It’s Time to Stop Copyright’s Violation of the U. S. Constitution

The jurisdiction in which it makes the most sense to reform copyright law so that it supports, rather than deters, access to research and scholarship is the United States. After all, the country’s Constitution empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The only other thing the Constitution seeks to “promote” is the country’s “lasting Welfare.”

Yet U.S. copyright law today violates this constitutional imperative. The evidence that copyright law is not promoting the progress of science comes from the federal government, academic community, legal profession, and publishing industry. It has been mounting over the last two decades, and while I plan to spend the coming year building a case for legal reform, let me sketch out some of the indicators of the law’s misalignment with the Constitution.

In the year 2000, the National Institutes of Health, a U.S. federal agency, established PubMed Central (PMC) as a “free archive” for those life science journals willing to participate. The intent was to make this literature “more accessible and easier to use and opens the door to greater integration with related resources” as a FAQ in 2004 put it. At the time, this science-promoting archive had only attracted the participation of 170 journals (of which 59 were BioMed Central’s new breed of open access journals). With the support of copyright, most publishers saw no reason to participate.

In 2001, the then Stanford professor of law Lawrence Lessig set up the Creative Commons to provide a legal means for copyright holders to readily share their work for such purposes as promoting the progress of science. This legal workaround is now the default license for open access research literature around the world, as its use promotes the open and rapid exchange of scientific findings in a manner that the current law makes difficult to achieve, let alone promote.

Beginning in 2003, researchers started to adopt institutional open access policies for the work they published as members of universities and research institutes. While a number of publishers have refused, on copyright grounds, to allow these researchers to share their work, the number of such institutional policies worldwide has grown to 797, with more and more publishers and funders coming on board, attesting to a belief within the academic community in the contribution that open access can make to the progress of science.

In 2008, the NIH saw into law a Public Access Policy requiring free access to the research it sponsored “no later than 12 months after the official date of publication… in a manner consistent with copyright law.” The consistency is achieved by the NIH entering into a contractual agreement with researchers that supersedes a copyright stipulation that might have prevented such access until 70 years after the death of the author. The federal government introduced, and subsequently strengthened, this legal workaround because current copyright law continued to be used to impede such progress for science.

Finally, and only within the last decade, the publishing industry has had its own change of heart over open access, seeing both the light and financial opportunity it offered. Consider the latest from the largest publisher: “You may be surprised to learn that Elsevier not only publishes open access, but that we are the 2nd largest open access publisher [as of 2017].” While No. 1 Springer Nature offers infographics on the science-enhancing “benefits” and “advantages” of open access, which they are proud to offer under a Creative Commons license.

Still, while government, universities, and publishers now agree that open access promotes the progress of science, copyright law is still relied upon in publishers’ restricting access to 70 percent of the literature and making criminals of the thousands of researchers whose pursuit of knowledge leads them to SciHub’s pirated papers. And leaving the resolutions of the law’s constitutional shortcomings to market forces is not working, judging by the recent breakdown in Elsevier’s negotiations with the University of California system.

What, then, is to be done? The answer may be to simply follow Congress’ example in its digital-era reforms, beginning in 1998, to promote the progress of such useful Arts as video recording and games, computer programs, and music streaming. Only a year ago, for example, Congress passed the Music Modernization Act (MMA), which provides a digital-era updating of compulsory licensing and copyright royalty boards, which offers a model that might well be adjusted to serve science.

With research, what would be compulsory is licensing for immediate open access. And the copyright royalty board’s three judges could, in this case, establish what MMA terms “a schedule of reasonable rates,” based on balancing the interests of the “willing seller” of publishing services and the “willing buyer” of academic libraries whose patrons read such publications. Now is the time for Congress to end the constitutional violation of what all of the relevant parties agree is necessary to promote the progress of science. My hope, in helping to mount the case for such legal reform, is that it will promote the lasting welfare of the country and the world.

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