© Springer-Verlag Berlin Heidelberg 2015Roberto Caso and Federica Giovanella (eds.)Balancing Copyright Law in the Digital Age10.1007/978-3-662-44648-5_4
Academic Freedom, Copyright, and Access to Scholarly Works: A Comparative Perspective
Faculty of Law, University of Trento, Trento, Italy
The right to academic freedom protected both under international treaties and national constitutions is at the very heart of social, cultural, and economic development. As far as scientific research and teaching are concerned, copyright has to be considered within the context of a proper balancing of rights. This issue will be addressed taking into account the traditional publication model in light of the peculiarities of scientific research, including the mechanisms of evaluating research and the relevant stakeholders’s interests that differ from those characterizing other sectors of content production. We will analyze whether the current practice in academic content dissemination and legal framework are compliant with academic freedom principles, considering the role of copyright in science. Since effective protection of academic freedom also depends on the possibility of access to knowledge, we will examine whether and how the open access model can achieve a proper balance between the rights at stake, looking at legal instruments recently issued by Italian, German, and US legislatures. Proposal for copyright provisions tailored to specific needs of the scientific field will be considered as well.
Construing copyright law as a tool to serve the common good, creative results are something that should be bestowed on society.1 In keeping with this, Article 27 of the Universal Declaration of Human Rights (hereinafter UDHR) gives everyone “the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”2 Needless to say, granting access to knowledge while balancing author’s and users’ interests fosters the knowledge ecosystem3 that is based on the “incremental and transformative” nature of information.4 This is especially true in the academic field where the rationale of copyright for several reasons must be considered with even greater attention being paid to the peculiarity of scientific production.5 Copyright assumes a prominent role in the circulation of scientific knowledge and information since these are embedded in scholarly works and databases. However, the relevant stakeholders’s interests significantly differ from those in other sectors of content production. Therefore, in order to design a balanced regulation in this field, a number of peculiarities need to be considered. First, the academic community is governed by a core of specific social values such as “universalism, disinterestedness, originality, organized scepticism and communalism.”6 According to them, what matters most of all is the advancement of scientific knowledge, which must be evaluated by both individuals and the scientific community through open exchange of ideas and intellectual debate.7 Re-use of knowledge and knowledge sharing are at the heart of scientific methods. Furthermore, scientists have slightly different aims from those who first conceived the utilitarian approach to copyright.8 The incentive for academic authors to publish research results is mostly reputational rather than economic,9 bestowing only indirect gains in the way of peer esteem and professional advancement.10 In fact, ever since the first scientific journals were founded (in the seventeenth century), publishers have rarely paid authors for their articles.11 This is also where the scientific publishing industry is distinguished from the traditional one,12 as the interests of commercial publishers and other information providers differ from those of scholarly authors, with the former usually pursuing a profit-maximizing strategy. Furthermore, the vast majority of academic research is publicly funded. Indeed, rewarding scientists ex ante and ensuring job security13 is aimed at allowing development in all fields of science,14 achieving objective findings and disseminating these whenever and however researchers like.15 This is closely bound up with the protection of academic freedom that, as we are about to see, is promoted also by granting broad access, free dissemination, and re-use of scientific outcomes. In this respect, copyright law and academic freedom are in a robust and complex relationship that would likely need to be settled considering the nature of the various rights at stake.16 When dealing with scientific knowledge and academic freedom, what is relevant is the extent to which copyright is considered a right constitutionally protected and the role of copyright in fostering academic freedom as a social interest. To this aim, whether the interest of academic authors in “owning” their works, and commercially exploiting them has an impact on other collective interests, such as accessing and sharing scientific findings, is a relevant question.
In most EU Member States, unlike in the US, copyright is not itself listed as a constitutional right. However, it does enjoy protection as being attached to other fundamental rights. Moreover, at European level the Charter of Fundamentals Rights of the European Union (2000/C 364/01—CFREU—Article 17)17 expressly protects intellectual property (IP), referring to it as “property” (“Intellectual property shall be protected” as a “property right”). Nevertheless, neither the CFREU nor the Court of Justice of the European Union (CJEU) defines any ranking among rights and liberty as being protected,18 delegating to national authorities and the courts the task to “… strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals […].”19 What “property” refers to in the European framework with regard to copyright law should be clarified also in light of the principle of “proportionality” as affirmed in Article 52 (1) of the CFREU and in several EU Directives.20 Nevertheless, the legislature currently seems to care more about right holders’ than users’ interests. For example, the InfoSoc Directive is based on the general assumption that, particularly in the online environment, right holders need effective and rigorous control over widespread forms of mass usage. While this paradigm may be more adequately employed in the areas of art and entertainment, it is applied in an unmodified way to the area of scientific research when the Internet offers the technological opportunities to constitute a comprehensive representation of knowledge.21
In this picture, one of the first questions we should answer is whether in today’s scholarly publishing environment the traditional proprietary model complies with academic freedom, including the freedom of authors to choose where, when, and how to publish their works while accessing previous research results. In this respect, we may also take into account current mechanisms of evaluating research and scientific careers including citation rules, that have a significant impact on scholarly publishing. At least two aspects are to be considered here: first, researchers “have to” publish only in journals that are deemed as prestigious; second, in exchange for the reputation associated with publication in a prominent journal, scientific authors are willing to freely hand over to publishers their exclusive rights in a work under copyright law. This leads to the “propertization” of scientific findings.
In contradistinction to the traditional scholarly publishing model relying on protections restricting access and imposing high costs to users, the open access model arises, (hereinafter OA) aiming at disseminating research outputs and granting free access to information. OA is developing also through policies and legislative tools raising a number of questions: on one hand, whether the OA itself fulfills academic freedom principles and, on the other, whether OA mandates comply with freedom of scientific research.
We will thus address the above-mentioned issues focusing in the next section on the relationships between academic freedom and intellectual property in the German, Italian, and US legal systems. In the third section, we will take a look at the traditional scholarly publishing model and the way in which technological development have changed communication methods.
We will then examine whether and how open access may endorse academic freedom, also analyzing the legal instruments recently issued by some legislatures, including the ones in Italy, Germany and the US. In disseminating research outputs and granting free access to information, OA indeed offers new standards and publishing models assuming that academic authors for the most part are concerned with moral rights. Since several communication channels in science might foster academic freedom, we defend the idea of a more open access to research and also endeavor to point out that the “open” and “proprietary” models are not mutually exclusive. On this basis, some proposal for copyright provisions tailored to the specific needs of the academic field will be considered in conclusion.
2 Academic Freedom and Intellectual Property: Clash or Merge?
Freedom of arts and science and the right to teach them are considered a means of ensuring cultural and social growth.22 While academic freedom is recognized as a fundamental right by several national constitutions and international treaties, there is little consensus as to what academic freedom means: What rights, responsibilities, and necessary limitations it entails. In the following pages, we will try to define it by describing the connections with IP rights in the light of German, Italian, and US laws.
The content of this right as well as of its legal protection is closely connected with freedom of thought, expression, and information23; the right to education,24 to participate in cultural life,25 to enjoy the benefits of scientific progress and its application.26 Academic freedom, however, enjoys proper protection relating to both researchers’ independence from any external influence and the autonomy of research entities and universities from political and economic power. These features help to reinforce one another: institutional autonomy fortifies the individual one and vice versa.27
Academic freedom in its broader meaning, which includes freedom of research and teaching, serves the common good by fostering independent thought and expression among researchers and students, who are free to spread ideas, arguments, and conclusions that may be reached in any studies or investigations.28 Objectivity, systematic research and scientific rigor are all aspects of this freedom, which are strengthened by communication of scientific outcomes.29 Indeed, starting from international law, a first concern with regard to scientific research has to do with access to findings. Article 27 (1) of the UDHR mentioned above focuses on the beneficiaries of science, as does Article 15 (1–3) of the International Covenant on Economic, Social and Cultural Rights (1966), which states that “(1) The States Parties to the present Covenant recognize the right of everyone: […] (b) to enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author […] (3) The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.”
In the European context, Article 13 of the CFREU strengthens the international framework establishing that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected.” According to the explanatory memorandum30 of the CFREU, that right “is deduced primarily from the right to freedom of thought and expression,” and it may be subject only to the limitations authorized by Article 10 of the European Convention on Human Rights (ECHR).
The ECHR does not contain any explicit definition and guarantee of academic freedom. However, as like artistic freedom, academic freedom enjoys the protection provided by the above mentioned Article 10 (1) ECHR “…This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers….” According to paragraph 2,31 this freedom is limited only to the extent reasonable in the public interest.
Academic freedom also figures prominently in the activities of the European Council. In 2000, the Committee of Ministers adopted a recommendation underlining aspects of academic freedom,32 while the Parliamentary Assembly of the Council of Europe in 2006 adopted a recommendation exhorting the Committee of Ministers to “strengthen its work on academic freedom and university autonomy as a fundamental requirement of any democratic society.”33 Of practical importance in the EU are Articles 179–190 of the Treaty on the Functioning of the European Union (TFEU), according to which the EU is required to support research through funding policies. Pursuant to Article 179 TFEU, European research funding may promote the establishment and strengthening of the “European Research Area” in which research results may be freely and quickly shared.
At the European national level, academic freedom, with a view to fostering scientific progress and transferring the benefits of this to society, is usually afforded separate protection in the Constitution, as is the case in both the German34 and the Italian35 Constitutions (Germany: Gruendgesetz für die Bundes Republik Deutschland—GG; Italy: Costituzione della Repubblica Italiana—Cost).36 By contrast, the US Constitution does not expressly mention that right, which is, however, certainly recognized by scholars and case law as a specific aspect of freedom of expression in the wider context.
2.1 The German and Italian Approaches
The German Constitution establishes in Article 5 (3) that “Art and scholarship, research, and teaching shall be free ….” The constitutional legislature upholds any scientific research regardless of the source of funding and of who conducts the research activity. The expression “research freedom” (Wissenschaftsfreiheit) is interpreted as a general phrase referring to both research and teaching,37 and which are at the interface of IP law, right of ownership (Eigentumfreiheit),38 freedom of information (Informationsfreiheit),39 and to exercise a trade and profession (Berufsfreiheit).40 Article 5 (3) protects both the freedom of individuals to practice research and teaching and the public interest in the advancement of knowledge. Indeed, outputs achieved by methodological, systematic, and verifiable research means are conveyed to the community through teaching and publishing.41 Therefore communication means including publication process are also protected under Article 5 (3) GG. Since scientific knowledge and progress are not the work of a single scientist, sharing results seems to be also constitutionally protected.42 From this perspective, Article 5 (3) by granting the right to disseminate research outcomes gives authors the right to choose the place, time, and manner of their publication and publishers should be at the services of this constitutional right.43
Academic freedom affords scientific authors a special protection in conjunction with intellectual property law whose patrimonial aspect, which includes the right of commercial exploitation, is grounded in principle in Articles 14 GG (right of ownership) and 12 GG (freedom to exercise a trade and profession). According to the prevailing view,44 then, the commercial use of research results does not fall within the scope of academic freedom. Indeed, researchers pursue interests other than commercial ones: first and foremost for scientists are exchange of knowledge, research development, and the reputational impact of their works. These aspects, which are uncontested and in some ways proven by empirical research,45 are thus protected by Article 5 (3) GG. Meanwhile, in areas concerning both commercial interests and research freedom, Articles 12, 14, and 5 GG should be applied in a balanced way.46 This matter also emerges, for example, with regard to Article 42 of the German Employee Inventions Act (Arbeitnehmererfingungsgesetz—ArbEG 47), as amended in 2002, which regulates the economic rights of patentable scholarly works. According to it and contrary to the prior approach that provided for a privilege for researchers and professors (Hochschullehrerprivileg),48 all inventions by employees have been equally regulated since 2002, without any privilege for professors.49 Allocation depends on whether such an invention is an “independent invention” (freie Erfindung) or a “job-related invention” (Diensterfindung), with universities being able to claim inventions and exploit them commercially. The legitimacy of this provision has been criticized on the basis of its inconsistency with Article 5 of the German Constitution.50 University lecturers have observed that their inventions are not directly qualified as job-related inventions since the principle of freedom of research would apply and their work is largely independent. However, the view taken by the legislature is that, while provision has to be made to reward authors for their creative efforts,51 the right to commercialize IP rights is likely not protected as an aspect of academic freedom. In support of this rule, the legislature pointed out that “The fundamental right recognized by Article 5 of the Constitution does not require research results to be attributed to the researcher, since freedom of research does not include the right to commercial exploitation of the invention.”52 On the other hand, publishing research outputs is recognized by the legislature as being independent from their commercialization. In fact, the German Employee Inventions Act contains special provisions for both the “positive” and “negative” freedom to publish assuming that the right of “whether and when” to publish is in the hands of scientists. Article 42 of the Act provides for the “freedom not to publish work”: if employees do not want to publish their inventions, they are not obligated to report the invention to the employer (s.c. notification obligation) pursuant to Article 5 of the Act.53 As regards the positive right to publish, the provision tries to balance the university’s interests in commercial exploitation of the invention and the author’s right to publish, shortening the period within which universities must claim an invention.
At this juncture, having clarified that in the German legal system the commercial exploitation of the patrimonial rights in academic works is not an object of academic freedom but instead concerns the IP law, we should take a closer look at this body of law, giving due regard to its constitutional basis and rationale.
German scholars54 and a number of decisions by the German Constitutional Court (Bundesverfassunggericht—BVerfGE) have broadened the category of constitutional property to include IP, applying Article 14 GG.55 Property is defined as a fundamental right linked to the concept of “social function.”56 Hence, the “propertization” of IP lays the foundation for the legislative limitation of authors’ rights in light of the social function of the right of ownership, affording an adequate balancing of IP with the interests of equal and higher hierarchical rank. Also from this perspective, the right of commercial exploitation is subordinate to the social function of IP, which is certainly represented by the advancement of knowledge and cultural development. This is also consistent with Article 7 of the TRIPS agreements, according to which “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”57 This provision makes it clear that IPs are not an end in themselves, clearly establishing that the protection and enforcement of intellectual property rights do not exist in a vacuum. They are meant to benefit society as a whole and are not aimed at the mere protection of private rights.58
In the German legal system, the role of the courts has been crucial in defining the boundaries between IP rights and other fundamental rights, highlighting the social function of IP law, namely patent and copyright law.59 A seminal precedent in the field of copyright law is represented by the Schoolbook case.60 In 1965, the German parliament amended the German Copyright Act to permit already published “literary and musical works of small extent, single artistic works, or single photographs” to be published in a collection “that assembles the works of a considerable number of authors and is intended, by its nature, exclusively for religious, school, or instructional use.” Several authors filed constitutional complaints alleging that the amendment violated their property rights under Article 14. The Court found that the right of access to copyrighted works properly served society’s interests as secured by Article 14 (2), establishing that “in defining the content of copyright according to Article 14 GG [the legislature], should provide rules adequate to assure an exploitation of the work which is coherent with the nature and social relevance of copyright.” On the other hand, the German Constitutional Court also found that the attribution of a fair compensation is required since denial of any compensation for the prescribed use of copyrighted works violates the copyright holder’s interests in property under Article 14 (1).61 A few years later, in the leading Church music case (1971),62 the Court was again concerned with the tension between the private and social dimension of copyright. Several composers of church music challenged provisions of the Copyright Act of 1965, which allowed the reproduction of a musical score without authorization or payment of royalties if played at a state-sponsored non-profit public event in a church or in connection with a religious event. The Court ruled that the performance of a musical piece without authorization at a public event may be justified by a “social character of IP.”
In this scheme of things, given that academic freedom protects a social interest, it seems reasonable that copyright and the academic publishing system should be established in a way that dissemination of and access to scientific knowledge are effectively ensured.
The Italian case deserves attention from this perspective since, after establishing that “The arts and sciences as well as their teaching are free …,”63 it also explicitly requires the Italian legislature not only to protect but also to promote and support freedom of research and cultural development: “ … The Republic promotes the development of culture and of scientific and technical research.”64 This obligation is not literally provided by the German Constitution, but the legal literature and case law attribute to Article 5 (3) the same broad meaning.65
The Italian guarantee is developed in the precedents of the Constitutional Court, emphasizing the autonomy of universities and research institutions from external economic and political forces.66 According to the Court definition, independence means self-government through the community of academic members.67 This is consistent with the fundamental principle of the Magna Charta of European Universities, which states that “[t]he university produces, examines, appraises and hands down culture by research and teaching. To meet the needs of the world around it, its research and teaching must be morally and intellectually independent of all political authority and economic power. Freedom in research and training is the fundamental principle of university life. Governments and universities, each as far as in them lies, must ensure respect for this fundamental requirement.”68
In terms of researchers’ autonomy with regard to the Italian legislative framework, academic freedom does enjoy even a high level of protection, given that, for instance, the Italian Industrial Property Code grants what is referred to as “professor’s privilege.”69 Article 65 establishes that “… when the employment relationship exists with a university or a public body which has research among its institutional purposes, the researcher is the holder of exclusive rights to the patentable invention he has authored.” The fifth paragraph of Article 65 also stipulates that “the provisions of this article shall not apply in the case of research funded, in whole or in part, by private persons or implemented within specific research projects funded by public bodies other than the university, institution or administration of the researcher.” Leaving aside critical issues such as the transaction costs relating to the system established by law,70 what is remarkable is that Italy, by applying the principle of “academic privilege” to the invention, emphasizes the researcher’s independence also from the institution or university.71
As pointed out above, when attempting to define content and the scope of the right to academic freedom, we also deal with the nature of IP rights and, as for our concern, particularly of copyright. Since the Italian Constitution does not expressly provide for a specific discipline of copyright as a constitutional right,72 the Italian Constitutional Court has enshrined copyright in several fundamental rights. Hence, the protection of intangible goods represents the “balanced summary” of different values. Of significance here are thus Article 2, which introduces the protection of fundamental human rights; Articles 9 and 33, both promoting the development of culture and science; and Article 21, which protects freedom of expression. No one of these provisions attributes to the author the right to an economic monopoly on the creative work, but the Constitution does ascribe it to freedom of economic activity and protection of competition (Art. 41).73 Scholars have also highlighted the relevance of Article 35, which legitimizes the remuneration of authors for their work.
Basing copyright on a number of constitutional interests appears to justify different protection techniques, thereby giving priority to the most important value on a case-by-case basis.74 Consequently, although organic regulation – especially for the academic field – would be desirable, the controversial overlaps between IP and academic freedom may be interpreted in light of these considerations.75
2.2 Legal Nature and Scope of Academic Freedom in the United States
In some countries, academic freedom does not enjoy any specific constitutional safeguard. This is the case in the United States. However, American scholars who had studied in Germany brought back with them the concept of freedom of teaching and research.76 The first explicit document about academic freedom was issued in 1915 by the American Association of University Professors (A.A.U.P.) and is a cornerstone of the US academic system. This is the “Statement on Academic Freedom and Tenure.”77 Another step forward was achieved by the 1940 Declaration of the A.A.U.P. The new Declaration greatly differed from the first one, not only in the sense that it redefined some of the principles of the 1915 Declaration but also in that the later Declaration is the result of a joint work of the A.A.U.P. and the American Association of Colleges (which would later become the American Association of Colleges and Universities). Academic freedom was accepted then as a major principle of academic life and achievement by employers and employees alike. Indeed, colleges and universities take up not only the cause of teachers and institutions but also that of the community as a whole, and this is a responsibility that is shared by both the institution and faculty. The A.A.U.P. principles created a “soft law” that to a certain extent was absorbed into judicial concepts of common law. Academic freedom is considered as one aspect of the wider concept of freedom of expression. That said, although the First Amendment is indiscriminate in the sense that it equally provides for freedom of speech for all American citizens, academic freedom is bestowed on researchers and academic teachers so that they can conduct their legitimate academic activities under optimal conditions, notably without constraints and limitations.
The substance of this right is still a controversial issue78; nevertheless, it is often applied by the courts in reference to the First Amendment.79 The notion of academic freedom is defined in some leading cases such as Sweezy v. State of New Hampshire 80 and Griswold v. Connecticut: “The right of freedom of speech and press includes […] freedom of inquiring, freedom of thought and freedom to teach.”81
Despite the cultural and historical distinguishing factors between the European and US academic system82 and the lack of explicit constitutional protection, academic freedom is highly regarded in the US case law also at the interface with IP. Indeed, in the US IP is clearly defined as a pendant of scientific progress, as stated in the US Constitution in Art. I, 8 § 8: “The Congress shall have the power […] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries […].” The US Constitution highlights the need to ensure access to knowledge as an engine of scientific progress. Therefore, both copyright and academic freedom are means by which a community’s learning and knowledge can be continually enhanced. Freedom to publish and access both the processes and results of scientific research promotes further investigation by informing other scholars and researchers of the results achieved, as well as communicating these ideas to a wider nonacademic audience.
2.3 Academic Exceptionalism in Copyright Ownership
Carrying on with the comparative reasoning we have started above, a reference to copyright ownership regulation is concerned and will follow hereafter.83
In the Italian legal system,84 the creator, pursuant to Article 6 of the Copyright Act, is the holder of the copyright in creative intellectual works.85 As regards works created in the course of an employment relationship, there are some exceptions. In cases where the creative activity is performed in the fulfillment of contractual obligations, copyright belongs to the employer, while the author is only entitled to moral rights. As regards academic written works, Articles 11 (2) and 29 of the Italian Copyright Act provide for a special regulation. A systematic interpretation of the aforementioned Articles shows that the allocation of ownership in scholarly works to the university is exceptional: it occurs only under the conditions specified by these rules. Precisely, Article 11 grants copyright to universities for collections of documents or publications prepared on their behalf and at their expense. These rules in any case apply unless otherwise agreed with the authors of the published works. Moreover, according to Article 29, the economic rights in documents or publications relating to the normal activities of public administration, which include universities (i.e., communication on activity progress, reports of results, proceedings), are granted to the public entities for a limited period of time (20 years after the first publication). After that the authors recover their rights. Furthermore, for the original works created by authors affiliated to the university, it is only when the public entity undertakes publications and assumes costs that the author is free to fully exploit his writings for up to 2 years after the first publication. In any other case, authors own copyright in their works.
This exception, which falls in line with an informal rule, ensures academic freedom through recognition of copyright ownership on behalf of the scientist. Needless to say, research might otherwise be influenced by the economic and cultural leanings of the university.86
Similarly, in the German legal system pursuant to Article 7 of the Copyright Act, the creator is the author of the work (i.e., Schöpferprinzip). However, when authors are employees and produce the work in accordance with their employment obligations, Article 43, as construed by literature and case law, and Article 69 (b), in the case of computer programs, stipulate that the exploitation rights are normally allocated to the employer.87 The holder of the moral rights is always the author, although their use might be limited. While the decision concerning who is regarded as an employee is left to labor law, the regulation applies to employees in the private sector, as well as civil servants employed in the public sector.
For works created by faculties given the nature of employment and the constitutionally protected freedom of research, the situation is different. The general view held is that copyright is allocated to the author.88
Under the US legal system, while the Copyright Act does not contain specific provisions for academic works, the implementation of general rules relating to works created in the scope of an employment relationship has been a subject of discussion. As in the Italian and German systems, the question is whether the rights in the researcher’s work belong to the author or to the research institute as the employer.89 Under Section 201 of the US Copyright Act, ownership of IP rights is granted to the creator of the work. However, an issue looked at in the US is the “work for hire” doctrine, whereby the work is created by a person “within the scope of his or her employment.” Section 201 (b) of the Copyright Act (1976) states that “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.” Copyright law provides no definition for key terms such as employee or “scope of employment.” Hence, case law serves to identify the standard to be applied, to decide whether an intellectual work was created in a work-for-hire situation.90
At the university level, it is debatable whether the work-for-hire doctrine is applicable91 and, if so, whether the criteria devised by the courts for its definition are appropriate and should be used in that situation. Even in the US, an informal rule defined as “teacher exception”92 appears to be what is in force and is being applied by the courts.93 The basis cited for this exception is that it ensures “academic freedom” for professors and researchers. According to Posner, one of the judges in the Hays leading case, this exception was rooted in academic tradition and then absorbed into the judicial concepts of common law based on the nature of the researcher’s activity94 that needs to be “free.”95 It is remarkable that in implementing this rule, the US case law makes explicit reference to academic freedom, although extensions of academic freedom as propounded by private associations have not matured into legal regulations.96
Moreover, given the lack of clarity in formal law, institutional policies and contracts regulate, among other things, the management of IP rights and become highly relevant.97 Even though the situation concerning policies is quite varied, exclusive rights in scientific publications are generally granted to their authors in the majority of cases.98 Sometimes, in line with academic tradition, applicability of the “teacher exception” is explicitly stated and the author is assumed to be the copyright owner.99 In other institutional regulations the university is required to transfer ownership to the author in the event that copyright has been granted to it in the first place.100
What emerges from this short comparative analysis is that formal legislation is mainly focused on the creation of economic incentives, assigning exclusive rights to those subjects that support the production of creative works economically. No specific comprehensive regulation for academic works is provided. In this environment, however, a kind of “privilege” is applied: within the academic context, informal rules grant ownership in a publication to the author.
Under the current publishing system, however, the rules and policies aimed at protecting academic freedom, giving the authors the entitlement to choose how to share their works, might lose their significance. Currently, the scientific ecosystem seems to be influenced by the interrelationship between copyright law, law of contract, and research evaluation systems, which, together, are strengthening the oligopolistic market of academic publishing and are leading to the private control of scientific content.
3 Control of Knowledge in Scholarly Publishing
The limited concern for the scientific perspective in regulating copyright law, the weak exceptions and limitations to exclusive rights, and the general trend towards broadening copyright protection101 are all elements conspiring against freedom of accessing and exchanging information, disseminating knowledge, and preserving research results.102 In this scenario lies a system of scholarly publishing where few private stakeholders control research results. This situation appears unreasonable and even more irrational when scientific works are produced with public funds. It is thus worth considering how publishers rose to prominence in the field during the latter half of the twentieth century.103
From the 1960s, scientific publishing began to be a profitable business for commercial publishers. According to Jean Claude Guedòn,104 the archetype of scientific journals was born as a “public registry” of discoveries, i.e. a system to assign “scientific paternity” and priority, thus resolving the issue of authorship of original ideas. The subsequent progress made in the scientific publishing industry led to a consolidation on the market to a few dozen major publications, each of them addressing a specific subject. It was then in the late 1960s that the concept of core journals emerged, and to this day all researchers still prefer their works to be published in them.105 Hence, publishers have created markets with a broad and stable institutional customer base, also favored by the growing number of libraries and universities.106
The advent of digital technology and the Internet saw a radical change in the way scientific communication works. Major commercial publishers seized the opportunity to extend their control over content, also benefiting from technology and e-publishing. Thanks to digital technology, right holders can grant users access to and use of information under specific conditions protected by technological protection measures (TPM)107 and digital rights management (DRM) systems.108 In the scientific publishing industry, the most common contract format is the end-user license agreement (EULA),109 which mirrors the business model produced by digital technology and allows control over information. Such a powerful legal device is driven by a commercial and proprietary rationale, aimed at restricting access to content.110 EULAs normally prohibit any form of redistribution of content, causing secondary markets to disappear and strengthening the oligopolistic power of major scientific publishers.111
It was on this basis that a small handful of international publishing companies by the 1990s came to control distribution of the most widely read and prestigious academic journals. Subscription fees for major scientific journals have seen a steep rise. Since universities and public libraries are unlikely to buy all publications, they end up investing in the most important journals according to the quality rating system for publications, thereby favoring the market concentration even further.112 Once a journal establishes itself as a “must have” title in its subject area, libraries will continue to purchase the title even if the price increases.
The paradox is that universities themselves subsidize the production of much of the research and scholarship published in academic journals. Since scientists normally underestimate the importance of their rights while creating a work,113 especially their economic rights, and want to publish in “good” journals, they then transfer copyright for free to the publisher, who later licenses them to research institutions at high prices and on strict terms and conditions of access and use of the content.114 In fact, all scientists, given the evaluation system, want to publish their work in the most prestigious journals. This phenomenon is prevalent in the scientific areas that make use of periodicals and bibliometric indices (such as the impact factor and the h-index) but is also found in the humanities and social sciences, the so-called non-bibliometrics sectors, that are making increasing use of similar tools, such as listing journals according to quality categories, taking account of the publisher’s prestige.115 In the scenario described, it also happens quite often that authors offer their contribution to journals and book collections for free as members of scientific committees and as auditors to the peer review process organized by publishers.
The current trend threatens not only innovation and productivity but also scientific freedom, the latter in any case being the premise for promoting the former. Researchers who need to draw from many databases to conduct research are aware of the difficulty of dealing with a myriad of divergent and overlapping policies, agreements, and laws, as well as parsing incomprehensible fine print that often carries conflicting obligations, limitations, and restrictions. These licenses and agreements can hinder research and also potentially enable data providers to exercise “remote control” over downstream users of data, likely dictating what research can be done and by whom, what data can be published or disclosed, what data can be combined and how, and what data can be reused and for what purposes. Imposing that kind of control imperils the very foundations of science, which is grounded in freedom of inquiry and freedom to publish.
From this perspective, the traditional scientific publishing industry appears to be neutralizing the revolutionary power of digital technology and the Internet that would help increase knowledge dissemination, improve the preservation of publications over time, and create new business models and value-added services. So while on one hand new technology has the potential to increase and accelerate access,116 on the other it is being exploited in the market of scientific publishing to produce the opposite effect.
The dominant position of publishers on the market is due to many factors, some of which we have touched upon above. Among them is the evaluation of scientific publications, which is linked to the traditional functions of scientific journals, including quality certification, awareness, archiving and, historically, registration.117 Certification and awareness functions are currently under discussion while still relying heavily on the traditional communication system based on the concept of core journal. This method, also known as the “gatekeeper model”—the system of deciding on the quality of works before publication based on both publisher policies and peer-review practice—raises many issues. First, it predefines its audience and disregards a series of important questions, such as how the value of the material that is pre-excluded can be fully known, given that the reviewers will likely embrace ideologies that are not always explicitly clear from their immanent position. Furthermore, it seems reasonable to wonder what value will be established by gatekeepers in the future.
In this scenario, traditional publishers are also trying to defend their position on the market by promoting accessory services for scientific product evaluation. Indeed, the method for measuring the impact of scientific production in terms of quantity is becoming increasingly powerful and sophisticated, thanks to the techniques of data analysis. Control over scientific literature, therefore, is also being strengthened by the management of the data relating to it. Data management is thus acquiring great importance both in the European and US context. One example of this is the management of databases like ISI Web of Science (Thomson Reuters) and Scopus (Elsevier).118
The aforementioned quality rating system for publications merges the power derived from research quality evaluation criteria and that stemming from the market,119 creating a centralized management of scientific knowledge.
Copyright and contract laws, as currently regulated, are the essential lever of this system. Within this framework in the legal literature, it is nowadays almost a generally accepted opinion that one answer to the problem cited should be a partly distinct set of copyright rules for scientific research, fostering wide and efficient dissemination, also by securing competitive market conditions and thereby encouraging innovative dissemination models.120 Second, copyright legislation without an adequate regulation of copyright contracts remains incomplete, also because of the inequality of the parties: while authors are not businessmen, their partners typically are well-organized commercial entities.121
4 The Open Access Model
The open access (OA) paradigm has developed in a bottom-up process,122 thanks to initiatives promoted by some scientific communities123 and librarian groups. Declarations,124 policies, and contracts and the further implementation of statutes in some legal systems have shown the growing interest in the OA principles globally. The foundations of OA are provided by three main declarations: Budapest (2002), Bethesda (2003), and Berlin (2003). The latter encompasses the most comprehensive definition according to which OA grants access to all academic works, free of technological, legal, and economic barriers, thus also reducing the costs arising from the publication process. Free access to content and some basic economic rights through free, irrevocable, and worldwide licenses subject to the attribution of authorship are therefore by the user as pillars of OA. Furthermore, appropriate technological standards to ensure long-term archiving and interoperability are crucial to the development of OA.
The two main approaches to OA are the gold road and the green road. The first one is defined by the literature as “scholarly work published ab origine on an OA basis,” while the second is referred to as “(self-)archiving in OA repositories of published, peer-reviewed articles.”125 Authors opting for the green road can publish their work through traditional channels and then disseminate it through OA repositories, either institutional or disciplinary.126 Currently, many journals allow OA republication, only requiring an “embargo period,” i.e., the time between the first publication and the OA re-publication. How long it is depends on the discipline and the policy of the publisher.127 Meanwhile, publishers support the so-called hybrid road allowing for the OA publication of articles (known as open choice) in closed-access journals, against payment of the article processing charges (APCs)128 by the author or the institution financing the research.129
A further distinction may be made between weak forms of OA (i.e., gratis OA), which eliminate only the economic barrier to access, and strong forms (i.e., libre OA), which, as stated in the Berlin Declaration, also lower the legal barrier to restricted access to and use of scientific contributions.
Some scholars highlight the benefits of OA,130 including speed, efficiency, and extent of content dissemination; strengthening of interdisciplinary research; collaboration between different scientific disciplines; transfer of knowledge to businesses; transparency towards citizens; and preservation of research results over time.
That said, OA is not against the traditional scholarly publication system131: it does not replace peer review, and it does not ignore the fact that any publication involves costs that must somehow be recovered by authors or research institutions. However, the role of publishers may change under the OA paradigm; they may provide a service that would be rewarded ex ante by the authors or research institutions. Publishers could also develop new services, related, for example, to the storage of content and the development of data mining techniques facilitating retrieval of documents and other services valorizing the technological means.
OA is a concrete alternative that enhances pluralism of information sources and perhaps also of public research evaluation. Indeed, an ex post peer review might work easier with OA publications: the storage of research results can lead to improvements in the research evaluation systems, creating new criteria that might serve as a basis for pluralism also in the valuation of academic works.132 Participation by the academic community in the peer-review process offers tools that are different to “traditional” peer review, namely open, documented peer review that usually takes place at a post-publication stage, therefore giving readers access to a live and ongoing literature review.133 Post-publication review through online commentary and social media in communicating published works and discussing their merits and weaknesses might play an important role. In the case of so-called interactive OA, for instance, pre-print and post-print are available for comment. The bar for peer review is raised by having preapproval by the editor, verifying that the article is relevant, and a public peer review with the article published as discussion papers open to interactive and viewable comments from the referees and the community.134