Learning to Campaign for Copyright Reform

I’ve come to realize that I’m in the early stages of a political campaign to amend copyright for open science. It didn’t start out as a campaign. It began as a series of talks and meetings that followed from an (open access) book on copyright reform that I published this fall. Having worked out a proposal for copyright reform, I wasn’t interested in promoting the book so much as learning more about what was involved in advancing open access through such a process. Very early in the process, it was made clear to me that the law is not an intellectual exercise but a political process. What matters is who’s on board, who’s ready to stand up and be counted. I had to move my talks from instruct-and-delight to can-I-count-your-support.

At the outset, I showed up underprepared and ill-equipped for such campaigning. I had but a simple idea. Copyright is due for a digital-era update when it comes to scholarly publishing, much as it has been digitally updated for video games, cell phones, broadcast TV, music streaming, and other cultural industries. Scholarly publishing stakeholders, be they publishers (big and small), researchers, libraries, and funders, are in agreement that open access is best for science in the digital era, and copyright has nothing to offer these stakeholders in achieving that shared goal. So I went to the usual scholarly lengths to establish why it is important to do something about this, which is to say I wrote the book.

In brief, I hold that a law that neither protects nor encourages open access is a law that generates further uncertainty for those moving to open access publishing. It is resulting in fragmented and partial open access to only a portion of the literature, amid embargoes and final drafts, under contractually complicated and pricey arrangements, which are often tied to subscription journal sales. So while the support for open access is widespread among publishers, researchers, and universities, the path to universal access is by no means clear. This strikes me as unconscionable after open access proved vital to the life-saving open science development of vaccines.

So I brought forward a proposal that had a proven record with the music industry. I was inspired by the copyright update of the Music Modernization Act of 2018, following, among other things, the copyright activism of Taylor Swift. At the act’s heart is statutory licensing, which has served the music industry for more than a century. Its balancing of access and pricing could be made to work for scholarly publishing. In this case, under statutory licensing, publishers would be required to offer immediate open access to research publications for which they are to be fairly compensated by the institutional users and funders of such publications. This requires that a new category, “research publications,” be introduced into the Copyright Act, while the means of achieving “fair compensation” would follow music’s 2018 digital update, which stipulates that a judicial process sets rates “that would have been negotiated in the marketplace between a willing buyer and a willing seller.”

Yet while the frustrations over how difficult and expensive it is to achieve open access is palpable among my audiences, they found this legal turn odd. Isn’t it obvious, the librarians held, that publishers are the problem (with publishers pointing the finger, a little more discreetly, at librarians). The long-standing distrust between librarians and publishers threatened to drain this open access consensus of its political force. What I’ve come to see is that I am not campaigning for this specific proposal.

I am campaigning for a setting aside of the distrust to which this adversarial relationship has given rise, in order to sit down and discuss how a law intended to encourage learning and promote scientific progress can do so in the digital era. I am campaigning for people to accept that the risks involved in engaging under a new set of rules are preferable to the certainties of protracted, partial, and increasingly expensive implementation of open access. I am campaigning for stepping away from responding to each new twist and turn of piecemeal copyright work-arounds to consider the substantial work of instituting legal reform. I am campaigning for a recognition that this new-found common cause of open access to science is important enough – in the face of pandemics, climate catastrophe, and a myriad of other matters – to supersede what has set scholarly publishing stakeholders apart for so long.

It is a campaign for recognizing that something more substantial than anything we’ve tried to date, on the order of amending copyright, is needed to achieve what we recognize as best for science and thus for humankind. A copyright update is overdue for research and scholarship. May it take whatever form is agreed upon by those who come forward, the law being the political beast that it is.