Paper proposal: copyright and open access

Digital Writing Month (#DigiWriMo) begins in just two days, and I’ve decided to participate this year. I really have no idea whether I’ll actually hit the goal of 50,000 words in the month of November, but it’s good to have aspirations.

Since I’m taking classes during my sabbatical this year, I actually have a paper to write. The project I’m working on is for my Law and Digital Media course. I thought it might be interesting to try blogging the research and drafting as the paper (conveniently due at the end of November) progresses.

So, though #DigiWriMo hasn’t officially started just yet, I thought I’d kick things off by posting my paper proposal. I realize the topic isn’t new, and others have covered significant parts of this ground ahead of me. Still, I’m trying to pull it together and synthesize it for myself, so for me, at least, it’s worth doing.

Comments and/or suggestions are, of course, welcome.


I plan to write a fairly traditional paper (and will likely blog portions of it during the drafting process, as I participate in Digital Writing Month.

My subject is open access scholarly publishing. I begin from the premise that the principal point of scholarly work is the dissemination of knowledge. With the emergence of new web technologies and with high-speed internet access now being common in many parts of the world, sharing new knowledge is easier than ever—except when it isn’t.

Though it might seem entirely reasonable for scholars to, for example, post articles they’ve written to either an institutional repository, to their own websites, or to both, it isn’t necessarily legal for them to do so. That’s because they don’t necessarily own their own work. When they sign a publishing agreement, they’re often handing over their copyright—and with it, their ownership—to the publisher. Whether they’re then allowed to post their own work online, and if so, where and in what form, is up to the publisher.

This results in some situations that just seem, well, wrong. Take, for instance, what happened to Hugh Gusterson: a journal that owned the copyright to an article charged him $400 to reprint an article in a book of essays. He was the author of the article in question.[1] As a second example, consider the fact that colleges and universities often end up paying twice for the same research. A school pays the salary of its faculty members, whose responsibilities include research and writing. Let’s say a faculty member publishes a book. The school has already paid for the book by paying the faculty member’s salary. But if they want a copy of the book for their library, they’ll have to pay again, and academic monographs don’t come cheaply. [2] [3]

The problem is particularly egregious when research is publicly funded in some way (whether through grants or through the salary of a faculty member at a public university). Some grant providers, such as the NIH, have recognized this. The NIH has a public access policy which reads: “The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.” [4] Publishers, perhaps unsurprisingly, have attempted to push back against such policies with measures such as the failed Research Works Act. [5]

Such an important issue warrants further exploration. In this paper, I will examine the impact of copyright law on open access. Economics is an inextricable part of the open access issue, so I will need to explore that as well. I’ve already located a number of law review articles, journal articles, and blog posts that will be useful in this exploration. I expect to conclude by proposing ways that we might move the open access movement forward.

  1. See Gusterson’s recent commentary in the Chronicle of Higher Education. (back)

  2. I’m indebted to David Parry for this example. Unfortunately, I cannot recall where in his online writing I first came across it. (back)

  3. The situation with regard to databases providing access to scholarly journals is also less than stellar. See, e.g., Jenica Rogers’ post on why SUNY Potsdam no longer subscribes to the American Chemical Society’s journal package. (back)

  4. See NIH Public Access Policy Details. (back)

  5. Wikipedia’s article on the Act has numerous references that provide useful background information. (back)