believed that we introduced copyright to entice authors into producing lots of quality work by providing them with increased financial incentives. Despite the contrary evidence, many people still insist that without copyright law, we would not have Harry Potter or video games because authors would lack financial incentives.

It is a lot more difficult to apply this argument to scholarly work. To my knowledge, no scholar ever gets paid for publishing a research article. The opposite is true. Scholars must often pay to publish: page charges, compulsory conference registration, and open-access fees are common. Scholars aren’t alone: many people write or produce content without direct financial incentives.

Why do they publish? For one thing, scholars have indirect financial incentives. For example, professors who publish lots of quality work can get better jobs and promotions. In fields such as computer science, publications can open consulting opportunities. For another, not everything is about money. Publications bring prestige and recognition. Publications open the doors of the invisible college.

In this spirit, Shavell proposed that we abolish copyright for scholarly work. Unfortunately, scholars have dismissed the idea. The core objection is publishing: why would anyone publish a journal without strong copyright protection? Shavell’s counterpoint is that authors, or their employers, would pay the publisher. In fact, this is already happening at a large scale in open-access journals. Nevertheless, the primary business model for a scientific journal is one that relies on copyright.

It seems that abolishing scholarly copyright would be a step into the unknown. Our mental picture is one where we first got scholarly journals that were protected by strong copyright laws… and the likes of Shavell are proposing what is, essentially, an experiment… What would a world without copyright be like for scholarly publications?

However, our mental picture is wrong.

Before the printing press, there was little need for copyright on printed work. Producing a single book was expensive. The establishment for a worldwide legal framework around copyright took centuries after the invention of the printing press. In fact, as recently as the nineteenth century, vast parts of Europe still had week copyright laws (e.g., Germany).

Thus, the scientific journal came to be in an area where our modern concept of copyright was unknown. Volpe and Schopfel have studied the case of what might be the earliest scientific journal, Denys de Sallo’s Journal des Savants. De Sallo died in 1669 whereas the invention of modern copyright can be traced by to the Statute of Anne in 1710. I should stress again that we did not get an international enforcement of copyright in 1710: this took a couple of centuries.

Before copyright, the state could provide (temporary) monopolies. So no other publisher in the kingdom of France could copy De Sallo’s Journal des Savants openly. However, there is every reason to believe that enforcement was weak and limited in scope. It was also a mixed blessing: the government could withdraw this monopoly if it did not like what was being published.

More critically, these copying monopolies did not extend to other kingdoms. Thus, the Journal des Savants was reprinted by a Dutch family called Elsevier. There was no way for De Sallo to prevent Elsevier from republishing its journal and distributing it throughout Europe. Moreover, Elsevier played an important role. It ensured that the journal was widely distributed in a convenient format and at a low price. What is interesting to note is that Elsevier reprinted and distributed the Journal even though it could not, itself, forcefully prevent other publishers elsewhere in Europe from doing the same. Elsevier thrived along with the Journal des Savants despite the lack of copyright.

Thus, it is historically absurd to claim that without copyright we would not have scholarly publishing. The scientific journal came to be in an era without copyright!

The only valid question is whether copyright makes scholarly better. But this case seems awfully weak. All scholarly copyright seems to do is to grant a state-supported monopolies to corporations which benefit without providing much value in return. We could reasonably argue that without copyright, we would not have Harry Potter. I think it is false, but I can see the argument. However, it is entirely absurd to think that without scholarly copyright, researchers would stop publishing. Copyright is just the government giving a rent to publishers at our expense.

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Daniel Lemire

A computer science professor at the University of Quebec (TELUQ).

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