The King Is Dead (R.I.P. Content). Long Live the King (Hail Access).

The big news this past summer on my scholarly publishing beat is Elsevier’s acquisition of bepress, which was announced August 2nd, 2017. Bepress began life as Berkeley Electronic Press in 1999, when three economists at Berkeley saw the writing on the screen, at a time when most scholarly journals were being printed and mailed out, and created an online publishing platform. Jump ahead to 2011 and bepress sold off its portfolio of 67 journals to de Gruyter. Now Elsevier, the largest publisher of scholarly journals, has acquired the company itself, which provides a centralized repository service called Digital Commons that includes a publishing platform and a showcase. Some 500 libraries use bepress for storing and tracking papers, data, and other scholarly materials, as well as for publishing journals.

With its acquisitions of bepress, and last year, SSRN (Social Science Research Network), a preprint service, Elsevier is signaling a pretty big shift in the intellectual property economy of scholarly publishing. Both bepress and SSRN are designed to provide free access to the research that they host in the form of drafts, pre-prints, data-sets, and (often illegal) published work. And where once content was king, a refrain once frequently heard about the web (but surely true since Gutenberg), Elsevier suggests the future lies elsewhere. There’s new king looming over the horizon, at least for the commonwealth of learning, and that would be the platform for mobilizing and tracking open content.

As of 2016, Elsevier proudly notes, it has become the second largest open access publisher. Now that the tide that has turned against publishers retaining exclusive “ownership” of this public good, this corporate leader is looking to extend its management services for this intellectual property, from its inception at the draft stage through its accumulation of data and on to the long tail of its impact as a published work.

In considering the consequences of this move, and in the interests of full disclosure, I should note that I direct the Public Knowledge Project, a university-based developer of an open source software version of a journal management and publishing platform known as Open Journal Systems. In that regard, then, I can say that we, as well as our open source counterparts working in this area, such as Duraspace, which develops repository systems, and Coko, which develops publishing platforms, would welcome the publishers into this market of publishing and repository services, especially if it means them moving away from corporate ownership of this literature.

As for the vast majority of the literature that continues to be held hostage, we might consider the role of the law in bringing about widely agreed-upon change. Open access makes perfect intellectual property sense for research and scholarship, given the legal origins of modern copyright in the encouragement of learning and in promoting the progress of science and the useful arts. Compared to novelists and musicians, the publishing incentive for researchers is not to profit from (or barely survive on) the granting of limited-term monopolies to their work. Rather, researchers thrive by reaching the widest possible audience; they benefit from the use made, rather than the sales, of their work. Where print subscriptions were once the best way for researchers to achieve that, today open access offers far greater benefits not only to them as authors and readers, but to the society at large.

Thus the legal reform, I would dare to suggest and not for the first time, to better fulfill the intent of intellectual property law with this body of work is to designate research a protected property class (rather than relying on the current legal mix of exemptions and exceptions that do little to ensure open access). This property class would require immediate and complete open access, and to be financed, much as it is now, by the funders and institutions associated with its production and use. Those with substantial investments in such property, like Elsevier, might be offered tax breaks or other compensation, in light of the gains to be had in scholarly and public value.

Such a blog-size solution hardly provides adequate detail and strategy to achieve this goal, but still it may at least be clear that creating a property class for research is one way to bring the rights of researchers and society into far more of a balance than is being done by the remnants of the print subscription system for journals. I also recognize that such intellectual property law tailoring, as it is known, is no small legislative undertaking, especially as it would have to take place across multiple jurisdictions. Yet if the benefits from creating universal access to research and scholarship on this global scale does not merit substantial legal reform, one might wonder what does.