Preparing academic scholarship for an open access world.

• Author: Bramble, Nicholas

TABLE OF CONTENTS I. INTRODUCTION II. DEFINING OPEN ACCESS AND THE DILEMMA IT SEEKS TO SOLVE A. The Purpose of Open Access B. Methods of Open Access C. Implications of Open Access for the Future of Academic Publishing and Subscription Journals III. EXAMINING ACADEMIC RESISTANCE TO OPEN ACCESS A. Arguments for and Against Open Access 1. Prestige 2. Quality Assurance 3. Balkanization 4. Copyright and their IP 5. Economic Sustainability B. A Raw Description of the Ease and Virtue of Open Access IV. APPEALING TO AUTHORIAL SELF-INTEREST VERSUS LEGISLATIVE SOLUTIONS A. Potential Legislative Solutions and Other Levers to Lean upon B. Choices Confronting Open Access Advocates V. MAKING EFFICIENT USE OF THE LAW I. INTRODUCTION

The Open Access ("OA") movement, which seeks to promote the free distribution of scholarly material on the public Internet, aims for nothing less than "universal availability of a comprehensive source of human knowledge and cultural heritage." (1) Open Access initiatives have great potential for facilitating widespread distribution of scholarly literature and multiplying the ways in which students and teachers can make educational use of this content.

Although Open Access tools have been available for several years, academic researchers have not yet adopted these tools in large numbers. This Note seeks to address this phenomenon by discussing what a more expansive impact--and a richer feedback loop, beyond one's immediate disciplinary peers--might mean for the future of academic work. Part II defines Open Access, discussing how it works and how a shift away from subscription journal-based publishing might affect knowledge-sharing in universities. Part III examines the primary concerns fueling academic resistance to Open Access. Part IV criticizes this resistance and asserts that it could be overcome through a more thorough understanding of Open Access and its impact, in conjunction with institutional advocacy and legislative attempts to ensure public access to publicly funded research. Finally, Part V offers some provisional normative conclusions as to how we can most effectively use the law in conjunction with institutional advocacy to create open regimes of scholarly publishing.

2. DEFINING OPEN ACCESS AND THE DILEMMA IT SEEKS TO SOLVE

   In broad terms, Open Access stands for the "free online availability of digital content." (2) A researcher who wants her article or her research data to be freely available online can publish it in an Open Access journal, which will freely distribute the content online, or she can secure the rights to self-archive her content on a personal site or institutional repository. Soon, in some contexts, Open Access will no longer be a matter of choice. A bill currently in front of the Senate would require any researcher receiving federal funding to make her research findings accessible online. (3) Additionally, a few universities are seeking to require their faculty to archive their publications. It is difficult, however, to understand the impact of these various initiatives and the extent to which they might reshape academic attitudes towards scholarly publication without some understanding of the purposes and functions of Open Access.

   1. The Purpose of Open Access

      Most Open Access advocates would agree that the purpose of Open Access is to remove price barriers such as subscription and licensing fees, as well as permission barriers such as licensing restrictions, from what authors can do with the articles they write and from what viewers can do with the articles they read. (4) The Budapest Open Access Initiative, (5) the Bethesda Statement on Open Access Publishing, (6) and the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities (7) are known collectively as the "BBB" definitions of Open Access. Each begins with the essential point that peer-reviewed journal articles, as well as some unreviewed preprints or "e-prints," should be free from "financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself." (8) The Budapest definition puts forward perhaps the most expansive definition of "open access" to scholarly literature, promoting authors' rights vis-a-vis the article publisher as well as users' rights vis-a-vis the author and publisher. (9)

      From a journal reader's perspective, the primary difference between traditional publishing and Open Access publishing is that with the latter, "the bills are not paid by readers and hence do not function as access barriers." (10) For this reason, librarians have been some of the strongest early supporters of the Open Access movement, recognizing Open Access initiatives as a means of circumventing the high fees charged by major publishers for access to bundled groups of major and minor journals. (11)

      However, to argue that the purpose of Open Access is merely to cut down on the costs of accessing scholarly publications is perhaps to miss the point. If scholarly publishing has three primary functions--"making the work accessible, publicizing the work, and endorsing the work as trustworthy" (12)--then a description of a robust system of Open Access publishing must refer to all three of these functions.

      Technological improvements in the harvesting of metadata may allow users of Google Scholar, the Social Science Research Network, or even Westlaw or LexisNexis, to find more relevant search results and to more easily locate the article they are searching for within a web of other relevant articles. In terms of publicity, Open Access has the capacity to expose articles to new marketing mechanisms and revenue streams such as Google Adsense, as well as to improve the methods by which readers locate articles.

      Finally, Open Access can enhance trust by drawing upon tools such as blog comments and algorithms that measure the number of incoming links, the quality of those links (e.g., whether the citation expresses a positive or negative view of the article), and the quality of commentators, in order to elevate or demote certain articles based on these and other similar factors. (13)

   2. Methods of Open Access

      To overcome the copyright and licensing restrictions that would otherwise limit access to a scholarly work, an author essentially has two choices. She can put her work in the public domain, or she can publish her work (e.g., in a journal) and "obtain the copyright holder's consent" for a range of legitimate scholarly uses "such as reading, downloading, copying, sharing, storing, printing, searching, linking, and crawling." (14) Most Open Access proponents focus on the latter choice, which can be effected in several ways.

      Legal devices like the Creative Commons Attribution License (15) allow for a fine-tuned apportionment of rights in the granting of consent for scholarly use. With this license, a journal publisher interested in Open Access--or the author herself--can agree to waive some of the rights associated with copyright while simultaneously retaining other rights, such as the power to block the dissemination of altered, transformed, misattributed, or commercialized copies. (16) By dividing rights in this way, the distinction between author and publisher becomes less pronounced and the author gains some of the sharing and distribution rights essential to the promotion of Open Access.

      Authors who publish in a journal that has made all of its articles freely available online, such as the Public Library of Science ("PLoS") or BioMed Central ("BMC"), are said to be taking the "golden road" to Open Access. (17) The advantage of publishing in an Open Access journal is that Creative Commons-style licenses are the rule rather than the exception. The author need not bargain or plead with the journal publisher for the right to archive her paper in a repository, because the journal itself functions as an open repository. (18)

      Many, but not all, of these golden road journals are financed through an "author pays" system. (19) With the PLoS model, the author of the article pays a fee--often courtesy of a research grant from her affiliated institution--to place her article in a journal, thus covering some or all of the journal's production and distribution expenses. (20) The PLoS provides one example of an increasingly common journal publishing model where the journal charges no fee to its online readers, instead deriving its funding from external grants, subscription fees levied upon subscribers to the print version of the journal, fees charged to article authors themselves, or some combination of these three sources. (21) BMC journals make use of supply-side funding as well, levying a $525 article processing fee on each author, which is waived if the author or her institution has already purchased BMC membership. (22)

      Other golden road Open Access journals, by contrast, fund their activities through "donations, bequests, institutional support, priced add-ons or auxiliary services to support publication." (23) Although two of the most prominent Open Access journals--PLoS and BMC--charge processing fees to authors, (24) a majority of Open Access journals charge no fee to authors, and those that do often waive or lower the fee if it proves financially burdensome to the author. (25)

      As an alternative to publishing in an Open Access journal, an author can choose to take the "green road" to Open Access by publishing in a normal subscription-only journal and retaining her right to self-archive the article on a personal website or in a larger institutional repository. (26) Proponents of the green road, such as Stevan Harnad, contend that it presents a more practical alternative to free universal access insofar as it does not require creating an entirely new journal model for development and funding. (27) The green road merely entails securing the right to republish an article once one has already published in a print journal. (28) Here, the problem is not in securing...