From: "Thatcher, Sanford Gray" <[log in to unmask]>
Date: Sun, 5 Apr 2020 23:25:34 +0000

As a longtime advocate of open access in scholarly publishing, I welcome
this exploration of how copyright law might be amended to forward the
movement, but I also want to point out that university press publishing
first got under way in the late 19th century because of "market failure"
that made STEM journal publishing commercially difficult. The first two
publications of The Johns Hopkins University Press (founded in 1878) were
journals in mathematics and chemistry.

If universities had foreseen the future better, they might have anticipated
the need for major growth in STEM journal publishing following WWII and
invested in it through their own already existing presses. But instead they
mostly allowed new commercial publishers like Pergamon to spring up and
take over the business. Ever since universities have been behind the 8-ball
in dealing with the consequences of the outsourcing of this crucial task.

To protect their already threatened revenue streams, university presses in
the early 1970s looked to copyright law to protect themselves from the
excesses of photocopying. In our testimony to Congress in 1973 we urged
that Section 107 be written in such a way as to promote factor 4--effect on
the potential market--to the principal position, with the other three
factors reduced to subsidiary importance, and had this suggestion been
adopted, a lot of lawsuits and legal confusion could have been avoided.

Copyright was crucial to university press publishing during that era, and
still is to the extent that the business relies on the regular market as
the main source of its revenues.  But I became convinced two decades ago
that it was a losing battle and that the only viable way forward for the
future that would be economically sound and at the same time would reflect
best the Constitutional purpose of copyright would be to move toward open
access.

I therefore look forward to reflecting on how John sees a way of blending
these two together.

Sandy Thatcher
------------------------------
From: John Willinsky <[log in to unmask]>
Date: Fri, 3 Apr 2020 17:43:59 +0000

Among the encouraging and unprecendented instances of a world pulling
together (while standing apart) in the face of this devastating pandemic
have been the accelerated responses of open science, including publisher
open access initiatives (based on library support). How to sustain this
open access in the (longed for) post-Covid era is a question that bears on
Jim O’Donnell’s “How could that work?” (March 31), and on my efforts to
assemble a case for amending copyright law that it might do more support
universal open access to research and scholarship. Inspired by Jim’s
question, I'm sharing a multi-chapter draft of the work-in-progress here
<https://nam01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fdocs.google.com%2Fdocument%2Fd%2F1bjulpetHpvOs1EcWtOGv0RCPgST0Y8AvooP97COOnbg%2Fedit%3Fusp%3Dsharing&data=02%7C01%7Csgt3%40psu.edu%7Ceee79a07945a4fe402dd08d7d9b1d453%7C7cf48d453ddb4389a9c1c115526eb52e%7C0%7C0%7C637217230100270018&sdata=ZL5qRfzLBWE09PMAOgFu%2FM6hpw2Uyab81x6wWo3Il0E%3D&reserved=0>
with
a summary below to test the waters and benefit from commentary.

John Willinsky
Khosla Family Professor
Graduate School of Education
Stanford University


*Copyright’s Constitutional Violation: When the Law Fails to “Promote the
Progress of Science” (While Promoting Practically Everything Else) *

A summary of the case for an open access reform of the United States
Copyright Act:

1. A consensus has recently formed among scholarly publishing’s principal
stakeholders (including the big publishers) that open access to published
research does more than closed subscriptions for the progress of science.

2. This consensus means that the current use of copyright to restrict
access to research places the law in violation of the Constitution, which
holds that such laws are “to promote the progress of science,” rather than
impede it.

3. In lieu of copyright reform, the National Institutes of Health and other
parties have created legal and extra-legal workarounds that compromise open
access (with embargoes, final drafts, illegal copies), slow its spread, and
allow costs to soar, with copyright contributing to open access’ market
failure to date.

4. Yet, copyright offers a promising strategy in “compulsory licensing,”
which could require, in the case of scholarly publishing, immediate open
access to published research and fair compensation to its publishers from
its principal institutional users and funders.

5. Such reform would be daunting, if Congress had not amended copyright
nearly 60 times in the digital era (but not for science), with many of its
reforms now operating internationally, which is the goal for open access
copyright reform.