Resource Sharing and the Republic of Letters

At the risk of creating an infinite blog post regression, I’ve been wanting to write about this post at ACRLog by Steven Bell, and this post partially responding to Bell’s post by Barbara Fister on her Library Babel Fish blog. Bell responded to the Netflix-in-libraries debate by pointing to a scholar who didn’t understand why he couldn’t get JSTOR access from a university he no longer attended, and the apparent willingness of the scholar and his commenters to share resources illegally if necessary to get what they need for their research. Fister added into the mix an article from The Scientist in which a scientist realized (better late than never!) that if libraries can’t afford scientific journals then the progress of scientific research will be retarded, as well as the recognition that outside of R1 universities access to scholarly resources is often severely limited.

The discussions, as usual, are well worth reading in their entirety, but I’ve been thinking mostly about the willingness of scholars to share articles and books amongst themselves, even if that sharing is technically illegal. This doesn’t surprise me at all, nor does it alarm me. Instead, it confirms my hypothesis about the mission and ethic of scholars, research universities, and their libraries. Last post, I speculated that the mission of research universities is to create new knowledge and disseminate it through publication. That creation and dissemination are not confined to institutions. The mission isn’t just that of a university or a library, but of every individual scholar.
For my purposes, I will give you an oversimplified and bastardized history of the Republic of Letters and its relationship to current scholarship. In the 17th century, an international network of scholars developed who shared their works and ideas with each other, often through letters (hence the phrase). In the late 17th to the 19th century, the Republic of Letters metamorphosed into a network of scholarly journals, where scholars both independent and institutionalized published their work for the benefit of themselves and the public. The purpose of organized research since the Enlightenment has been to create knowledge and disseminate it for the public good. Before research universities were even founded, scholars considered it their duty to share their work and their ideas with other scholars. This freedom of publication was difficult in countries and principalities with censorship policies, and sometimes scholars had to publish anonymously or underground, but the ideal and goal of sharing was always present. 
Fast forward to today. Early 21st century America is a very different place from 17th century England or 18th century France, but the scholarly ideal of the Republic of Letters remains strong. It’s only natural, since academia is by its nature conservative and traditional, with generation upon generation of scholars training other scholars in the theory and practice of research. Scholars in universities have been organizing and training their predecessors in remarkably similar ways since the 12th century. Some believe this tradition has no place in the contemporary world. I tend to think that this ideal of knowledge creation and dissemination are shining lights of intellectual virtue in a sea of compromise.
Though I’m oversimplifying my history for brevity’s sake, I don’t think it’s mistaken, and if true it would explain the willingness of scholars to this day to share scholarly articles among themselves, even if such sharing is prohibited by licensing agreements and copyright. The ethics of scholarship require that scholarly resources be made available to other scholars, period. Laws and contracts created centuries after the formation of this ethical code are irrelevant. Pay-walls might keep an individual scholar from an individual article or database, but they are merely an inconvenience for the dedicated scholar, not a moral encumbrance. Such is evident from practice.
When that happens, when a law or regulation is widely flouted without compunction or guilt, what do we normally say about it? Recall Martin Luther King Jr.’s “Letter from Birmingham Jail.” He draws upon Christian and Jewish sources to argue that positive laws (the laws on the books) that don’t adhere to the natural law are unjust laws, and that unjust laws are not laws at all. Legislators can pass any laws they want, but that doesn’t necessarily make them just.
There are numerous laws that the vast majority of us consider unjust, and thus ignore. I argue that scholars believe severe copyright restrictions, or restrictions on sharing of scholarly resources, are inherently unjust, and thus not worth abiding by. Scholars operate under an ethic of sharing several hundred years old.
Granted, the history of scholarly publishing has demonstrated that scholars aren’t very good at living up to their ideals, often because they pay no attention to how the real world of publishing works.  They do their research, and work for free for publishers who then charge their universities outlandish prices for their journals. That after almost a generation of library advocacy, a scientist is just now discovering that the rising cost of journals might endanger research is a case in point. 
Also, since the emergence of what William James called the “PhD Octopus,” scholarly journals have become not just media to distribute scholarly research, but status markers in a competitive profession. However, I would argue that such developments are the result of incentives created by administrators and non-scholars rather than the natural development of the modern scholarly ethic. Scholars participate in this system because they ignore its legal and economic restrictions, quite possibly because they believe that those restrictions don’t apply to them.
How does this relate to libraries? I’m not entirely sure. I’m not arguing that libraries should disobey the law or violate licenses. Even if it weren’t illegal to argue that, it would be impolitic. I merely point out why scholars pay no attention to copyright or license agreements, why they freely share resources, why they post copyrighted content to their open course websites, and and why they have no ethical qualms about such actions. Understanding this helps us understand the ethos of the profession academic librarians support.
But I also wonder about the clash here between the scholarly ethic and the laws regarding copyright and licenses. Can we make a right choice here? It seems an impossible dilemma. The positive law requires us to enforce copyright and licensing agreements, but the positive law conflicts with the centuries-old ethic of scholarship as well as the freedom of information that librarians champion. What would the natural law be in this situation? Wouldn’t it be that the results of research freely provided, and often even publicly funded, should be free to the world? That open access to scholarly publications is part of the natural order of scholarship? If that’s true, then what are we to make of copyright laws or licensing agreements that are designed to benefit the publishers and not the public? How can we believe that the most stringent of current copyright laws are just laws at all? It seems all we can do is advocate change and hope for the best, neither of which has helped much so far.

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