Paper Tigers: Rethinking the Relationship between Copyright and Scholarly Publishing

Discontent is growing in academia over the practices of the proprietary scholarly publishing industry. Scholars and universities criticize the expensive subscription fees, restrictive access policies, and copyright assignment requirements of many journals. These practices seem fundamentally unfair given that the industries' two main inputs-articles and peer-review-are provided to it free of charge. Furthermore, while many publishers continue to enjoy substantial profit margins, many elite university libraries have been forced to triage their collections, choosing between purchasing monographs or subscribing to journals, or in some cases, doing away with "non-essential" materials altogether. The situation is even more dire for non-elite schools, individual scholars, and members of the general public. There is a growing sense within the scholarly community that change is needed, but change, thus far, has come slowly. Members of the scholarly community have approached the problem with a number of different "fixes." The first fix focuses on funding. The Compact for Open-Access Publishing Equity, which commits its signatories to underwrite the costs associated with "author-pays" models of open publishing, is an example. The second fix has been to encourage scholars and universities to voluntarily boycott publishers that employ particularly egregious practices. [...]Finally, the third fix has been to promote faculty contributions to open repositories or journals.[...] The problem, however, is bigger than any of these fixes, for two related reasons. The first is tied to copyright. Many publishers are able to charge expensive fees and limit access largely as a result of their standard practice of conditioning publication on the scholar's transfer of copyright. Even universities with open publishing policy mandates have an escape clause that waives the requirement if it conflicts with the terms of a publisher's copyright transfer agreement. Why are scholars willing to transfer copyrights to publishers? The answer has to do with the second reason, which is tied to incentives. A scholar's publication record is often the most important, if not the sole, proxy for assessing professional performance. Universities incentivize scholars to publish in the most prestigious journals; prestige enables publishers to require copyright transfers; and copyright ownership enables publishers to restrict access and charge expensive fees. The problem is self-reinforcing. In this Article, I attempt to neutralize the part of the problem that deals with copyright issues by showing that, at least with respect to copyright, scholarly publishers are "paper tigers": the legal basis of their copyright claims is less secure than is commonly assumed. In so doing, I hope to offer universities an alternative approach to promoting change within scholarly publishing. In Part I, I explain how, despite customary practice and common (mis)understanding, universities in fact own the copyrights in faculty-created works under the work-for-hire doctrine.[...] In Part II, I describe how, in response, universities developed various policy "solutions" in an attempt to circumvent the application of the work-for-hire doctrine. However, these solutions fail to satisfy the requirements set forth in the Copyright Act. I argue that while these policy failures have damaging implications for the proprietary scholarly publishing industry, the potential effect on the public's interest in open access to scholarly works is quite promising. In Part III, I explore some of the implications of this revised understanding of the law and address concerns expressed by some scholars and commentators that faculty-creators will be harmed by university ownership of copyright. Finally, I conclude with a series of recommendations that universities could undertake to reduce reliance on the proprietary scholarly publishing industry and empower faculty while promoting open access.

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