Conflating Open Access With Copyright Reform: Not Helpful to Open Access

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SUMMARY: Professor Shavell's paper on copyright abolition conflates (i) books with journal articles, (ii) Gold OA with Green OA, and (iii) the problem of Open Access with the problem of copyright reform. Although copyright reservation by authors and copyright reform are always welcome, they are unnecessary for universal Green OA; and needlessly suggesting that copyright reservation/reform is or ought to be made a prerequisite for OA simply slows down progress toward reaching the universal Green OA that is already fully within the global research community's grasp.

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Critique of:

Shavell, Steven (2009) Should Copyright Of Academic Works Be Abolished?

[S. Shavell's Summary] "The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) -- suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the "open access" movement that effectively seeks this objective without modification of the law faces fundamental difficulties."

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[Note: Professor Shavell's posting as well as the critique below are unrefereed, unpublished drafts ("preprints"). They have both been posted publicly, but they do not constitute formal "publications" in the academic sense, let alone peer-reviewed publications. In particular, Professor Shavell's working draft was posted in order to solicit comments, on the basis of which it is likely to be revised before being submitted for publication. These unpublished postings can, however, be referred to and cited, as long as the user is careful to make it clear that they are prepublication working drafts rather than lapidary refereed postprints that have been accepted for publication by a journal. This is all part of evolving scholarly practice in the online era.]

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Professor Shavell's paper contains useful analysis and advice about scholarly/scientific book publication, economics and copyright in the digital era, but on the subject of refereed journal articles and open access it contains too many profound misunderstandings to be useful.

(1) What are "academic works"? Shavell largely conflates the problem of book access/economics/copyright and journal-article access/economics/copyright, as well as their respective solutions.

The book and article problems are far from the same, and hence neither are their solutions. (And even among books, the boundary between trade books and "academic" books is fuzzy; nor is an esoteric scholarly monograph the same sort of thing as a textbook, a handbook, or a popularization for the general public by a scholar, although they are all "academic.")

Books are single items, bought one-time by individuals and institutions -- journal articles are parts of serials, bought as annual subscriptions, mostly by institutions.

Books are still largely preferred by users in analog form, not digital-only -- journal articles are increasingly sought and used in digital form, for onscreen use or local storage and print-off. (OA only concerns online access.)

Print-on paper books still cost a lot of money to produce -- digital journal article-texts are generated by their authors. In the online age, journals need only provide peer review and certification (by the journal's title and track-record): no print edition, production or distribution are necessary.

It is not clear that for most or even many authors of "academic works" (whatever that means) the sole "benefit" sought is scholarly uptake and impact ("scholarly esteem"), rather than also the hope of some royalty revenue -- whereas it is certain that all journal article authors, without a single exception, do indeed seek solely scholarly uptake and impact and nothing else.

(2) What is Open Access? Shavell largely conflates fee-based Gold OA (journal publishing) and Green OA (journal-article self-archiving), focusing only on the former, and stressing the deterrent effect of having to pay publishing fees.

(3) Why Pay Pre-Emptive Gold OA Fees? Gold OA publishing fees are certainly a deterrent today. But no publishing fees need be paid for Green OA while institutional subscriptions are still paying the costs of journal publishing.

If and when universal Green OA -- generated by universal Green OA self-archiving mandates from institutions (and funders) worldwide -- should eventually cause institutions to cancel their journal subscriptions, rendering subscriptions no longer a sustainable way of recovering the costs of journal publishing, journals will cut costs, phase out inessential products and services that are currently co-bundled into subscriptions, and downsize to just providing and certifying peer review, its much lower costs paid for on the fee-based Gold OA cost-recovery model out of the institutional windfall subscription cancellation savings.

Shavell instead seems to think that OA would somehow need to be paid for right now, by institutions and funders, out of (unspecified) Gold OA funds, even though subscriptions are still paying for publication today, and even though the pressing need is for OA itself, not for the money to pay for fee-based Gold OA publishing.

Universal OA can be provided by mandating Green OA today. There is no need whatsoever for any extra funds to pay for Gold OA.

(4) Why/How is OA a Copyright Issue at all? Shavell largely conflates the issue of copyright reform with the issue of Open Access, suggesting that the way to provide OA is to abolish copyright.

This is not only incorrect and unnecessary, but redirecting the concerted global efforts that are needed to universalize Green OA Mandates toward copyright reform or abolition will again just delay and deter progress towards universal Green OA.

Green OA can be (and is being) mandated without any need to abolish copyright (nor to find extra money to pay Gold OA fees).

Shavell seems to be unaware that over 90% of journals already endorse Green OA self-archiving in some form, 63% endorsing Green OA self-archiving of the refereed final draft immediately upon acceptance for publication. That means at least 63% Immediate Green OA is already potentially available, if mandated (in contrast to the 15% [not 5%] actual Green OA that is being provided spontaneously, i.e., unmandated, today).

And for the remaining 37% of journal articles, the Green OA mandates can require them to be likewise deposited immediately, as "Closed Access" instead of Open Access during any publisher access embargo, with the Institutional Repository's "email eprint request" Button tiding over research usage needs by providing "Almost OA" during any embargo.

This universally mandated 63% OA + 37% Almost-OA will not only provide almost all the research usage and impact that 100% OA will, but it will also hasten the well-deserved death of publisher access embargoes, under the mounting pressure for 100% OA, once the worldwide research community has at last had a taste of 63% OA + 37% Almost-OA (compared to the unmandated c. 15% OA -- not 4.6% as in Shavell's citation -- that we all have now).

In conclusion: Professor Shavell's paper on copyright abolition conflates (i) books with journal articles, (ii) Gold OA with Green OA, and (iii) the problem of Open Access with the problem of copyright reform. Although copyright reservation by authors and copyright reform are all always welcome, they are unnecessary for universal Green OA; and needlessly suggesting that copyright reservation/reform is or ought to be made a prerequisite for OA simply slows down progress toward reaching the universal Green OA that is already fully within the global research community's grasp.

Stevan Harnad
American Scientist Open Access Forum