'Judge Coco Declares Ang Out of Line!' by flickr user Coco Mault
…going after plagiarists on legal grounds…
Judge Coco Declares Ang Out of Line!” image by flickr user Coco Mault used by permission.

One of the services that journal publishers claim to provide on behalf of authors is legal support in the case that their work has been plagiarized, and they sometimes cite this as one of the reasons that they require a transfer of rights for publication of articles.

Here’s a recent example of the claim, forwarded to me by a Harvard author of a paper accepted for publication in a Wiley journal.[1] The article falls under Harvard’s FAS open-access policy, by virtue of which the university held a nonexclusive license in the article. The author chose to inform the journal of this license by attaching the Harvard addendum to Wiley’s publication agreement. Wiley’s emailed response to her included this explanation:

You recently had a paper accepted for publication in [journal name] and signed an exclusive license form to which you attached an addendum from Harvard University. Unfortunately, we are unable to accept this addendum, as it conflicts with the rights of the copyright holder (in this case, the [society on whose behalf Wiley publishes the journal]). They guarantee the same rights that our copyright forms guarantee, but Harvard University, unlike Wiley, offers no support if your article is plagiarized or otherwise reused illegally.

(It then went on to list various rights that Wiley grants back to authors of articles in this journal, such as posting manuscripts in repositories, all of which are laudable, though they remained silent on their required 12-month distribution embargo.)

I have no problem with publishers requiring waivers of the Harvard open-access policy as a condition of publishing in their journals. They are their journals after all. And in the event, only a small proportion of articles, in the low single digits, end up needing waivers. But I bristle at the transparently disingenuous argumentation for their requirement. They make two separate arguments.

  1. The addendum “conflicts with the rights of the copyright holder”, the society on whose behalf Wiley publishes the journal.

    Wait, what? How is the society the copyright holder? Until the author signs a publication agreement, the author is the copyright holder. And the publication agreement itself doesn’t involve a transfer of copyright, but rather, an exclusive license to Wiley on behalf of the society. And anyway, whether it’s an exclusive license or a wholesale transfer of copyright, that doesn’t conflict with the addendum by virtue of the plain words in the addendum: “Notwithstanding any terms in the Publication Agreement to the contrary, Author and Publisher agree as follows:…”.

  2. If the addendum were allowed, “Harvard University, unlike Wiley, offers no support if your article is plagiarized or otherwise reused illegally.”

    Suppose that were true. (Though how would Wiley know what support Harvard gives its faculty when their work is plagiarized or used illegally?) Why would that be an issue? Nothing stops Wiley from providing that support on behalf of its authors, with or without the addendum. Either way it still receives an exclusive license from the author. Others illegally using the work are still violating that exclusive license.

    Unless of course the violator received a license by virtue of the prior nonexclusive license to the University mentioned in the addendum. Could that happen? Nope. The university uses its license only to authorize a particular set of uses. You can read them at the DASH Terms of Use page (see the “Open Access Policy Articles” section). They do not include plagiarism as a permitted use, or any illegal uses. (Is it even necessary to point that out?) The university also grants the authors themselves the ability to exercise rights in their article. But if someone explicitly received and exercised rights from a rights-holding author, it’s hard to see how that’s an illegal use.

    More fundamentally, however, there’s a basic premise that underlies this talk of publishers requiring exclusive rights in order to weed out and prosecute plagiarism, namely, that publishers would not be able to do so if they didn’t acquire exhaustive exclusive rights. But there’s no legal basis to such a premise that I can imagine.

    Plagiarism per se is not a rights matter at all, but a violation of the professional conduct expected of scholars. Pursuing plagiarists is a matter of calling their behavior out for what it is, with the concomitant professional opprobrium and dishonor that such behavior deserves. Publishers should feel free to help with that social process; they don’t need any rights to do so.

    Being “otherwise used illegally” gets more to the heart of the matter, as rights violations are presumably what the publisher has in mind. But it’s hard to see how publishers would need any rights themselves just to help an author out in prosecuting a rights violation. Suppose a publisher, rather than acquiring exclusive rights in an article, instead had authors license their articles under a CC-BY license. The publisher could still weed out and prosecute illegal uses of the article. There would be fewer opportunities for illegal use, since CC-BY allows lots of salutary kinds of use and reuse, subject only to proper attribution to the author and journal. But illegal uses might still arise from violating the attribution requirement of the CC-BY declaration. Nothing stops the publisher from looking for such gross plagiarisms of the articles they publish that rise to the level of rights violation, and from prosecuting the plagiarists on behalf of the authors. They could even write that into their agreements: “The Author grants the Publisher permission to prosecute violations of this license on the Author’s behalf, etc.”[2]

    (As an aside, the offer to prosecute plagiarists and rights violators isn’t much of a benefit in practice. How many instances of publishers going after plagiarists on legal grounds based on the publisher’s holding of rights have there ever been? As Jake said, “Isn’t it pretty to think so?”)

What’s really going on here is not a mystery. The publisher doesn’t like the idea of the author distributing copies of her work. The primary difference between the rights the publisher wants to grant the author and the rights specified in the open-access policy is that the former stipulates that the author not distribute copies of her article for twelve months after publication. The publisher is objecting so as to force a waiver of the open-access policy license to preserve their ability to limit access to the article. Of course, saying “we won’t accept the addendum because we want to limit people reading your article” doesn’t sound nearly as good as “otherwise we couldn’t go after plagiarists”.

Publishers are welcome to require waivers of Harvard’s open-access policies and the similar policies at other institutions, but hiding behind faux arguments in their explanations to authors isn’t attractive. They should come clean on the reasoning: They think it harms their business model.

  1. There’s a long history of this kind of thing. For instance, Peter Suber addressed the issue as raised by the International Association of Scientific, Technical and Medical Publishers way back in 2007.  ↩

  2. Not to mention the fact that open accessability of articles makes plagiarism easier to detect, and therefore provides a disincentive to plagiarize in the first place. For example, researcher at arXiv have reported on experiments for automatically finding cases of plagiarism in its open-access collection. Services like the Open Access Plagiarism Search project sponsored by the German Research Foundation (DFG) are working to make good on this potential.  ↩

White House by flickr user Trevor Mcgoldrick
…White House…
White House” image by flickr user Trevor McGoldrick.

As has been widely reported, this past Friday the White House directed essentially all federal funding agencies to develop open access policies over the next few months. I wrote the letter below to be forwarded to faculty at the Harvard schools with open-access policies, to inform them of this important new directive and its relation to the existing Harvard policies.

Read the rest of this entry »

[This is a heavily edited transcript of a talk that I gave on January 3, 2013, at a panel on open access at the 87th Annual Meeting of the Linguistic Society of America (LSA, the main scholarly society for linguistics, and publisher of the journal Language), co-sponsored by the Modern Language Association (MLA).]

Thank you for this opportunity to join the others on this panel in talking about open access. I will concentrate in particular on the relationship between open access and the future of scholarly societies. I’m thinking in particular of small to medium scholarly societies, which have small publishing programs that are often central to the solvency of the societies and to their ability to do the important work that they do. In one sense it should be obvious, and I think it’s been made obvious by the previous speakers, that open access meshes well with the missions of scholarly societies. LSA’s mission, for instance, is “to advance the scientific study of language. LSA plays a critical role in supporting and disseminating linguistic scholarship both to professional linguists and to the general public.” [Emphasis added.] So I’ll just assume the societal benefit of open access to researchers and to the general public alike. For the purpose of conversation let’s just take that as given.

Nonetheless, many scholarly societies, and the faculty that support them, are worried that open access – at least as they understand the concept – could exacerbate the serious financial distress that many of those societies are already under, and even undermine their very existence and thereby their ability to carry out this mission. I’ve heard faculty worry that even “green” open access (self-archiving of articles in open-access repositories) could undermine the economics of journal publishing in such a way that their scholarly societies could be endangered.

I want to argue that there is a real threat that many scholarly societies accurately perceive in their publishing programs, but that we must be careful not to misdiagnose this problem. In fact, a general move to open access would be the best outcome for scholarly society publishers. If the entirety of journal publishing magically metamorphosed somehow to an open-access system, scholarly society publishers would be much better off. From a strategic point of view then, the best course of action for scholarly societies and for the faculty and researchers who support them would be to promote a shift to open access as widely and as quickly as possible. Now, the threat that societies perceive is an economic threat, so my remarks will be almost entirely economic in nature; I’m just warning you. My talk certainly will have no linguistic import at all.

Economic properties of the subscription market

Let me turn first to some basic truths about the subscription journal market that I’ve come to realize are important in understanding what the underlying economic issues are.

Journal access is a complementary good

The first is that different journals — viewed as products, as goods being sold — are in economists’ terms complements, not substitutes. Substitute goods are products like Coke and Pepsi. If you have one it decreases the value of the other to you, as they fulfill similar functions. Complements are products like a left shoe and a right shoe – that’s the most extreme case. If you have one it increases the value to you of the other. There are less extreme cases of economic complements – printers and toner cartridges, peanut butter and jelly, pencils and erasers.

What about scholarly journals? Suppose you’re a patron of a library that subscribes to a bundle of, let’s say, Elsevier journals, including the journal Lingua. Does the library subscription to that journal make you more or less interested in reading, say, Language? (We’re holding cost aside. When thinking about complements or substitutes, it’s just about the value to the consumer, not the cost.) Of course, you’re not less inclined to read Language just because the library subscribes to Lingua. In fact you may be more inclined, because some Lingua articles will cite Language articles. You read the Lingua article, you want to to read the Language article it cites. So that would lead you to track down those articles and read them if the library had a subscription. And vice versa: a subscription to Language can increase the value of a subscription to Lingua. So journals are economic complements, not substitutes.

Inefficiency in the subscription market

This has important ramifications. Non-substitutive goods don’t compete against each other and complementary goods in fact support each other in the market. If consumers suddenly buy a lot more Coke, Pepsi is worried. But if peanut butter sales skyrocket, the jelly manufacturers are elated. So the complementary subscription of individual journals means that there’s limited market competition between journals, and limited competition leads to inefficiency in the journal market. (That’s not to say that there isn’t competition between publishers. But as we’ll see, the primary form of that competition is in competing to acquire journals.)

Average journal prices in a range of fields, differentiated by commercial and non-profit publishers. Left is based on prices as dollars per page. Right is based on dollars per citation, to normalize for quality. Data are from Bergstrom and Bergstrom, Journal pricing across disciplines, 2002.
Figure 1: Average journal prices in a range of fields, differentiated by commercial and non-profit publishers. Left is based on prices as dollars per page. Right is based on dollars per citation, to normalize for quality. Data are from Bergstrom and Bergstrom, Journal pricing across disciplines, 2002.

We can see ample evidence of this kind of inefficiency. One clear form of evidence for inefficiency is wide price disparities. The graph in Figure 1 shows average journal prices in a whole range of fields. The data is from a study by Bergstrom and Bergstrom, and they differentiated the cost of the journals by whether the publisher is commercial or non-profit. The dark blue represents the commercial publishers, the light blue the nonprofit publishers. Notice that the commercial publishers on average charge about five times more for their journals than non-profit publishers, as measured by price per page. Now you might think there is a good explanation for this disparity: perhaps these aren’t comparable products. Perhaps the commercial publishers are selling a much better product, higher quality journals, and it’s therefore more expensive to develop them, and that’s what accounts for the price differential. So we can normalize for that by using a proxy for quality. One widely used proxy for quality, admittedly not a great one but at least widely touted by journals themselves through the ubiquitous “Impact Factor”, is the number of citations the journal receives. The second graph in Figure 1 thus shows price per citation. Measured this way, commercial journals are fifteen times more expensive than non-profit journals from the same field. Now, linguistics was not one of the fields examined in this study. But the same holds true here as well. For example, the subscription rate for LSA’s journal Language, published by a non-profit of course, is $3.31 per citation, whereas Elsevier’s Lingua is $32.30 per citation – almost exactly ten times more expensive.

This kind of price differential is a clear sign of market failure, especially as it has been sustained over decades. You just do not get this kind of price disparity preserved over long periods of time in well functioning markets. Go to the various grocery stores in your neighborhood and see if you can find apples at different grocery stores at a price differential of a factor of ten. It does not happen. Such price disparities are a clear sign of inefficiency.

Journal access is a monopolistic good

Elsevier revenues, profit, and profit margin, 2002–2011. Data are from Mike Taylor, The obscene profits of commercial scholarly publishers, 2012.
Figure 2: Elsevier revenues, profit, and profit margin, 2002–2011. Data are from Mike Taylor, The obscene profits of commercial scholarly publishers, 2012.

The second basic truth is that the good being sold in the subscription market is access, and access is a monopolistic good. The monopoly is enabled by copyright, founded in the government’s ability as codified in Article I Section 8 of the Constitution to provide an exclusive right to the creator of a work for a limited period of time. Subscription publishers acquire exclusive rights to the articles they publish — typically by acquiring copyright, sometimes by acquiring an exclusive license, which is a distinction without a difference — and this allows publishers in theory and in many cases in practice to extract monopoly rents in selling access to the articles. We see evidence of this as well. For example, in Figure 2, I show a graph of the revenues, profits, and most importantly the profit margin, for the publisher Elsevier over the last decade. It’s quite a good business with annual revenues of over $2 billion, but that’s not the big point. The big point is the extraordinary 35–40% profit margins. It’s not just Elsevier. Many large commercial publishers have maintained these kinds of profit margins over a long period of time. An interesting thing to look at is the steady increase in the margins even during the financial crisis starting in 2009 when, for instance, many university endowments and library budgets dropped precipitously. Harvard’s endowment went down by 30% but Elsevier did just fine, and the other large publishers as well. So maintaining those kinds of profit margins again is a sign of the ability to extract monopoly rents.

Journal access is a bundled good

The third basic truth is that pricing is controlled not at the level of the individual journal but at the level of a bundle of journals. The large publishers have portfolios of hundreds to thousands of journals. They can therefore apply prices to a bundle of journals, not a single journal. They can show vastly different prices to different buyers and use the bundles to incentivize buyers, the libraries, to pay larger fees. The upshot of this point, that pricing happens at the bundle level and not the journal level, is that a library can find it extremely difficult to control its expenditures by canceling individual journals because the publisher can just price the smaller bundle at essentially the same cost as the larger bundle.

I’ll tell you a personal story. Some years ago, Harvard was one of the first universities to cancel the “big deal” with Elsevier. I don’t want to pick on Elsevier. They’re not bad people. They’re a wonderful group of folks. Lots of the large publishers of journals work this way and it’s not because they’re evil or anything like that. I just mention the Elsevier case as a convenient story. Harvard was one of the first universities to cancel its “big deal” and went a la carte on the journals. In the School of Engineering and Applied Sciences, my own school, we had been subscribing to around 130 Elsevier journals in engineering and applied sciences as I recall. We took the opportunity to cancel about 100 of these journals, leaving something like 30 journals, hoping to recoup some costs. And we did. The first year we recouped about 20%. The following year the total cost was back where it had been before the cancellations, and it has increased steadily from there. From the library’s point of view, you can’t win by canceling journals, because the product is not the journal, it’s the bundle.

Edlin and Rubinfeld, in a Law Review article about possible anti-trust implications of this bundling, say “The immediate effect of [bundled pricing] has been to move competition from individual journals to large bundles of journals. … Creating a large bundle of journals to compete with Elsevier or Kluwer seems almost insurmountable. … There are indications that [bundled pricing] is hindering entry. Librarians … say that they would spend more money for journals from smaller and alternative publishers if they could achieve proportionate savings from reductions. By selling electronic bundles, publishers have erected a strategic barrier to entry at just the time that the electronic publishing possibility has made it increasingly possible for alternative publishers to overcome the existing structural barriers.” The fact that competition is at the level of bundles, not at the level of journals, is very important.

The result: market dysfunction

Scholarly journal expenditures percentage increase 1986–2010 compared to consumer price index. Data from Association for Research Libraries.
Figure 3: Scholarly journal expenditures percentage increase 1986–2010 compared to consumer price index. Data from Association for Research Libraries.

When we put all these properties of the journal market together, the end result is market dysfunction and a steady long-term hyperinflation in journal expenditures by libraries. Figure 3 shows a graph of serials expenditures over the last couple of decades, the dark blue line. The light blue line is the consumer price index, a proxy for the ambient rate of inflation. You can see that serials expenditures in research libraries have been going up at something like three times the rate of inflation for decades. Exponential real growth in the cost of journals is an unsustainable state of affairs.

I return to the issue of inefficiency. Why is it that the non-profit publishers are so much more efficient than the commercial publishers? Not in every case of course but on average the difference is really striking. There are a couple of possible reasons. One is that the non-profits tend to be scholarly societies who may be motivated not by profit maximization but by service to the field. I think that’s true to a certain extent. But also the non-profits tend to be small publishers with few journals – maybe one, two, three, five, ten journals. Since bundle size governs market power, non-profits have less ability to grow margins. And scholarly societies rightly complain that they’re being squeezed. From the point of view of libraries, if you have to cancel something you can recoup revenue if you cancel the journals from a small publisher. You can’t recoup revenue if you cancel journals from the large commercial publishers. As a library, what are you going to do? Cancel scholarly society journals, just as the societies have been rightly complaining about.

But notice that the problem that scholarly societies face, a problem that will only increase in a status quo future, is based not on open access but on inherent properties of the subscription market that they participate in. For scholarly societies, the status quo is not a good alternative. Doing nothing is a failing strategy.

Open-access journals as a preferable system

The idea of open-access journals is that they provide access to the articles for free. How can this be a better system for scholarly societies, given that much of the societies’ revenues may come from the publishing program?

Open-access journals don’t charge for access, but that doesn’t mean they eschew revenue entirely. Open-access journals are just selling a different good, and therefore participating in a different market. Instead of selling access to readers (or the readers’ proxy, the libraries), they sell publisher services to the authors (or to the authors’ proxy, their research funders).

In fact there are now over 8,500 open-access journals listed in the Directory of Open Access Journals. Some of them have been mentioned already on this panel: Linguistic Discovery, Semantics and Pragmatics. The majority of existing open-access journals, like those journals, don’t charge author-side article-processing charges (APCs). But in the end APCs seems to me the most reasonable, reliable, scalable, and efficient revenue mechanism for open-access journals. This move from reader-side subscription fees to author-side APCs has dramatic ramifications for the structure of the market that the publisher participates in.

Economic properties of the open-access journal market

The open-access APC market has quite different properties from the subscription market. Recall the basic truths about the subscription market. Journals are complements, not substitutes. There’s limited market competition. The product being sold is a monopolistic good. Pricing is controlled at the bundle level. What are the corresponding properties of the publisher services market, the market that open-access journals participate in? In that market, the purchaser of the good is the author or the author’s proxy, not the reader or reader’s proxy. And from the point of view of an author, two journals are not complements but substitutes. You can publish your article in the Journal of Linguistics or Lingua or better yet in Language. But having published it in one, you have no incentive to publish it in the other. In fact, you’re not allowed to publish in both, making journals perfect substitutes. There is no value to the second journal once you’ve published the article in the first journal, from the point of view of the author trying to get a publication.

So journals compete for authors in a way they don’t for readers, and this competition leads to much greater efficiency. Open-access publishers are highly motivated to provide better services at lower price to compete for authors’ article submissions. We actually see evidence of this competition on both price and quality happening in the market. I won’t go through examples but have written about it previously.

Second, publisher services on the author side are not a monopolistic good. Anyone can provide those services. In fact because the service is a knowledge good, there are exceptionally low barriers to entry. Kai von Fintel and David Beaver can just unilaterally set up Semantics and Pragmatics; maybe they’ll be successful and maybe they won’t. In this case, it turned out pretty well. The low barrier to entry further enhances competition and improves the efficiency of the market.

Finally, pricing is controlled not at the level of the bundle of journals. You don’t care about the bundle of the publisher when you’re an author submitting to a journal. You care about the journal. Actually, pricing is not even at the journal level, but at the level of the individual article. So price competition happens at that level as well, with journals competing for individual articles on price as well as quality.

In summary, the open-access APC market is a more efficient market than the closed-access subscription market for reasons of basic economics. That’s not just my opinion. Claudio Aspesi, senior analyst at Sanford Bernstein studying the finances of publishing companies, has estimated that a transition to open access would lead to Elsevier cutting its margins by 41–89%.

Comparative cost of open-access journals

Let me say something about the overall cost for the two kinds of models. The APCs that open-access journals charge range from $0 to around $3,000. The median turns out to be zero. But for those open-access journals that do charge a fee, the mean is around $1,200, and reasonable sustainable fees seem to be shaking out in the $1,000 to $1,500 range. Let’s call it $1,500. Since article processing fees are essentially the totality of revenue that open-access journals receive, the APC is a reasonable figure for average revenue per article. There are open-access publishers who are profitable in that range, including commercial open-access journals.

What’s the corresponding number for subscription journals? What is their average revenue per article? The Scholarly Publishing Roundtable reported total 2008 revenue for scholarly publishing at $8 billion on 1.5 million articles, the vast bulk of that revenue coming from subscription fees. Average revenue per article for subscription journals is, by that measure, over $5,000 an article. Remember that this averages over all of the journals — the high quality and the low alike.

So what’s happening is that authors one way or another are paying. Either you’re paying an APC to an open-access journal or you’re paying with your copyright to a subscription journal, which the publisher then monetizes, turning it into about $5,000 per article. It turns out that if we moved from a subscription journal world to an open-access world, the institutions of the world would go from paying, on average, $5,000 an article to about $1,500. Let’s suppose the $1,500 estimate is unreasonably low. Let’s suppose that really the average APC would be what the most high-end open-access journal, PLoS Biology, now charges – that’s $2,900; call it $3,000. If every article moved from the subscription model to an open-access APC model at the high end of cost – we would still be saving 40%. And more importantly, we would be better executing the scholarly society mission by providing the broadest possible dissemination.

Scholarly societies as open-access publishers

Who wins in this kind of market – a non-monopolistic, competitive market of substitutes where the processing fees are considerably less than the current cost per article for subscription journals? The publisher who wins in that market is the publisher who can provide the best services, including imprimatur, at the lowest price to the author, that is, the publisher who is most efficient. Scholarly society publishers would have a huge lead in this market, because they are manifestly more efficient than commercial publishers by a large factor. If the scholarly journal market were structured as the open-access journal market rather than the subscription journal market, scholarly society publishers would be the big winners. And scholarly societies are beginning to realize that open access could be a boon not only to their mission – that much should be uncontroversial – but also to their solvency. Perhaps for this reason, some 600 scholarly societies, including the LSA, are already publishing open-access journals.

At the root, the reason that scholarly societies benefit from playing in the open-access APC market rather than the closed-access subscription fee market is the difference in the goods being sold. When the good is a journal bundle, the companies with the biggest bundles, the large commercial publishers, win. When the good is publisher services for an individual article, the publishers that can deliver those services for an individual article most efficiently, the non-profit publishers, win. Sure, there are economies of scale, but empirical evidence shows that the scholarly societies are already far better able to efficiently deliver services despite any scale disadvantage.

The problem for open access: the transition

Now, all that sounds great, but I don’t want to be too positive. As I said at the outset, there is a real worry that society publishers should have about the open-access APC market. But it’s not that they’d be at a competitive disadvantage in that market; I think that they’d have a huge advantage. And it’s important to remember that they’re already at a huge disadvantage in the subscription journal market; status quo is a failing strategy. Rather the problem is this. Open-access journals are at a disadvantage in their competition for authors against subscription journals. That is, the problem arises across the two markets. When the only kind of journals are open-access journals, scholarly societies have the upper hand. When there are both kinds of journals in the market, both subscription journals and open-access journals, the open-access journals are at a competitive disadvantage because (from the author’s point of view) publishing is free in a subscription journal. (Of course, it’s not really free; it’s just that the research libraries of the world are underwriting the very high $5,000 cost per article.) By contrast, in an open-access APC journal, the author personally could be out let’s say $1,200 or $1,500 or whatever. This is a problem not just for scholarly societies but for all publishers exploring the possibility of going fee-based open access.

To make a transition possible, what we, as supporters of scholarly societies, should be working on is placing open-access journals on a level playing field with subscription journals. There’s a principle at stake here, and the principle is this: Dissemination of research results is an inherent part of the research process. This is something that publishers themselves are frequently pointing out — that they are part of the research process. Consequently, the funders of that research should underwrite dissemination of the results. Who are the funders of the research? In science, technology, and medicine, public and private funding agencies are the primary research funders. By this principle then, the funding agencies giving the grants in those areas would be on the hook to pay the $1,000 or $1,200 or $1,500 or $2,900 publication fees. Most funding agencies already will pay for publication costs for open-access journals (though not in an ideal way, which I’ve written about in the past). What about fields where there aren’t funding agencies handing out large grants? In the humanities and social sciences, universities are the de facto primary research funders. Faculty members in universities are doing research in those fields as part of their employment as researchers. As the primary research funders in the humanities and social sciences, in linguistics in particular, the universities that employ us should be on the hook to disseminate the research results that their researchers generate.

This is the principle behind an effort called the Compact for Open-Access Publishing Equity. It was set up by a group of five universities initially — Cornell, Dartmouth, Harvard, MIT, and Berkeley — to place the open-access revenue model on a more level playing field with the subscription model. Since then another dozen or so institutions have signed on. The Compact says that these universities commit to providing a mechanism for underwriting reasonable publication fees for articles written by their faculty and published in fee-based open-access journals. From the point of view of these signatory institutions, and the many other institutions that don’t happen to be signatories but have similar funding policies, if you structure your journal as an open-access journal charging a publication fee, you don’t need to worry that the authors will be personally out of pocket to pay those fees; the university will pay on their behalf.

Next steps

Given that the open-access publication fee market would be preferable from the point of view of scholarly societies and their members, what should scholarly societies be doing from the strategic point of view? What is in the best interest of us as supporters of scholarly societies? Happily the best interest of scholarly society publishers is the best interest of the scholars themselves, namely as rapid a transition to open access as possible. So scholarly societies should be doing what they can to speed that transition, and I’m glad to say that the LSA and the MLA are working in that direction. I wish all scholarly societies would do so as well.

Of course, the ideal action for a scholarly society is to convert all of its journals to open access. By doing so, they help set expectations among authors that we don’t restrict access to articles, thereby hastening the day that closed-access journals find it impossible to compete for authors.

But some scholarly societies may still find it too worrisome to take such a bold move, not because they disagree with my conclusion that they fare better in an open access world, but because they fear not making it through the transition to that world. I’m sympathetic to that worry. Still, there are important actions that societies can take short of converting all of their journals to open access, actions that will still greatly contribute to changing the expectations of scholars that research results should be and are being made accessible. Scholarly societies can:

  • Experiment with open access for at least some of their journals (as LSA is doing with Semantics and Pragmatics), thereby gaining exactly the experience with open-access publishing that will be invaluable in the future.
  • Along the same lines, commit to open access for any new journals.
  • For the legacy non-open-access journals, provide delayed open-access to articles, making them available with a broad license after, say, six months or one year. The LSA has already taken this important step. Once conditions are right, the delay can simply be dropped.
  • Explicitly allow self-archiving of articles published in their journals, the green open access that I alluded to at the start of the talk. Doing so sends a strong signal that the society supports open access. At the same time, there is “no persuasive evidence that increased access threatens the sustainability of traditional subscription-supported journals, or their ability to fund rigorous peer review.” TheLSA does this, and the MLA recently announced that they are modifying their publication agreement along these lines, and even allowing distribution of the final published version after one year.
  • Recognize, accommodate, and promote university and funder open-access policies. Accommodation requires only the addition of a single sentence to a publisher’s publication agreement. The pertinent sentence taken from the Science Commons addenda is this:

    Where applicable, Publisher acknowledges that Author’s assignment of copyright or Author’s grant of exclusive rights in the Publication Agreement is subject to Author’s prior grant of a non-exclusive copyright license to Author’s employing institution and/or to a funding entity that financially supported the research reflected in the Article as part of an agreement between Author or Author’s employing institution and such funding entity, such as an agency of the United States government.

    (My guess is that it should be possible to generate an English version of such a sentence as well.)

  • Support pro-open-access legislation such as the Federal Research Public Access Act. At the least, scholarly societies should disavow anti-open-access statements made on their behalf by publishing consortia, as the MLA did in its statement opposing the Research Works Act.
  • Leverage the society’s membership to push for open-access underwriting by funding agencies and by universities such as envisioned by the Compact for Open-Access Publishing Equity.

To the extent that we can get a transition to a primarily open-access publishing system to happen, scholarly societies, their members, and the general public will all be much better off, which is a happy confluence of interest. Thank you very much.

Aaron Swartz’s legacy

January 13th, 2013

Government zealotry in prosecuting brilliant people is a repeating theme. It gave rise to one of the great intellectual tragedies of the 20th century, the death of Alan Turing after his appalling treatment by the British government. Sadly, we have just been presented with another case. Aaron Swartz committed suicide at his apartment in New York this week in the face of an overreaching prosecution of his JSTOR download action. I never met him, but I understand from those who knew him well that he was a brilliant, committed person who only acted intending to do good in the world. I’m on the record disagreeing with the particulars of the open access tactic for which he was being prosecuted, on the basis that it was counterproductive. But I empathize with the gut instinct that led to his effort. I hope that it will inspire us all to redouble our efforts to eliminate the needless restraints on the distribution and use of scholarship as Swartz himself was trying to achieve.

How not to entice an author

November 6th, 2012

…There’s a “tree” in it…
Fall New England” image by flickr user BrtinBoston. Used by permission.

I received the attached email, inviting a contribution to a journal called Advances in Forestry Letter. Yes, that’s “Letter” in the singular, which is even still optimistic given the number of papers they’ve published so far, viz., none. For a week or so after I received the email, the journal’s web site was down. It’s back up now, and we can glean some further information about this “journal”. It is claimed to be published by “World Academic Publishers” (already listed in Jeffrey Beall’s list of predatory publishers), though the publisher’s site does not list the journal as of this writing. The listing of covered topics from their “Focus and Scope” page seems to have been plagiarized from the corresponding listing for the MDPI journal Forests.

Why am I, a computer scientist, being invited to submit an article on forestry? On the basis of being the author of an article entitled “Optimal k-arization of synchronous tree-adjoining grammar“. (Actually, they got that wrong too. I’m a co-author, along with Rebecca Nesson and Giorgio Satta.) See? There’s a “tree” in it. It must be about forestry.

I have half a mind to submit the article to them (after making it “80% different”) and see what happens. Read the rest of this entry »

I’m pleased to forward on the announcement that the Harvard Open Access Project has just released an initial version of a guide on “good practices for university open-access policies”. It was put together by Peter Suber and myself with help from many, including Ellen Finnie Duranceau, Ada Emmett, Heather Joseph, Iryna Kuchma, and Alma Swan. It has already received endorsements from the Coalition of Open Access Policy Institutions (COAPI), Confederation of Open Access Repositories (COAR), Electronic Information for Libraries (EIFL), Enabling Open Scholarship (EOS), Harvard Open Access Project (HOAP), Open Access Scholarly Information Sourcebook (OASIS), Scholarly Publishing and Academic Resources Coalition (SPARC), and SPARC Europe.

The official announcement is provided below, replicated from the Berkman Center announcement. Read the rest of this entry »

…set the default…

Here’s what’s on deck at Harvard for Open Access Week 2012 (reproduced from the OSC announcement).

From October 22 through October 28, Harvard University is joining hundreds of other institutions of higher learning to celebrate Open Access Week, a global event for the promotion of free, immediate online access to scholarly research.

Harvard will participate in OA Week locally by offering two public events that engage this year’s theme, “Set the default to open access.”

On October 23rd at 12:30 p.m., the Berkman Center for Internet & Society and the Office for Scholarly Communication will host a forum entitled “How to Make Your Research Open Access (Whether You’re at Harvard or Not).” OA advocates Peter Suber and Stuart Shieber will headline the session, answering questions on any aspect of open access and recommending concrete steps for making your work open access. The event will be held at the Berkman Center, 23 Everett Street, 2nd Floor. The Berkman Center will also stream the discussion live online. See the Berkman Center website for more information and to RSVP.

On October 24, a panel of experts will consider efforts by the National Institutes of Health to ensure public access to the published results of federally funded research. “Open Access to Health Research: Future Directions for the NIH Public Access Policy” will feature a discussion of the challenges and opportunities for increasing compliance with the NIH policy. The event, co-sponsored by the Office for Scholarly Communication, Right to Research Coalition, and Universities Allied for Essential Medicines, will be held at the Harvard Law School in Hauser Hall, room 104. More information is available at the Petrie-Flom Center website.

...evidenced by a written instrument... /
…evidenced by a written instrument…
To Sign a Contract 3” image by shho. Used by permission.

The idea behind rights-retention open-access policies is, as this year’s OA Week slogan goes, to “set the default to open access”. Traditionally, authors retained rights to their scholarly articles only if they expressly negotiated with their publishers to do so. Rights-retention OA policies—like those at Harvard and many other universities, and as exemplified by our Model Policy—change the default so that authors retain open-access rights unless they expressly opt out.

The technique the policies use is a kind of “rights loop”:

  1. The policy has the effect of granting a transferable nonexclusive license to the university as soon as copyright vests in the article. This license precedes and survives any later transfer to a publisher.
  2. The university can grant the licensed rights back to the author (as well as making use of them itself, primarily through distribution of the article from a repository).

The author retains rights by using the university as a kind of holding area for those rights. The waiver provision, under sole control of the author, means that this rights retention is a default, but defeasible.

This at least was the theory, but what are the legalities of the matter? In designing Harvard’s OA policy, we spent a lot of time trying to make sure that the reality would match the theory. Now, Eric Priest, a professor at the University of Oregon School of Law, has done a detailed analysis of the policy (forthcoming in the Northwestern Journal of Technology and Intellectual Property and available open access from SSRN) to determine if the legal premise of the policy is sound. The bottom line: It is. Those charged with writing such policies will want to read the article in detail. I’ll only give a summary of the conclusions here, and mention how at Harvard we have been optimizing our own implementation of the policy to further strengthen its legal basis.

Priest’s conclusion is well summarized in the following quote:

The principal aim of this Article has been to analyze the legal effect of “Harvard-style” open access permission mandates. This required first analyzing whether scholars are the legal authors (and therefore initial owners) of their scholarly articles under the Copyright Act’s work made for hire rules. It then required determining whether a permission mandate in fact vests, as its terms suggest, nonexclusive licenses in the university for all scholarly articles created by its faculty. Lastly, this analysis required determining whether those licenses survive after the faculty member who writes the article transfers copyright ownership to a publisher. As the foregoing analysis shows, in the Author’s opinion the answer to all three of these questions is “yes”: scholars should be deemed the authors of their works, and permission mandates create in universities effective, durable nonexclusive licenses to archive and distribute faculty scholarship and permit the university to license others to do the same.

Although Priest’s analysis agrees with our own that the policies work in and of themselves (at least those using the wording that we have promulgated in our own policies at Harvard and in our Model Policy), he notes various ways in which the arguments for the various legal aspects can be even further strengthened, revolving around Section 205(e) of the Copyright Act, which holds that “a nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed”.

Priest argues at length and in detail that no individual written instrument is required for the survival of the nonexclusive license. But obtaining such an individual written instrument certainly can’t hurt. In fact, at Harvard we do obtain such a written instrument. There are two paths by which articles enter the DASH repository for distribution pursuant to an OA policy: Authors can deposit them themselves, or someone (a faculty assistant or a member of the Office for Scholarly Communication staff) can deposit them on behalf of the authors. In the first case, the author assents (via a click-through statement) to an affirmation of the nonexclusive license:

I confirm my grant to Harvard of a non-exclusive license with respect to my scholarly articles, including the Work, as set forth in the open access policy found at http://osc.hul.harvard.edu/ that was adopted by the Harvard Faculty or School of which I am a member.

In the second case, our workflow requires that authors have provided us with an “Assistance Authorization Form”, available either as a click-through web form or print version to be signed. This form gives the OSC and any named assistants the right to act on the faculty member’s behalf as depositor, and also provides assent to the statement

In addition, if I am a member of a Harvard Faculty or School that has adopted an open access policy found at http://osc.hul.harvard.edu/, this confirms my grant to Harvard of a non-exclusive license with respect to my scholarly articles as set forth in that policy.

Authors need only provide this form once; thereafter, we can act on their behalf in depositing articles.

Thus, no matter how an article enters the DASH repository, we have an express affirmation of the OA policy’s nonexclusive license, providing yet a further satisfaction of the Section 205(e) “written instrument” clause.

Priest mentions another way of strengthening the argument of survival of the nonexclusive license, namely, incorporating the license into faculty employment agreements, either directly or by reference. This provides further backup that the license is individually affirmed through the employment agreement. We take additional steps along these lines at Harvard as well.

One of the most attractive aspects of the default rights retention approach to open-access policies is that the author retains rights automatically, without having to negotiate individually with publishers and regardless of the particularities and exigencies of any later publication agreement, while maintaining complete author choice in the matter through the open license waiver option. It is good to know that a thorough independent legal review of our approach has ratified that understanding.

...wave of the future... /
…wave of the future…
Nonantum Wave” photo by flickr user mjsawyer. Used by permission (CC-BY-NC-ND 2.0).

I get the sense that we’ve moved into a new phase in discussions of open access. There seems to be a consensus that open access is an inevitability. We’re hearing this not only from the usual suspects in academia but from publishers, policy-makers, and other interested parties. I’ve started collecting pertinent quotes. The voices remarking on the inevitability of open access range from congressional representatives sponsoring the pro-OA FRPAA bill (Representative Lofgren) to the sponsors of the anti-OA RWA bill (Representatives Issa and Maloney), from open-access publishers (Sutton of Co-Action) to the oldest of guard subscription publishers (Campbell of Nature). Herewith, a selection. Pointers to other examples would be greatly appreciated.

“I agree which is why I am a cosponsor of the bill [FRPAAHR4004], but I think even if the bill does not pass, this [subscription journal] model is dead. It is just a question of how long the patient is going to be on life support.”

— Zoe Lofgren (D-CA), March 29, 2012

“As the costs of publishing continue to be driven down by new technology, we will continue to see a growth in open access publishers. This new and innovative model appears to be the wave of the future.”

— Darryl Issa (R-CA) and Carolyn Maloney (D-NY), co-sponsors of H.R. 3699 (“The Research Works Act”), February 27, 2012

“I realise this move to open access presents a challenge and opportunity for your industry, as you have historically received funding by charging for access to a publication. Nevertheless that funding model is surely going to have to change even beyond the welcome transition to open access and hybrid journals that’s already underway. To try to preserve the old model is the wrong battle to fight.”

David Willetts (MP, Minister of State for Universities and Science), May 2, 2012

“[A] change in the delivery of scientific content and in the business models for delivering scholarly communication was inevitable from the moment journals moved online, even if much of this change is yet to come.”

— Caroline Sutton (Publisher, Co-Action Publishing), December 2011

“My personal belief is that that’s what’s going to happen in the long run.”

Philip Campbell (Editor-in-chief, Nature), June 8, 2012

“In the longer term, the future lies with open access publishing,” said Finch at the launch of her report on Monday. “The UK should recognise this change, should embrace it and should find ways of managing it in a measured way.”

Janet Finch (Professor of Sociology, University of Manchester; Chair, Working Group on Expanding Access to Published Research Findings), June 18, 2012

“Open access is here to stay, and has the support of our key partners.”

Association of Learned and Professional Society Publishers, July 25, 2011

 (Hat tip to Peter Suber for pointers to a couple of these quotes.)

I just sent the email below to my friends and family. Feel free to send a similar letter to yours.

You know me. I don’t send around chain letters, much less start them. So you know that if I’m sending you an email and asking you to tell your friends, it must be important.

This is important.

As taxpayers, we deserve access to the research that we fund. It’s in everyone’s interest: citizens, researchers, government, everyone. I’ve been working on this issue for years. I recently testified before a House committee about it.

Now we have an opportunity to tell the White House that they need to take action. There is a petition at the White House petition site calling for “President Obama to act now to implement open access policies for all federal agencies that fund scientific research.” If we get 25,000 signatures by June 19, 2012, the petition will be placed in the Executive Office of the President for a policy response.

Please sign the petition. I did. I was signatory number 442. Only 24,558 more to go.

Signing the petition is easy. You register at the White House web site verifying your email address, and then click a button. It’ll take five minutes tops. (If you’re already registered, you’re down to ten seconds.)

Please sign the petition, and then tell those of your friends and family who might be interested to do so as well. You can inform people by tweeting them this URL <http://bit.ly/MAbTHG> or posting on your Facebook page or sending them an email or forwarding them this one. If you want, you can point them to a copy of this email that I’ve put up on the web at <http://bit.ly/J8EmyD>.

Since I’ve just requested that you send other people this email (and that they do so as well), I want to make sure that there’s a chain letter disclaimer here: Do not merely spam every email address you can find. Please forward only to those people who you know well enough that it will be appreciated. Do not forward this email after June 19, 2012. The petition drive will be over by then. By all means before forwarding the email check the White House web link showing the petition at whitehouse.gov to verify that this isn’t a hoax. Feel free to modify this letter when you forward it, but please don’t drop the substance of this disclaimer paragraph.

You can find out more about the petition from the wonderful people at Access2Research who initiated it, and you can read more about my own views on open access to the scholarly literature at my blog, the Occasional Pamphlet.

Thank you for your help.

Stuart M. Shieber
Welch Professor of Computer Science
Director, Office for Scholarly Communication
Harvard University