As a historian who has already generated for public consumption two books and a few articles, I have some very stark opinions about when open access of someone’s intellectual property becomes a virtue or a liability. First, I am a firm believer in, and avid supporter of, the Budapest, Bethesda, and Berlin open-access initiatives described by Peter Suber. I support the Creative Commons initiative as well. However, I am also extremely sensitive of the need to protect a scholar’s (or, more specifically, a historian’s) intellectual property from untimely, unauthorized proliferation and, frankly, hijacking by others. Thus, the AHA’s embargoing guidelines for dissertations makes good sense to me. Ultimately, some practical factors enter into the equation very quickly when someone has “skin in the game” in the form of a published scholarly work, particularly when that work may represent a lifetime’s investment in travel, research, and intellectual creativity. Dan Cohen is correct when he states that historians, whose non-fiction works are most likely to encounter difficulties in terms of fair-use legalities, need to apply more effort and brain power to figuring out how to straddle more effectively the open-access and intellectual protections fence.
Cohen and Roy Rosenzweig, in their chapter in Digital History (2006) titled “Owning the Past,” are absolutely on target when they explain that existing “copyright law does nothing to protect ideas, only their formal and fixed expression” (Cohen and Rosenzweig, 200). Yet despite this statement, Cohen and Rosenzweig still advocate strongly for open access in the proliferation of “informal” and “unfixed” ideas, a position that I find troubling, even though they advocate for the Creative Commons licenses. Published works, as both scholars admit, clearly enjoy more legal protection and are less prone to intellectual hijacking because the knowledge they contain has already been formally presented to the reading public and to a host of peer reviewers. In other words, stealing ideas from a published work can result in potentially successful legal action and strong policing by the public at large. For the most part, the reasonable person standard applies : no one likes a thief or a copycat and will normally “call out” such transgressors. Recent notable examples include Doris Kearns Goodwin and Stephen Ambrose, both of whom suffered professional embarrassment when caught red-handed quoting from published works without proper documentation. By contrast, unpublished ideas sent streaming through the Internet under the auspices of open peer review or through blogging are likely to invite intellectual “thieves” who prey on that type of unfettered, ‘un-policed’ access. Granted, the Creative Commons licenses offer a potential remedy for any and all online ideas, but I am not yet sold on the viability of such licenses. Have these licenses ever stood up in a court of law?
The scholars most at risk are PhD candidates, who spend years digging for untouched primary sources in order to fill a scholarly gap that, in itself, may have been very difficult to identify. Thus, I fully support the AHA’s guidelines for allowing students to embargo their dissertations for up to six years. This option gives them a fighting chance to get their finalized out work “out there” more formally and to enjoy firmer copyright protections. Once a book is published, the knowledge and the ideas are now public. Even Judge Denny Chen’s ruling for Google underscores the importance of these protections. Chen recognized that the open-access efforts by Google of published works, works which already enjoyed copyright protections, provided “significant public benefits” for advancing “the progress of the arts and sciences,” all without adversely impacting the rights of copyright holders” (Chen, Case 1:05-cv-08136-DC, 26) . In short, Chen argued that these works were already protected and that their open-access proliferation on the Web was a benefit, not a liability, to the copyright-holder. I agree fully. As the copyright-holder of two books, and someone protected by these same laws, I have no trepidation about Google making my books part of their open-access project. I wrote the books to share the knowledge, not to hide it. But I would never allow any of my unpublished works to be disseminated in such a way, even with a Creative Commons license, because I know, and have experienced, others preying on the ideas of fellow scholars. Unpublished work has the potential to invite and not deter predators.
The other big problem in spreading ideas openly without proprietary protections is the fact that some academic publishers operating on tenuous business models will be less inclined to publish ideas that have already made the rounds. Rebecca Anne Goetz even described that in 2005, she was led to believe that blogging her ideas online would likely hurt her career prospects. More to the point, William Cronon’s statement that “several” editors from distinguished presses told him that sharing ideas online would affect publication decisions should send shivers down the spines of all PhD students. Maybe, as Adam Crymble suggests, the real problem is over-reliance on the book form itself. But, until History Departments nationwide embark upon a revolution that redefines (or re-imagines) how historians can present their ideas publicly with clear protections while still meeting tenure-track requirements, the book is here to stay.
Overall, open access is a great thing. As Judge Chen stated in his opinion, it gives new life to old books and old ideas. But all ideas need some form of protection before they end up on the open circuit. Thus, the published form offers the most safety to a scholar, particularly because fair-use laws exist on such a sliding scale of interpretation and application. Copyright laws at least serve as a bulwark against full-scale rip-offs. I think all of us historians want our work out there, and we would be happy to see older scholarship engage more with newer scholarship. But none of these things should happen until the scholar is ready to provide that knowledge to the world in a formal, polished manner. The digital, online history world is the new Wild West frontier of academia, and every scholar needs to be armed with a copyrighted “six-shooter” to avoid being exploited or to prevent a lifetime’s worth of work becoming some lazy schmuck’s magnum opus.