What Is Research?

March 17, 2009

The “fair copyright in research works” controversy

Filed under: Culture and society of research — vipulnaik @ 4:38 pm
Tags: , ,

There are competing interests, and there are competing interests. In recent years, there has been a growing Open Access (OA) movement, that advocates that scientific research be published for open access. So, not only should people be able to download scientific papers for free, they should also be able to reuse the results for their own experiments. Creative Commons, an organization that came up the the Creative Commons licenses that allow for creators of original works to give others rights that go beyond fair use in copyright law, has been among the organizations at the forefront of Open Access. They even have a separate branch, called Science Commons, that specifically deals with opening up scientific research.

Science Commons was understandably delighted at the NIH Public Access Policy. According to this policy, the National Institute of Health (a governmental organization of the United States) mandated that all research conducted with NIH grants be released to the public within a year of publication.

Recently, a bill was proposed by John Conyers, a Democratic House Representative from Michigan (a United States state) that would have the effect of scrapping the NIH public access policy, and effectively making it impossible for such policies to be instituted. The act was titled the Fair Copyright in Research Works Act”. Many in the blogosphere and scientific community were up in arms at this act. Consider, for instance, that 33 Nobel Laureates apparently opposed the bill. Or consider two posts by Lawrence Lessig and Michael Eisen in the Huffington Post, suggesting that Conyers’ decision to reintroduce the bill was influenced by the campaign contributions he received from commercial publishers. Conyers’ reply was severely trashed by Michael Eisen, Peter Subers, and Lawrence Lessig. Blog posts by Paul Courant, Molly Kleinman, and numerous others. Clearly, the bill hasn’t gone down well with a lot of open access advocates.

What precisely is the problem?

There are a number of arguments for making open access mandatory rather than voluntary, at least in certain contexts. One is the moral argument: taxpayers are paying for the research, so they have a right to access that research. This argument in and of itself isn’t extremely strong. After all, if we really want to be fair to taxpayers, shouldn’t taxpayers get to vote on how the NIH spends its money in the first place. Also, considering that only U.S. taxpayers are paying for the research, shouldn’t the open access policy make the materials openly available only in the United States, so that other countries do not free-ride off the money of U.S. taxpayers? Further, shouldn’t people who pay more taxes be given greater privilege in terms of the level of access they get? Further, considering that most taxpayers would not be interested in reading medical and health-related research, doesn’t this effectively subsidize researchers at the cost of publishers, while keeping the majority of taxpayers exactly where they are?

The taxpayer argument doesn’t seem to be a very strong argument logically, but I think it carries good moral and emotional overtones, which is why it is touted so much.

A more valid reason is the argument that opening up the findings of research creates very strong positive externalities for further research. Thus, a lot of other researchers can benefit from opened up research and thus benefit science, even though these researchers would not have found it personally worth it to subscribe to the journal. Further, science papers, once freely available, can be used by people who may not have tried them out in the past, such as high school students, people with health problems, and others.

Of course, these positive externalities aren’t just achieved by putting up papers for free — what’s probably more important is to make the papers visible and available to large numbers of people who wouldn’t have thought of using them beforehand. Which is why the NIH and PubMedCentral need to not just have easily available stuff, they need to capture the attention of people and tell them where to go to get the best information. After all, a lot of people outside the research institutes that subscribe to journals may very well be unaware of where to go, and the places they may first turn to are likely to be personal friends, family physicians, or universal resources on the Internet such as Google or Wikipedia. So public access without public awareness doesn’t help much. Nonetheless, public access could create significant positive externalities.

But this still begs the question of why public access should be made mandatory, rather than simply letting scientists make their own choice. Frankly, I do not see any good general reasons why public access should be made mandatory, but specific reasons based on the current balance of power may exist. For instance, it may be that academic tenure and research grants rely heavily on publication in certain journals, and thus, researchers are at the mercy of the terms and conditions offered by the journals. These journals, in turn, find releasing findings to the public detrimental to the business model. In the absence of sufficient competition in the journal space, journals are able to dictate terms to authors, who in turn are more concerned with keeping their jobs, positions, and research grants than with fighting stubbornly for open access. In this case, external regulation by the NIH changes defaults.

More long-term solutions

Feelings within academic communities about the role of journals are mixed, slanting towards the negative. This is why a lot of the commentary about commercial, non-open-access publishers is confused. One bunch of commentators argue (as in this blog post about the profits of Elsevier and LexisNexis) that commercial publishers squeeze huge profit margins while hapless researchers and librarians are forced to accept degrading terms. Hence, they should be replaced by non-profit foundations. Others argue that commercial publishers have very narrow and slender profit margins, which is why publishing is not commercially viable and should be moved out of the hands of commercial publishers. A blend of these views argues that commercial publishing used to be extremely profitable, but the new Internet architecture is changing things. (It is interesting to see that activists can feel more enthused both by their opponents doing well (which gears them up to fight) and by their opponents doing poorly (which makes them feel satisfied)).

I suspect, though, that if commercial publishers have any power that allows them to make huge profits, that power has been handed to them by academia. The researchers and librarians are far from helpless — they write the stuff and they buy it, and they are in a position to dictate terms. The fact that many researchers do not use open access as a criterion when determining where to publish findings is because they have few incentives to do so. (Anyway, most of their colleagues are in universities that have subscriptions to that journal). If tenure review committees chose to give preference to publication in an open-access journal for other factors being the same, there would be more competition to publish in such journals.

On the usage side, since most library users at universities tend not to have to pay for individual access to journal articles, they tend not to be price-sensitive and hence not to care about whether access is open. They do care, though, that they should be able to access any journal article from anywhere. The library managements do care, of course, but universities spend so much on so many other things of questionable importance that cutting down on journal subscriptions isn’t the first thing on their mind. They may lack the energy or the incentive to bargain hard with commercial publishers to lower prices.

If greater competition is to be encouraged in commercial publishing, it should begin by changing the criteria by which researchers are evaluated everywhere. Once people start becoming conscious of issues such as open access while submitting papers, there will be a greater wealth of open access content, and with this greater wealth, libraries can make more credible threats to commercial publishers to withdraw subscription unless they lower rates and/or adopt open access policies.

Economic crisis: bargaining chip for libraries

As I’ve described above, the main problem with pushing for competition in commercial publishing is that researchers have other things to worry about, library users don’t have to pay for access, and the most influential libraries are also usually rich enough to afford subscriptions. They cannot make credible threats to withdraw subscriptions when they’re flush with money, simply because they’d rather not draw the ire of researchers, who don’t want to have the inconvenience of not having subscriptions.

But economic crisis may paradoxically give libraries greater bargaining power. Constrained for resources, libraries can threaten to withdraw subscriptions, and many libraries at large universities have started doing so. Consider, for instance, that Harvard University is laying off librarians and cutting subscriptions. The increased bargaining power of libraries means that journals either have to justify themselves to libraries in terms of reduced costs or increased importance to library users.

(That poverty can lead to greater bargaining power is not a new concept. Poorer and more cash-strapped consumers are usually more aggressive at looking for better deals, hence forcing producers to compete more. Cash-strapped corporations can be more aggressive bargainers for their suppliers, since finding the cheapest supplier gets increased importance).


I personally think that the “fair copyright in research works” act is, on balance, a bad thing. The NIH public access policy seems a good thing, largely because of its indirect effects (though I cannot comment on whether a specific time-frame of one year is too long, too short, or just right), but I also believe that its greater importance would be to introduce openness and breadth of availability of one’s research as a parameter to evaluate researchers. The NIH’s policy may have helped in bringing this to the surface, but systemic changes in incentives across the board is what is necessary.

At the end of the day, it is possible that a lot of commercial publishers will embrace open access, perhaps with a lag time (such as the NIH’s one year). Some commercial publishers may offer more of immediate circulation traded off with a greater time gap for open access. In other words, open access may be traded partly for other benefits, but it may hopefully be one of the items to be bargained and competed about.


I discovered some old articles in the AMS Notices on related issues:



  1. You said:

    “If tenure review committees chose to give preference to publication in an open-access journal for other factors being the same, there would be more competition to publish in such journals.”

    The bottom line is that most of these tenure committees seem to have very little time in their hands to read through all the papers of all the applicants and hence they come up with some ham-handed criteria like “number of PRL or Nature papers”. For many branches of Physics espcially Condensed Matter Physics and related areas a PRL or Nature paper is platinum and people kill to get a publication there. Now this striving for PRL or Nature gives the publishers the opportunity to sky-rocket the prices.

    Now a beginning graduate student or even new faculties strive to get PRL or Nature papers because all the “big-shots” in the field publish there and a PRL paper exponentially increases the chance to be noticed internationally.

    Now if we can get the “big guys” to look beyond PRL then probably this monopoly will die down but then again isn’t this cut-throat competition for PRL hugely responsible for keeping up the standards and quality? Won’t quality fall if all publication becomes free?

    One can probably say that quality might not fall so badly since almost exactly the reverse situation happens in String Theory where all most all publications are in arxiv or in JHEP or Spires of which one is totally free and the other is free for developing countries.

    But then this situation has probably happened because the great gods in the Field like Witten even when he could trivially publish in PRLs etc chose to keep publishing in JHEP and arxiv and Spires so that his papers reach a much larger audience since these are free.

    Now for most branches of Physics this phenomenon has not happened.

    Can other branches of science get inspired by this sociology of the String community?

    But is the issue of quality control guaranteed?

    Doesn’t having things like PRL help in some sense by creating an easy filtration for readers where they don’t have to waste huge amounts of time locating the optimal source but can first start by searching PRLs since a PRL paper comes with a feeling that it is probably far better than the rest since it got through PRL’s selection process?

    Aren’t these costly journals just a way to make searching for optimal resources easier?

    And anyway in Physics even if a person publishes in the PRL she/he will put up a copy in the Arxiv from which everyone can read all papers for free. So one gets best of both worlds.

    Comment by Anirbit — March 18, 2009 @ 9:48 pm

  2. @Anirbit: The “quality” of PRL, or any other journal, comes from its selectivity, editorial process, and reputation, not from its price. Open-access doesn’t mean they’ll accept everything; they can still accept exactly the same small fraction of papers, with exactly the same (unpaid) editorial committees and exactly the same reputation. (The point of open-access isn’t to demand that they print and distribute their copies for free, only that they not assert exclusive copyright over their articles, preventing non-subscribers from accessing them.) The fact that many authors currently put up their papers on the Arxiv or on their websites is merely an uneasy inexplicit compromise; most journals require authors to hand over copyright to the journals (although they might make some exceptions allowing authors to put papers up on their own website, etc.), so freely distributing these papers, e.g. on the ArXiv, can technically be copyright infringement.

    @Vipul: For instance, it may be that academic tenure and research grants rely heavily on publication in certain journals […] In this case,
    There’s no need to be so conditional; you know this is true :p

    You are right that “academia”—researchers and librarians—on the whole can (in principle) dictate terms, but unlike the journals, they cannot easily make decisions unilaterally: individual researchers pretty much have to publish in some set of journals to remain reputable, and individual libraries pretty much have to subscribe to everything the faculty wants to access. Further, even if they act together, researchers+librarians at smaller places don’t have much bargaining power. Any bargaining/dictating of terms must come from collective decisions, and from the big universities. Fortunately, something like this is happening :D: MIT’s faculty has just passed a unanimous resolution that everything by MIT authors will be automatically made available under open access. (Like the policies at Harvard and Stanford, except that this is institute-wide.) See e.g. this post by Peter Suber (no ‘s’, BTW). [All these policies still allow authors to opt-out on a “paper-by-paper basis”, so it is not as perfect as one might have hoped, but still…]

    Hopefully, this (and similar resolutions at other universities) will exert some pressure on the publishers, and against the “fair copyright in research works” bill.

    Comment by Shreevatsa — March 20, 2009 @ 4:19 am

  3. John Conyers is not a senator, he is a representative in the U.S. House of Representatives.

    Comment by E.J.B. — March 21, 2009 @ 4:33 am

  4. Hi E.J.B,

    Thanks! I’ve updated the post accordingly.


    Comment by vipulnaik — March 21, 2009 @ 1:17 pm

  5. I recently asked a senior of mine about his opinion about this issue (who is a very brilliant student and officially that gets measured by his PRL publications during his PhD. Very few people get so many PRLs in their PhD like him)

    He is in principle in support of the idea of open access and abolishing of these PRLs and in putting up all research for free on arxiv. But then he says that as a beginner in these world his only sure way of proving his abilities to the world is by publishing in the PRLs. He says that its the sociology of the Condensed Matter people that sort of forces him to send papers to the PRL though in principle he would have preferred putting up in arxiv.

    He says that even though many of the big guys of the field have shifted out of PRL, for beginners like him his career is still going to be measured (like for post-doc applications) by PRLs. He feels sort of forced to do it by professional constraints.

    He says “Anyway everybody will read the paper from Arxiv. We still publish in the PRL since the community considers it cool to do so”

    Further people put up the papers on the Arxiv before sending it to PRL (since PRL can delay publication by months whereas on Arxiv its atmost 2 days), to ensure the first person to do something gets the credit. He says that the race is very competitive and hence Arxiv facilitates this process by allowing for fast publication whereas PRL adds social status.

    He pointed out 3 things:

    1. The process of sending papers to these PRLs is highly wasteful to research time since even after one has gotten publishable result one has to spend more than a month trying to write it up according to PRLs norms which are very strict abut layout, page length etc etc.

    2. He also said that these kind of journals rely heavily on a select group of people’s judgement to select papers for publications. He says that it seems illogical that publication decision in such high-profile journals be dependent on 1 man’s intellect.

    3. There is very little transparency or rules about the process of selection and hence the entire idea seems flimsy to him.


    My point about the cost was this: In an open access system where readers don’t have to pay for reading the papers, who is going to pay the editorial boards and the peer review committees etc? Are they expected to work on a voluntary basis?

    Unless the review committees are paid, should we expect that they will be equally dedicated to the painful work of reviewing papers? Hence my question as to whether open-access will lead to fall in quality?

    But then that senior of mine is of the opinion that anyway even if the reviewing process is weak, the scientific society as a whole acts like a giant filter where non-sense papers will get side-tracked since no one will read them. May be the process of filtration will be slower than a particular committee rejecting it but as a whole the open-access might be better since it will be filtering by the entire community rather than by a group of chosen people.

    Anyway that senior of mine read this blog and liked the ideas and was regretting the professional constraints which force newbies to PRL.

    I wonder how the open-access revolution would happen unless the beginning students start choosing it by de-prioritizing their immediate career needs of getting PRLs?

    Comment by Anirbit — March 24, 2009 @ 1:47 pm

  6. @Anirbit: As I tried to explain earlier, all the “editorial boards and the peer review committees etc” are, in most journals, already working unpaid. (The academic people, I mean.) It has happened with other journals that the entire editorial committee resigned en masse and started a new open access journal.
    Anyway, the point is about access, not price of the journals. If “everyone” who submits a paper to PRL is already putting up their papers on the ArXiv and the journal doesn’t complain, then that’s open access and good enough (for me, not necessarily for every open access advocate ;-)). There are many journals that don’t allow this, and/or in which very few authors put their papers online.

    Comment by Shreevatsa — March 25, 2009 @ 2:51 pm

  7. @Shreevatsa, Anirbit: Thanks for your comments. I’ll respond soon, when I get the time and have done some more digging into the matter.

    Comment by vipulnaik — March 25, 2009 @ 4:00 pm

  8. I’ve added some references to past writings in the AMS Notices (pretty old stuff — 1998 and 2000) that I’d read quite a while back. Should make for interesting reading!

    Comment by vipulnaik — March 25, 2009 @ 4:37 pm

  9. btw, Elsevier, which I mentioned as having been blasted by open access advocates for making a huge profit, has, as part of its copyright policy, a clear statement that authors can put up copies of the journal articles on public websites and pre-print sites. Elsevier does insist that the e-offprint created by Elsevier not be put up on other sites, but authors have the right to use their own PDF/Word version. See http://www.elsevier.com/wps/find/authorsview.authors/copyright

    Comment by vipulnaik — March 25, 2009 @ 4:41 pm

  10. Yes, it was a big change when that happened, Elsevier allowing authors to put it up on their website. [It was “before my time”, but still I know about it 🙂 Many publishers/journals don’t allow that.]
    And it’s possible to maintain criticism of Elsevier for quite independent reasons 🙂 There are many, like the El Naschie case. And Elsevier has been blasted not for making a huge profit but for having a high price.
    In fact it was Elsevier that one of the first instances of the entire editorial board resigning happened.

    Comment by Shreevatsa — March 26, 2009 @ 3:07 am

  11. Some other links that I discovered, related to open access in mathematics and physics:

    Open Access Publishing, a blog entry by Peter Woit, published September 9, 2006.

    What we can do, a write-up by John Baez, published August 13, 2007.

    Publishers Face Pressure From Libraries to Freeze Prices and Cut Deals, an article in the Chronicle.

    Life Among Peers, a Nature Physics Editorial on peer review, published 2006.

    Elsevier Journal Price Gouging, a blog post by Michael Perelman in October 2006.

    Comment by vipulnaik — March 26, 2009 @ 12:55 pm

  12. […] an earlier blog post, I discussed some issues related to open access. Here, I attempt to look at the matter more […]

    Pingback by Information costs and open access « What Is Research? — July 29, 2009 @ 4:59 pm

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