Re-engineering Scientific Credit in the Era of the Globalized information Economy
First Monday

Re-engineering Scientific Credit in the Era of the Globalized information Economy by Philip Mirowski

Interest has arisen recently in assessing the impact of recent alterations in intellectual property law upon the structure and conduct of scientific research. This paper starts from the perspective of the literature of science studies, and suggests that earlier simplistic appeals to economic analysis and the sanctity of authorial intentions are badly flawed in both theoretical and empirical dimensions. We propose an alternative based upon a taxonomy of the types of authors envisioned in various regimes of intellectual property. From this perspective, two recent and semi-independent trends - namely, profound revision of copyright and patent in the direction away from earlier constructions of the author and towards greater downstream control, and the push to re-engineer universities towards greater commercial orientation - are leading to a fundamental contradiction in the available role models for contemporary scientists. Bluntly, the more science is commercialized under the new regime, the more previous research practices and protocols are threatened. The paper closes with three classes of examples to illustrate this claim: legal moves to suppress criticism and debate; restrictions on database access; and, the transformation of scientific journals into infomercial outlets.


Authorship and the Nature of the Scientific Agent
Re-engineering Intellectual Property
Losing Credit in Science



Why is it that so many serious and sober thinkers seem to experience such trouble coming to grips with the social processes of science and their shifting relationship to the economic structures dedicated to their maintenance and encouragement? Esther-Mirjam Sent and I have just finished editing an historical survey of the various approaches to analysis of what one might call "the economics of science" (Mirowski and Sent, 2001). The major lesson drawn from the exercise, at least for me, is that the range of social theories that science policy analysts have deployed in the past have served mainly to divert their attention from the pressing problems and great transformations within contemporary science. If I had to summarize the experience of the last century, it seems to have consisted one of two root options: one says that science operates just like a market, so don't worry and be happy; while the other insists that science is the very antithesis of the market, and must be approached with the reverence appropriate to a mystery, altogether denying the grubby details of funding. What is even stranger about this situation is the way in which those who think of themselves as strenuously resisting the metaphor of a "marketplace of ideas", from Michael Polanyi to Paul David to John Ziman to the Paris "actor-network" school (all reprinted in Mirowski and Sent, 2001) tend to collapse their analyses back into the language and modalities of market analysis to a greater or lesser extent [1], thus rendering their crusades to protect science from the idols of the marketplace more than a little suspect.

There are perhaps two bad habits that this literature tends to slip into, which serve to prevent any really incisive research into the complex relationship of scientific research to economic structures and institutions. The first proposes some broad-brush characterization of capital-S Science as though it held sway as an invariant throughout three centuries or more of research. Nothing is more inimical to the examination of the social structures and quotidian procedures of science than the proclivity to treat it as a Platonic Ideal, something which the field of science studies warned about in the philosophy of science and Mertonian-style sociology of science. Even worse is the widespread impression that Science produces as an output a generic "thing" which perdures through time, be it called "knowledge" or "information" or epistemic virtue. The second pitfall is to conflate the operation of markets with the models of neoclassical economic theory. Some of the most important social aspects of markets, such as the treatment of property rights and the attribution of valuations, are accorded such garbled accounts in neoclassical theory, that much of the economics of science degenerates into arguments about the technical minutiae of the models rather than the phenomena of interest [2]. In the past, the social structures of science have indeed depended in critical ways upon the operations of markets, but this dependence has changed its character through time. The recent intersection of information technologies, intellectual property definitions and the restructuring of university finances is merely the latest in a sequence of science/market interactions. Tiresome arguments about an ineffable "spontaneous order" and the imperviousness of truth to pecuniary corruption, and descriptions of equally inaccessible utilitarian welfare measures just provide diversions from the real issue, which is understanding how the social structures of scientific disciplines and the social structures of markets interact.

In this paper, we shall ask: What has happened recently to some well-worn pathways to success in contemporary science? Since we can take the index of success in the market economy - namely, getting rich - as given and unproblematic, the inquiry will mostly explore the issue of what it now means for a scientist to assume the mantle of an author at the turn of the millennium, and ask how does he or she exercise control of authorship in such a way as to garner social recognition and support which then can be parlayed into some modest economic success? This will involve examination of the perennially uneasy status of the author in the process of the dissemination of scientific findings, as well as equally imprecise notions of the "ownership" of scientific discoveries and their relationship to forms of intellectual property. Scientific credit has always existed embedded in an environment of property rights; the way forward comes in exploring how authorship has been made, not born. In this manner, perhaps we can begin to make some headway towards the vexed issue of the relationship of science to the market. Furthermore, by posing the question in this way, we may actually begin to analyze recent changes in the social structure of science which may be the result of changes in the structure of the economy, revealing the ways in which they are mutually constituted.



Authorship and the Nature of the Scientific Agent

The trick to becoming an author might seem to be one of the most straightforward things in the world: write something down, submit it to some reputable outlet, get it accepted, and make sure your name gets published with it. Be it poetry or science, the simple equation of the person with the product would seem to constitute authorship. But appearances are deceiving, and the situation in science is fraught with complexities, as has been shown in some recent work by Mario Biagioli (1999; 2000), and in the work of the legal scholar James Boyle in his Software, Shamans and Spleens (1996). It will be our contention that they have identified what might be considered one of the most salient alterations of the social structure of science in recent experience, namely, that having to do with how scientific achievement is subject to identification, accounting , and validations.

One of the most persistent obstacles to a useful economics of science has been the conviction, widely shared, that there is something, frequently called "credit" or "proven creativity" or (more crudely) "fame", which acts more or less analogously to money in the social system of science, which serves to channel and rationalize the allocation of resources for scientific research. This entity is thought to stand as both prospective incentive and posterior index of proven value, although in the case of science it has been common practice to bemoan the fact it is also distressingly intangible, sometimes shamefully languishing unrecognized, and often supposedly lodged within the murky cognitive recesses of what would be deemed in some ideal world as the "relevant" scientific community. It is supposedly durable and inalienable once "earned", and therefore does not derive its valuation from the market, although it may be leveraged into various forms of explicit economic support. This, of course, is an old idea in some sense, but one which was elevated to a more central position in science policy in the arguments of the 1930s/40s over the social organization of science, and represented by the famous paper of Michael Polanyi, "The Republic of Science". It underpins the post-Kuhnian accounts of philosophers of science such as David Hull (1988) and Philip Kitcher [3]. For a while, it constituted the lynchpin of the Mertonian school of the sociology of science. It also can be found serving as an adjunct principle in many of the theoretical texts reprinted in (Mirowski and Sent, 2001), and resonates handily with the "cognitive turn" taken by much of modern microeconomics, especially recourse to notions of "reputation" and credibility in game theory.

It seems that numerous structural changes in the organization of science at the turn of the millennium have prompted at least a few observers to reconsider the coherence of this commonplace notion (Cohen, 1995; Koertge, 1990; Biagioli, 1999; 2000). After all, whatever can "credit" mean when there are more than two hundred names (in alphabetical order) on a four-page article in Physical Review Letters [4]. But the problem is not solely or simply the pervasive growth of multi-authorship in all the sciences, nor merely some technological artifact of the inexorable rise of Big Science projects. Likewise, the problem extends well beyond what has been called the "Matthew effect" in the sociology of science, or the fundamental unfairness which cascades out of the fact that some people are just more gifted at the process of academic self-promotion, and frequently others mistake fame for responsibility. Where do ideas come from, in the final analysis? Who actually manages to capture the "credit" for a published result emanating from a hierarchically-organized laboratory with literally hundreds of workers in subordinate and vulnerable roles early in their careers, and who really deserves it? What good is the "credit" of a few close insiders when some third party goes out and patents the genetic sequence - or, closer to home for economists, your nifty computer trading algorithm embodying your latest rational expectations model of derivatives pricing - which you believe you were first to decipher and codify? What happens to "credit" when corporate sponsors force university scientists to sign non-disclosure agreements or prior restraint clauses as a condition of funding? Is "credit" something that falls neatly within the realm of "ethics", or does it occupy some hazy third category beyond both the market and canons of virtue? As usual in America, quasi-judicial bodies have begun to issue dictates on "credit" to fill the void: for instance, the Office of Research Integrity of the U.S. Department of Health and Human Services has ruled that disputes over credit among collaborators on a joint project should not be treated as matters of "scientific misconduct". Things have clearly gone well beyond ceremonial appeals to "trust" the judicious prudence of the discipline's graybeards to dilute the bitter iniquities of human ambition with the milk of human kindness. Biagioli (1999) nicely captures the impasse with his account of the debate over the very nature of authorship amongst the International Committee of Medical Journal Editors.

The central problem, as it appears to both Boyle and Biagioli, is that there have been at least three conflicting conceptions of scientific authorship at large in the culture, and these have of late a tendency to get conflated in the legal and economic spheres, and this in turn has had grave consequences for science policy, especially in the context of what we have called in (Mirowski and Sent, 2001) the 'globalized privatization regime'. By the latter, we mean various initiatives to both privatize and reorganize university-based science over the last two decades, mostly in America, but often in transnational contexts which mirror the reach of transnational corporations. The question in this context therefore becomes: What is the relationship of intellectual property defined in the sphere of the market to authorship realized in the sphere of scientific publication, and therefore to the phenomenon of scientific 'credit', especially in the context of science funding and policy? Let us canvass these various alternative personas of the author, in preparation for diagnosing the predicament of credit in an economics of science which is not located in the Land of Cockaigne.

Three Characters in Search of the Author

1. The Romantic Genius

One commonplace version of authorship revolves around an idea of personal originality, which Boyle suggests dates back to the persona of the Romantic author [5]. Here the Author is not defined by mastery of a prior set of rules, but instead by the Promethean transformation of genre and the skillful (and sometimes shocking) transgression of much that is taken for granted in the culture. Lest the reader reject the relevance of this Romantic persona for the modern scientist out of hand, let her pause to contemplate the standard treatment of such physicists as Richard Feynman or Stephen Hawking, or biologists such as Kary Mullis or Barbara McClintock [6]. The Romantic scientist is the staple of cultural images from Ibsen's Enemy of the People to the latest installments of the PBS program Nova. What is less than clear about the Romantic author qua scientist is whether the ultimate objective of their personal quest is a consensual truth or perspective-free (and seemingly anti-Romantic) social consensus. Ever since Thomas Kuhn, a distinction is frequently made between mundane science which solves puzzles and never perturbs the prior beliefs or expectations of other scientists, and something else purportedly more 'revolutionary' which aims to revise our fundamental understanding of an entire research program. Unless the innovation is immediately and universally embraced, 'revolutionary' science will, of necessity, summon advocates and fuglemen resembling the Romantic author to champion its cause, at least in the period in which it is resisted by the more conservative majority.

There exists an established legal framework for the validation of one species of 'credit' in the image of the Romantic author: it is called 'copyright'. Copyright was initially intended to promote originality in expression; it is centered upon the protection of form; it is not an attempt to make any sort of pronouncement about the content or legitimacy of claims being made in the text in question. As Boyle [7] explains, the form/content distinction was one approach to attempt reconciliation of the contradiction that the author could maintain some rights in his work, even though the very act of communication necessarily implied offering up use of the ideas to others. It may seem perverse to try to engross and control the collective wisdom of the human race, but ever since Locke, it has struck many as eminently sensible that we should be able to own ourselves. But even here there is room for slippage: Copyright need not be claimed by the actual person who penned the text, and it is usually only granted for a fixed interval of time. The reason for this curious set of prohibitions, dating from 1709 in Britain and 1790 in the U.S., and regularized in 1887 in the international sphere by the Berne Convention [8], is a program to assist in the protection of a 'personality' whose identity is intimately related to his or her originality; this frequently derives from a Kantian tradition which treats the individual self as self-constructed. Until recently, there has been but one generic form of violation of copyright, and it is called 'plagiarism'. It involves harmful impersonation of another legally validated author.

The initial construction of copyright centered on the act of making a copy because it aimed to separate out control over the uses of a text might be put from the simpler question of the initial sale of reproductions of the unique ineffable originality of the author's text for a delimited time. Justifications for copyright do differ across national contexts, but in the United States Constitution article 1 section 8, the objective of the protection is explicitly stated to be "to promote the Progress of Science and the useful Arts." This distinction has been eroded of late, especially with regard to first sale and fair use, as we shall discover below (Halbert, 1999; Cohen, 1998; Mann, 1998; Litman, 2001).

2. The Applied Tinkerer

A second form of authorship seeks a different sort of reconciliation of the maintenance of continuity of tradition and the encouragement of innovation. This incarnation of the author, whom here is best regarded as the 'tinkerer', starts out with some entity or process which already exists, and describes a way to make it better, or else more useful for a purpose previously overlooked. The key distinction here is that the tinkerer does not conjure up knowledge as an original expression of their personality; rather, they find something that presumably is external to their personal perceptual being, publicly accessible to all, and exercise their talents in making improvements. Since there is an element of artifice involved, it is important to note that what is authored is a novel use, and not simply the 'discovery' of some pre-existent natural phenomenon. The logic of 'credit' enters here with the erection of a framework within which the tinkerer can recoup a portion of the benefits of the implementation of the improvement when put to use by others. Although the nature of the improvement may have been formally stated as an idea or text, the onus of authorship is here attached to an implementation of a device or process, one of a long sequence of recognized devices or processes.

There has existed a legal format for the validation of this species of 'credit' as well, and it is called a patent. Legal precedent here is a bit tricky, but one dominant interpretation of patent law until recently is that patents should be restricted to applications and should not be granted for ideas. Again, a subtle distinction is promulgated between the thing or process in itself, which is in some sense rendered accessible to all merely by virtue of its very existence, and the concept of the use of the thing or process, for which 'credit' can be claimed and protected. Patents have a long history, but in the modern context were initiated as a means of encouraging marketed implementations of novel inventions. However, throughout their chequered career it seems they could easily be turned to other sorts of unintended objectives, such as an instrument for controlling existing patterns of industry concentration and market structure. The legal reality of the patent, however, has undergone some radical revisions over the last few decades [9], a point to which we shall return below; and this also will have implications for the notion of the scientific author. Nevertheless, the generic form of violation of patent is patent infringement, and involves the unauthorized use of a process or thing.

This second image of the scientific author as tinkerer undergirds that most trenchant dichotomy of the Cold War regime of science policy, namely, 'basic science' versus 'applied science'. It posited a strong separation of roles between the generation of an idea and an application of an idea, or alternatively, the uncovering of a fact and the usage of a fact, and fostered the impression that there were two different sorts of 'credit' at work. It was grounded in a very particular framework of science organization, which was characterized by relatively weak intellectual property protection for the pure scientist in the university combined with structural impediments to patenting imposed at the military and university levels. In the older Cold War model, pure science supposedly terminated with publication in the open journal literature. However, the separation was never as clean, either conceptually or in the actual practice of science, as then widely portrayed. In Big Science, instrumentation and technological virtuosity could never be completely quarantined from theory and empirical test (Galison, 1997); and the fact that science would involve the discovery of some previously existent phenomenon, not itself an expression of the personality or originality of the discoverer, itself predicated upon a preceding sequence of constructed or orchestrated phenomena handed down from other scientists, rendered everything but the most abstract paper-and-pencil exercises sporting at least some resemblance to the activities of the tinkerer [10].

In the 20th century, tensions between 'finding' and 'making' truth tended to get submerged into the division of social roles into either 'pure scientist' or engineer. In short, the scientist under the older mid-20th century model was exhorted to abjure the patent format of authorship, in proportion to the extent she wished to preserve her integrity as a personal font of intellectual novelty.

3. The Employee

And then there is a third species of author; or rather, there is a residual category of role model which was supposed to take into account everyone excluded from the first two categories. These are the people who uncover rationally anticipated natural laws and regularities by following uncontroversial routinized procedures and build incrementally upon widely-accepted doctrines. These are people who often work in large structured teams, who meet the expectations of their superiors on a dependable basis, and follow career paths up bureaucratic structures. It may seem incongruous to refer to these people as 'authors', since they neither express their individuality nor necessarily improve fungible processes; but they nonetheless account for the bulk of all published science. They perform assays, obey laboratory protocols, monitor error attributions, conduct literature searches, negotiate with other researchers over access to materials, draft papers, submit grant applications, revise where instructed, and cooperate to get their team's work published. These are Kuhn's despised 'normal scientists', the postdocs and lab technicians and grad students and bottle washers of the world.

The problem with this third format of authorship is that it does not conform very well to any prior image of the author prevalent in Western culture. The cumulative effect of the roles allotted to such persons is largely to efface their individuality and submerge their contribution within some larger communal whole. Their job is to discover transpersonal truths that should be accessible to any adequately prepared sufficiently alert soul of sound normal intelligence. Their charge is most emphatically not to infuse their findings with local color or personality. The phenomenon of interest should 'speak for itself'. Even if personal experience tells them otherwise, nothing of the specificity of their procedures and discoveries should appear in their public reports. They must subordinate their plans and aspirations to the will of their group; and texts must be written in such a way as to render the personnel of the group as transparent, approaching irrelevance. In the marketplace, there is a stable legal role model for this sort of person: they are called employees. But employees, by legal definition, have no legal claim on the fruits of their own labor.

Is there a sort of scientific 'credit' which accrues to this uneasy form of authorship? There's the rub: yes and no. Yes, there is the appearance of an individual's name on published documents and formal presentations to scientific audiences; there is the derived phenomenon of the curriculum vitae; there are citations to the cognomen and memberships on professional and honorific boards; there is inclusion in various invisible colleges and closed communities; and all the rest. These journals, these boards, these committees are nominally charged with the allocation and validation of this species of credit. If it is permitted, they may be included in one of the multi-author title pages mentioned above, although patterns of authorship designation vary dramatically between individual sciences (Kling and McKim, 2000). But, simultaneously, no: there exists no legally sanctioned index for what can only stand as an unprepossessing motley of claims which can be only imperfectly affixed to a person's name, a festoon of widely varying legitimacy, validity and commensurability; the components of the vita all tenuously linked to a context where the person's identity was itself nominally submerged and effaced [11]. It should become apparent that 'authorship' under such circumstances has always been a highly negotiated phenomenon; hence, naïve notions of responsibility must themselves have consequently come under revision and reconsideration. For instance, scientific journals and the committees do not want to be forced to adjudicate credit, much less responsibility for a written text (Davidoff, 2001); and in most cases, they don't. We are talking about a world in which someone can be treated as a species of secular saint because, "He made it clear he only wanted his name on manuscripts where he actually contributed" [12]. A freestanding matrix of this elusive kind of 'credit' could rarely bear the weight of all the social functions it is often asserted to perform; most pertinently, and in contrast to the previous two author formats, it cannot and has not been buttressed with any strong functional relationship with economic indices of valuation. It's sole legal prop is the employment contract.

Curiously enough, the abiding tensions between 'making' and 'finding' truth in conventional notions of science which beset the previous two authorship formats of copyright and patents are altogether absent here. There is no exercise of personal genius and there is no unfocused tinkering in this social role; there is simply only the following of orders and the implementation of routines. This is the ultimate meaning of Biagioli's assertion that, "according to definitions of intellectual property, a scientist qua scientist is, literally, a nonauthor" [13].

Morte d'Author: An Inquest

So which version of 'the author' is best adapted for understanding the predicament of the modern scientist? Which species of credit rings true in the 21st century? Historically, divergent versions of the author have been favored relative to the available alternatives under various different schemes of the organization of science; even now, in any given discipline, there will be found individual human beings who would acknowledge themselves more comfortably slotted under one or other of the above three rubrics. The phenomenology of multiple author-personas not only acknowledges a real division of labor in the laboratory: There exist good reasons for alternative templates of authorship to co-exist in the history of science, since they reflect a persistent tension in Western thought between images of 'authorship' and 'discovery'. What cannot be settled in principle will temporarily be settled in fact by various policy choices being made about the nature and status of intellectual property.

We here follow Biagioli and Boyle in approaching the problem of the historical organization of science as the makeshift construction of some roles for an author suitable for subordination to systemic allocation and funding of science. As Biagioli (1999) writes:

"Since the emergence of the experimental philosophy in the 17th century, the notion of the individual author was often constituted through the erasure of the instrument makers and laboratory technicians who, because of their low social status and credibility, were not perceived as true knowledge makers ... Historically, then, the author has always been more of an efficient accounting device for intellectual property or scientific credit than an accurate descriptive tool of knowledge making practices" [14].

One of the more salient lessons of modern science studies is that the history of science organization is simultaneously a history of makeshift accommodations to the problem of accounting for knowledge making, and concomitantly, a sequence of role models held up for the scientific author. They include: monastic cloisters, birth into an aristocracy, court courtier, early modern letters patent, military corps of engineers, national Academies and Societies with their formal prize competitions; somewhat later, innovations encompassed patent systems, copyright conventions, the German system of state-sponsored research universities, and modern corporate research laboratories. We cannot embark upon an account of the economic history of science in this venue [15] but only seek to insist that scientific authorship and scientific credit have been continually revised and refashioned in parallel with the evolution of economic history itself. The economy is not merely an external agency which funds (or not) a free-standing immortal but independently constituted science; they mutually inform and reform one another.

Our immediate concern here is to characterize the modern situation with regard to the scientific author and the problem of attribution of credit. During the Cold War regime, stretching from the 1950s-80s, as an economic proposition it was taken for granted that the paradigm natural scientist was an author of type 3, [16] although she might intermittently acquire copyright, and less frequently, patents, in ancillary functions subordinate to their primary activities as scientists and university faculty. In the process of socialization, tyros were socialized to believe that their identities as scientists in good standing dictated that they publicly renounce Romantic originality and commercial applications, at least in principle, if not in practice. Scientists were first and foremost supported and socialized as employees of their universities. However, it should be acknowledged that vague and intangible notions of credit type 3 were themselves only loosely coupled to the actual structures of economic support of the research activities of many of these scientists, which were more securely grounded through their university affiliation in the actual military/university system of funding of research, and state funding of post-secondary training; credit types 1 and 2 were essentially deemed irrelevant within the boundaries of this system. The celebration of the odd scientific media star or facile troubleshooting technocrat merely served to divert attention from the standard mode of economic provisioning of the system. Biagioli summarizes this situation as one where the economies of scientific credit and those of the marketplace were being constituted in direct opposition to one another [17]; but we might amend this to read instead: the economies of science funding in America and scientific credit type 3 were decoupled largely by construction, due to the exigencies of the Cold War subordination of science to national-cum-military imperatives (Mirowski, 1999; 2001).

Yet, however one defines it, we do agree with Biagioli that scientific credit type 3 could never be practically quantified (pace 'scientometrics') or subjected to algorithmic manipulation in this era; therefore there were no formal/legal institutions available to allocate and adjudicate and validate it, in direct contrast with types 1 and 2; and consequently, this species of 'credit' could never perform any of the analytical functions which were presumed in the economics of science models of, for example, Philip Kitcher and David Hull and Paul David. There never on earth existed an actual tacit global system of overlapping cognitive valuations as expostulated by a Michael Polanyi. These evocations of virtual scientific credit systems were never more than a metaphor inspired by market experience - but we would never equate that with it being unimportant. This implies that the curriculum vitae never actually functioned as a non-market index of valuation in any decision-theoretic sense, precisely because there were no set of social institutions to operationalize its attribution and allocation and adjudication, in direct contrast to credit types 1 and 2. Someone (the military, the government, the foundation, the university) was indeed footing the bill for the scientist, but there abided no dedicated social structures beyond the employee relationship itself to validate a system of credit attribution of credit type 3.

Bemoaned or not, the Cold War system has largely disappeared in the interim, and at the century's end, we embark upon a new regime of science organization. (This sequence of events is recounted in Mirowski and Sent, 2001). One far-reaching consequence of these political and economic changes is that, not just credit type 3, but all the various credit options with their attendant author types have been undergoing profound revision, due to a concerted contemporary re-engineering of all extant forms of intellectual property. Scientific authorship is not what it used to be, leaving many with severe identity crises. Scientists by and large did not propose or initiate this bit of social engineering, but they are certainly both enjoying and suffering its consequences. "Facts", once simply one component of the heritage of a particular scholarly community, now find themselves subject to ownership; and that ownership is currently up for grabs. Much of this is happening without any express concern with its impact upon the structures of scientific research; in this, as in so many other instances, far from existing in glorious isolation, the very structure of science is imbricated with that of the society of which it is a part.



Re-engineering Intellectual Property

Much of the fascination with the post-Cold War information society treats the contemporary "enclosure of the cybercommons" as though it were the pure product of technological determinism: first, the computer, then perhaps the magnetic core memory, then the Internet, and finally, the World Wide Web. This in turn has been said to have bequeathed us e-mail, then Napster, and now, an economy putatively based on 'information' rather than bricks and mortar. Of course, such linear moral tales are ripe for the debunking, and avatars of science studies such as Donald MacKenzie and Trevor Pinch have often assumed the lead in undermining simple parables of the inexorable march of technology. However, in this particular instance, it becomes very important to understand how a set of seemingly unrelated trends often attributed to technological determinism have come together in the last two decades to bring about the debilitation, if not actually the death, of the scientific author. Much of these trends have been blamed on "the computer" as an unmoved mover, but in fact can be traced to more humdrum sorts of actors and their machinations.

There exists a large literature which argues that roughly from 1980 onwards, the very notion of the author has been deformed beyond recognition due to profound amendments of the legal and social structures of copyright and patents (Boyle, 1996, Lessig, 1999; Wulff, 2001). Of course, this development has been pursued to different degrees in different national contexts, but the effect of globalization has been to spread the transformation with unprecedented haste across national borders. A second trend, accorded somewhat greater attention in science studies, has been the re-engineering of the modern university in the post-Cold War era [18]. Both trends are equally bound up with a redoubled fascination with the role of "intellectual property" in the polity and the economy more generally. When these two trends are augmented with the more recent impact of the Internet, it seems that scientific credit, never very sturdily grounded in social and economic structures (as suggested above), is now in danger of becoming unmoored and unraveled altogether. Or to put it differently, when the economy of information undergoes profound deformations due to major realignments of the interests of powerful players, then the organization of scientific research gets caught in the backwash.

The Enclosure of the Cybercommons

The story begins with the separation of computer software from hardware as a commercial proposition. Many historians date this split from the late 1960s (Mahoney, 1988; Campbell-Kelley, 1995). The problem which was immediately encountered was that software had been treated as a minor accessory to the machine, open to amendment and often freely traded between users. If there were to be a commercial software industry, as opposed to simply congeries of itinerant consultant programmers, there had to be some legal way of asserting various forms of property rights over software code [19]. In the U.S., where much of this industry had its origins, the problem was exacerbated by some court rulings in the early 1970s which seemed to suggest that computer programs did not qualify for patents [20]. With some pressure from the fledgling software industry, this prohibition was reversed by legislation in 1980; but nevertheless, patents were still regarded as particularly unsuited for software protection by lawyers and industry insiders. Patent applications were too slow relative to the rate of innovation in software design; the U.S. Patent Office was unprepared and unwilling to subject computer code to detailed scrutiny; patents had a much shorter effective life (20 years, in general) than was anticipated for legacy software, and patents were proving an unwieldy weapon to control copies of software and downstream use of code. The result was that from roughly 1980 onwards there was a concerted push to bend the institution of copyright to conform to the needs and wishes of the software industry. As one commentator put it: "the court has tortured the copyright law into an unrecognizable sui generis form of protection for software" [21].

The amendments to copyright were subtle and seemingly limited in the 1980s, but gathered momentum in the 1990s, particularly with the 'National Information Infrastructure Report' of 1995 and the Digital Millennium Copyright Act of 1998. The first push was to chip away at the very notion of a 'public domain' as the final terminus of copyright, with the 1976 extension of copyright to life+50 years for authors and 75 years for corporations, and the Sonny Bono Term Extension Act of 1998, revising the term to 95 years for corporations and life+70 years for authors. Unwilling to stop there, some firms like Bill Gates' Corbis Corporation maintains that when an image or document is digitized, a new copyright is created, no matter if the document was previously in the public domain or not. The purpose of these extensions could not be construed as providing encouragement for living authors, but were transparently attempts by corporate owners of copyright to deny the importance of the 'public domain' as a space where text was not subject to commodification.

There were other more important ways in which copyright, once applied to software, underwent further amendment and deformation. Because software providers wanted to prevent not only reuse of copies once the software was sold, but also reverse-engineering of source code to produce small differences in very similar software, both court cases and legislation began to attack the doctrines of 'fair use' - that is, the ability to copy passages for government-sanctioned personal use - and the doctrine of 'first sale' - namely, the principle that the copyright holder had no control over what the buyer did with the text once it was purchased. All sorts of scholastic arguments were mooted over what a "copy" really consisted of, to the point of suggesting that the mere fact of holding a document in the cached memory of a computer was sufficient to violate copyright. The software industry, in alliance with its new partners in telecommunications and the 'content providers', pushed aggressively to extend control of software and digital content long after sale, and to eliminate any possible 'fair use' of the information once purchased. Anything which could be construed as 'loaning' intellectual property was progressively criminalized; a turn of events which began to undermine the very ideal of a "library". The U.S. Copyright Office was cajoled to make unprecedented accommodation to the wishes of the software producers, for instance allowing the blocking out of 'trade secrets' in the source code submitted for copyright protection. This provided a telling instance of how the previous bias of copyright as protection of expression rather than of the ideas themselves began to suffer under these various amendments. Indeed, in a serious of famous cases where software producers were allowed to copyright the "look and feel" of an interface and not just the underlying source code, the very idea of a legal text grew more insubstantial, and copyright began to resemble more and more sheer corporate protection of trade practices. The Uniform Computer Information Transactions Act (or UCITA) was crafted to render digital information a commodity resembling others, by legitimating clickwrap licenses without requiring consumers to know all the license terms before agreeing to them [22]. The Digital Millennium Copyright Act, if anything, has only exacerbated the perversion of copyright. Provisions therein which were intended to restrict access to decryption and reverse engineering of code have been turned by corporations such as Microsoft and the Secure Digital Music Initiative into tools for censoring publications of which they disapprove (Cohen, 2000; Samuelson, 2001). The cumulative effect of these attempts to 'strengthen' protection of intellectual property was to undermine the original distinction between form and content; and, significantly, the Romantic role of the author as the original underlying rationale for the existence of copyright in the first place. And it was this new model copyright protection, which under the mantle of standardization and regularization of trade relations, which has begun to be foisted upon other countries through the World Intellectual Property Organization, TRIPS [23] (the Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization) and other transnational organizations.

While the Romantic author was being effectively garroted by the tendrils of extension of copyright, the software industry and its allies in biotechnology also sought to expand the scope and ambit of the patent system, with such success that some now claim the patent system is in the throes of serious crisis (Kahin, 2001). It is interesting that the alteration in the definition of what could be patented has occurred almost entirely in the courts, whereas who was allowed to patent what was much more concertedly defined by U.S. Congressional action. The former tends to bear more directly on the expansion of what might be legitimately considered intellectual property, while the latter expands the notion of who or what might serve as the author, and therefore crosses over into questions of the re-engineering of the American university.

Since the 1880s, the U.S. Commissioner of Patents had adhered to what was called the "products of nature" doctrine, which stated that objects discovered 'in nature' were not subject to patent. This was but one manifestation of the important distinction between legal protection of an improvement and the monopoly of something available for all to find, as discussed in the previous section. This doctrine was repudiated with regard to nonhuman living organisms in Diamond v. Chakrabarty (1980) and Ex parte Allen (1987) (Kevles, 1998). Indeed, the biotechnology community has received the greatest scrutiny with regard to its burgeoning patent dependence, going from patenting whole organisms to patenting sections of the genome, at least in part to get around the proscription of patenting humans. More than 25,000 DNA-based patents alone were issued by the end of 2000; recently, warnings have been raised about the quality and relevance of the data listed in such patents (Cook-Deegan and McCormack, 2001). Nevertheless, it was the intervention of software producers in this area of intellectual property that has further destabilized the original intent of patent law. Over the 1990s various software firms had tested the prior limits of what had been deemed patentable. In the 1980s, patent case law suggested that while a discrete text of computer code was patentable, the mathematical algorithm underlying it was not, hewing to the form/content distinction. This particular distinction was eroded over the 1990s in such decisions as Arrhythmia Research v. Corazonix Corp. (1992). But the quantum leap was taken in the now notorious decision State Street Bank and Trust Co. v. Signature Financial Group (1998) [24]. This decision deemed that software designed solely to make financial calculations is patentable subject matter, overturning both the prohibition of the patenting of mathematical algorithms, but also the long-standing rule against patents on business methods and practices. It is not our intention here to speculate whether the U.S. Patent Office has in effect been 'captured' by the constituencies it was supposed to regulate (Kahin, 2001), but rather simply to point out once again the extent to which a system which was constructed to encourage a particular kind of author (the 'tinkerer') has been turned into yet another device for exclusion of users of entities like algorithms, which had previously generally been conceded to reside in the public domain. Hence the assertion by legal experts such as James Boyle, Jessica Litman, Julie Cohen and Lawrence Lessig that we are living in the midst of another grand property grab, on a scale with the great enclosure movement of 17th century England.

While this legal history is fascinating in and of itself, it only takes on heightened significance in the present context when juxtaposed with the other major trend of the last two decades, namely, the project of re-engineering of the post-Cold War university away from its previous ivory tower ethos and promoting its rejuvenation as an economic growth pole and locus of privatized flexible specialization [25]. The cutbacks and drawdowns pursuant on the end of the Cold War prompted many governments to renege on their previous policies of generous funding of higher education and the combined teaching-and-research model supported by such Cold War innovations like the research contract, the grant overhead charge, the research assistantship and military funding of basic research. Instead, especially in the United States, universities were exhorted to contribute with greater urgency to the 'competitiveness' of the nation through a higher volume of pass-through of research findings to commercial development; and following upon the success of areas such as California's Silicon Valley and Massachusetts' Route 128, universities were also supposed to act as growth incubators in regional economic development. Faculty were exhorted to themselves become more entrepreneurial, if only to relieve some of the financial stringency tightening over most universities. In order to provide encouragement for bolstering university-corporate ties, various pieces of U.S. legislation like the Bayh-Dole Act and the Technology Transfer Commercialization Act were passed. In this legislation, universities were offered the prospect of keeping the patent rights on research originally carried out with public funding, an option which had already been pioneered by the National Institutes of Health with select universities engaged in biotechnology research and DARPA's Information Processing Technologies Office. Most research universities opened Offices of Technology Transfer, with visions of sugarplums mesmerizing the dreams of provosts and bursars.

The irony of this attempt to wean science and the universities off their Cold War patrons was that, just as scientists were to be encouraged to cease reliance upon being scientific authors of type 3 - that is, to relinquish their overwhelming dependence upon the relatively unstructured and non-economic formulas of academic-based 'credit' in favor of more 'solidly' based structures of credit such as patents (author type 2) and to a lesser extent copyright (author type 1) - the very types of credit they were enjoined to embrace were being severely undermined by the corporate interests with whom they were supposed to forge their new research alliances. As we have seen, under the banner of strengthening intellectual property, the definitions of personalized authorship originally represented by copyright and patent were rapidly going the way of the buggy whip and the record player. In other words, the types of authorship that scientists were being exhorted to emulate in their quest to make research more productive and relevant were being concurrently asphyxiated by their newfound patrons. The irony is redoubled by the fact that the commercial sectors most receptive to creating university/industry hybrids - biotechnology and information technologies - were precisely the sectors most responsible for the reconstruction of copyright and patent. Far from rejuvenating what had admittedly before been a very imprecise and inaccurate system of attribution of credit for scientific research, the new move to privatize and re-engineer university science had at its core a fundamental contradiction: intellectual property in the larger society was no longer being structured primarily to foster personal innovation and/or incremental process improvement. The Romantic Genius and the Itinerant Tinkerer are no longer the primary inspirations or motivating personas behind copyright and patents. As author templates, their days are numbered. The formal system of intellectual property is increasingly uninterested in questions of responsibility and justice; in the interim, attribution of credit has become a minor consideration. Changes in intellectual property in the last two decades were rather primarily aimed at creating and engrossing intellectual property where it had not previously been dominant, and subsequently controlling and sequestering it for strategic corporate purposes in a globalized economy. No one was thinking about the implications for science when they set about protecting Mickey Mouse or Microsoft Windows in the global arena; yet now do we reap the whirlwind.

This is the major thesis of this paper. The movement to re-engineer university science around more commercial pursuits through (among other initiatives) the redirection of the process of attribution of scientific credit towards more formal legal definitions of intellectual property, a movement pioneered in the United States but now happening to varying degrees in most countries with well-developed academic research sectors, is based upon an egregiously incoherent premise, namely, that any viable market-like social structure will take care of all problems of attribution and thus naturally facilitate any format of scientific research. The appropriate response to this logical error is not to disparage all markets as antithetical to science, but rather to acknowledge that some forms of funding and organization of credit promote certain kinds of creative or innovative activity, while other forms actively discourage them. Some forms of property exist to smooth the process of dissemination and revision of research results, whereas other forms of property serve to restrict and control their dissemination and subsequent use. The confusion over the consequences of the interplay of the parallel phenomena of scientific credit and intellectual property tends to derive from a class of commentators who conflate all scientific activity with simplistic models of generic economic processes, be they economists or modern philosophers [26]. We should instead shift our attention to the kinds of author role models and employment structures that we expect to subsist under specific regimes of credit attribution, and not under the sway of some imaginary intangible invisible college.

More than a decade of experience with the new regime of intellectual property has begun to reveal some of the pathologies of having the advocates for the nouvelle vague in the codification of intellectual artifacts call the tune for the academic scientist in the re-engineered entrepreneurial university. In the next section we survey a few of these cases, so as to illustrate our primary thesis that changes in definitions of intellectual property are already transforming how science is currently done, and not always for the better.



Losing Credit in Science

Many unintended consequences flow from the great transformation of copyright and patents in the last two decades; they range from the overarching to the very local and specific. At the most abstract level, one might characterize the situations with regard to copyright and patent as follows. Copyright no longer exists to protect a mode of expression of a particular personality for a limited span of time in the U.S., and the global process of 'harmonization' is spreading the practice to other countries. This erosion of a concern with forms of expression may initially seem relatively harmless from the viewpoint of a concern with science, given that the median scientist is supposed to be relatively selfless and uninterested in stylistic niceties of expression. But it is the new uses to which copyright has been twisted which bear the most disturbing consequences for the future of scientific research. In brief, copyright now exists primarily to control the downstream uses of a text, and not to attribute responsibility or allocate credit for the creation of the text. Hence, modern copyright bears only the most tenuous relationship to the economic encouragement of authorship, and therefore the legal adjudication of scientific credit. Instead, if the social structure of scientific research indeed pivots upon the dissemination and use of the findings of other scientists, then modern copyright law seeks indirectly to revamp the entire social structure of science. After 1998, the very definition of a "copy" was revised to refer to anything that can appear on a computer, and copyright attuned to be aggressively deployed to regulate the 'consumption' of said copies [27].

Conversely, the demise of the 'products of nature' doctrine along with the utter dissolution of the idea/application distinction in patent law has opened the gates to a settler's rush to claim control over intellectual property, whether or not the applicant can be said to have 'discovered' or 'improved' the entity at issue. As State Street Bank v. Signature Financial showed, you don't have to be the progenitor of a calculation/algorithm in order to assert proprietary rights over its use. The major implication of this development for scientific research is that intellectual property has become unmoored from any vernacular notion of "credit"; and furthermore, the distinction between the 'tools' of research and the outputs of research has become profoundly blurred. This becomes significant once one takes into account that patents are first and foremost strategic instruments in a business context, and only secondarily treated as substantial sources of revenue. It is well known in American economic history that large corporations in the early 20th century developed their ability to patent largely to stave off competitors' attempts to encroach upon their own existing markets, and not to any great extent to fund research into new products [28]. The same thing threatens to become standard operating practice in science itself, with patents serving to block rival research groups from exploring the same research paths, especially through elaborate attempts to preserve secrecy and assert control through licensing agreements.

The very level of abstraction of these generalizations concerning nascent trends in intellectual property renders empirical proof or disconfirmation difficult. After all, any particular controversy or conflict within science may easily be written off as an aberration, the unfortunate consequence of some personal foible or failure, and not a bellwether of future structural breakdowns [29]. Nevertheless, it is important to recognize that a number of recent 'local,' 'parochial' or 'technical' controversies in science organization of late assume a much more dire cast when situated within the larger context of the transformation of intellectual property in the era of globalized privatization. We shall collect together a selection of these contretemps under three broad categories: the suppression of debate, the control of database access, and the subversion of the scientific journal.

Recent suppressions of criticism and debate

Without attempting any generic characterization of science (as, say, the Popperian or Lakatosian), it would seem that one of the more significant functions of the social structures of a scientific discipline is the maintenance of a well-defined space for criticism and debate over some designated subset of what the profession considers new or controversial or inadequately elaborated ideas. The previous sentence is studded with weasel-words because all controversy is restricted and channeled in any well-developed science; one must not reify an imaginary no-holds-barred situation as an effective ideal whenever one sets out to consider the effects of intellectual property upon science. The institution of 'peer review' is itself a form of the control of criticism, in some instances verging on censorship (Chubin and Hackett, 1990; Cicchetti, 1991). Nevertheless, it remains the case that it is difficult to recount the narrative of any actual scientific discovery without at least some acknowledgement of the forms in which criticism and debate came to shape the ultimate scientific consensus on the meaning and interpretation of the doctrines which were the outcome of the process. Criticism and debate can of course happen in many settings and take many forms; but again, one of the more important forums for debate is the archive of written documents associated with a particular discipline.

The mere fact that both patent and copyright have been reconfigured to exert more downstream control of texts suggests the potential for greater active repression and manipulation of debate in the scientific sphere. Of late, this has manifested itself through a very roundabout path. Much of recent innovation by digital 'content providers' has occurred in the field of technological restrictions placed upon users of digital information such as clickwrap 'end user licenses', copy prevention algorithms, digital watermarks, and the like. It was realized early on that such devices could extend the control of the purveyor well beyond older traditional definitions of the 'copy'. Fearful that many of these technological gatekeepers could be easily circumvented by sophisticated programmers, the software and content industries managed to have a provision written into the U.S. 1998 Digital Millennium Copyright Act (DMCA) which criminalized any provision of circumvention software to disable these devices, even for instances where the making of copies fell well within the bounds of what was permitted under existing copyright law [30]. Here it is important to distinguish between (a) outlawing circumvention which violated copyright; (b) outlawing all circumvention tout court; and, (c) outlawing the production and use of any device for the purpose of circumvention. The WIPO World Copyright Treaty only suggested (a); but the DCMA went far beyond that in prohibiting all three [31]. By ceding free reign to criminalize circumvention of clipwrap licenses to the content providers who had recourse to technological copy protection, even in states where UCITA was not yet ratified, the DCMA permitted a backdoor extension of control of the end-users of digital documents.

The possibility for this type of exercise of power through the DCMA did not long remain hypothetical. Microsoft, in response to criticism of its Kerebos software posted on the Web magazine Slashdot, posted its Kerebos specification on the Web with a clickwrap 'end user license agreement' stating that it could not be disclosed without Microsoft's permission. This curious species of non-publication provoked numerous programmers to post directions on Slashdot concerning how to circumvent the clickwrap. Microsoft countered with a demand to remove all such postings from Slashdot under pain of violation of the DCMA (Cohen, 2000). To interpret any avoidance of some arbitrary clickwrap agreement as equivalent to violation of a law to protect copyright, through the instrumentality of a ban on circumvention algorithms, reveals a rather stunning expansion of the ability of corporations to suppress public debate in the name of protection of intellectual property, extending even to prior restraints on speech regarding such circumventions. Whereas this initial incident involved professional software engineers writing their opinions in a public Web forum, the same pre-emptive use of the DCMA was soon extended to certain types of academic papers as well (Samuelson, 2001) [32]. Although most of these early skirmishes happened around explicit issues of disclosures of software architectures and decompilation of source code, it is easy to see how this method could effortlessly be extended to dissemination of archived experimental data, the sharing of algorithms which encode lab protocols or business practices, or in extreme cases, tight control over who would qualify as an 'authorized reader' of academic papers, conditional upon a prior judgment about the intentions of the candidate to only make 'constructive' use of the information as opposed to 'destructive' criticism.

Many authors have dreamt of a world of coercive control over the responses of their readers, but the vast extension of the meaning of copyright protection fortifies those dreams with real legal muscle. For instance, many historically notable personages have tried to control scholarly use of their personal papers and archives through denial of reproduction rights, leaning upon an interpretation of copyright which would seem to have no discernable relationship to the original intent in the U.S. Constitution "to promote the sciences and useful arts." These figures could have kept the untoward aspects of their past activities secret by burning or otherwise selectively culling the papers under their control; but instead they have sought to fine-tune the interpretation of contentious events by selective encouragement of those whose opinions they support. This has been increasingly the preferred method of burnishing a flickering reputation. Furthermore, these progenitors can undeservedly enjoy a reputation for openness and candor which derives from having deposited their materials in a public archive, all the while exercising controls over intellectual property as stringent as any corporation. This perverts the ethos of self-definition of the Romantic author in directions which were probably unanticipated by the inventors of copyright. Yet the major drawback which held this modality of the suppression of criticism in check up until the present has primarily been the lack of ability to accurately judge before the fact whether the researcher in question will report the evidence in such a way that the object of this attention would deem 'constructive' [33]. This social problem of the vetting of researchers as candidates for research programs is endemic to all the sciences.

The desire to fortify prior restraint on criticism has now found one solution in a combination of copyright expansion combined with recourse to the Protection of Human Subjects clause (part 46) of Title 45 of the U.S. Code of Federal Regulations. This is the rule which mandates that any research institution which accepts federal funding should secure informed consent of human research subjects, with compliance monitored by institutional review boards. These rules were promulgated in 1981 in reaction to violations of human rights in certain high-profile medical experiments, such as the Tuskegee Syphilis Study and radiation effect studies. However, most universities have extended the protections of part 46 to all research carried out at their institutions, no matter what the funding source, and irrespective of whether the topic of research is narrowly biomedical. Furthermore, in an especially imaginative extension of the definition of "human subject", its ambit is has recently been extended to any researcher whom may become the topic of inquiry of another researcher; thus carrying the problem of logical self-reference to a whole new level. In particular, some historical researchers have recently been told to submit detailed questionnaires for review by the boards and their potential interviewee before permission if granted to conduct interviews (Shopes, 2001).

While some analysts have worried about the chilling effect that this could have on the conduct of oral histories - a very serious possibility - it has so far escaped notice how readily this development can be combined with the alterations in copyright identified above to produce something approaching Michel Foucault's Panopticon with powerful scientist/entrepreneurs situated at their center. First, appealing to Title 45, anyone wishing to find out about the research program of some well-established scientist (be they another member of the discipline or an outsider) can be forced by their 'human subject' target to submit to arm's-length interrogation about their own motives, background, intentions and beliefs. The scientist can then exercise pinpoint prior restraint in access to his lab's own research findings by identifying only those who pass the interrogation as suitable candidates for controlled uses of their documents (including databases, algorithmic lab protocols, internal communications systems), as defined by some combination of clickwrap license and copyright. Lest the reader think this an absurdly paranoid scenario which no scientist in their right mind would entertain, just let them pick up any recent issue of Science and peruse the news stories of problems that laboratory Principal Investigators have had with their staffs, which range anywhere from disputes over authorship of intellectual property to whistle-blowers over accusations of fraud or misconduct. Defining the masses of computerized inscriptions generated by any lab as documents subject to downstream copyright controls, the logical outcome of two decades of re-engineered intellectual property, may just come to seem as the 'fair' and 'impartial' and bloodlessly technological way to deal with all sorts of situations of immanent human conflict.

Database access

The question of the legal treatment of scientific databases as intellectual property arose relatively early in the era of the refashioning of intellectual property, at least in part due to a controversy between the European Union and the U.S. as to how to 'harmonize' legal treatment of databases across international borders. In particular, European and U.S. approaches to copyright diverge somewhat due to their different histories; for instance, in stark contrast to the U.S. situation, European employees are treated as legitimate 'authors' and therefore initial owners of rights in the work they produce as opposed to their employers, leaning on a strong 'moral rights' doctrine. Conversely, the American doctrine of 'fair use' exemptions to copyright is largely foreign to the European intellectual property tradition. However, such divergences seemed to provoke little conflict in the international sphere until the European Union issued its Database Directive to member states in March of 1996 [34]. There exists a fair amount of speculation as to what inspired this directive. Some point to the previous U.S. Supreme Court decision Feist Publishing v. Rural Telephone Service in 1991, a ruling which struck down copyright protection on the white pages listings of a telephone directory. This suggested that American courts had decided that copyright did not protect the data itself in various types of databases. Others point to the fears of European content providers (which include some of the largest media conglomerates in the world) that American intellectual property innovations would allow American database providers to dominate the world through the Internet. Whatever the motivation, the EU Directive counseled member states to extend new levels of protection specifically to digital databases.

The Directive was noteworthy not only for its willful blurring of the traditional fact/expression dichotomy in copyright law, but for the creation of new rights that had more or less been previously absent [35]. It strengthened dependence upon licensing, essentially dispensing with both fair use and first sale doctrines. It sanctioned legal protections for data which had previously been in the public domain or not covered by copyright provisions; and furthermore, created a structure where the 15-year protection window could be extended indefinitely, as long as the proprietor periodically augmented the database with 'new content'. Perhaps most significantly, it also stated that European legal protection would not be extended to foreign-located database vendors unless their home countries had enacted substantially the same level of protections in their home jurisdictions. Given that the industry being protected was database vendors over the Internet, this was widely interpreted as a threat to other countries as the U.S. to either 'harmonize' or lose control over their databases. Indeed, initially the Clinton administration agreed, and various initiatives were proposed to legislate similar protections in America (Reichman and Uhlir, 1999).

Interestingly enough, in stark contrast with the developments enumerated above, the American science community in the shape of the American Association for the Advancement of Science and the National Academy of Sciences rapidly mobilized to oppose this initiative [36]. Perhaps it was simply more obvious that some of the largest government-funded research projects in existence, such as GenBank of the Human Genome Project, the American Chemical Society's Chemical Abstracts, and the National Weather Service's Climactic Data Center, would immediately be transformed overnight into for-profit database vendors. While it is the case that the U.S. Congress has not yet as of this writing passed any such parallel database protections [37], it is perhaps lacking in perspective to write that, "So far [the scientific societies] have been successful, but database bills will be back, and victory in future rounds will depend on continued vigilance" [38]. The database protection movement is not some isolated political feint by a small but crafty band of database entrepreneurs. It is just one more logical outcome of the original policy initiative to privatize academic research under the banner of intellectual property, and as such, cannot long persist in being thwarted in the face of the broad-based transformation of copyright and patent described above.

The original premise of most intellectual property legislation in the U.S. from the Bayh-Dole Act onwards has been that government-funded research need not be reserved for the public commonweal, but instead should be commercialized as rapidly as possible. The tendency of intellectual property law under the sway of the digital revolution has been to treat the outputs of academic research primarily as things and not as free speech; nowhere would this conception seem to be more apposite than in the case of big communal databases such as GenBank or the National Institute of Standards and Technology's physical and chemical properties databases. There have, of course, been some reservations expressed about how the patenting of genomes has served to degrade the quality of the data being made available (Cook-Deegan and McCormack, 2001); but the logic of the intellectual property movement goes well beyond such qualms about the short-term effects of secrecy. The implication of the revamping of both copyright and patent law is that scientific research cannot long persist as a protected separate sphere outside of the normal commercial provision of digital information, because government policy long ago dictated that the two be integrated; and the issue of special protection of databases is merely the most salient locus of where that inconsistency keeps being revisited. Database protection will be fortified either by direct legislation or by indirect means, and scientists will find they simply have to adjust to the new regime of data provision.

Indeed, the biotechnology industry has already gone much further in this direction than most people realize. Fears about the inadvertent unauthorized use of existing databases have resulted in new pre-emptive measures to exert control over scientific data in the format of "pass through" rights that place numerous restrictions upon data usage even after they may have become incorporated into other more comprehensive databases. One especially innovative variant of this attempt to exert downstream control is the "material transfer agreement" or MTA, a legal call-back provision granting an option to license any patent rights from subsequent discoveries made with the help of tools or data provided as a part of the agreement (Eisenberg and Rai, 2001). What began as a method of exerting some downstream control over academic labs by corporate entities is now used by academic research groups to assert rights over the findings of other research groups. Once intellectual property opened up the possibility of downstream control, the inputs to scientific research become enmeshed in a tangle of assertions of credit and recompense.

Recall that both copyright and patent were makeshift responses to the problem that 'knowledge' is only worthwhile if it is made available to others to contemplate and use, but some form of credit and control should be ceded to the 'author' in order to encourage the further pursuit and advancement of knowledge. Further, science should be 'open' to the extent that it welcomes criticism, but also equally the province of a closed community who make it their business to specialize in the problems of interpretation and elaboration of that class of questions. Of course, there is no universal optimal solution to these conflicting objectives, so specialized credit structures were constructed for relatively circumscribed purposes, and relatively discrete communities, especially regarding the treatment of intellectual property. However, privatization of the research process works in curious and unanticipated ways, and will subsequently have repercussions upon the political framework within which science is forced to press to preserve certain prerogatives. Bluntly, the polity may come to believe that it can engross something resembling the ownership rights that have been seen as being ceded to corporate sponsors in the scramble for intellectual property rights. And, in a subtle twist, it may be in the interests of corporate sector to act as silent partners in such movements.

The contradictions of intellectual property surfaced in a 1998 amendment to a massive U.S. Congressional appropriations bill appended by Senator Richard Shelby of Alabama (Hilts, 1999). This amendment stated that anyone could submit a request to the U.S. government under the Freedom of Information Act to get all of the data produced pursuant to any published academic study funded by Federal support. The amendment combined an appeal to transparency in government, a tacit acquiescence in older 'public good' rationale for public support of science, and a more up-to-date conviction that if you pay for it in the marketplace of ideas, then you should be able to exercise some ownership rights. Of course, there was no particular constituency of concerned Citizens for Science for the People behind this bill; rather, it was promoted by various corporate and lobbying interests seeking access to lab notebooks, e-mail, raw data, and even rosters of experimental subjects of academic researchers who had published studies perceived as 'unfriendly' by the industries involved. For instance, R.J. Reynolds wanted to review data on familiarity with Joe Camel by six-year-olds; power companies wanted the data from a Harvard School of Public Health study on long-term impacts of pollution; the Gun Owners of America want access to data concerning accidental homicides in the home. Corporate researchers could then easily subject the raw data to reinterpretation, and corporate lawyers could more readily harass researchers deemed unreliable, especially in situations involving expert testimony. From one perspective, this is just another instance of the extension of intellectual property rights to databases which had already been pioneered by the software industry; but from another, somewhat more jaundiced position, it was yet another expression of the assault on university research protocols by corporate interests (corporations accepting Federal subsidies for proprietary research were left untouched by the amendment).

If the economics of science could ever see its way through to erect a moratorium on appeals to the virtual Panglossian marketplace of ideas, then it might actually help clarify what otherwise threatens to be an extremely confused controversy. The U.S. National Institutes of Health, for example, has opted to oppose the rule on simple cost grounds: they assert it would be too burdensome to collect and warehouse raw data. However, this is not primarily a cost issue, nor can it be reduced to 'transactions costs': rather, it is a larger dispute over how science is to be conducted, and in which parties the rights to control over the research process will be vested. An earlier version of the economics of science would support the Shelby amendment's construction that science was engaged in producing a thing: but that would wildly misconstrue what was at stake. Different institutional packages of rights and credit allocation procedures result in different kinds of research. Under this proposed regime, the role and status of the scientist would be further reduced to that of data provider and numbers cruncher; whereas the functions of analysis and synthesis will further devolve to specialists for hire; with all the biases against the acceptance of Federal funding, ambitious researchers will be hustled all the more rapidly into the sector of corporate contract research. If this rule were to be upheld, then in the name of the 'public interest' it would go a long way towards bringing about the final dissolution of an independent university sector of research capabilities funded by public money: a prospect many would regard with something closer to glee than despair.

What is a 'journal' in the era of globalized privatization?

A third set of examples of the new regime of intellectual property involves the impacts of commercial secrecy and research oversight upon the very structure and content of academic journals. One of the very few studies to empirically examine this problem (Blumenthal et al., 1996) reports that 82% of companies in the life sciences which sponsor academic research in their survey had imposed confidentiality requirements in pursuit of the assessment and filing of patent applications, and 47% admitted to imposing gag rules beyond the time needed to file a patent. The most common complaint on the part of corporations was that university administrations often obstructed their desire to conclude agreements with individual researchers; and in 34% of cases, the companies admitted to having disputes with their academic contractors over intellectual property [39].

If anything, the identity of the "author" in biomedical science has been further eroded in the interim. The pharmaceutical industry has discovered that their clinical trials can be run cheaper and quicker by "contract research organizations" or CROs, or private firms who produce studies on demand. In 2000, CROs captured 60% of all research grants from pharmaceutical companies, compared with 40% going to academic units [40]. Part of the cost-savings come from redistributing authorship and control over trial design and data access between the CRO and the commissioning firm; who the nominal authors are and the nature of their affiliations have themselves become such contentious issues that the International Committee of Medical Journal Editors have recently sought to impose disclosure requirements upon the authors of submitted articles (Guterman, 2001). When credit and responsibility are at issue, gatekeepers try and fall back upon supposedly stable older personas of the 'author' to restore some decorum.

Now, what might be the attitude of the researchers familiar with these constraints and practices towards the value of the published literature in their own specialty? They might conclude that the information inscribed in their academic journals was inevitably delayed, inordinately vetted and censored, freighted with hidden agendas and written with an eye towards the effect it might have upon commercial competitors. In other words, researchers might come to see the information in such channels as degraded, albeit in a manner for which they might feel they were competent to compensate for a certain degree. Of course, it is common knowledge in science studies that almost no journal article in the history of science has ever provided ample enough documentation to actually replicate an experiment or spell out every step in a mathematical proof (hemmed in by certain costs of documentation); but we are concerned here with the unintended consequences of a particular set of constraints whose biases are common knowledge amongst the readership. Wouldn't it be the case that familiarity, while not breeding contempt, exactly, might give rise to a tendency towards a certain blasé attitude with respect to the outlet? Once widespread, wouldn't this skepticism (some might say cynicism) concerning the role and status of CROs allow for the possibility that corporations might then in effect engage ghostwriters employed by third-party contract houses to produce manuscripts-to-order for the outlet, on which favored recipients of contracts with burnished reputations might append their names? After all, what more is a scientific author than the employee of one or another type of organized research collective, which opts to choose her as its 'authorial representative'? One can appreciate that we might find ourselves enmeshed in a sort of Gresham's Law of privatized research, which could turn staid and dull academic journals into purveyors of glossy infomercials, where the whole point of the exercise is that the reader would be unable to tell where the articles stopped and the advertising began.




As James Boyle [41] has written,

"Intellectual property policy has consistently undervalued the public domain, over-emphasized the threats and under-emphasized the opportunities presented by new technologies, ignored the extent to which information goods are actually bundled with more excludable phenomena, exaggerated the role incentives have in producing innovation while minimizing their negative effect."

Once academic scientists were exhorted to come down out of their ivory towers and join in the commercialization of their endeavors, they too have been caught up in this systemic trend; now the social structures of science will reap the consequences, if nothing is done to insist upon serious distinctions between science and the market. End of article


About the Author

Philip Mirowski is Carl Koch Professor of Economics and the History and Philosophy of Science at the University of Notre Dame. He is fascinated by both theoretical and historical aspects of the social organization of science, as well as the chequered history of the relationship between economics and the natural sciences. His work on science policy includes the recent book edited with his colleague Esther-Mirjam Sent Science Bought and Sold (University of Chicago Press, 2001) and the forthcoming Effortless Economy of Science? (Duke University Press). His work on the changing epistemic and ontological commitments of the economics profession include Machine Dreams: Economics becomes a Cyborg Science (2001), Natural Images in Economics (1994), More Heat than Light (1989), and Against Mechanism (1988).



I should like to thank the attendees as the session on scientific credit at the November 2001 meetings of the Society for the Social Studies of Science, and especially Mario Biagioli, Rob Kling and Steve Fuller, for their comments.



1. Hands, 2001, chapter 8.

2. As James Boyle (1996, p. 225) has put it, "Professional economists often talk as though there was a natural suite of property rights which automatically accompanied a free market." The explicit law and economics movement has not made this situation much better. Further, endless debates over the 'public good' nature of science are themselves symptomatic of the tendency to ignore the shifting character of authorship in favor of lucubrations over the character of the 'output' of science and its difficulty of appropriation.

3. "Once science is properly understood, it turns out that what is good for individual scientists is by and large good for science" (Hull, 1988, p. 304).

4. Choosing an example not entirely at random, consider F. Abe et al., 1992. This is the Collider Detector at Fermilab (CDF) collaboration, one of the two largest experimental particle physics groups in the world. Looking at the entire distribution of multi-authorship, Rob Kling informs me that the median number of authors in the current Physical Reviews Letters is 4-6. The numbers of authors in three digits, once the preserve of high-energy particle physics, is now spreading to the life sciences (Regaldo, 1995). You know things are getting out of hand when there are 12 authors on a paper on the problem of scientific authorship, as in, say, Bachrach et al., 1998.

5. The 18th century emergence of the Romantic Author was first pointed out by Martha Woodmansee. For further explication, see Woodmansee (1994), and Jaszi (1991).

6. See Fox Keller (1983) on McClintock; Gleick (1992) on Feynman; Mullis (1998) on Mullis; anybody on Hawking ... .

7. Boyle, 1996, chapter 6.

8. But not adopted by the U.S. until 1989: see Halbert, 1999, p. 14.

9. Boyle, 1996, p. 134; Kahin, 2001; Lessig, 1999.

10. One way to understand the fascination of the philosophy of science in the Cold War era with a search for a mechanical set of rules for the 'scientific method' was to reify the distinction between the unsystematic search process of the tinkerer and the superior systematic practices of the scientist. The failure of the "received View" in philosophy opened the floodgates to erosion of the distinction between the pure and the applied.

11. It is interesting to observe that another creative yet unavoidably collaborative endeavor, the making of movies, has innovated the practice of individual 'film credits' to begin to acknowledge this problem and distinguish different forms of contributions; they have even invented an honorific ňcredit╝ called 'associate producer' which everyone understands can be bestowed as a gift, much the way scientific authorship is sometimes bestowed as gift exchange in recent times.

12. In Cohen, 1995, p. 1710.

13. Biagioli, 2000, p. 87.

14. Biagioli, 1999, p. 510.

15. It is noteworthy that while there is a well-developed subset of economic history devoted to the narrowly construed history of technological change, the major locus of the economic history of science is to be found in the science studies literature. See Shapin (1994), Biagioli (1993), Alder (1997), Kay (1993), Kohler (1991); Smith and Wise (1989). We take this as a symptom of the underdevelopment of a vibrant economics of science.

16. This might be one way to understand the infamous Mertonian 'norms' of science, which served to describe the predicament of the Cold War scientist without actually confronting any of the actual social structures of accounting and validation.

17. "[scientific] credit ... operate[s] (and need to operate) in an economy that is distinct from the capitalist economy" (Biagioli, 2000, p. 85). "Scientific credit is not about property rights, at least for the time being" (p. 87).

18. See, for instance, Slaughter and Rhodes, 1996; Gibbons et al., 1994; Branscomb, et al,, 1999; Kneller, 1999; Mirowski and Sent, 2001.

19. In the interests of hewing to our topic, we must ignore a tremendous amount of detail about distinctions between assemblers, compilers and applications; not to mention the extreme importance of the rise of the PC and a consumer software market.

20. This refers to Gottschalk v. Benson 409 US 63 (1973). The subsequent amendment to the Copyright Act to permit copyright of software was 17 U.S.C. ▀ 101 (1980). Interestingly for subsequent developments, the case Diamond v. Chakrabarty 447 US 303 (1980) held that living organisms were patentable. See Kevles, 1998.

21. In Branscomb, 1994, p. 150.

22. The Official Draft of UCITA which is intended to be ratified by state legislatures can be found at, and discussions as

23. See the Agreement on Trade Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakech Agreement at For recent deliberations of WIPO, see

24. 149 F.3rd 1368 (1998). See

25. This trend is described in a number of articles included in Mirowski and Sent, 2001. While this change has been conceptualized by some in the science studies community as a shift between what has been called "Mode 1/Mode 2" (Gibbons et al., 1994), the reader will observe from the previous citation that the present author feels that rubric misses out on many of the major features of the transition.

26. Economists who have discussed science as a market process include Kenneth Arrow in Mirowski and Sent, 2001; Ordover and Willig, 1978; and, James Wible, 1998. Philosophers who have used market analogies include Philip Kitcher (1993), David Hull, Alvin Goldman, John Ziman and others. Many of their works are excerpted and discussed in Mirowski and Sent, 2001; Hands, 2001 (chapter 8), where simple conflations of science and market are criticized.

27. Litman, 2001, p. 28.

28. This is also admitted to be the case in modern times in the business press. See, for instance, "Patent Wars," The Economist, 8 April 2000: "Increasingly, companies realize that among the few remaining barriers to entry are the ones the government hands out in the form of 20-year monopolies".

29. This tends to be the attitude adopted in many of the reports appearing under the rubric of "intellectual property" in the journal Science.

30. Litman, 2001, p. 131.

31. See Waelde, 2001 for this important distinction. It also appears that the EC Directive on Legal Protection of Conditional Access Services is following the lead of the DMCA in this respect.

32. The case of Edward Felten, a Princeton professor who had to withdraw presentation of a paper from a conference after receiving a threatening letter from the Record Industry Association of America has been documented in the "New Developments" section of Jessica Litman's Web site at classes/cyber/newdev01s.html. See also Foster, 2001b.

33. For a paper which presents a game theoretic model of this conundrum in the context of a natural scientist trying to decide whether to encourage or discourage replication of experimental findings, which is just a special case of the problem of identifying reliable research acolytes, see Mirowski and Sklivas, 1991.

34. The text of the Database Directive can be found as Appendix D to National Research Council, 1999.

35. A tabular summary of these differences is provided in National Research Council, 1999, p. 9, Table S.2.

36. See, for instance, the accounts in National Research Council, 1999; David, 2000; and, Samuelson, 2001.

37. But a new attempt materialized in March 2001. See Maurer et al., 2001.

38. Samuelson, 2001, p. 2030.

39. Blumenthal et al., 1996, p. 370.

40. Davidoff, 2001, p. 1232.

41. Boyle, 2000, p. 2037.



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Editorial history

Paper received 21 November 2001; accepted 27 November 2001.

Contents Index

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Re-engineering Scientific Credit in the Era of the Globalized information Economy by Philip Mirowski
First Monday, volume 6, number 12 (December 2001),

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