Working the Law Against Its Intent: Policing Access to Research

The current series of legal kerfuffles in scholarly publishing involves property and access rights in an industry that is, for all intents and purposes, moving toward universal open access. Let’s begin with recent moves by Elsevier, the largest of scholarly publishing corporations with over 2,000 journals, and the American Chemical Society, among the richest of the non-profit societies. These two entities have recently been awarded damages of $15 million (June 2017) and $4.8 million (September 2017) respectively by the U.S. courts, in light of Sci-Hub database, (which I have addressed earlier) providing free access to the better part of the research articles they each publish and for which they alone hold the copyright.

There is little chance of these two large awards being collected, because Alexandra Elbakyan, the only person known to be behind Sci-Hub, is in hiding in Russia, nor are the courts able to block the website which is located in the deep web. But then neither of the aggrieved parties offered any proof that they had, in fact, suffered any financial losses in cancelled subscriptions or article purchases as a result of Sci-Hub’s appearance in 2011. On the other hand, Sci-Hub established that it is providing interested readers with about a million papers a week (based on its sharing of six months of data from September 1, 2015).

If Elsevier’s and ACS’ suits had little to do with the recovery lost revenue, it might seem as if their legal strategy is about reminding the academic community that such publishers own the better part of this body of knowledge and, as such, have a legal right to determine the financing of access to it now and into that uncertain future. The courts have provided them with the means to make clear their rights to profit without limit from this seeming public good.

If that seems unfair or hash consider more recent developments. Elsevier, ACS, and a number of other publishers have recently formed a Coalition for Responsible Sharing, which issued a statement on October 5th, 2017 indicating its plans to “issue takedown notices to ResearchGate requesting that infringing content be removed from the site. Concurrently, the American Chemical Society and Elsevier are asking the courts to clarify ResearchGate’s copyright responsibility.” ResearchGate is one of a number of “scholarly collaboration networks” (of which Elsevier has purchased over the last few years Mendeley and Social Science Research Network) that provide millions of authors a free and ready means of sharing their drafts, preprints, and, here’s the rub, published works. Now the Coalition has a making-nice side. It provides researchers with a hip website How Can I Share It? It insists that publishers “strongly support responsible sharing of research and we are prepared to work with ResearchGate to ensure that sharing respects the needs of all stakeholders, especially those of the research community.”

Yet if this matter of sharing is all about especially respecting the needs of the research community, that community has made it clear, at both ends of this process of consuming and producing research, that what it wants and needs is access, even as it is willing both to share its work as widely, easily, and quickly as possible, and to continue to peer review this work (at no cost for publishers) to raise its quality. And what the publishers have made clear, despite this call for respecting others’ needs, is their willingness to criminalize, in effect, the scholarly activities of those downloading the million papers a week to which they have no other access (or perhaps none as convenient), and those, among the 13 million people on ResearchGate, who have posted copies of their own (published) work.

The publishers use of intellectual property law in these instances does not appear “to promote the Progress of Science and useful Arts,” as the U.S. Constitution, which is strikingly clear about the intent of such law, puts it. If anything, these lawsuits and takedown notices appear to deter that progress that is otherwise suggested by the sharing that is going on. The publishers would have a case, on the other hand, if they were to offer evidence that Sci-Hub and ResearchGate are causing them sufficient financial harm to put their peer-reviewed journals at risk of failing financially. This would have to be significant harm, given that the leading publishers, which control a major portion of the market, have profit margins exceeding those of most industries.

When the law is being turned against its original and still-admirable purpose, it may be time to reform the law, rather than rail against those taking advantage of the law in the manner of rational economic actors. This reform is something that the academic community might assist with by helping legislators construct perhaps a new category of intellectual property for research and scholarship tailored to promote the progress of science and useful arts in the digital era.