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Reconciling Property Rights and Human Rights When It Comes to Knowledge. Part I.

I no sooner had a minor breakthrough of on my SLAW March 9th, 2018 blogpost – on Twitter and Infojustice Roundup – which proposed copyright reforms to increase public access to research, than I ran head-on into the realpolitik of such legislative measures. In the earlier blogpost, I had briefly set out reasons for Canada to be the first nation to use copyright reform to turn its open access research policies into a federally legislated human right to know. Then, little more than a month later here in California (where I teach), Assemblyman Mark Stone introduced a bill to revise the California Taxpayers Access To Publicly Funded Research Act.

Stone’s revisions would remove the original bill’s expiry date (2020), extend its coverage from the health sciences to all state-funded research, and reducing the maximum post-publication embargo period that publishers could impose on public access to the “peer-reviewed manuscript” to six months from its current twelve (as opposed to the published version, for which there is no provision for making public).

Cue the publisher lobby. At least three firms sent their lobbyists into the state capital to present the publishers’ positions to legislature staff members, while close to a dozen publishers and publisher organizations sent letters to state politicians. The publishers succeeded in restoring the twelve-month embargo that publishers could place on authors making their “peer-reviewed manuscript” public.

On the forewarned-is-forearmed principle, I’d like to set out the publisher arguments that others might also be better prepared to defend the public interest in this body of work in this blogpost, while dedicating the next blogpost to describing the legislation that I think is needed – and worth lobbying for – to honor the human right to know.

The lobbyist campaign above all sought to raise the spectre of (unsubstantiated) dangers. “The progress of science,” Michael Mabe of the Scientific Technical and Medical Publisher’s warns in his letter, “could be irreparably harmed” by reducing embargo by six months. To avoid such a disaster, Maria A. Pallante, president of the Association of American Publishers, writes in her letter that any such bill should explicitly recognize “the rights of the publisher,” as these “leaders in promoting public access” contribute “critical business value to the raw manuscripts of researchers.” As a result, “for many end users – whether emergency-room doctors or policy makers”– this added value “is essential to locating and discerning the literature.” Thus, the need for retaining the 12-month embargo “unless there is substantial evidence that it has proven detrimental to the overall goal of providing public access.”

There’s the rub. Emergency-room doctors (and healthcare professionals generally), unless they work in a university setting, have minimal access to any research that is not open. (This is no less true of policy makers, outside of those served by the Library of Congress.) More than that, when my colleagues and I studied 336 physicians’ use of research, we found that while only a third of them took advantage of the complete access we provided them for a year, fully half of what they looked at (an article-a-week on average) was recent enough to fall within the 12-month embargo period. That is, Pallante’s emergency-room doctors are not able to see up to half of what they want to consult because of the 12-month embargo. A reduction of that embargo to six months would significantly increase what they can consult, whether for, as the physicians in a second study told us, diagnosis, treatment, educational purposes, or improving medical procedures.

In another common theme to the publisher letters, London Biggs, of State Government Affairs – West for Elsevier (the largest of commercial scholarly publishers), refers in her letter to “misunderstandings as to what is, and what is not, the direct result of taxpayer funding.” Ms. Biggs goes on to demonstrate the same by claiming that “the private sector works – without taxpayers’ monies – to enhance the quality and integrity of scientific literature.” I would counter this misunderstanding by pointing out that taxpayers’ are financing a good part of this particular private sector through library subscription fees that draw on research “overhead” from taxpayer grants, state transfer payments, and tax-exemption benefits. But then Ms. Biggs also points to the value added by Elsevier’s 20,000 editors, without noting that they are researchers and largely employees of public or tax-exempt universities (whatever stipend they may receive from Elsevier).

Other publishers complain that the bill fails to provide them with additional money for open access, while impeding their ability to recoup their significant investment in these publications (presumably at current 30-40 profit margins). These publishers included non-profit scholarly societies, such as the American Physical Society, whose leaders write that under a six-month embargo subscriptions “would largely lose their value,” although to its credit the APS notes that it grants public libraries and high schools free access.

Coming to the defence of the reduced embargo, Heather Joseph, director of SPARC, representing the research library community, points out in her letter that the 28 countries of the European Commission have a six-month embargo in place, and how, closer to home, the American Society for Cell Biology has but a four-month embargo on its journal, with neither showing any signs of dire or any consequences except increased public access to research.

In sum, the publishers’ response to this bill suggests that: 1. The publishers harbor doubts about the value that they add to the research, given they suspect that research libraries, with timely access to the “peer-reviewed manuscript,” will not pay for the published version; 2. The publishers’ predictions of dire consequences from reduced embargoes are undermined by their acceptance of these terms in other jurisdictions without noting untoward effects; 3. Unsubstantiated threats to corporate assets trump (pun intended) evidence that a reduced embargo will increase research access for physicians and others. 4. That this body of research is a corporate asset, given the proportion of public investment in this work, suggest that rather than quibble about months of embargo, we should deliberate over a better way “to promote the progress of science and useful arts,” as the U.S. constitution describes the basis of intellectual property law.

This final point is in the spirit of the publishers’ repeated commitments “to working with all stakeholders to ensure that efforts to enhance open access continue to live up to this spirit of enterprise, creativity and communication,” as Brian Napack, president of Wiley puts it in his letter. In my next SLAW.ca blog, I want to turn the lessons learned here into suggestions for copyright reform for research and scholarship. Such reforms need to ensure that publishers are paid for their services, while providing unencumbered open access. While the author-pays model of article processing charges (APC) is achieving as much in a number of sciences, it is not applicable across the disciplines. Stay tuned for Part II of Reconciling Property Rights and Human Rights When It Comes to Knowledge.

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