Free? What’s So Special About Learning? The Intellectual Property Argument: The Session Blog

Taken at the Open Medicine benefit fund-raiser; November 21, 2007 (Source: http://upload.wikimedia.org/wikipedia/en/c/c4/John_Willinsky.jpg)

Presenter: Dr. John Willinsky – Director, Public Knowledge Project. Professor, Stanford University and the University of British Columbia. Bio

July 8, 2009, 7:30-pm. Morris J Wosk Centre for Dialogue

Session Overview

Dr. Willinsky  set  the context for his address by using adoption of  Open Journal System to illustrate the expansion of open access. He noted that at the 2007 PKP conference, 1000 journals used OJS. Now, at  the 2009 conference, there are approximately 3000 OJS journals. Of these, he noted that 29% spend $0 on expenses and 24% reported no revenue at all. Dr. Willinsky noted that these figures indicate the emergence of a new, third kind of independent journal that can run on a zero budget economic model.

However, Dr. Willinsky asks us not to focus on this knowledge being free (as in beer). After all, scholarly work is not free: it is very labour intensive. Through the entire domain of research, curriculum development,  writing, editing, reviewing, and publishing in journals, scholarly work is expensive. Consequently, he argues for expanding the conversation about open access to scholarly publishing beyond the question of it being free. Instead, he asks us to reach back in time and recall how learning has long been treated as a type of (intellectual) property that is distinct from other (economic) properties.  “There is a distinction between the type of intellectual property we produce in education and that produced by Michael Jackson or Justin Timberlake, so why should it be treated the same?”

Using a number of examples to illustrate the point, Dr. Willinsky recounted the historical consistency of the university being recognized as something outside of the regular economy. He pointed out that by the 12th century there was already such recognition in that university members had many special rights including some rights of the clergy, the right of safe conduct, and the right to bring manuscripts across borders without paying tax. He also spoke about how scholarly contributions were recognized through acts of patronism from royalty and how rent controls were used in Oxford to protect students from being exploited by greedy landlords.

In particular, Dr. Willinsky notes that this different view of the property of education is rooted in John Locke’s  work on property. Locke spoke about property in two different ways: that we are given the work in common, and  that every man has property in his own body.  To Locke, because we labour (work), we have some claim to property based on the notion of  the right to exclude (enclosure). The intellectual property of learning is founded in these basic Lockean principles (e.g. labour invested and held in common), but it is somewhat different because it’s  value is not realized in the principle of exclusion. Instead, if we enclose intellectual property,  we reduce it’s value.  So the value of intellectual property is realized when it is shared and that value increases the less restrictive it is. Dr. Willinsky summarized this Lockean  argument about the intellectual property of learning as follows: we hold all this knowledge in common and we realize it’s value in the unrestricted circulation of this intellectual property.

Turning to some of the relevant legal aspects of the argument, Dr. Willinsky began by recounting the  fight over the licensing of books. In the 17th century, there was such excessive piracy that it removed the financial incentives for produce and publish books. Consequently, in 1710 the first copyright act (Statute of Anne) was passed to specifically recognize the rights of authors. Significantly, this statue was noted as an   “act for the encouragement of learning”.  Additionally, the act also recognized the right of universities to publish what ever they wanted and required publishers to provide to university libraries with 9 copies, on the best paper, of each book they published.

Moving to modern times, Dr. Willinsky  illustrated this special place that intellectual properties of learning have been given  with a number of examples:

• Fair dealing (fair use in US) exceptions to copyright law. These include the  right to quote for non-commercial, critical and parody use and provides protection under the law for students and scholars.
• The academic exception to intellectual property rights. Scholars have the natural ownership rights to all the  works they produce, unlike  other non-educational industries where workers don’t have those rights.
• Patent law allows us to use patented material for learning without paying a fee.
• Tax exemptions for university endowments in the US.

In closing, Dr. Willinsky asked the audience to take up the challenge as follows:

• In our work he asks us to focus not on  making things free, but to promote the notion that the value of the work we do in education is realized in it’s sharing.
• He asks us to look for opportunities to defend and experiment, to take advantages of opportunities to share our work, to expand our own policies moving toward open access, and to demonstrate the ways that intellectual properties of learning are different.

Related Links

• Stanford University School of Education
• UBC Department of Language and Literacy Education
• Public Knowledge Project
• Open Journal System (OJS)
• John Locke
• Statute of Anne, 1710