Scientific research is cumulative; many elements of a typical research project would not and could not exist but for the efforts of many previous researchers. This goes not only for knowledge, but also for measurement. In much of the clinical world–and also in many areas of “basic” social and life science research–people routinely save themselves inordinate amounts of work by using behavioral or self-report measures developed and validated by other researchers.
Among many researchers who work in fields heavily dependent on self-report instruments (e.g., personality psychology), there appears to be a tacit belief that, once a measure is publicly available–either because it’s reported in full in a journal article, or because all of the items and instructions be found on the web–it’s fair game for use in subsequent research. There’s a time-honored ttradition of asking one’s colleagues if they happen to “have a copy” of the NEO-PI-3, or the Narcissistic Personality Inventory, or the Hamilton Depression Rating Scale. The fact that many such measures are technically published under restrictive copyright licenses, and are often listed for sale at rather exorbitant prices (e.g., you can buy 25 paper copies of the NEO-PI-3 from the publisher for $363 US), does not seem to deter researchers much. The general understanding seems to be that if a measure is publicly available, it’s okay to use it for research purposes. I don’t think most researchers have a well-thought out, internally consistent justification for this behavior; it seems to almost invariably be an article of tacit belief that nothing bad can or should happen to someone who uses a commercially available instrument for a purpose as noble as scientific research.
The trouble with tacit beliefs is that, like all beliefs, they can sometimes be wrong–only, because they’re tacit, they’re often not evaluated openly until things go horribly wrong. Exhibit A on the frontier of horrible wrongness is a recent news article in Science that reports on a rather disconcerting case where the author of a measure (the Eight-Item Morisky Medication Adherence Scale–which also provides a clue to its author’s name) has been demanding rather large sums of money (ranging from $2000 to $6500) from the authors of hundreds of published articles that have used the MMAS-8 without explicitly requesting permission. As the article notes, there appears to be a general agreement that Morisky is within his legal rights to demand such payment; what people seem to be objecting to is the amount Morisky is requesting, and the way he’s going about the process (i.e., with lawyers):
Morisky is well within his rights to seek payment for use of his copyrighted tool. U.S. law encourages academic scientists and their universities to protect and profit from their inventions, including those developed with public funds. But observers say Morisky’s vigorous enforcement and the size of his demands stand out. “It’s unusual that he is charging as much as he is,” says Kurt Geisinger, director of the Buros Center for Testing at the University of Nebraska in Lincoln, which evaluates many kinds of research-related tests. He and others note that many scientists routinely waive payments for such tools, as long as they are used for research.
It’s a nice article, and and I think it suggests two things fairly clearly. First, Morisky is probably not a very nice man. He seems to have no compunction charging resource-strapped researchers in third-world countries licensing fees that require them to take out loans from their home universities, and he would apparently rather see dozens of published articles retracted from the literature than suffer the indignity of having someone use his measure without going through the proper channels (and paying the corresponding fees).
Second, the normative practice in many areas of science that depend on the (re)use of measures developed by other people is to essentially flout copyright law, bury one’s head in the sand, and hope for the best.
I don’t know that anything can be done about the first observation–and even if something could be done, there will always be other Moriskys. I do, however, think that we could collectively do quite a few things to change the way scientists think about, and deal with, the re-use of self-report (and other kinds of) measures. Most of these amount to providing better guidance and training. In principle, this shouldn’t be hard to do; in most disciplines, scientists are trained in all manner of research method, statistical praxis, and scientific convention. Yet I know of no graduate program in my own discipline (psychology) that provides its students with even a cursory overview of intellectual property law. This despite the fact that many scientists’ chief assets–and the things they most closely identify their career achievements with–are their intellectual products.
This is, in my view, a serious training failure. More important, it’s an unnecessary failure, because there isn’t really very much that a social scientist needs to know about copyright law in order to dramatically reduce their odds of ending up a target of legal action. The goal is not to train PhDs who can moonlight as bad attorneys; it’s to prevent behavior that flagrantly exposes one to potential Moriskying (look! I coined a verb!). For that, a single 15-minute segment of a research methods class would likely suffice. While I’m sure someone better-informed and more lawyer-like than me could come up with a more accurate precis, here’s the gist of what I think one would want to cover:
- Just because a measure is publicly available does not mean it’s in the public domain. It’s intuitive to suppose that any measure that can be found in a publicly accessible place (e.g., on the web) is, by default, okay for public use–meaning that, unless the author of a measure has indicated that they don’t want their measure to be used by others, it can be. In fact, the opposite is true. By default, the author of a newly produced work retains all usage and distribution rights to that work. The author can, if they are so inclined, immediately place that work in the public domain. Alternatively, they could stipulate that every time someone uses their measure, that user must, within 72 hours of use, immediately send the author 22 green jelly beans in an unmarked paper bag. You don’t like those terms of use? Fine: don’t use the measure.
Importantly, an author isn’t under any obligation to say anything at all about how they wish their work to be reproduced or used. This means that when a researcher uses a measure that lacks explicit licensing information, that researcher is assuming the risk of running afoul of the measure author’s desires, whether or not those desires have been made publicly known. The fact that the measure happens to be publicly available may be a mitigating factor (e.g., one could potentially claim fair use, though as far as I know there’s little precedent for this type of thing in the scientific domain), but that’s a matter for lawyers to hash out, and I think most of us scientists would rather avoid lawyer-hashing if we can help it.
This takes us directly to the next point…
- Don’t use a measure unless you’ve read, and agree with, its licensing terms. Of course, in practice, very few scientific measures are currently released with an explicit license–which gives rise to an important corollary injunction: don’t use a measure that doesn’t come with a license.
The latter statement may seem unfair; after all, it’s clear enough that most measures developed by social scientist are missing licenses not because their authors are intentionally trying to capitalize on ambiguity, but simply because most authors are ignorant of the fact that the lack of a license creates a significant liability for potential users. Walking away from unlicensed measures would amount to giving up on huge swaths of potential research, which surely doesn’t seem like a good idea.
Fortunately, I’m not suggesting anything nearly this drastic. Because the lack of licensing is typically unintentional, often, a simple, friendly email to an author may be sufficient to magic an explicit license into existence. While I haven’t had occasion to try this yet for self-report measures, I’ve been on both ends of such requests on multiple occasions when dealing with open-source software. In virtually every case I’ve been involved in, the response to an inquiry along the lines of “hey, I’d like to use your software, but there’s no license information attached” has been to either add a license to the repository (for example…), or provide an explicit statement to the effect of “you’re welcome to use this for the use case you describe”. Of course, if a response is not forthcoming, that too is instructive, as it suggests that perhaps steering clear of the tool (or measure) in question might be a good idea.
Of course, taking licensing seriously requires one to abide by copyright law–which, like it or not, means that there may be cases where the responsible (and legal) thing to do is to just walk away from a measure, even if it seems perfect for your use case from a research standpoint. If you’re serious about taking copyright seriously, and, upon emailing the author to inquire about the terms of use, you’re informed that the terms of use involve paying $100 per participant, you can either put up the money, or use a different measure. Burying your head in the sand and using the measure anyway, without paying for it, is not a good look.
- Attach a license to every reusable product you release into the wild. This follows directly from the previous point: if you want responsible, informed users to feel comfortable using your measure, you should tell them what they can and can’t do with it. If you’re so inclined, you can of course write your own custom license, which can involve dollar bills, jelly beans, or anything else your heart desires. But unless you feel a strong need to depart from existing practices, it’s generally a good idea to select one of the many pre-existing licenses out there, because most of them have the helpful property of having been written by lawyers, and lawyers are people who generally know how to formulate sentiments like “you must give me heap big credit” in somewhat more precise language.
There are a lot of practical recommendations out there about what license one should or shouldn’t choose; I won’t get into those here, except to say that in general, I’m a strong proponent of using permissive licenses (e.g., MIT or CC-BY), and also, that I agree with many people’s sentiment that placing restrictions on commercial use–while intuitively appealing to scientists who value public goods–is generally counterproductive. In any case, the real point here is not to push people to use any particular license, but just to think about it for a few minutes when releasing a measure. I mean, you’re probably going to spend tens or hundreds of hours thinking about the measure itself; the least you can do is make sure you tell people what they’re allowed to do with it.
I think covering just the above three points in the context of a graduate research methods class–or at the very least, in those methods classes slanted towards measure development or evaluation (e.g., psychometrics)–would go a long way towards changing scientific norms surrounding measure use.
Most importantly, perhaps, the point of learning a little bit about copyright law is not just to reduce one’s exposure to legal action. There are also large communal benefits. If academic researchers collectively decided to stop flouting copyright law when choosing research measures, the developers of measures would face a very different–and, from a societal standpoint, much more favorable–set of incentives. The present state of affairs–where an instrument’s author is able to legally charge well-meaning researchers exorbitant fees post-hoc for use of an 8-item scale–exists largely because researchers refuse to take copyright seriously, and insist on acting as if science, being such a noble and humanitarian enterprise, is somehow exempt from legal considerations that people in other fields have to constantly worry about. Perversely, the few researchers who do the right thing by offering to pay for the scales they use then end up incurring large costs, while the majority who use the measures without permission suffer no consequences (except on the rare occasions when someone like Morisky comes knocking on the door with a lawyer).
By contrast, in an academic world that cared more about copyright law, many widely-used measures that are currently released under ambiguous or restrictive licenses (or, most commonly, no license at all) would never have attained widespread use in the first place. If, say, Costa & McCrae’s NEO measures–used by thousands of researchers every year–had been developed in a world where academics had a standing norm of avoiding restrictively licensed measures, the most likely outcome is that the NEO would have changed to accommodate the norm, and not vice versa. The net result is that we would be living in a world where the vast majority of measures–just like the vast majority of open-source software–really would be free to use in every sense of the word, without risk of lawsuits, and with the ability to redistribute, reuse, and modify freely. That, I think, is a world we should want to live in. And while the ship may have already sailed when it comes to the most widely used existing measures, it’s a world we could still have going forward. We just have to commit to not using new measures unless they have a clear license–and be prepared to follow the terms of that license to the letter.