Recommendation

During the COVID-19 pandemic, medical researchers shared information to speed up innovation, demonstrating the vital importance of making scholarly research open access, says John Willinsky. Yet despite widespread agreement from publishers, researchers and librarians about the benefits of open access, there’s no clear path forward. Willinsky calls out publishers for engaging in monopolistic pricing strategies, reducing access to research, and he challenges those working in the scholarly publishing world to advocate for reforms to the Copyright Act to better serve the public good and the economy.

Take-Aways

• Open access to COVID-19 research enabled a prompt pandemic response.
• A lack of open access impedes scientific innovation and knowledge dissemination.
• There’s a constitutional imperative and growing stakeholder desire to amend the Copyright Act.
• Congress has the constitutional power to enact open-access reforms.
• The market is failing to balance corporate interests with the public good.
• Researchers have different motives than other authors and need special copyright treatment.
• A nonprofit collective should oversee the setting of fair rates.
• Open access aligns with a human rights framework, economic growth and the public good.

Summary

Open access to COVID-19 research enabled a prompt pandemic response.

In the race to create a COVID-19 vaccine, 160 research organizations and publishers signed a commitment to openly share research about the pandemic response to speed up innovation. Congress had no constitutional mechanism to force publishers to share vital information about the virus. Further, a joint statement on open sharing, drafted by the Wellcome Trust, couldn’t overturn the Copyright Act, which created challenges for those wanting to share knowledge about the virus openly. Instead, publishers took it upon themselves to make research articles about COVID-19 accessible.

“Copyright’s constitutional shortcomings during the pandemic make clear the need for Congress to consider whether the law fully serves its original purpose, which involves promoting the progress of science and humankind.”

This “open-access” experiment demonstrates that it’s time to reform the Copyright Act to ensure it actually serves Scientific progress and the public good. There’s a need to explore the possible correlation between making COVID-19 research open access and a decline in pandemic-related deaths – one could theoretically attribute this to factors such as health care workers having more access to research, better positioning them to make informed decisions. Given that making scientific research more accessible appears to be in the public interest, there’s a constitutional imperative to work toward shifting to an open-access model.

A lack of open access impedes scientific innovation and knowledge dissemination.

Embracing the open-access shift benefits scientific progress, as scholars can better check their assumptions, identify knowledge gaps and refine their research methods when they can more easily compare their work with peers. People are also more likely to read open-access articles: In the first six months after journals publish them, readers download the full versions of open-access articles almost 90% more than they do closed articles. Research also shows that open-access papers see an 18% increase in citations compared to non-open-access articles.

“Researchers’ work is inspired, energized and advanced by access – that is, others’ access to their work and their access to others’ work.”

Publications within different academic disciplines are switching to open-access models at a different pace: Although journal articles related to astrophysics and astronomy are overwhelmingly open access (87%), inorganic chemistry and pharmacy researchers publish open-access papers only 7% of the time. While publishers may have publicly agreed to embrace the transition, there is currently no clear pathway to do so, with many continuing to charge exorbitant fees.

There’s a constitutional imperative and growing stakeholder desire to amend the Copyright Act.

Many organizations believe that open access would serve the scientific community, including funders, academic institutions, corporate publishers, librarians and researchers. For example, the CEO of Elsevier – one of the biggest publishers of scientific researchers – Kumsal Bayazit says, “I want to be very clear: Elsevier fully supports open access.” Researchers have found workarounds to ensure they can share their work freely after publication. For example, Cornell physicist Paul Ginsparg built arXiv.org, an archive where physicists could upload electronic files of their work before submitting them to journals to “democratize the exchange of information.” Today, over 200 libraries and institutions support arXiv.org. Biomedical researchers also made their work open access during vaccine development, uploading over 150,000 papers to preprint servers medRxiv.org and bioRxiv.org. Given that stakeholders from various backgrounds are supporting open-access initiatives, why should Copyright Law continue rewarding publishers for restricting access to research data?

“It is as if the digital-era promise of open access for science has pulled the constitutional rug out from under the Copyright Act.”

US Democratic Representative Martin Olav Sabo was one of the first to attempt to reform the Copyright Act with an open-access initiative in 2003, the Public Access to Science Act. Although his bill was unsuccessful at winning congressional support, he made a compelling case, arguing that federally funded research should be open access. Sabo’s bill quoted the 1895 Printing Act, which holds that “copyright protection is not available for any work of the United States Government,” arguing that taxpayers should be able to freely access research sponsored with their tax dollars (for example, through federal grants).

Congress has the constitutional power to enact open-access reforms.

The Constitution supplies those working to reform the Copyright Act legislation with a strong argument in support of open access, as its intellectual property clause centers around the need to “promote the progress of Science and useful Arts” for the benefit of humanity. Jane C. Ginsburg, a Columbia scholar of intellectual property law, explains that in the 18th-century publishing culture, Congress intended to employ “copyright as a means of furthering public education” and make scientific discoveries more accessible through education. Lawyer and scholar Malla Pollack explains that 18th-century Americans’ use of the phrase “promote the progress of science” refers to scientific innovation and the spread of scientific knowledge. Given these insights, one could argue that Congress already has the power to encourage open access, as it aligns with the intent of the Constitution’s intellectual property clause.

“Congress is empowered to take steps that promote the progress of science.”

Lawyer Joshua N. Mitchell says laws meet the Constitution’s requirements of promoting scientific progress when one can reasonably believe the laws will accomplish three things: increase the quality or quantity of knowledge; “encourage the dissemination of knowledge”; and improve existing laws. It’s also important to address whether laws will help deter predatory and pirated publications and ensure fair compensation to publishers. Such tests ensure that the Supreme Court strengthens its commitment to judicial “originalism” – which Associate Justice Amy Coney Barrett says “means that the constitutional text means what it did at the time it was ratified” – as it’s important to keep the initial public meaning of “promote” and “progress” when ensuring copyright law is constitutional.

The market is failing to balance corporate interests with the public good.

Economist Adam Smith believed the “invisible hand” of the market could reconcile public good and private interests, but when it comes to scholarly publishing, the market has failed to deliver “goods” – research papers – at a fair price. Although publishers claim to support open access, their exercise of copyright monopolies that limit the circulation of knowledge impedes this goal.

Springer Nature, Wiley, Elsevier, SAGE and Taylor & Francis are currently dominating the scholarly publishing market using “monopoly maintenance” strategies, such as market concentration and monopolistic pricing. Elsevier is the world’s second-biggest open-access publisher, publishing 25,000 open-access titles in 2016 alone. However, these papers account for only 6% of its total articles.

“A clear economic path forward to open access has yet to appear, while subscription prices continue to increase ahead of inflation.”

The 2019 study “Assessing the Size of the Affordability Problem in Scholarly Publishing” found evidence that open-access publications using article processing charges (APC) and subscription fees contribute to “hyperinflation and market failure.” Some publishers have profited by charging exorbitant APCs, with Cell Genomics charging authors $10,000 to publish an article. Publishers can charge libraries between hundreds and thousands of dollars for subscriptions to journals while increasing prices of subscription bundles in an “unrelenting” manner. In the “serials crisis” of the 1990s, libraries had no option but to reduce access to scientific knowledge, canceling titles and decreasing book orders due to price hyperinflation. Introducing statutory licensing could help combat such market failures, by requiring institutional users and those funding research to fairly compensate publishers while protecting against monopoly pricing schemes.

Researchers have different motives than other authors and need special copyright treatment.

Scholarly research fundamentally differs from other forms of writing, such as novels, and the Copyright Act should treat it differently. For one, some argue that the concept of “authorship” as it’s commonly understood doesn’t apply to most scientists, who may simply publish factual findings with several other scientists and do not view their research work as “writing.” While considering scientists “nonauthors” is extreme, one should view scientists as authors of a type of intellectual property that today’s Copyright Act doesn’t recognize. These authors are credited not for the quality of their writing but rather for the scientific breakthroughs they share, following a rigorous research process. Authors of scientific research also have different motives from other authors, as they aspire to see their work cited as much as possible. Yet the “citation economy” of scholars is largely self-governing, as copyright law doesn’t cover attribution (or protect against attribution errors).

“As a first step, the Copyright Act will have to be modified to recognize ‘research publications’ as a discrete and well-defined body of work in light of how such works differ from other forms of intellectual property.”

The integrity of scholarly research is undermined due to a lack of regulation. For example, the “deep web shadow library” Sci-Hub is a repository of illegally obtained studies. Predatory journals like Sci-Hub spam researchers with invitations to publish their work in open-access, low-APC journals. Many even pretend to be legitimate journals, copying editors’ names from legitimate publications while promising suspiciously fast acceptance and turnaround rates. Legal scholar Daryl Lim points out that in cases where one finds “clear instances of consumer harm,” statutory licensing must be applied. The prevalence of fake, predatory journals proves that statutory licensing should be applied to better protect the public interest.

A nonprofit collective should oversee the setting of fair rates.

Those working in scholarly publishing have “reason, if not a responsibility,” to push for the amending of the Copyright Act to serve the public good and scientific research better. The copyright amendment should establish a board that determines whether a work is designated under the special category of research publication, and that board should make this distinction by considering factors such as the involvement of recognized scholars as editors and the presence of a peer review process.

“I remain convinced…that amending copyright will work better than the current pileup of scholarly publishing approaches moving us ever so slowly toward an imperfect and potentially unsustainable open access.”

It will be Congress’s responsibility to form a “research licensing collective,” a nonprofit organization composed of organizations such as scholarly societies and publishing entities, to manage open-access licensing through collecting payments and distributing funds to members. The collective will work to set reasonable terms and rates, working with the copyright royalty judges to ensure they reflect rates a willing seller and buyer would have set in the marketplace. These legislative fixes aren’t too much to ask from Congress and are, in fact, realistic – Congress has already nearly enacted 60 digital reforms in other copyright areas.

Open access aligns with a human rights framework, economic growth and the public good.

Making research open access would have numerous positive impacts on scientific communities and society as a whole, which include:

• Protecting the Declaration of Human Rights’ privilege to “share in scientific advancement and its benefits.”
• Protecting scholars’ and researchers’ ability to consult relevant research in an international context.
• Honoring the billion-dollar taxpayer investment that US residents pay toward federal agencies that fund research.
• Ensuring fair pricing and research access to libraries.
• Aligning copyright law with its original intent to “promote the progress of science.”

“Where we are with open access to research at this point can be summed up by a comment attributed to the science fiction writer William Gibson: ‘The future is already here. It’s just not evenly distributed yet’.”

Switching to an open-access model accelerates the pace of innovation and learning while contributing to economic growth. Leveraging a statutory licensing model can be a temporary solution. If the open-access market were to show signs of maturing and stabilizing prices, then Congress could overturn this decision and embrace a free market model. Ultimately, the law must find a balance between the commercial needs of authors and publishers and the needs of readers and researchers, who have a right to access scholarly knowledge.

About the Author

John Willinsky is a founding director of the Public Knowledge Project, as well as a professor emeritus at Stanford University’s Graduate School of Education and a limited-term professor at Simon Fraser University.

Review

“Copyright’s Broken Promise: How to Restore the Law’s Ability to Promote the Progress of Science” by John Willinsky is a thought-provoking book that delves into the history and evolution of copyright law and its impact on the progress of science. The book argues that the current state of copyright law has strayed from its original purpose of promoting the progress of science and instead has become a tool for restricting access to knowledge and stifling innovation.

Willinsky, a renowned scholar in the field of intellectual property law, expertly weaves together historical and legal analysis to demonstrate how copyright law has failed to keep pace with the changing needs of society. He contends that the law’s focus on protecting the interests of copyright holders has led to an imbalance in the way knowledge is created, disseminated, and used. The book highlights how this imbalance has resulted in barriers to scientific progress, including the restriction of access to research materials, the suppression of new ideas, and the slowing of innovation.

The book is divided into four parts. The first part provides an overview of the history of copyright law and its intended purpose. Willinsky skillfully traces the evolution of copyright law from its origins in the Statute of Anne in 1710 to the present day, highlighting the ways in which the law has been shaped by political, economic, and technological factors.

In the second part, Willinsky delves deeper into the ways in which copyright law has failed to promote the progress of science. He argues that the law’s emphasis on protecting the interests of copyright holders has led to a focus on restricting access to knowledge, rather than promoting its dissemination and use. He explores how this has resulted in the creation of barriers to scientific progress, including the restriction of access to research materials, the suppression of new ideas, and the slowing of innovation.

The third part of the book offers a detailed analysis of the ways in which the law’s imbalance has affected various fields of science, including medicine, agriculture, and technology. Willinsky provides compelling examples of how the law has hindered progress in these fields, including the prohibition of seed saving, the suppression of generic medicines, and the restriction of access to scientific literature.

Finally, in the fourth part, Willinsky offers a set of thoughtful and well-reasoned recommendations for reforming copyright law to better promote the progress of science. He argues that the law must be rebalanced to prioritize the public interest in the dissemination and use of knowledge, rather than the private interests of copyright holders. He proposes a number of changes, including the expansion of fair use provisions, the creation of a new category of “scientific use” exceptions, and the establishment of a public-interest-focused copyright policy-making process.

Throughout the book, Willinsky’s writing is clear, concise, and accessible, making it an engaging read for both legal experts and those without a background in law. The book is thoroughly researched and well-supported, with extensive footnotes and references that provide a wealth of additional information for readers who wish to delve deeper into the subject.

In summary, “Copyright’s Broken Promise” is a compelling and thought-provoking book that provides a comprehensive analysis of the ways in which copyright law has failed to promote the progress of science. Willinsky’s expertise in intellectual property law shines through in his detailed analysis and well-reasoned recommendations for reform. The book is a must-read for anyone interested in understanding the complex relationship between copyright law and scientific progress, and for anyone who believes that knowledge should be accessible to all.

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