Friday, October 05, 2018

Published Academic Research is Worthless

An Economist and a friend are walking together.  They see a $100 bill on the ground.  The Economist looks at it, and keeps going.  The friend asks "why didn't you pick that up?", and the Economist replies "If it was a real $100 bill, someone else would have picked it up already".

That is a very old joke, and it is (I suppose) a reference to the Efficient Market Hypothesis.  The underlying economic principle however is no joke, and is, I suggest, generally applicable.  How can we apply it to determine the value of Published Academic Research? 

As it happens, the United States conducted a Natural Experiment in this area, between the years of 1976 and 1998 (end date approximate).  Before 1976 Copyright in this country was governed by Common Law.  The general rule was that creators own their work, but there was a large carve out, called Work for Hire, which granted employers ownership of creative work done by employees whilst on the clock.

There was an exception to the exception, for University Professors (and perhaps others). The Teachers Exception granted ownership of materials produced by Professors to the Professors themselves, even though they were working at a University when they created it.

The Experiment began with the 1976 Copyright act, which codified and replaced the Common Law rules.  In particular it codified the Work for Hire rule, without including a Teacher's Exception.  There is some question about whether Congress pondered long and hard, or even at all, before eliminating this rule, but there is really no question that the plain language of the Statute did eliminate it.

When the Congressional History is unclear, we must look to the plain language of the Statute

That is putatively a Canon of Statutory construction, though it may be the wrong way 'round.

In any case Congress in a sweeping gesture granted to each University in the United States ownership of the published work of every Academic working in that University.  What did the Universities do?


If Congress had granted them ownership of large swathes of valuable property, what would they have done?  Presumably they would, like any non-Economist who saw a $100 bill on the ground, pick it up.  On the other hand, if they were handed title to a vast expanse of burning tires, they might very well look the other way.

Now you could argue that Universities were loathe to annoy their Faculty by asserting ownership, and thereby overturning many years of precedent.  However there are about 5,300 colleges and universities in this country, and it is improbable that none of them would be willing to take that risk, if there was a payoff.

Indeed, if you are familiar with the approach of a University towards Patents issued to their faculty, the difference will be immediately obvious.  Spoiler alert: they aggressively assert ownership, and defend their legal rights to this valuable Intellectual Property.  As they should!

Quod Erat Demonstrandum

If you are interested in the legal history I set out, you should look at this excellent article from BYU.  It was the source of my legal summary above, though please don't blame them if I got it wrong.

If you are wondering why I would bother writing this up right now, you might look up "replication crisis", or read a bit about the latest hoaxing of an academic journal.

Finally, if you are wondering where 1998 came from, it is the year the DMCA was passed, which may have restored the Teacher's Exception, if you squint when you read it (see the BYU article for more).


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