Open Access and Digital Copyright

Georgia K. Harper

part of Implementing an Institutional Repository: 2009 Midwinter Symposium

Abstract: The fundamental concerns about intellectual property for open access institutional repositories are not about who owns what rights, or who can do what with them, or what you have to require contributors to give you to be sure you’ve got the rights you need to provide open access to their works. Those guidelines are readily learned and applied. The copyright conundrum for open access is more basic than this: Is it appropriate, is it even necessary, to rely on the one economic mechanism that copyright law enables, that is artificial scarcity and monopoly pricing, in an era when people all over the world could quickly know about current research results through the Web, but for the fact that the publishing industry’s business model passes on the costs to create and deliver the research results to the reader?

For more than 200 years copyright law has enabled, and publishers have depended on, the mechanism of state-granted monopoly, "creating artificial scarcity" to give publishers a period of time during which they can charge higher prices than the market would otherwise dictate and recover their costs of publishing plus a profit in most cases. But in this era of instant access to digital creative works, and easy, world-wide distribution for almost no cost for the reader beyond the cost of personal infrastructure to receive them (computers, internet access and electricity) the monopolistic mechanism of "artificial scarcity" turns what is one of the most important, most critical advantages of the digital world into something to be fought tooth and nail. This is a huge problem for publishers, but the solution to the problem is not legal — it’s not tougher, longer and more restrictive copyright law. The solution lies in finding satisfactory business models that can fund the creation of works, still a costly undertaking, without disabling, that is, without sacrificing, the digital benefit of relatively free distribution to anyone and everyone who might desire to access it.

Everyone in this room knows this. But what we may not realize is that if in fact it is not just possible but profitable to create and disseminate digital research results (or any creative digital work for that matter) without relying on the mechanism copyright enables, that is, monopoly pricing through artificial scarcity (restrictions on copying), do publishers and authors really need that digital monopoly? Do its costs outweigh its benefits in the coming world of ubiquitous repositories providing ubiquitous open access?


Georgia K. Harper is the Scholarly Communications Advisor for the University of Texas at Austin Libraries, where she focuses on issues of digital access. She was Senior Attorney and manager of the Intellectual Property Section of the Office of General Counsel for the University of Texas System until August 2006, and currently represents the Office of General Counsel as outside counsel for copyright.

She is author of the online publication, The Copyright Crash Course, that provides guidance to university faculty, students and staff concerning a wide range of copyright issues and is freely accessible to all universities and colleges.

She has conducted local, state, regional and national workshops and seminars on copyright issues and has been an advisor to the Council on Library and Information Resources, the Association of Research Libraries, the Association of American Universities, and the National Association of State Universities and Land Grant Colleges and the American Council on Education. She was named a fellow of the National Association of College and University Attorneys in June 2001. Her C.V. provides more information.

Ms. Harper graduated with High Honors from the University of Texas at Austin with a B.S. in Education and with Honors from the University of Texas at Austin's Law School with a J.D. degree. She is currently pursuing a Ph.D. from the University of Texas at Austin, in Information Studies. Her academic and career goals, research interests, and how those relate to copyright law and the Crash Course, are detailed more fully in Georgia Harper -- The third career, but who's counting, and on her personal blog, Lifelong learning: The third degree.