Knowledge Cartels versus Knowledge Rights

David Parry, University of Texas at Dallas

Enculturation: http://www.enculturation.net/knowledge-cartels
(Published October 10, 2012)



Marketed under the name Zerit, the antiretroviral d4T has been a remarkably profitable drug. Since its development in the 1990s, and until its recent replacement on the market by other drugs, Zerit was one of the primary drugs prescribed to control HIV. In 1998 it was the world's most prescribed antiretroviral. Although Zerit does have side effects, for most of the life of the drug its primary drawback was price: at 5 to 10 dollars a day, only the wealthy or those with substantial insurance could afford the long-term cost. As with most expensive medications, however, the price of the drug was not related to production or distribution; rather, the cost stemmed from exclusive patent rights held by an individual drug company, in this case, Bristol-Myers Squibb. To protect its profit interest, and at the cost of human life, Bristol-Myers Squib was able, until the expiration of the patent, to extract artificially high rent from selling the drug, independent of any social concerns.

Unfortunately, there is nothing particularly unique about a drug company basing decisions on profit motives rather than social good. What is interesting about this particular case, although still all too common, is the fact that Bristol-Myers did not develop Zerit. Indeed, the principle justification, of expensive research and development, that drug companies use to justify setting abnormally high prices, does not adhere in this situation. For in this case, the drug was not developed at Bristol-Myers Squibb, but rather at Yale University. The development of this drug turned out to be immensely profitable for the University. In 1988 Yale granted Bristol-Myers exclusive right to the d4t patent, an arrangement that yielded the university nearly $30-$40 million a year until they accepted a lump sum patent of $100 million. In the end the University received over $250 million in revenue. The arrangement, it seemed, benefited everyone: Bristol-Myers did not have to invest heavily in R&D, and Yale received a significant economic boost; everyone, that is, except for the broader public, who at best was forced to pay whatever price Bristol-Myers set, or at worst, as was the case of most of the developing world, were simply priced out of the market, unable to afford the lifesaving drug. Profits trumped any social interest. Medical research is not just a profitable business for drug companies, but for universities as well.

But what is unique about this story and the interest it generated is how clearly it brought to light the injustices created by institutions that profit from heavily restricting the flow of knowledge. At the time there were half a million people in South Africa suffering from HIV, only 1% of whom were receiving treatment. To them, Zerit, if it were cheaper, would have literally saved their lives. Bristol-Myers, however, refused to yield, and Yale continued to reap the profits of the exclusive patent agreement. Activists worked hard to pressure Yale to change this arrangement, hoping to force Bristol-Myers to allow a low-cost alternative to be produced and sold in South Africa. After initial claims by the University that it could do nothing, Yale eventually used its leverage to broker a deal with Bristol-Myers and arranged for another company to bring the drug to certain low-income nations, saving lives in the process. And perhaps even more hopeful is the fact that this case brought to light the way in which current restrictions on knowledge sharing have led to serious injustice, launching campaigns to have university medical research made available to all—regardless of cost.

I start here, not because I believe that humanities professors have lifesaving drug research to bring to the public, but rather as a way of illustrating a problem: the social cost of restricting the sharing of knowledge. By choosing to sell the patent to Bristol-Myers, Yale chose profit over social good, choosing to participate in the knowledge economy, and supporting knowledge cartels rather than the public at large. If we are to imagine that what we at the university do is attempt to serve the public, then we are called upon to ask whether the current system of knowledge distribution serves that public interest or benefits a small protected group. While we might not imagine that a rhetoric scholar is licensing a lifesaving drug, the comparison is still one worth considering. For as humanities scholars we so often argue that our work is relevant, that it matters because it helps us to develop a richer understanding of culture. Indeed our worth is so often explained precisely on the basis of a greater social worth to which we contribute. I am by no means proposing that rhetorical explanations, cultural critique, or textual analysis will likely yield a multi-million dollar patent or copyright, but ultimately if only in abstract, the ethical considerations are the same. That is, for those that produce knowledge we ought to carefully consider the vectors along which we choose to share said knowledge and question who profits from these arrangements and what the social cost ultimately is.

The Economic Issue

The "crisis in academic publishing" is already well known to anyone within the humanities. The cost of publishing has increased, producing a subsequent strain on academic library budgets at the very moment when their budgets are also being decreased. But the larger economic strain here is the rising cost of journals which increasingly force academic institutions to either cut spending on the purchasing of books, or eliminate some journal subscriptions all together. Indeed the cost of journals far outweighs the cost of the average manuscript. Some journals cost more than $40,000 a year; worldwide, the academic scholarly journal market is a $19 billion dollar industry with roughly 60% of that accounted for by the North American market. Scholarly publishing is a big, profitable business, and the rising cost is, as I indicated, producing consternation among faculty and libraries alike.

This situation was recently highlighted when the Harvard Library drafted a policy memorandum encouraging faculty to move toward open access journals in order to reduce library subscription costs. "We write to communicate an untenable situation" the memorandum said, that at current subscription rates Harvard would soon be unable to afford all the journals necessary. Their message was clear: "many large journal publishers have made the scholarly communication environment fiscally unsustainable and academically restrictive." The logic, the library argued, was simple. If faculty began submitting their work to open access journals, the library could cut subscription costs. Coming from Harvard, the message seemed to ring louder than it might have, had it come from a small public institution. Understandably, public institutions making budget cuts faced tough economic choices; but if Harvard, one of the wealthiest players in higher education, could not afford the rising costs associated with the academic journal market, what hope did other institutions have? Indeed as the letter to the faculty notes, the annual subscription cost is now $3.75 million and prices from two providers have increased by roughly 145%. Oddly as the cost of distribution has decreased through the use of electronic means, the cost of obtaining access has increased. The largest increase has come via the for-profit academic journal industry, which accounts for a substantial portion of the market. Some estimates indicate that just three publishers account for 42% of this market.

One of these three is Elsevier, which has served as another focal point in the discussion around the economic model of academic publishing. Elsevier is primarily influential within the math and science fields. Like many of the for-profit academic journals, Elsevier has drastically increased its prices. Last year Tim Gowers, a professor at Oxford, noted that Elsevier charges $20,000 for one journal in his field and that the average price of chemistry journals was $3,792. What is worse is that the access to these articles is highly restricted. If a particular institution does not have access, interested parties can "rent" access to an article for 24 hours, often at prices in the $20-$30 range—again, that is for access to a single article. The strategy here is clearly to make access to single articles a prohibitive cost, encouraging institutions to purchase the journal as a whole. As Gowers and others have argued, these publishing companies often bundle together the journals, forcing the institutions to purchase their offerings as a group, and further limiting the institutions options. By controlling the market, as Gowers pointed out, Elsevier has been able to extract monopoly-level rents from Universities, forcing them to pay whatever price they set or have access to journals cut off. Elsevier's profit margin was 36%, far above anything typical of other publishing industries. Even in the humanities, where the costs are significantly less, the rent extracted is still substantial, reflecting a monopoly position rather than any set of reasonable market forces. Single journal issues frequently cost more than $200, with a day pass to access a single article still costing in the $20-$30 range.

The business practices of these organizations are, as Gowers highlights, abysmal and unjustifiable. As with the Harvard case, Gowers foresaw the high cost this was having on the institution and led a boycott, calling on other professors, regardless of disciplinary affiliation, to refuse to publish or contribute in any way to these organizations. Clearly if we as academics are concerned about the future of academic knowledge dissemination, we need to look carefully at this economic model and realize how unsustainable it is. Ultimately I think that Harvard and Gowers are correct, that the economic profiting and rent-seeking behavior of the academic publishing industry, once examined, yields a persuasive practical reason to make a move to open access publishing. Sustainability and the future of our knowledge practice depend on us finding other vectors for sharing our work. But, even if we set aside the economic concerns here, imagine a world in which this current model is sustainable; I think there is a more pressing reason to make the move to open access, one driven by an ethical concern.

The Ethical Concern

This issue though is not merely related to what we do at the university, whether it be creating lifesaving drugs or cultural critiques for academic journals. These are both just smaller representative pieces of a far more significant cultural shift: the development of “Knowledge Cartels” as the primary means of extracting profits. Indeed, I would argue that controlling knowledge and the protocols of information flow is one of the primary organizing logics of post-industrial capitalist economy, the means by which those of privilege will be able to reproduce and concentrate power.

In Information Feudalism: Who Owns the Knowledge Economy, Peter Drahos and John Braithwaite argue that "the relentless global expansion of intellectual property systems rather than the individual possession of an intellectual property right" possesses a significant danger not only to the free flow of information but more importantly to liberty itself (5). As Drahos and Braithwaite demonstrate, the expansion of intellectual property rights has led to a system whereby a small number of corporate players control a disproportionately large amount of intellectual property. Because the exchange of information and knowledge is "fundamental to the way a democracy works," the expanding intellectual property right regime threatens not only individual liberty but our current democratic balance (4). The authors label these corporate players "knowledge cartels," organizations who profit from control over resources, and who often benefit precisely by restricting access rather than providing it to the largest possible audience.

Far from being anti-copyright, Drahos and Braithwaite argue that although intellectual property is important for society to function, the current system has been co-opted by a small range of players, where state actors have given up sovereignty over laws that ought to look to balance resource distribution, and instead place power within these cartels who form a new type of feudalism, where corporations own all knowledge and we the public act as serfs who merely rent access to it. From technology to agriculture, from music to algorithms, companies are profiting from large intellectual property right portfolios. The cartels restrict access to these portfolios and charge monopoly-level rents to access the knowledge, reaping huge profits. Drahos and Braithwaite persuasively make the case that we need to rethink how easily we cede control over our knowledge to these cartels, and instead develop a more democratic property right system. Not surprisingly, throughout the book the authors demonstrate how it is not just corporations that participate in this cartel system, but universities as well, Zerit serving as just one example of this concern.

If we imagine then that the nineteenth and most of the twentieth centuries were characterized by an industrial economy (the distribution of wealth being determined by who owns the means of production), the digital revolution has hastened in a post-industrial-based economy where the means of production are now secondary to the means of information. To be sure, materiality still matters here: one starves from lack of food, but when Monsanto can patent corn, information is clearly determining materiality. And when scientists can patent the human genome, the material access to chemicals for drug production will no longer be sufficient. Although industrial cartels produced the organizing logic of capital formation in the industrial era, knowledge cartels will provide this logic in the information era.

So on the one hand, the Internet has become the greatest engine ever developed for the widespread sharing of knowledge and information: the scale and pace of information flow is drastically altered by the existence of a large scale digital network. While certainly not zero (hardware costs, bandwidth costs, software costs), information storage and dissemination is now many, many, orders of magnitude cheaper than at any other point in human history. On the other hand though, coterminous with the rise of this networked distribution of knowledge and information, has been the rise of the intellectual property regime. Property rights once granted to material goods are now being transferred to ideas and knowledge as well as to institutions which hold "rights" to these pieces of information. Based on holding these rights they are able, with state backing, to control the dissemination of this knowledge. These organizations thus depend on a business model that extracts rent from trafficking in the ideas rather than production. These traffickers, or Knowledge Cartels, are formed to create artificial scarcity to control the flow of information and knowledge.

We have seen copyright move from seven to fourteen years from the date of creation of the work, to life of the creator plus 70, with some suggesting that copyright ought to last forever minus a year. The patent regime has seen a similar rapid expansion, whereby there is now a race to patent nearly everything from algorithms to DNA in a hope that artificial control over this resource can be leveraged to extract profits. It is the growth of knowledge cartels that have led to the patenting of the human genome, to the rise of patent trolls, to the patent battles frequently in the news between tech companies, or to the bizarre cases where a parent uploads a video of their kid dancing, only to find that the background music is owned by Columbia and they are then served with a takedown notice. The current cartel system is why Microsoft is willing to buy AOL for a billion dollars, the company itself being worthless but the patents they own valuable in either warding off patent litigation or initiating their own. It is why the Shoah Foundation was able to patent a series of "inventions" around handling digital assets and is now suing Hulu and Netflix for violating their patents. But perhaps most famously it is the motivation behind the SOPA/PIPA legislation that would have irreparably harmed the Internet. Knowledge control is the new economic battlefield.

This is a significant cultural shift, one much broader than the university alone, and I am under no delusion that the university alone can reverse this trend. For what is occurring here is an enclosure of the commons; knowledge and culture once held in common, protected by the state, is being passed to corporate actors who are forming powerful cartels to exploit this enclosure. This conflict over who controls the ability to access, disseminate, and contribute to knowledge and culture has become one of the key loci of power, and will prove to be even more so in the coming years. Our future, by certain standards of measure, is becoming less free, and to a large degree we in the humanities have not only ignored this, but become complicit in this transfer.

This is why I see the economic issue as secondary, derivative to, the primary issue of the ethics of knowledge formation. In the information age the degree to which we recognize knowledge rights will in part inform the degree to which we are able to guarantee human rights. The particular case of drug cartels that restrict lifesaving drugs makes this visibly clear. Bottlenecks of information hurt the most marginalized of any society. I am by no means saying we are necessarily headed for a future where every thought is copyrighted, or that access to every piece of knowledge comes at a price, but we do not have to imagine such a dystopian future to recognize that the current knowledge cartel system benefits few at the social cost of the many.

We ought not to be complicit in an immoral and unjust system. The exchange of information is fundamental for knowledge creation and social progress. Society depends on this transfer of knowledge. Indeed, a rather crude way to look at a social space is the degree to which knowledge and information can be frictionlessly shared between parties and recognized as a public good. Even more so, I think we need to follow the work of Drahos and Braithwaite and recognize that sharing is crucial, a founding principle of having a rich democracy. Without knowledge transfer, inequalities quickly form, and political and economic power is rapidly concentrated in the few at the expense of the public. A dynamic public sphere or a just society requires a common free culture on which conversations can be built.

If we believe ourselves to be public caretakers of knowledge and culture, to have important voices that both ought to be considered and built upon, than it behooves us to take steps to guarantee that our contributions remain open to the widest possible audience, not transferred to cartels who would profit from artificially establishing scarcity. That is, we should, as Kathleen Fitzpatrick argrues, start to work toward free knowledge, free both in terms of access and free as in libre, free for others to build upon and use to enrich our culture. Knowledge works when it is shared; indeed, knowledge works only on condition that it is shared. Ultimately I would argue that part of the justification for academic freedom is the sense that knowledge production freed from outside political or market forces is able to significantly contribute to society. If, however, we use that academic freedom to produce knowledge which we turn over to these cartels, we have in part violated the social contract that is implicit in academic freedom.

In the particular case of the humanities the existing institutional structure is even more vexing when we closely examine our relationship to these institutions. In most cases home institutions are paying faculty to perform research (part of the expectation of employment), faculty produce this research, and then give it away for free to academic publishers who turn around and sell it back to the very institutions who initially paid to have it produced. What is worse is academics also supply a range of "services" to these publishers from serving on a board to peer review, all for free. The only service that the publishers provide is prestige attached to a specific title, a value easily transferred to another source. When we give our work away for free, the only question we face is to whom should we give this knowledge away, to knowledge cartels who continue to profit from making this knowledge artificially scarce, or back to the public for the sake of social good?

At this point I can already hear the objection, that not all academic publishers are attached to the likes of Elsevier, that some channels of publishing are attached to non-profits or academic organizations that are seemingly not driven by profit motives or monopoly-level, rent-extracting behavior. But, more careful analysis demonstrates that even these seemingly positive actors are still participating in the same knowledge economy that empowers these cartels. In many cases these organizations sign contracts with these larger publishers, or turn over the digital distribution of their publication to other organizations who then extract rent by restricting access. But on a more fundamental level academic publishers exist not for the sake of distributing knowledge (if that were the case they would make it free), but rather for the purpose of restricting knowledge, producing an artificial scarcity in order to charge for access to said knowledge.

The distressing part of this, however, is that nothing I have said here is particularly new. Indeed, minus the more recent historical references, this entire article could have been written ten years ago. In 2002 a group of scholars wrote the Budapest Open Access Initiative. In this declaration, the authors noted that, “an old tradition and a new technology have converged to make possible an unprecedented public good.” The new technology was the Internet, which drastically decreased the price of knowledge sharing. The old tradition was the willingness of scholars to give away their research without monetary compensation. As the authors recognize, academics are used to a gift economy, giving away research for free and helping to curate and review the research of our colleagues. Yet for some reason in the ensuing ten years, we have chosen to not cross this gift economy with the new technology. Indeed, while restrictions are increasingly placed on the sharing of knowledge, as cartels have expanded their power, a majority of academics continue to act as if nothing has changed, carrying on with business as usual, either explicitly or implicitly supporting the unjust system.

A simple proposal, narrow in scope and direct in argumentation, the Budapest Open Access Initiative is not naïve: it recognizes that scholarship is not free to produce and that costs are associated with research. But again as the authors point out, the overall costs of providing open access to research is actually lower than the traditional systems of distribution (something the Harvard librarians have picked up on). Furthermore the solutions, as they point, out are simple: self-archiving, and open access journals. But even more to the point, the authors recognize that beyond economics this is a social issue, an ethical one. In order to secure the benefits of research for all, not just for a small subset of the global population research ought to be made open. As the authors argue, open access is the way to build “a future in which research and education in every part of the world are that much more free to flourish.” Although there are economic concerns and practical considerations, we need to recognize that this is a social justice issue, an ethical call to which we ought to start adhering

Bibliography

Jha, Alok. “Academic Spring: How an Angry Math Blog Sparked a Scientific Revolution.” The Guardian. 9 April 2012. Print.

“Budapest Open Access Initiative.” Budapest Open Access Initiative. Web. 14 February 2002. 22 September 2012. www.soros.org/openaccess

Drahos, Peter and John Braithwaite. Information Feudalsim: Who Own The Knowledge Economy? New York: The New Press, 2002. Print.

“Faculty Advisory Council Memorandum on Journal Pricing.” Harvard University Library. Web. 17 April 2012. 22 September 2012.
http://isites.harvard.edu/icb/icb.do?keyword=k77982&tabgroupid=icb.tabgroup143448

Fitzpatrick, Kathleen. Planned Obsolescence: Publishing, Technology, and the Future of the Academy. New York: New York UP, 2011. Print.

McGuigan, Gleen and Robert Russell. “The Business of Academic Publishing: A Strategic Analysis of the Academic Journal Publishing Industry and its Impact on the Future of Scholarly Publishing.” Electronic Journal of Academic and Special Librarianship 9.3 (2008): n.pag. Web. 7 October 2012.