Article on Privatisation

From: Stevan Harnad <>
Date: Fri, 7 Mar 2003 13:22:01 +0000

Richard Poynder wrote:

> I know you like to focus on the future of self-archiving specifically,
> and you like to think beyond the librarian (!),but I wonder if you might
> be interested in offering up a quote or two on something I am working on
> right now. Below is a posting I put up on a couple of mailing lists
> about it. One thing I wanted to discuss, briefly, was ways in which
> people are "fighting back" against the "privatisation of the
> intellectual commons" if you like, including open source software,
> developments like Freenet, and self-archiving. I wonder, therefore, if
> you felt able to supply a short quote (or couple of short quotes) on the
> way in which self-archiving is being used as a tool to ensure that
> research remains in the commons, rather than being privatised by
> publishers.

I'm afraid you won't want to use my quote, because I believe that one
size does *not* fit all -- and the incorrect belief that it does is
actually holding back both the intellectual commons and open-access to
refereed research:

Quote: We have to remind ourselves exactly what is new: What is new is
the Internet, and the possibility it has opened up for making vast
amounts of digital information widely accessible online. That is what is
new. Now here is what is old: There are, and always were and will be,
human creations that their authors produce with a view to selling them,
and human creations that their authors produce for other reasons (e.g.,
out of charity, out of pure love-of-creation, or, more often, to promote
something else that is beneficial to the creator). Let us call the first
kind of product "non-give-aways" and the second "give-aways."

First, it is a mistake to assume that the Internet, by coming into
existence, has caused the non-give-away category to vanish, as if it had
all just been waiting for a means of turning into a give-away. This is
incorrect, and much time and energy will be wasted until we become clear
on this. The rest is simply about figuring out which human creations *do*
wish to be give-aways, and how their authors can go about giving them
away online. The give-away category is a mixed one, and includes
everything from magnanimous donations of software or artistic creations
to the public domain to advertisements that not only want to be freely
available online but will pay to have themselves thrust before your eyes
by paid-priority search-engines.

My sole interest is with one specific and circumscribed portion of this
give-away/non-give-away spectrum: Scientific and scholarly research,
before and after peer-reviewed publication (preprints and postprints =
eprints). These papers are, without exception, author give-aways,
written solely in order to be read, used, cited, applied and built-upon
by other researchers (this is called, collectively, "research impact"),
not in order to earn author royalties from their sale. These authors
(and their institututions) are rewarded for their research impact
through research-funding, salaries, promotion, tenure, prizes, and
prestige. Because the access-tolls that must be paid in order to read
and use the published journal edition of their research are not
affordable to many institutions, researchers are now self-archiving
their preprints and postprints in their own institutional research
(eprint) archives in order to maximise their potential impact by making
them accessible to every would-be user. This maximal access is called
"open access."

The open-access model no doubt fits other forms of human creation as
well, but in the case of institutional refereed research output it fits
without exception, and it is important not to confuse that special case
with the rest of human creation, for that only confuses and slows
progress for both this pure subset and the very mixed supraset.

> I'm working on an article on intellectual property and the web, and
> would welcome the views of librarians/information professionals on the
> topic.
> The question I want to pose is: To what extent is the internet in danger
> of being privatised by ever more aggressive use of intellectual
> property? If it is being privatised/ in danger of being privatised then
> what are the consequences?

I have no expertise in this question, but I can state that it is not the
same as the open-access question. It may or may not be true that it is
possible to "privatize" the Internet. (It is hard to imagine how it
could be done as a whole, since it is distributed and many independent
parts all over the planet contribute to it.) But if all or part of the
Internet were privatized, it would mean that users would have to pay
higher access costs to use it than they do now. Other than that, it is
not clear why it should have any effect on its content, or the cost of
its content (over and above the Internet access cost itself). We pay to
use the phone, but we don't pay for the content (except for those 900
porno calls, but they already have their counterpart on the Web).

Perhaps you mean instead that more of its content will become
toll-access. That may well happen (plenty of it is toll-access already),
but that is not the "privatization" of the Internet, it is merely the
status quo of human products, which, unless specified otherwise, are not

> If, for instance, copyright holders increasingly seek to enforce their
> copyright on the web by forbidding linking and/or charging for content,
> then might we see a gradual walling off of content such that the value
> of the web is diminished over time, and what was previously open
> becomes increasingly closed?

There is non-give-away (toll-access) digital content online, just as
there has always been analog non-give-away content offline. Providers
will decide which they prefer, and take the consequences: revenue-loss
for give-aways, demand-loss (and perhaps creativity-loss) for

> If this were taken too far, after all,
> would not the whole principle of the web (the hyperlink) collapse, since
> people will not be able to link to content that is behind
> password-protected walls, or where the owner objects to linking for
> copyright or trademark reasons (the "deep linking" issue) and the number
> of open services simply fade away.

Yes it would, but to suppose it would happen is to suppose that all
author give-away incentive would vanish online; there is no reason to
suppose this, since some of it was always also there off-line. The two
domains will simply sort themselves out more explicitly online than they
have so far (just as they did offline).

> And if those seeking to offer services over the web face increasing
> demands for patent royalties from companies like SBC,
> (
> ness) then might not the number of services/information being offered
> fall away as a result of this too?

Patents and patent-royalties, like access-tolls, have always been an
incentive to some creative work, and they will continue to be. There
will also continue to be an incentive to do public-domain creative work,
and there will always be that special subset of creative work I
mentioned, refereed research, which will always be a give-away.
(Research results I am hiding for the sake of a patent, I do not publish
in refereed journals!)

Patents on web features are possible, but I wouldn't want to bet my
grandchildren's college tuitions on them: Web features are too easy to
beat; better web features, being developed by creative innovators
whose talents are more open-ended (and open-source-minded). In other
words, no sooner do you patent a non-give-away than several
much better give-aways are likely to be spawned. (The Net is big, and
creativity widespread and diverse.)

But let the market decide. If someone (mirabile dictu) develops a
"killer-app" that no one can ever beat, why should they not get the
reward that motivated them for doing it in the first place, if that's
the only reason they did it? (Obviously depriving the world of potential
health benefits by pricing them unaffordably should be combatted by the
law; but that situation is not unique to the Net either.)

> The SBC patent is not unlike the claim made by BT last year that it had
> a patent on the hyperlink. What happens if a patent claim on very
> fundamental web infrastructure like this is upheld? Might it reinforce
> the already existing danger of content monopoly, with large content
> companies (the Reed Elseviers, Thomsons etc.) being the only ones to be
> able to afford to pay patent royalties, and the smaller ones having to
> cease operations?

I think this is needlessly apocalyptic and that the analogy between
patenting web features and copyrighting content has many limitations.
(Besides, didn't Ted Nelson invent the hypertext?)

> Or is the whole topic overblown and exaggerated? The BT patent, after
> all, was thrown out by the courts. None of the scares in this area
> appear to have materialised ('s 1-Click and OpenMarket's
> shopping basket patents, for example, seem not to have become what
> critics feared). Might not most if not all of these patent claims simply
> be thrown out by the courts, and will new content sources like blogs in
> any case keep appearing to fill the free content vacuum if commercial
> publishers increasingly wall off their content?

Yes, overblown and exaggerated; yes, likely to be thrown out in court;
yes, likely to be soon beaten in the court of human creativity even if
sustained in the legal courtroom.

Stevan Harnad

> All opinions, from whatever perspective, welcomed.
> Any suggestions for other relevant lists that I could post to for
> feedback would also be gratefully received.
> Richard Poynder
> Freelance Journalist
> Phone: + 44 (0)191-386-0072
> Mobile: 0793-202-4032
> E-mail:
> Web:
Received on Fri Mar 07 2003 - 13:22:01 GMT

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