In the summer of 2014, as an editor at Hybrid Pedagogy Publishing, I had the good fortune to assist with coordinating a modestly successful crowdfunding campaign for and co-edit Open Music Theory. Open Music Theory is what Kris Shaffer, my co-editor and the project lead, has called a "critical textbook," that is, a pedagogical text that is "multi-authored, physically hackable, and legally alterable." It is, "an open-source, interactive, online 'text'book for college-level music theory courses." The brain-child of Kris and his colleagues Bryn Hughes and Brian Moseley, Open Music Theory received generous financial and technological support from the ed-tech start-up Trinket, and crowdfunding from a community of backers interested in music, critical pedagogy, and open academic resources. Yet, I still think calling it a "crowdfunded research project" has a tendency to obscure the numerous ways in which the project received direct and indirect institutional support in the years before it became the subject of a crowdfunding campaign and acquired its most recent, and truly beautiful, usable form on GitHub. So, when I was contacted about the possibility of contributing to the MediaCommons Field Survey on crowdfunding and academic research, I thought at first I might write a piece addressing what the authors of the CFP might call "ethical vulnerabilities" of crowdfunding academic research, or "neoliberalism in academic culture." I ultimately decided, though, to provide some practical discussion about the intellectual property issues raised by crowdfunded research projects. While critical discussion about the propriety and potential consequences of translating the crowdfunding model to academia needs to continue, crowdfunding of academic research projects is already happening--will we or nil we, and researchers and collaborators in such projects need to be thinking about how crowdfunding complicates traditional notions of who owns or controls the various work products of the academic research process and why. Here as elsewhere, I use the term "intellectual property" very broadly, to describe the bundle of rights accruing to the authors of academic work by virtue of ethical, disciplinary, institutional, and legal structures that have evolved to regulate everything from when someone should be named as a co-author or cited as a source of information, to who owns the patents and copyrights associated with academic research output.
Most full-time (and many part-time) faculty and staff at colleges and universities are asked to sign an intellectual property agreement as part of their employment. These agreements supplement, and sometimes override or even create potential conflict with legal defaults that arise pursuant to copyright, patent, and trademark law. In addition, institutional review board rules governing principle investigators and the use of research data influence relationships among collaborators, and protect the rights of study participants. Disciplinary conventions regarding citation and attribution, and who exercises control over research sites and data may give rise to ethical and in some cases even legal obligations to give credit, request permission, submit to pre-publication review, etc., when making use of the fruits of academic research. This ethical-regulatory maze can be tricky to navigate even when research occurs within the accepted and established boundaries of institutional practice. For those working on crowdfunded research at the fringes of established practice and beyond, even a maze would be preferable to the uncharted quagmire in which they might find themselves. Offering a comprehensive guide to negotiating the intellectual property quagmire is well beyond the scope of a single blog post. Nevertheless, I do have a few ideas to offer about where one might begin. Academic researchers engaged in crowdfunded projects can mobilize and join forces with faculty and students on their campuses to push for a comprehensive review, and if necessary, an overhaul of their institution's intellectual property policy, including the intellectual property agreements that govern their rights vis a vis the institution. Unclear or draconian intellectual property policy and unwieldy bureaucracies can give rise to a "better to beg forgiveness than ask for permission" culture in which the most vulnerable participants in large-scale, non-traditional research projects--undergraduate and graduate students, research subjects, contingent faculty, and soft-money contractors--are least protected. Campus legal advisors need to abandon their "we have a form for that" mentality and treat individual cases with nuance and a complete understanding of the legal, ethical, and disciplinary context in which they arise. Institutional administrators and legal counsel should be attentive to how the relationship between colleges and universities and their students and employees is and should remain different from the relationship that exists between for-profit corporations and their customers and employees. The Media Commons "Collaborators' Bill of Rights" and the "Student Collaborators' Bill of Rights" drafted by Miriam Posner, and her students and colleagues are both excellent examples of what this sort of proactive discussion--among stakeholders at all levels--about intellectual property and academic research can accomplish.
Question of clarification
Since all of my publications have either come in the form of blogs or under traditional publishers, a mixed institutional arena of support feels not only new but scary to me. When I sign a contract with a publisher I have an agreement about issues of republication, liability and remuneration. In this mixed mode where investment and ownership are dispersed, who claims responsibility if something goes wrong and there is a legal question? I ask this because this is what rights owners use contracts for and if I am being funded through a university, a crowd and with my own labors, how are legal responsibilities negotiated in the first place. I know this is the reverse of the question, however it may help get a handle on your point above, which is interesting in and of itself.
The hope of opportunities within rigid institutions.
Robin, thanks for your post. I think that the questions you raise are important because they bring to the forefront the more complex, and in certain ways problematic, institutional practices and structures against which the crowdfunding process comes into contact. Not only do questions arise which seek to more clearly understand the nature of involvement from donors within the academic culture (i.e. What do researches owe donors? What degree of involvement should donors have? Is research vulnerable to the influence of who is funding the research?), assuming the project is successfully funded, how then do the institutional frameworks legitimate the research according to those rigid and often outdated restrictive guidelines? A professor of mine has recently discussed how even now, as digital culture becomes a researched artifact and a space in which research is conducted, institutional guidelines cause restrictions or obstacles which reflect a fundamental misunderstanding with digital culture. As such, the restrictions become arbitrary, but remain in place which leads to what you mention, “Unclear or draconian intellectual property policy and unwieldy bureaucracies can give rise to a "better to beg forgiveness than ask for permission.”
Unfortunately, the crowdfunding model is dependent upon a public which, in most cases, exists outside of academic settings. How does the goal of establishing a new set of guidelines which more accurately reflects the contemporary landscape, of which crowdfunding is quickly becoming a part, deal with the wild card represented by the public, specifically related to how the public functions within the crowdfunding model, i.e. the funders of the project? Does funding represent ownership similar to the role of a say “executive producer?” Should academic crowdfunded research include a disclaimer which sets out terms of involvement? Should these projects be submitted to an institutional review board before being launched?
This seems to be familiar problem for the digital humanities, one informed by intersections of ownership, access, ideology, ethics, and institutional recognition and procedure.
Clarification and Creating Flexibility
Thank you both for your thoughtful responses. I don't know that I have any answers, but I am interested in exploring the questions both of you raise. As Tim points out, one of the reasons we've developed intellectual property agreements, and IRBs, and publication contracts is to identify and clarify the rights, responsibilities, and potential liabilities of researchers, faculty, institutions, and research subjects, for example. For the most part, because these contracts and agreements have been negotiated in a context--especially in the humanities--where things like cross-institutional collaboration, crowdfunding, and commercialization of research work product weren't present or accounted for, the contracts and agreements are completely silent about and maybe even actively discourage them.
Taking a fresh look at, and if necessary renegotiating these instruments would hopefully result in agreements that are clearer about whether they are even intended to cover situations involving crowdfunded research, and if so, how rights and responsibilities are to be distributed among institutions, faculty, and researchers, even if they don't necessarily provide much guidance with regard to public participants from outside the institutional setting. Institutions and professional organizations also might consider how to identify best practices in crowdfunded research. Getting to one of David's questions here, best practices might address questions of when IRB approval should be required--e.g., for publication in professional journals, or when the project is going to be used as part of a P&T file, or maybe in every case in which human subjects will be involved, are just some possibilities. Best practices guidelines might also discuss how project contributors will be credited, what access to and rights in the research output they should have, what information must be disclosed to potential backers, and how much control--if any--those backers have over the project once it's funded.
Institutions need to begin a conversation that begins with the question of whether it's a good or bad idea to allow institutional resources to be used in crowdfunded academic research. For those institutions that decide the answer to this first question is "yes," then the conversation should turn the question of what can be done to ensure that crowdfunded academic research is conducted in a fair and ethical manner. Part of answering this second question involves creating an environment on campus in which people understand the rights, responsibilities, and potential liabilities involved in crowdfunded academic research as well as recommended best practices for apportioning the legal and ethical risks and benefits of the project.
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