Last week, “Inside Higher Ed” ran an article about the release by the White House of all the comments submitted to the Office of Science and Technology Policy in response to their request for information about public access to federally-funded research. I was gratified to see that they chose to quote from the comments submitted by the Duke University Libraries. But I was also appalled when I read the quote from comments submitted by the publisher Wiley Blackwell in response to the question about appropriate embargo periods for public access. The Wiley official wrote that “Any embargo period is a dramatic shortening of the period of copyright protection afforded all publishers.”
This statement strikes me as deliberately misleading. Publishers are not afforded any period of copyright protection by the copyright law, anymore than plumbers or ophthalmologist are. This kind of misinformation is intended to create the illusion that publishers’ business models are somehow favored by federal law and thus inviolate, but that is not true. Only one group is afforded copyright protection and the term for which that protection lasts — authors (under section 201(a) of the copyright law, Title 17 of the U.S. code). If publishers hold any rights, they hold those rights only because they are transferred to them by the authors whose works they publish. And if those authors choose, they can transfer less than the full copyright, and for less than the full term of protection.
Increasingly the transfer of copyright to publishers in exchange for using their distribution networks seems like a very bad bargain indeed. As the ongoing boycott of Elsevier dramatically indicates, scholarly authors are becoming much more vocal and open as they demand a better solution for distributing their works. It has always been problematic to give away the rights under copyright for free to publishers who then sold the works at a high profit, in which authors did not share. Now there are many other options available to authors, many of which publishers are anxiously trying to undermine. It is very important to some publishers that authors do not come to understand the power they have based on the fact that they hold all of the rights under copyright and can leverage those rights to do what is best for them.
Statements like the one from Wiley Blackwell reflect, I think, an increasing sense of panic in the publishing community. Disinformation is seen as one way to fight the growing realization that they may become as irrelevant in the Internet age as blacksmith and buggy whip makers became in the age of the automobile.
We see this sense of panic manifest in several ways. When Oxford University Press tries to claim that essays written for edited volumes are “work made for hire,” they are grasping at a legal straw that cannot hold up for them. Likewise when publishers like Elsevier and the American Chemical Society write publication contracts that try to make authors’ retention of rights, or not, dependent on the kinds of internal policies that exist on the authors’ university campuses. Such contracts are more cries of anger and fear than legal agreements. In all of these cases, the publishers are looking for a legal lever they can push that will stave off irrelevance. But the law does not work that way in general, and copyright is written to benefit authors and give them control over their works, not to prop up a particular business model.
Companies that survive are those that adapt to technological change, not those that desperately try to use legal coercion to prevent the change. The movie industry learned this when their attempt to prevent home video recording failed; they were forced to adapt, and they found new ways to flourish.
Instead of resisting public access to taxpayer-funded research and writing byzantine contract language intend to punish authors who seek to exploit their legal rights, publishers need to look at how they can provide services to authors that will be necessary and desirable in the digital environment for scholarship. Last month I had lunch with an official of a major publisher who talked about this approach to his business and was full of creative ideas. Unfortunately, he is still a minority voice. But misrepresenting the state of the copyright law is not the future for the publishing industry; services for authors is the future. It is time for publishers to stop grasping at straws, for authors to stop giving away all of their rights under copyright, and for both groups to work together to figure out what the future of scholarship is going to look like.