Copyright and Open Access: Reconsidering University Ownership of Faculty Research

• Publication year: 2021

85 Nebraska L. Rev. 351. Copyright and Open Access: Reconsidering University Ownership of Faculty Research

351

Robert C. Denicola(fn*)

Copyright and Open Access: Reconsidering University Ownership of Faculty Research

TABLE OF CONTENTS

I. Introduction ...................................................... 351
II. The Challenge of Open Access ..................................... 353
A. Open-Access Journals .......................................... 356
B. Self-Archiving ................................................ 361
III. University Ownership of Research ................................ 370
A. Work Made for Hire ........................................... 371
B. Faculty Research as Work for Hire ............................ 376
C. Implementation ............................................... 379
IV. Conclusions ...................................................... 382

I. INTRODUCTION

In 2001, a group of prominent scientists urged a boycott of scholarly journals that refused to provide free online access to research articles within six months after publication. In an open letter to colleagues they pledged to "publish in, edit or review for, and personally subscribe to only those scholarly and scientific journals" that complied with their demand.(fn1) They defended their stand with the proposition that "[a]s scientists, we are particularly dependent on ready and unimpeded access to our published literature, the only permanent record of our ideas, discoveries, and research results, upon which future scientific activity and progress are based."(fn2) Over 30,000

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scientists from 177 countries signed the pledge to boycott. It did not work.(fn3)

Librarians are also unhappy with the current state of scholarly publishing. An annual subscription to some academic journals exceeds $20,000, forcing many university libraries to cancel hundreds of titles.(fn4) The irony of the current system is not lost on university administrators, who complain that commercial publishers obtain research papers for free from university faculty, enlist other faculty as unpaid referees and editors, and then charge exorbitant prices to sell the results back to the universities that paid for the research in the first place.(fn5)

The benefits of open access to scholarly research seem largely beyond debate.(fn6) Whether that access can be achieved without seriously disrupting the production and publication of scholarly research, however, is a different matter. Proposals have generally taken two forms.(fn7) One advocates reliance on a new generation of "open-access" journals committed to offering free online access to users. Funding, and the reluctance of researchers to forgo the prestige of publishing in

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established journals, pose major challenges for this approach. Another approach centers on "self-archiving"--the deposit by authors of published articles in an accessible electronic archive, whether a personal website, institutional repository, or discipline-wide archive. Here the law of copyright presents a major obstacle. Researchers typically assign the copyright in their work to the journal that has agreed to publish it.(fn8) Any subsequent uploading of the work by a self-archiving author to a publicly accessible website may well infringe the publisher's copyright.(fn9) The usual rejoinder urges faculty to be better stewards of their copyrights.(fn10) However, even researchers knowledgeable about copyright are a poor bargaining match for the giant commercial publishers that dominate the industry.(fn11)

This Article makes a more controversial suggestion. Universities should exercise their legal right to claim ownership of copyright in the research publications produced by their faculty. Only universities can wield sufficient leverage to compel fundamental change in scholarly publishing. Although traditionally an anathema to faculty, university ownership of copyright in research can be implemented without undermining academic freedom or the economic and reputational interests of university faculty.

II. THE CHALLENGE OF OPEN ACCESS

There was no official beginning to the open-access movement.(fn12) Growing appreciation of the capabilities of the Internet and the World

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Wide Web in the early 1990s led inevitably to visions of desktop access to information of all sorts. For scholars, the information of interest was the work of their fellow researchers. Since the colleagues responsible for the production of most of that information had no expectation of payment, and since in any event it was all in a good cause, it was possible to dream not only of access, but of free and immediate access.(fn13) For librarians and university administrators, open access offered a way to mitigate the consequences of subscription cancellations. The first formal statement of principles may have been the Budapest Open Access Initiative, which arose from a 2001 meeting of the Open Society Institute funded by billionaire George Soros. The Initiative understands "open access" to denote

free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself.(fn14)

A more technical definition of open access was promulgated by a group of biomedical research organizations at a 2003 meeting in Bethesda, Maryland, which encouraged researchers to deposit their work in accessible repositories on the following terms:

The author(s) and copyright holder(s) grant(s) to all users a free, irrevocable, worldwide, perpetual right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship, as well as the right to make small numbers of printed copies for their personal use.(fn15)

Representatives of major European research institutes and national scientific agencies meeting later that year in Berlin adopted the same language.(fn16) A United Nations summit has also endorsed the call for open access to scientific research.(fn17)

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Researchers as users of published works have been quick to take advantage of open access. A 2003 British survey of researchers in fifty-seven countries conducted as part of the RoMEO (Rights Metadata for Open Archiving) Project found that eighty-eight percent had made use of research papers that were freely available on the Internet, mostly accessed from individual webpages.(fn18) Even among researchers whose own works were not freely available on the Internet, seventy-four percent reported use of open-access sources.(fn19) The researchers commonly expected to display, print, save, and excerpt open-access works.(fn20) A substantial majority of users believed that any copies should be exact replicas of the original and that the author should be credited.(fn21)

If researchers as users have embraced open access, what of researchers as authors? A 2004 survey, primarily of U.S. and European journal authors, asked how the authors would respond if their employer or funding agency required them to deposit copies of their published articles in an open-access repository. The vast majority reported that they would do so willingly, with only three percent indicating that they would refuse.(fn22) The RoMEO survey found that a significant majority of authors considered it acceptable for other researchers to display, print, save, and excerpt an article that they had made freely available on the Internet.(fn23) The only restrictions that most authors would impose on the use of their open-access works

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were limitations against alteration and use for certain purposes (probably understood as commercial use or sale).(fn24) The sole condition on use that attracted majority support from authors was attribution of authorship.(fn25) Thus, the restrictions and conditions that researchers as authors would impose on the use of their own open-access works closely parallel the limitations that researchers as users expect to observe when accessing the works of others.(fn26) Although this convergence of views, fortified by the general public interest in access to research, would seem to make open access an uncomplicated proposition, implementation remains a challenge.

A. Open-Access Journals

One response to the demand for open access to scholarly research has been the emergence of open-access journals. In the United States, the most prominent example may be the open-access journals published by the Public Library of Science (PLoS). PLoS describes itself as "a nonprofit organization of scientists and physicians committed to making the world's scientific and medical literature a public resource."(fn27) In 2003, it launched a series of open-access journals beginning with PLoS Biology; by 2006 there were seven PLoS journals. All work published in PLoS journals is immediately available online without charge, and users may download, reprint, and redistribute the work limited only by an obligation to credit the author and journal. The largest open-access publisher may be BioMed Central, a commercial publisher based in Britain with over 150 journals, some under its own editorial control and others administered by independent research groups.(fn28) Works published by BioMed Central are accessible on the same terms as those in PLoS journals. Although open-access publishers like PLoS and BioMed Central may play an increasingly prominent role, they are unlikely to become the dominant model for scholarly publishing.

Open-access journals face numerous obstacles. They are, of...