Hyperlinked version of this critique: http://bit.ly/70QyL
SUMMARY: 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 simply slows down progress
toward reaching the universal Green OA that is already fully within
the global research community's grasp. Professor Shavell's paper on
copyright abolition conflates Books with journal articles, Gold OA
with Green OA, and the problem of Open
CRITIQUE OF: Shavell, Steven (2009) Should Copyright Of Academic Works
Be Abolished?
http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/Copyright%207-17HLS-2009.pdf
[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."
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: 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 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
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