Publisher position on author rights

Three academic publishing organizations recently released a short position paper called “Author and Publisher Rights for Academic Use: An Appropriate Balance” that is worth a look from all who are concerned about scholarly communications.  For higher education, the position paper contains elements that evoke hearty agreement and others that demand objection.

If, as a recent comment on the LibLicense list suggested, the purpose of the paper is to call wide attention to two facts, that many scholarly journals already have very “scholar-friendly” policies built into their publication agreements and that copyright is not necessarily a barrier to academic discussion and comment, there would be little to argue with.  It is quite true that many academic journals already allow authors to retain many or most of the rights necessary for subsequent teaching and research uses.  It is important that authors read those agreements to be sure this is true in their specific case and to consider whether or not self-archiving or some other form of electronic deposit is permitted, since such access is becoming more and more important to scholars and to scholarship.

On the issue of digital “open access” availability, the position paper takes an awkward stance.  While citing several journals that have adopted “author-pays” models of open access as leaders, the paper marshals several arguments against mandated public access for research funded with public money.  Some of these arguments are self-contradictory; if one fear about open access is that it will “confuse the scientific record,” why is it suggested that a better course than mandating access to the final version of an article is to post pre-prints?  While pre-print repositories seem less threatening to the traditional business model of journal publishing, the scientific record is best preserved when access to the scholar’s final word is available to all.

One comment at the very end of the report deserves comment.  The publishing organizations take note of the educational exceptions and limitations built into copyright law but assert “that these exceptions are thus far limited to traditional photocopying and do not permit the exploitation of such materials [journal articles] over the Internet.”  This is wishful thinking; no court, that I am aware of, has decided one way or another about how far educational exceptions apply in the digital realm.  The TEACH Act, although largely a failure at its stated purpose, is clearly intended to apply some leeway for education to the Internet.  And the oft-repeated assertion that copyright law is technology neutral implies that there is fair use on the Internet, as the recent Perfect 10 decision held, even if its educational boundaries have not yet been clarified.