Why Are Most Textbooks Still Proprietary?

Today a rant about textbooks. Every year governments spend billions of dollars on public education, teaching students knowledge that was itself created by publicly funded research. Yet each year, university students must pay anew for this information by purchasing high-priced textbooks.

It needn’t be this way.

Most university textbooks are written by tenured (or tenure-track) professors. These are people who are paid by the public to generate and disseminate knowledge. Professors are expected to write academic articles for free. Why not add textbooks to the list?

With a stroke of the pen, universities could make writing open-access textbooks a part of tenure-track expectations. And if there are costs associated with creating textbooks, fine. We can have grants that cover these costs. It will cost money, yes. But the benefit of liberating information will be enormous.

Many professors, I suspect, would gladly write textbooks under this open-access model. (Some are already doing it.) So the real problem is not greedy professors … it is greedy publishers. And that brings me to a hard truth about copyright. Its purpose is mostly to ensure that big publishers accrue big profits. Education is an afterthought.

Case in point was a recent lawsuit between York University (where I studied) and ‘Access Copyright’, a Canadian agency that licences copyrights. To understand the lawsuit, let’s back up and talk about grad school. In a typical graduate course, students must read many articles and book chapters. Tracking down this material can be a real pain in the ass. To make life easier, professors often assemble a ‘course reader’ — a print version of the course material that students can then copy for cheap. It’s a good system. It makes the readings easier for students. And for profs, it improves the course … because students actually do the readings.

Publishers know that this type of copying is common. And so via a consortium (Access Copyright), they charge Canadian universities a copyright tariff. Until 2010, York paid a fee of 10 cents per page in each course reader, a cost that it passed on to students.

When the licensing agreement expired in 2011, York did not renew.1 Instead, it argued that professors could copy the material under the guidelines of ‘fair dealing’, which is the Canadian equivalent of US ‘fair use’. (‘Fair dealing’ allows you to use passages of copyrighted material without paying for it. It also outlines your rights as purchaser of copyrighted material. If you buy a book, you have the right to make copies for personal use.)

When York opted out of the copyright tarrif, Access Copyright was unpleased. (The opt out cost them about $1 million per year in lost revenue.) As is common in property-rights deputes, the agency turned to the courts, suing York for copyright violation. In 2017, the court determined that York was in the wrong. It had to pay copyright tariffs.

York appealed the decision, which took another 3 years to work through the system. In April 2020, the appeals court overruled the initial decision. It determined that copyright tariffs are not mandatory, and that only copyright owners (not licensors) can file suit over copyright infringement. In other words, universities like York could opt out of copyright tariffs.

In the mean time, York’s refusal to pay copyright tariffs seems to have been what Noam Chomsky calls a ‘threat of a good example’. Emboldened by York’s opt out, most other Canadian universities have now refused to pay copyright tariffs. (The story is not over, however, as the York v. Access Copyright case is likely headed to the Canadian Supreme Court.)

Adding value?

As a political economist, I find the York v. Access Copyright case fascinating because it highlights how economic ideology seeps into the legal system.

Take the relation between income and ‘productivity’. Neoclassical economists assume that income indicates contribution to ‘economic output’. So if a CEO earns 1000 times more than a janitor, the CEO contributes 1000 times more to ‘economic output’ (i.e. GDP).

This idea dates to the 19th-century work of John Bates Clark, who was explicit that his theory was political. By ‘demonstrating’ (i.e. assuming) that income stems from productivity, Clark wanted to buttress the social order against worker revolt. He was largely successful.

The neoclassical theory of income is a powerful piece of propaganda because it turns reality on its head. In the real world, income is a claim on society’s wealth. But in neoclassical theory, income gets inverted to indicate one’s contribution. Hence if you believe this theory, you’re impressed by large incomes. ‘Wow’, you say, ‘that CEO contributes a lot to society!’

Back to York v. Access Copyright. In the initial court ruling, judge Michael L. Phelan was impressed by the publishing sector’s ‘significant’ contribution to Canada’s ‘output’. In the decision, Phelan writes:

The economic footprint of the post-secondary educational publishing market is significant in the Canadian economy in terms of output …

The total economic footprint of the post-secondary educational publishing industry was $1.06 billion in 2011, with a GDP of $550 million.

Impressive! Publishing for post-secondary education contributes $550 million to Canadian ‘output’. We’d better not remove copyright, then, or we risk losing this contribution.

That’s the story in neoclassical fantasyland. But reality is rather different. Yes, publishers do earn a large income. But it’s best to think of this income as a toll. Publishers earn income not by disseminating information, but by restricting access to it. The more tightly they can restrict access to knowledge, the more income they can earn. (This is what Jonathan Nitzan and Shimshon Bichler call ‘strategic sabotage’ — harnessing income from purposeful restriction.)

Instead of adding up publishers’ income and calling it their ‘contribution’, we need to do the opposite. Publishers’ income represents the cost to society of disseminating knowledge — a cost that we want to reduce. What is best for society (but not for private publishers) is to disseminate the most information for the least cost.2

The situation is much like in healthcare. A neoclassical economist looks at the US healthcare industry and says, “My what a massively productive sector. It contributes a trillion dollars to economic output.” But the skeptic correctly observes, “This is a cost to society. We actually want to lower healthcare costs while increasing human welfare”. On that front, the US is in a class of its own. It has massive health expenses, yet a comparatively low life expectancy. (Check out the chart here.)

It’s easy to understand this healthcare outcome. Putting a paywall around healthcare allows private firms to drive up the price. These firms earn healthy profits, to the detriment of society. The solution, arrived at by most developed nations, is to put healthcare in the commons. That means we socialize the cost, but also the benefits.

The same principle applies in academic publishing. If we value the dissemination of information, we should socialize the cost of publishing and make the resulting knowledge open access.

When we think in these terms, it’s not surprising that educators and students backed York in the copyright lawsuit.3 What was at stake was a better education system, one in which publicly funded knowledge flows freely.

Open textbooks

That brings me back to textbooks. There is no reason that students should have to pay thousands of dollars each year for proprietary textbooks. The solution is simple: publicly fund ‘open textbooks’.

Fortunately, there’s a growing movement to do so, which has given birth to a sizable corpus of open textbooks. Let’s make this corpus bigger.

Here’s how you can help. If you are a university teacher, consider using an open textbook in your course. If you are student, ask your teachers to switch to an open textbook. And as a citizen, tell your government representative that you want to fund open access knowledge.

Here is a list of open-textbook resources:

Did I miss a resource? Leave a comment!

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  1. York chose to opt out of the tariff largely because Access Copyright hiked the price to $45 per full time student. Access Copyright also added a dubious clause in which emailing a link would count as photocopying. Cory Doctorow observes:

    Under a new deal signed by the University of Western Ontario and the University of Toronto, the act of emailing a link will be classed as equivalent to photocopying, and each student and faculty member will cost the universities $27.50/year for this right that the law gives them for free, along with a collection of other blanket licenses of varying legitimacy. In order to enforce these licenses, all faculty email will be subject to surveillance.

  2. Yes, there is more to it that just minimizing costs and maximizing information flow. We also want to pay writers a fair income. And we want the information to be high quality. There are many such details that I’ve glossed over.
  3. Summarizing the York University v. Access Copyright lawsuit, Field Law writes:

    Over time, York University became a proxy for a broad coalition of those wishing to challenge the scope of Access Copyright’s tariffs, including Universities Canada, the Canadian Association of University Teachers, and the Canadian Federation of Students.


  1. Thank you, Blair. I was one of the four York professors whom Access Copyright “caught” red-handed, giving their student cheap photocopies. York’s lawyer didn’t call me to testify, perhaps because I said I was all for “intellectual rights” and all against “intellectual property rights”. My own publication archives with Shimshon Bichler is entirely CreativeCommons.

    • I would have enjoyed being a fly on the wall for that conversation.

      I’ve always found lawyers to lack a sense of perspective (humor?) when it comes to the law. Once at a party (back when we had such things) I had a lengthy conversation with a lawyer about money. I said, “Money is a social norm. Technically anyone can create it. But in practice government reserves the right.”

      The lawyer responded, “Anyone can create money! That’s counterfeiting. I prosecute people for that!”

      To which I replied, “My point exactly.” The lawyer didn’t get it.

  2. Hi Blair, your post is good example of what law professor Katharina Pistor describes in her book “The Code of Capital”. She argues that capital is made from two ingredients: from an asset (the text books) and the legal code (intellectual property rights) which turns the asset into private property and therefore into capital. And she observes the trend that more and more assets are turned into “capital” by lawyers trying to change their legal status.

    • Hi Walter,

      That is a good point. The connection between capitalism and the law is important. I think it was first explored by John Commons in his book The Legal Foundations of Capitalism. The Code of Capital looks like a nice addition to this literature. I’ll put it on my reading list.

  3. Lots of good free learning materials, little to makes grading process easier. Publishers have created and graded individualized tests for teachers since the 1990s.

  4. On the subject of free text-books, Prof Tom Murphy has completed a book ‘Energy and Human Ambitions on a Finite Planet.’ You may be aware of his ‘Do the math’ website. Today I posted the following message there.

    It is very likely that you have come across Blair Fix and his essays at Economics from the Top Down. He applies his scientific analyses to economics and is well aware of Biophysical Limits. If you want to explore the economic aspects of energy contraction, you may want to read his work. I think his essays complement Do the Math.
    Thanks for the book.

  5. […] Using patents as a proxy for innovations is similar to measuring the spread of ‘knowledge’ using textbook sales. Sure, more textbooks means more knowledge. But higher textbook sales doesn’t necessarily mean that more textbooks are being published. It could be that publishers are simply hiking textbook prices. That’s not the spread of knowledge. That’s monopolistic firms earning more profits by restricting access to knowledge. […]

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