Wednesday, March 21, 2018

Public Access limited copyright?

The following is adapted from the March 15 issue of my newsletter: "Inside Public Access"

 By David Wojick, Ph.D.
Synopsis: OA guru John Willinsky proposes that we change the copyright law to embrace public access. It is a big step but it may make sense.

 Canadian scholar and OA guru John Willinsky (now at Stanford) has written a thought provoking book and blog article. The basic idea is amazingly simple: If we are going to make research articles publicly available then we should change the copyright law to do just that.

Here is how Willinsky puts it (speaking just of Canada):

"Canada is recognizing that people everywhere have a right to this body of knowledge that it differs significantly from their right to other intellectual property (which begins well after the author’s lifetime)."

What is true for Canada is true for America too. In fact the Canadian government has a public access program that is similar to the US program.

The point is that copyright law gives authors certain rights for a certain time, that is very long (say 100 years), and the idea here is to dramatically shorten that time for a specific set of articles, namely research articles in journals.

As Willinsky points out, we are already making a lot of these articles OA (such as under the US Public Access Program) by funder mandate. Codifying this existing practice, without the funder limitation, would be easy as far as legislative drafting is concerned.

Getting it passed is another matter, of course, but I can see it having bipartisan support. The Democrats would like the health care argument for OA and the Republicans would like the innovation and economic growth argument.
The key point is that the researcher authors are not writing to make money. One could even argue that a lifetime+ copyright was misapplied to them in the first place. We need the present limited embargo period of 12 months to protect the publishing system, but that is all.

This idea fits the fundamentals elegantly. That makes it an attractive policy.

In fact Congress has already taken a step in this direction. Public Access originated in the Executive Branch, but Congress has now legislated it for the Departments of HHS (think NIH), Education and Labor.

One possible objection is that the 12 month embargo period is too short for some disciplines. However, the publishers have had five years to raise this issue formally with the US Public Access agencies and to my knowledge none has done so.

On the other hand, some disciplines are only lightly funded by the Public Access agencies. In that sense their case has yet to arise and they can make it in the legislative process. I imagine that if Congress were to move in the direction of public access copyright there would be a lot of discussion.

Willinsky specifically mentions a Canadian government review of copyright law that is presently getting underway. His book may even be timed for it. The title of his blog article is Let Canada Be First to Turn an Open Access Research Policy Into a Legal Right to Know so this clearly is a policy proposal.

How this Parliamentary review proceeds with regard to Willinsky's radical public access proposal might be worth watching. In any case the US Congress should consider it.

Note that Richard Poynder has a lengthy discussion of, and interview with, Willinsky here:

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