The Open Access Consensus and Copyright Reform

This is the second in a series of blogs on how U.S. copyright law has, with the emergence of open access to research and scholarship in the digital era, slipped into an unconstitutional state because it can no longer be said, in the case of science, “to promote the progress of science and useful arts” (U.S. CONST. art. 1, § 8, cl.8.). Rather, the law is called upon to constrain such progress. These shortcomings apply no less trenchantly to Canada’s Copyright Act, as well as to copyright laws in most other jurisdictions. It is the U.S. Constitution’s particularly pointed wording on this question of science when it comes to such law that makes this country the obvious starting point in making a case for copyright reform on behalf of science everywhere.

There are two premises that underwrite this call for reform and its timing: (a) The recent emergence of what is now a widespread consensus that open access to research promotes the progress of science better than the subscription model of the print era; and (b) the corresponding need for the United States Congress to now consider amending copyright law so that it is attuned, again, to its constitutional purpose with regard to science, even as it has shown a continuing willingness to revise the law in light of related technological changes to such “useful arts” as video games, cell phones, and music streaming.

This blog deals only with the last of those to join the open access consensus, which has obviously been key to making this case for legal reform at this point. Compared to the endorsements of researchers, funding agencies, innovative publishers, and academic librarians that took shape in the first decade of this century, the support for open access is a more recent phenomenon among the large corporate publishers, such as Elseiver, Springer Nature, Wiley, and Taylor and Francis.

Perhaps the most dramatic instance among these publishers is found in Elsevier’s turnaround in support for open access. In 2008, Elsevier responded to the call for public comment on National Institutes of Health’s Public Access Policy – which legally required grant recipients to make the final drafts of publications resulting from the grant available within twelve months of publication – by condemning the policy for violating the very principles of copyright, and by doing so placed the future of scholarly communication at risk:

The NIH’s current implementation of the public access policy deviates sharply from the principles embodied in copyright. Implementing the public access policy in a manner not consistent with copyright law contradicts the direction by Congress and could have serious unintended and undesirable consequences on scientific communication.

As it turns out, to my surprise, Elsevier’s critique of the NIH’s policy is very much on point for my case. Requiring public access to research within twelve months of publication is contrary to copyright law, because the law is intended to protect the publishers’ right to exclude the public until an article’s longest living author has been dead for seventy years. This is precisely why I think that the law needs another way to address research and scholarship. Yet note how if the NIH policy appears contrary to the intent of the law, it is consistent with copyright’s underlying constitutional imperative, namely, to promote the progress of science. The NIH holds that the papers going into PubMed Central are offered to the public “at no cost, much like a library does, under the principles of Fair Use.” While the applicability of the Fair Use “exception” might be challenged, given the scale of it all, this Public Access law still amounts to a legal workaround or circumvention of existing copyright law (to Elsevier’s point), while the up to twelve-month embargo on releasing the work in a manuscript state demonstrates the compromise with publishers that makes this workaround work.

The Public Access Policy became law in 2008, and three years later the undaunted Elsevier got behind the proposed Research Work Act intended “to ensure the continued publication and integrity of peer-reviewed research work by the private sector” by, among other things, shutting down the NIH’s Public Access Policy. The publisher dramatically withdrew its support for the bill in 2012, as did its congressional sponsors, after 13,000 academics signed a petition threatening to boycott the company.

Five years later, in 2017, Elsevier was taking a different tact with a campaign that announced “five surprising facts about Elsevier and open access,” the first of which is “Elsevier publishes open access.” The surprise speaks candidly to its past stance, as is the further fun fact that its 25,000 open access articles in 2016 (for which authors are levied an “article processing charge”) made it is the second largest open access publisher. It has embraced the good that such access can do for science as well as the company’s bottom line, with two-percent increases reported in revenues and profits in 2018.

Elsevier may have been on both sides of the access question over the course of the last two decades (with more still to be worked out in the financing of its position, judging by failed negotiations of the past year with a number of its large customers). Yet the company has clearly emerged on the side of the open access consensus, where it joins other publishers large and small in support of open access in principle if not yet in practice.

This is where amending the law comes in. For copyright laws everywhere need to recognize that science and scholarship would be better served by a different intellectual property order of incentives and rights that set it legally apart from the copyright mainstay of exclusive, lengthy monopolies, while providing a means for ensuring fair compensation for publishing costs, with more to follow on all of that.

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