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1Running Head: INTELLECTUAL PROPERTY RIGHTS AS A BARRIER TO ACCESS

Intellectual Property Rights as a Barrier to Access to Scholarly Information

Melissa A. Foss

University of South Florida

Spring 2016

LIS6514.720 Digital Libraries


As technological changes emerge, seemingly on a daily basis, it is necessary for society

to make the appropriate adaptations. Nearly all aspects of life have changed as technology has

emerged. Technology has altered the law, requiring law makers to reevaluate older versions of

laws and make changes that incorporate present technology, as well as what will potentially

develop in the future. Technology has altered the manner in which individuals perform everyday

tasks; for example, when shopping it is no longer necessary to go to the mall or a store because

many needs can be fulfilled simply by the click of a button on a smart phone or computer.

Technology has drastically impacted how individuals or groups communicate. The changes in

communication are not just in terms of the obvious advancements—hand written letters to

telephone to cellular phones to text messages, email, and skype—but also with regard to how

publication occurs and how documents, including scholarly information, are accessed (Borgman,

2010, p. 1).

One aspect of society that has had to adapt as technology changes is the traditional

library. What was once simply a physical location of physical materials that could be borrowed

and used, has turned into a hybrid resource in many cases, featuring physical materials, as well

as digital collections accessible from locations all over the world through the use of the Internet

(Byrne, 2003). In some cases libraries have transformed into a completely online entity. In terms

of scholarship, many sources of research material are available digitally before it arrives in print;

this includes scholarly journals (Borgman, 2010, p. 1). This boom in technology and

advancements in the manner in which materials are collected and developed would seemingly

provide greater access to materials. What was once a book or journal located in a single place,

the traditional library, that would need to be accessed by obtaining the book from the library or

through and interlibrary loan, can now often be accessed through one’s home computer. While


this seems like an ideal, dream situation in terms of promoting the American Library

Association’s “Core Values of Librarianship,” including access, diversity, preservation, and

education, there are issues that can and do pose barrier to libraries providing access to scholarly

information in its digital form. “[L]ibraries have fewer rights in the digital environment than in

the print world” (Hombal & Prasad, 2012, p. 233). Intellectual property rights, in particular

copyright and patent issues, have the potential to be an increasingly problematic barrier to the

goal of open access to scholarly information, including not only research publications but the

data underlying such studies. It is important that these issues be confronted and considered on the

front end, so that the “big players” in the world of access to scholarly information—researchers,

universities, publishers, and libraries—can potentially reach a compromise that is beneficial to

all parties, as well as society as a whole.

What Is Intellectual Property?

In order to really consider the potential barriers intellectual property poses for the access

to scholarly information in the Internet era, it is necessary to first determine what intellectual

property actually entails. According to Borgman (2010), “[i]ntellectual property is an umbrella

terms that incorporates copyright, patents, and trademarks” (p. 105). It is “a means of acquiring

ownership over a particular resource that is intangible in nature” (Britz & Ponelis, 2005, p. 233).

Most prevalent in a discussion of intellectual property rights in terms of libraries, is a discussion

of copyright; however, it is important to realize that patent considerations also affect the

dissemination of scholarly information. Seemingly, intellectual property rights protect those with

innovative ideas that lead to creation of something—goods, services, techniques, books, works of

art, and much, much more—however, the purpose of these protections is actually to promote


access to the work (Borgman, 2010, p. 105), and benefit society as a whole by promoting

dissemination of information and, potentially, collaboration.

“Copyright protection covers ‘original works of authorship,’ which include ‘literary,

dramatic, musical, artistic, and certain other intellectual works’” (Borgman, 2010, p. 105).

Having a copyright for a work provides the owner “with the exclusive right” to control the work

themselves and to authorize others to take certain actions, including, but not limited to:

reproducing, distributing, performing, and displaying the work (Borgman, 2010, p. 105–106). As

technology has developed and digital forms have gained prominence, copyright law has changed

and in ways this has led to more restriction to access. Notably, the term of a copyright has

increased in many countries in recent times to be “the life of author plus 70 years” (Hombal &

Prasad, p. 234).

Patent protection is typically noted to be about an “invention.” According to the United

States Patent and Trademark Office, “[a] patent for an invention is the grant of a property right to

the inventor, issued by the United States Patent and Trademark Office.” Patents are issued by

different countries for the same invention and a U.S. patent is only enforceable in the United

States; in order to seek protection in another location, it would be necessary to seek patent

protection, if available, in that locale (United States Patent and Trademark Office, 2014). Patent

protection, like copyright protection, has a term; however, patent protection is not as lengthy as

copyright protection, typically consisting of a twenty-year term, subject to staying up to date

with required payments (United States Patent and Trademark Office, 2014). There are only

certain “things” that are subject to patent protection. According to the United States Code, “any

person who ‘invents or discovers any new and useful process, machine, manufacture, or

composition or matter, or any new and useful improvement thereof, may obtain a patent’ subject


to the conditions and requirements of the law” (United States Patent and Trademark Office,

2014). The importance of the patent protection is that it gives the patent holder “‘the right to

exclude others from making, using, offering for sale, or selling’ the invention in the United

States or ‘importing’ the invention into the United States” (United States Patent and Trademark

Office, 2014) (Rao & Moorthy, 2014, p. 137). A patent holder is able to take legal action to

enforce those exclusions, violation of which is termed an infringement. While patents and the

patent process may not seem to have a link to access to scholarly information, as discussed

below, it can actually have a very important impact and can prevent access to scholarly

information, especially the data underlying studies.

Copyright as a Barrier to Accessing Scholarly Information

Copyright has a direct effect on the public domain. The public domain consists of those

materials that are not encumbered by intellectual property restrictions; for example, those works

that have no longer subject to copyright protection (Borgman, 2010, p. 106). Once a copyright

has expired, the work is free for public use without restriction. “The public domain has become

much smaller due to the expansion in the scope of material that can be copyrighted and the

extension of the copyright term’s length” (Borgman, 2010, p. 106). At this point, current law

provides for a lengthy copyright term—seventy years after the author’s death, perhaps longer—

and the copyright process is no longer as stringent; copyright automatically affixes upon “fixed

form” being achieved (Borgman, 2010, p. 107). A greater copyright duration could potentially

mean less materials entering the public domain during given times, or perhaps more precisely a

greater lag time before material is available for use without restriction. This can pose a barrier to

scholarly information access in that only those individuals with approved access through an


organization for approved uses, or those individuals who can afford to license information on

their own, would have the ability to access and use the material (Byrne, 2003, p. 425).

Additionally, “developments in information and communication technologies (ICTs)

have challenged the traditional balance embodied in the copyright system” (Hombal & Prasad, p.

234) (American Political Science Association, 1997, p. 570). The technology being used at

libraries can lead to easier dissemination of information, which also make unauthorized usage

easier, potentially putting the library at greater risk of infringement (Hombal & Prasad, p. 234).

The “[u]nlimited technological capacity to disseminate by transmission in ways that can violate

the rights of copyright holders confronts equally unlimited technological capacity to prevent

works from being used in ways contemplated by law” (American Political Science Association,

1997, p. 570).

However, to benefit scholarship and research, the fair use exception to copyright exists.

Under fair use, items that have been copyrighted can be used, without infringement, upon

meeting certain criteria (Borgman, 2010, p. 107–108). The four conditions that are to be

considered in determining fair use are judgment calls and digital content is subject to additional

limits (Borgman, 2010, p. 108). As technology advances, exceptions that may have existed in

copyright laws for library usage must be evaluated for their application to digital usage and the

arguments against such use without remuneration remain relevant (Chowdhury & Foo, 2012, p.

182). As such, the safest means of protecting oneself from infringement is to receive permission

to use the material prior to use (Borgman, 2010, p. 108).

Licensing

One way in which libraries obtain materials that are subject to copyright protection is

through licensing from the publishers that control the materials (Hombal & Prasad, p. 236).


Often the authors of works have signed over their copyrights to the publisher (Petersen, 2004, p.

62). The rights have been signed over often as a requirement of having the work published; for a

scholar the saying “publish or perish” rings true and the researcher is often willing to give up

those rights to publish and stay relevant in their faculty position (Park & Shim, 2011). Having

these rights provides a publisher with a better negotiating position. “The control obtained over

scholarly intellectual property by major publishers acts as a significant barrier to widespread

access” (Byrne, 2003, p. 418), and provides the potential for publishers to exploit authors,

libraries, and other entities in the chain of receiving and delivering scholarly information (Rao &

Moorthy, 2014, p. 103–104). The digital environment of the current era has shifted the

acquisition of materials from purchasing copies to licensing access to the materials under

agreements that restrict particular uses. These restrictions include some of the more traditional

uses such as making interlibrary loans, copies, and re-publication, all of which may not be

allowed under licenses (Byrne, 2003, p. 418–419). The cost of ownership, as opposed to

licensing access, has become “deliberatively expensive and less economical” (Rao & Moorthy,

2014, p. 105).

Different publishers, and thus different publications, are subject to different licensing

terms (Chowdhury & Foo, 2012, p. 182). This makes it difficult to keep up with the different

terms in order to make sure the provisions are being complied with during day-to-day use

(Chowdhury & Foo, 2012, p. 182). Additionally, the terms of the licensing agreements may be

difficult to understand because many are drafted by lawyers, and libraries may not have the

funding to hire lawyers to advise on compliance (Chowdhury & Foo, 2012, p. 183). Compliance

is also much more difficult in the digital age with access to materials from outside of the

library’s traditional confines through the Internet. It is much more difficult to watch the use of


materials that are not seen and physically handled by the library. Where a librarian could

previously watch patrons and may be able to see and prevent potentially infringing uses, patrons

accessing scholarly information through the Web are not “seen” in a traditional sense and it

makes it necessary to have safeguards in place to prevent, as much as possible, infringing

activities.

The costs of building a digital collection is an expense that libraries have to consider; a

“1993 Follett report suggested that the inability of library budgets to keep pace with the

escalation in journal prices posed a serious threat to future academic research” (Chowdhury &

Foo, 2012, p. 183). At times, publishers seek to have libraries acquire bundled subscriptions,

which force the inclusion of journals that may not be needed or desired by the library and its

patrons (Chowdhury & Foo, 2012, p. 183); (Byrne, 2003, p. 418). Additionally, some

subscriptions require libraries to get both print and online versions (Chowdhury & Foo, 2012, p.

183). These deals also sometimes require multi-year subscriptions, do not allow for

cancellations, and libraries are prevented from discussing terms of their licensing and

subscription deals with other libraries (Chowdhury & Foo, 2012, p. 183). Forbidding discussion

among libraries about terms of deals prevents comparisons for use in future negotiations; this

places publishers in a much stronger negotiation position than their library counterparts. All of

these aspects act as barriers affecting the ability of the library, and other information services, to

provide access to “all” the available scholarly materials.

How Might Patents Influence or Prevent Access to Scholarly Information

Another aspect of intellectual property that impacts the development of access to

scholarly information is the patent process. While “[i]n the context of scholarly publishing, the

most contentious issues are copyright, digital rights management, fair use, orphan works, the


public domain, and the ‘information commons’” (Borgman, 2010, p. 105), patents can also

influence what materials, documents, and data becomes accessible to information seekers. It is

quite possible that researchers may refuse to share their research and/or data until publication,

which could be a fairly long process. Those researchers may go further and not even publish

their research or share scholarly information until the patent process or patent potential of the

work has been explored. This seemingly occurs because of the nature of the “reward” system in

research. “Scholars will jealously guard their data until publication, as everything from patents to

Nobel Prizes can rest on who registers a claim first” (Borgman, 2010, p. 198). Additionally,

individuals who do not feel that they have proper protection for their innovation without a patent,

may be “unwilling to release data until they have exhausted them for their own research

purposes” (Borgman, 2010, p. 198). By exhausting it in their own research, the potential to reap

rewards in terms of awards, accolades, and possibly financial gain will have been exploited;

however, it is also quite possible that the data could forever remain unexposed to the public by

reason of never exhausting use for one’s own purpose.

Additionally, when information seekers would like to use not only published research,

but the underlying data from a particular study, a patent owner can charge for access to and use

of that material; Borgman (2010) notes that universities can be charged “tens of thousands of

dollars for access to the research data” held under patent (p. 144). The ability to charge a user of

the information stems from the “right to exclude” conferred by the granting of a patent. Much

like the issue facing libraries seeking to expand digital collections and facing restrictive licensing

agreements, the fees associated with accessing material subject to patent protection can be

prohibitive. The fees may even prevent access to that scholarly information. Additionally, as

noted previously, the digital form has provided a much easier route to unauthorized


dissemination of information. Those individuals holding patented or patentable data may be

hesitant to put the material into the digital realm for fear of unauthorized access (hacking) and

then widespread dissemination without the proper safeguards.

Possibilities for the Future

One possible resolution to assist in balancing the needs of the researchers, who desire to

keep the data for their purposes and to ensure priority in any filings required for acquisition of a

patent, if applicable, is to use “embargoes” (Borgman, 2010, p. 199). An embargo would provide

for the release of data for access; however, the investigators providing that data would have the

exclusive right to that data for a particular period of time (Borgman, 2010, p. 199). This would

seemingly allow for the provision and access to the data at an earlier stage, while allowing the

investigator more time to use his or her data to make further advancements and potentially reach

a point at which they make a development that could be appropriate for seeking protection under

intellectual property law.

In 2000, “a task force of librarians and university administrators knowledgeable about

copyright, patent and other university information policies” took on the project of examining

issues affecting dissemination of scholarly information in light of intellectual property rights in

the digital environment and creating proposals for the creation of policies (Intellectual Property

Rights in an Electronic Environment, 2000). The task force came up with four possible ways in

which universities could change the way in which copyrights are managed by the university

“because copyright management is central to electronic scholarly communication, [and] because

universities might gain market leverage by changing the management of copyrights” (Intellectual

Property Rights in an Electronic Environment, 2000, pp. 178–179). Essentially, these options

boil down to copyright ownership by the author/faculty member or a combination of ownership


in the author/faculty member and the university or a consortium of universities (Intellectual

Property Rights in an Electronic Environment, 2000, pp. 180–191).

Conclusion

The importance of scholarly information and communication cannot be understated;

“scholarly communication must include the full range of content and take place in all media. It

must flow back and forth between all of its participants and be capable of moving rapidly enough

to contribute to the evolution of understanding and knowledge” (American Political Science

Association, 1997, p. 570). While technology can provide incredible advancements and

possibilities for scholarly information—reforming publishing, improving access, and making

dissemination of important discoveries easier—that same technology can also precipitate issues

not before realized. Intellectual property rights is one issue that seems to have been exacerbated

by technological developments. While protections had been in effect prior to the technological

boom, changes to the manner in which scholarly information is provided has raised additional

issues in the manner in which intellectual protections work in the digital age. These intellectual

property protections, such as copyrights and patents, can inhibit access to scholarly information

on the Web by increasing the cost of providing access or acting as a disincentive to releasing

information, especially in the case of research potentially subject to patent protection. It is

necessary that libraries and other information providers adapt and make sure to keep those

protections that encourage dissemination of information in place, while also enhancing the

potential for more individuals to access that information.

Key to breaking down barriers to accessing scholarly information posed by intellectual

property rights will be considering alternative means of protecting and or compensating those

individuals that spark developments through their publications and underlying data. If scientists


were given some additional protection, remuneration, and/or recognition when their research and

data is used in another development, there may be more incentive to actually disseminate the

information when it is first obtained or discovered by the initial researcher. However, in terms of

“discoveries” potentially protected by patents, until such time as individuals are shown some

benefit from their early disclosure and allowing wider access to their work and underlying data,

it is unlikely that the material will be disseminated widely prior to patent protection. Researchers,

scholars, publishers, and libraries, as well as any other interested parties, must become involved

in a conversation on how to protect innovation and a researcher’s intellectual property, while

advancing access to scholarly information for the benefit of society as a whole.


References

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February 14, 2016

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