I am a scholar, in particular a theorist. Fortunately, as a theorist, I do not have nearly the requirement for academic journal research as do most other scholars. But I do, nonetheless, have research chores from time to time that cannot reasonably be met through access to public library facilities or the offerings of open source advocates (praise be to them).
The public pays the bill for the University of Texas (or name your own) to permit scholars "remote access" to database holdings by means of a password that can either be tailored to specific database vendors or applied across the board. Enter the password from any computer connected to the university's web portal and you have remote access to the resources of humankind's collective genius. By and large it is public domain -- insofar as it is un-patentable or un-trademarkable knowledge that we speak of, and where even copyright is a non-starter since the 'fair use' doctrine permits a full usufruct for any reader -- whence the public purse pays primarily for the university's lease of the databases, by which we mean the not inconsiderable costs of digitalizing and bundling all of that knowledge. It is on account of this last-mentioned item that vendor-university agreements restrict remote access to faculty, students, and university staff.
Outliers are welcome to travel whatever distance and work during specific hours, in the library, and under supervision, and so on and so forth. And that's the main library-don't try too much of that malarkey in the separate small discipline libraries. Check out a law book? Great. For three days, period. There's a reason academics like things just as they are. When they tell me to go to the library I tell them to do likewise and observe their incredulous reactions. They really just don't get it. And a cabal of lobbyists are paid not to get it.
Employed scholars who work under the privilege of free access to research may think they are entitled to hog the privilege on account of being God's gift to something or another. But while they glibly deliver high-flown praise for justice and democracy, they happily enough accede to administrators who monopolize that access, ostensibly on their behalf. The question of the moment is: how can they or we justify an outrageous monopoly that runs afoul of all available legal tradition and all available logic? Why are intelligent and committed folks, howbeit unaffiliated with these universities, not permitted reasonable access to the kind and quality of research befitting scholarship?
Let's start with the logic. A whole lot of important additions to the core of knowledge are brought forth by folks outside of academe. For the most part, unlike most universities, they are private, not public. They, unlike the public universities, typically pay for their database access. For all the rest, comprised mostly of unaffiliated, so-called "independent scholars", the public, having already funded university-managed remote access, would surely not object to legitimate unaffiliated use of those same databases via the same portals. The process is easy, the materials inexpensive and convenient. Only the actual permission appears wholly unavailable. Certainly there are reasons why not to offer it without conditions, but what ought those conditions be? The universities can't for their lives imagine a single instance. Somehow I find that every bit as insulting as it is patently objectionable.
By their own charters the public universities exist for three reasons: teaching, research and service. Service? What's that? Well, it's based on what used to be a noble presupposition regarding the intelligentsia: they owe a stewardship responsibility to community betterment through knowledge (and, be it noted, its access). It is a supplemental, quasi-ornamental affair, as if to say ‘thank you' to the same public that freely availed them of their research facilities. University resources are not supposed to be restricted solely to such learning as brings hired scholars personal academic honors. The whole idea of the university is to bring knowledge forth to the world. It is not, nor has it ever been, the public's intent that universities hog what is supposed to be put to the service of one and all. The public may well expect someone to monitor access, restricting it to those able to effectively utilize the materials without abusing the privilege. What is not expected is for the monitor to act like a minder from Russia or China.
The letter of the law is that behind which the universities are pleased to hide in refusing independent scholars access to publicly subsidized databases. Their reasoning runs as follows: "It's not our fault, we are only obeying the vendor agreements by which we obtain and police the use of access thereto." In simpler language, they shift their own culpability to the obvious scapegoats, those awful vendors who don't take chances with just anybody when it comes to their economic security, thus tying their hands entirely.
There are several fundamental problems with this reasoning, not least of which is that vendors themselves have no quarrel with legitimate scholarship having access to the public troughs. In fact, one of them wrote me a specific exemption from liability so that my local university would be off the hook as regards liability on account of my access to this company's database products through the university portal. The university was having none of this and made rather a fuss to said vendor, from whom I subsequently heard nada. I have yet to speak with anybody at any vendor who has an issue with legitimate scholars feeding from public troughs via university-managed remote access. So if it isn't the vendor's fault, maybe it's just the big bad system that is to blame.
Suppose we adopt the university's own reasoning with but a slight twist: suppose their actual position is simply that they and no one else has the wherewithal to competently work with academic journals. The boon to any profession seeking to avoid accountability is always available: A little knowledge is a dangerous thing - meaning, from the university's point of view, that the law exists to protect their privileged positions as God's gift to knowledge and as God's guarantors from outside competition. Now between you, me and a lamppost, that's the unstated actual reality, so let's fly with it, just for the sake of discussion...
Ask first why 50,000 students at each of any number of large public universities have access to all of these resources, especially when they cost a fortune and their access comes at the expense of worthy outsiders (ah, but the public's money is cheap enough for the State legislatures to spend on the great universities, never mind problems of reason or rationale). Most students have no earthly capacity to intelligently employ these resources, at least not by the standards of the reigning gods of the intellect. The only rationale for any access is for purposes of introducing them to these resources, as a heuristic. It certainly cannot be because students are expected to competently use these tools, for that would violate how scholars view the law's protection of their monopoly. Only the academic gods may have recourse to the holy nectar. Only they can use it and protect it. Only they can be worthy stewards of it.
The reason students have remote access, from a vantage at once rational and legally justifiable, is perfectly simple: those who have reason to be introduced to journals and who are occupied with schoolwork, plus or minus additional employment, are not the type we expect to violate the vendor agreement in a meaningful way, which is to say, in a manner that offers restraint on the vendor's right to take all profits from their exercise of fair and free trade. Only problem with this particular market is that it isn't open and fair, rather it is closed and unfair.
The university may tell you that the only reason they dare allow students access is by virtue of the threat of expulsion. Well, if that's how they wish to view it, that's their choice, but it is neither rational nor legally obligatory (though yes, legal). The university is required to police the agreement, true. And supposing a violation, the university can call on any number of public authorities to deal with the situation, up to and including the parents of said children. In other words, this blanket doctrine of permission under the equivalent of capital punishment sounds a little overdone, even a little phony.
Take as a parallel example something the scholars themselves take for granted even more so than do students their access to databases. No one need be a scholar to quote, without permission, anybody's writing, especially so if that writing is an academic's. It's the so-called "fair use" doctrine. The literal letter of the law might well consider it illegal to quote a god of the intellect without their august permission, but the law does usually tend toward reasonable applications that are pragmatic. The fair use doctrine assumes two things: 1) the vast majority of those reliant on that doctrine are in no position to, or have no reason or desire to, illegally benefit from the use; 2) supposing they did, there are sufficient mechanisms at law to punish them and deter others from the same abuse.
This system has worked like a charm. It is exactly the same system that should always have regulated access to databases. It is a system in which the law sees to it that the spirit of the law, as opposed to the literalist letter, redounds to everyone's best interests. So long as economic rights of possession and trade are not meaningfully interfered with, it's open hunting, as in knowledge it surely should be. The only difference between the two cases is related to the degree to which anybody's valid interests require protection. The interests of vendors and of the public (to whom accountability is owed; not, be it noted, to the universities) fairly require a few simply stated parameters whereby prospective candidates are recognized as both worthy and respectful of this privilege.
Nowadays that kind of document would be delivered to the university library staff, the ones who oversee access to the databases. One could pay a fee for these august folks' valuable time to dicker over this or that clause and what not. Would vendors mind? Not by the evidence I have at hand. In fact, there is already one major vendor that has long since publicly stipulated satisfaction at leaving to the university's discretion who shall have access to their databases. Which is to say, this is not the vendor's issue, it is the universities'. My best guess is that those vendor agreements were initially written by university lawyers.
Meaning, it is the universities that are at fault, not the law, and not the big bad system, certainly not the vendors. Offering the status of "independent scholar" for the purpose of granting remote access to databases is rational, reasonable, and comports both with custom and the available law. Universities, like too many other large impersonal institutions, have gotten a little too full of themselves and a little too prone to use lobbying and other pressures to avoid accountability. When I first went to State officials to raise inquiries on this matter their first contact with the university was through the university lobbyist in the legislature. That needs to change.
Most of this really does reduce just to a violation of accountability. Take getting published by academic publishers, for example. You can quickly count the independent scholars published by academic houses, and of that number there were plenty of degrees and high-flown recommendations to support their proposals. No, the academic publishers exist at the behest of the universities, and the chief pressure is in the form of doting wannabies who require three published pieces to qualify for tenure at some point. It's all in the family, so to speak. Of course, there aren't many from the outside who request to get in, but let it be understood, this is a closed shop as the lawyers might say. Outsiders are welcome neither at the door of databases nor of publishers.
The basic principle being violated by the universities is that of legitimate access to publicly funded property. If you were a sportsman wishing to utilize public land, water and mooring for your boat, but some officious hunting academy (permitted to maintain the grounds and manage things) told you that this was a members-only affair on the basis that only members carried insurance against loss of property from theft or trespass, or any other such bunk, what do you suppose would be the result? But of course. There is simply no rational excuse to place trumped up regulations in the way of scholarship any more than to turn public access into a professional privilege for the aristocracy. Two hundred and some years ago we suffered not inconsiderable loss of life to be freed from such officiousness and snobbery.
Just as one can lie with statistics, those with power can avoid responsibilities with clever use of law. The actual law, for lawyers competent to address it, does not speak well for this aristocratic disposition on the part of the professions, corporations and other large, powerful institutions. In the present instance it makes being an independent scholar an insult to the intelligence. No wonder there aren't more of us. Most folks have the good sense not to fight a ten-foot thick brick wall. I happen not to have that strain of common sense. I am a theorist and I argue on principles of normative law, not what some institution is willing to buy and maintain through lobbying.
When I need resources I expect all the conveniences any other scholar possesses, not a whit less. In my case, a track record rather speaks for itself, to which pitifully few academics dare compare themselves. But the point is that everyone graced with intelligence and the desire to give of themselves should, with hard work and perseverance, be granted the privilege to have the best resources at hand. If 50,000 kids who really have little experience with the ‘clue store' have unrestricted access, why not those who have a proven ability to add to the community's fount of knowledge? Very simply, there is no reason why not to do so, excepting an institution's age-old penchant for aggrandizement at the public expense.
Causes Charles Herrman Supports
Common Cause, Lambda