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
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 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.