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# On the Access Principle in Science: A Law and Economics Analysis

(1)
Faculty of Law, Ruhr University of Bochum, Bochum, Germany

## 4.1 The Organization of Science: Open Access vs. Copyright

This section provides a comprehensive analysis comparing both systems from a social welfare point of view and hence asking whether academic publishing should be organized by means of a universal closed or open access mode. The first subsection is an extensive view on both regimes and their impact in the light of the publishing game and hence the prevailing “publish or perish”—environment in scientific research. The impact on researcher’s private incentives to write high quality papers will be investigated as well as the social welfare effects when shifting towards an universal OA regime. Several robustness checks and a model extension to think outside the box of the model’s inherent contest character provide a broad picture on the superiority of either regime. The second subsection picks up on the distributive effects from shifting towards an “author pays” principle when introducing OA as the dominant publishing mode, briefly highlighting some possible distortions that may result in an obviously heterogeneous world. In this regard, especially the consequences for developing countries will be addressed, providing the analytical framework for investigating the international political economy of access to scientific knowledge in Sect. 4.2 of this chapter.

#### Introduction

As we have seen previously, the literature addressing OA principles in academic publishing can broadly be structured in three lines of research: (i) studies on the economic impacts of alternative publishing models on the scholarly system as a whole, (ii) studies assessing the effects of open access on readership and citations, and (iii) studies investigating researchers’ attitude and behavior towards open access (see the literature review below). In this subsection, we will primarily address the first literature stream. Most of this literature shares the two fundamental assumptions that scientists are hardly motivated by (small) royalties, and that social welfare increases in the incentives set for scientists due to positive externalities. We do not doubt the importance of positive research externalities, but we argue that the rent-seeking character of research may nevertheless lead to incentives that are excessively high from a social perspective.2 This is the motivating force of our paper.

Starting point of this subsection is that, similar to competing for promotion or for prizes in professional sports, we also find elements of a zero-sum game in the academic publishing game. This bears the risk of rent-seeking activities, and hence ceteris paribus of incentives that are excessively high.3 In reality, this risk is likely to be reinforced by the multi-task character of academics’ obligations: whereas the research output is relatively easily measurable and consequently strongly incentivized, this is more difficult for teaching and administrative work, and hardly possible for the contribution to a productive work atmosphere by supporting other people.4 Thus, taking additionally into account that effort incentives might be relatively distorted towards research,5 it seems not far-fetched that incentives for research may be either too low or too high. In this paper, we do not take the multi-task character of the academic profession explicitly into account, but restrict attention to the contest perspective.

Specifically, we adopt the canonical Tullock-contest model6 for analyzing the publishing game between scientists, and we argue that such a model complements the common view on research in three aspects: first and already mentioned, we emphasize that incentives for research are only too low if the rent-seeking activities of academic contest do not exceed the positive externalities from academic publishing in general. Second, efforts in contest models do not only depend on stakes (that is in our context on readership, reputation and career effects), capabilities and effort costs, but also on the equilibrium behavior of competitors. Thus, the contest perspective adds new factors to the determination of effort in academic publishing which seem to have been widely neglected so far. Third, equilibrium effort levels in Tullock-contests are decreasing in the competition’s asymmetry. We will argue that this is important for the problem at hand, and our view is based on the argument that switching from a closed to an open access-mode is likely to increase the gap between researchers from top and mediocre universities.

Primarily two institutional assumptions drive our analysis. First and foremost, we argue that the most talented researchers tend to be at the best universities. Obviously, as a university’s ranking reflects the sum of its researcher performances (see Crane (1965), and more recently Goodall (2006, 2009)) likely justifies that these two aspects are mutually conditional.7 Second and in contrast to Shavell (2010), we assume that mediocre universities will often not fully pay for the submission fees under open access. This may be debatable. Nevertheless, considering Germany as an example, even the moderate submission fees under closed access are currently not fully covered by all universities. Many professors at public universities have rather small budgets they can allocate among different objectives, and submitting papers reduces the funds left for attending conferences or for hiring student assistants. Furthermore, some (top) universities cover also the considerably higher submission fees for fast tracks in journals while others do not. Given that submission fees with open access would be much higher, assuming that (some) authors would have to care about them seems reasonable.8 This aspect may particularly gain recognition when considering developing countries.9

In Feess and Scheufen (2013) we integrate these two institutional factors in a stylized contest-model with two types, a more talented academic working at a top institution covering the submission fees, and a less talented academic employed by a mediocre institution not covering the fees. We derive the following results: First, when moving from closed to open access, there are countervailing effects with respect to the effort incentives—open access leads to higher efforts if and only if higher readership outweighs the incentive-reducing impact of the submission fees borne by the low type. Notably, the high type’s equilibrium effort is also decreasing in the low type’s submission fees due to the contest’s larger heterogeneity. Second, if private effort incentives are too low, because the externality effect outweighs the rent-seeking effect, then it depends on the model’s parameters which of the two publishing modes is superior. Third, open access is always superior when private effort incentives are excessively high, and we will provide a clear-cut intuition for this result after it has been developed.10

Let us briefly discuss why we think that the contest perspective is important. As any model of strategic competition, the contest perspective implies that participants take their behavior mutually into account. To see why we believe that this is often the case, consider Management Departments in Germany as an example. In twentieth-century-Germany, publications in international journals played a minor role for career opportunities in the academic management profession, which depended mainly on academic ancestry and book publications. Very recently, this has radically changed and teaching loads as well as the allocation of internal funds are now largely contingent on the position in a ranking based on a standardized scoring system for journal publications. Roughly, a few hundred academics in Germany may currently be qualified for publishing at a regular basis in respected journals, and many of them seem in fact concerned about the research output of their colleagues. Moreover, anecdotal evidence supports the view that it is far from obvious whether efforts are strategic substitutes or complements: Some (strong) academics tell that they respond to fiercer competition by enhancing their effort, while others seem to focus on different things. This is nicely reflected in the Tullock-contest where it depends on types whether efforts are, in equilibrium, strategic substitutes or complements.11

The remainder of this section is organized as follows. First, we will present the general model. We then turn to a discussion of the impact of a pure closed versus open access regime from an individual and social welfare perspective. We will conclude by discussing the main insights gained and the robustness of the model in terms of different specifications of the contest model.

#### The Model

There are two differently talented scientists i = H, L competing for publishing an article by exerting quality effort e i . The asymmetry in capabilities is modelled by assuming that the papers’ quality is q i  = θ i e i where θ i expresses author i’s talent. Without loss of generality, we normalize θ L  = 1 and set θ H  ≡ θ > 1 to capture the high type’s predominance. The probability of getting a paper published depends on quality, but only in a stochastic way to account for the unpredictability of the publishing game. The respective winning probabilities are therefore expressed by an asymmetric Tullock-contest, that is, and .

As most academics including ourselves enjoy doing research even if the outcome’s quality may be questionable, effort costs can best be seen as opportunity costs. We assume that the two types’ effort cost functions are the same, which expresses the view that research capabilities are not systematically related to the talent required for administrative work, consulting or teaching.

We consider two regimes k = C, O denoting closed and open access, respectively. By g i k , we define the submission fee covered by author type i under regime k. With academic copyright (closed access), we assume that there are no submission fees, that is g i C  = 0, i = H, L. This is counterfactual, but all we need is that submission fees are higher with open access. The part of the submission fee borne by authors with open access is denoted g i O  ≡ g i , and for the reasons discussed in the introduction we assume that g H O  = 0 while g L O  ≥ 0.

The authors’ benefit from publishing depends on the reputation of the journal and on readership which we denote as r k . Realistically, we assume that readership is (weakly) higher with open access, that is r O  = 1 ≥ r C .12

Summing up, the Tullock-contest can be described by the two types’ objective functions

(4.1)

(4.2)
which will be maximized with respect to e i .

Under both systems, the authors maximize their objective functions as given in Eqs. (4.1) and (4.2), respectively. Taking the first order conditions and solving for the equilibrium yields

(4.3)

(4.4)

Recalling that r O  = 1 ≥ r C and g L O  ≥ 0 while g L C  = 0, we get the results summarized in Proposition 1:

Proposition 1.

(i)

All privately optimal effort levels are increasing in readership and decreasing in the two types’ heterogeneity, that is, .

(ii)

With closed access, the two types’ effort levels are identical, e H C = e L C .

(iii)

With open access, the high type’s effort is higher than the low type’s effort if the low type’s submission costs are positive, that is if g O > 0. Both effort levels are decreasing in the low type’s submission cost, .

All proofs are provided in the Appendix.

The first part of part (i) is obvious as the marginal benefit from effort is increasing in readership. The second part of part (i) is a standard feature of Tullock-contests which says that effort incentives are decreasing in the contestants’ heterogeneity. Intuitively, the bad type decreases her effort as the (marginal) probability of winning is lower, and the good type responds accordingly as she is likely to win even with relatively low effort.13

Part (ii) says that, even so effort levels are decreasing in heterogeneity, both effort levels are identical in equilibrium if the heterogeneity refers solely to abilities. The reason is that the effort-decreasing impacts of heterogeneity are the same for both types. Thus, effort levels are the same for closed access.

Things are different with open access if and only if the low type bears higher submission costs (part (iii) of the Proposition). As the heterogeneity then refers to costs and not to abilities, the impact on the two types is no longer identical—both types reduce their efforts, but the bad type to a larger degree so. Assuming heterogeneity with respect to cost structures hence has different consequences from assuming heterogeneity with respect to abilities. Note that the low type’s submission costs do not only reduce his effort, but also the high type’s effort due to the strategic effect described for part (i) of the Proposition.

We now proceed by comparing the effort levels under the two systems, and we state the results in Proposition 2.14

Proposition 2.

(i) The low type’s effort is higher with open access than with closed access if and only if \frac{\left (1+\theta -g\right )^{2}} {\left (1+\theta \right )^{2}\left (1-g\right )}$$” src=”/wp-content/uploads/2015/10/A330421_1_En_4_Chapter_IEq9.gif”> . (iii) Both types’ efforts are more likely to be higher under open access if the heterogeneity θ and the low type’s submission costs g are low. (iv) The ratio between the high and the low type’s effort is higher for open access. Part (i) of the Proposition expresses the trade-off of the two regimes for the low type’s effort incentives: On the one hand, open access leads to a higher readership and thereby to a higher incentive for effort. The strength of this effect depends on the readership-ratio r O r C . On the other hand, the effort incentive is lower since part of the publishing costs must be borne privately by the low type. The strength of this effect depends on g. More interestingly, part (ii) says that the high type’s effort may also be lower with open access even though the readership is larger, and even though the high type pays no submission fees by assumption. As outlined after Proposition 1, this follows from the fact that efforts are strategic complements, that is, the high type reduces her effort in response to the low type’s lower effort provision. Part (iii) of the Proposition shows that the two types’ heterogeneity expressed by θ has less impact on effort provision under closed access. The reason is that the contest’s additional asymmetry caused by the low type’s submission costs aggravates the negative impact of the asymmetry in abilities. The impact of the submission costs itself is straightforward. Part (iv) is likely to be important from a social welfare-perspective as one might presume that the high type’s effort is socially more valuable (see the next section). Formally, the result is a straightforward implication of the fact that the two types’ efforts are identical with closed access, while the high type exerts relatively higher effort under open access. #### Social Welfare So far, we have only considered the private incentives under the two regimes, but we have not yet extended to social welfare. We use a utilitarian welfare function which is additively separable in the utilities of readers and authors. The authors’ (net) utilities follow directly from substituting their equilibrium effort levels into their objective functions. We neglect the low type’s submission costs under open access as these are purely re-distributive. Thus, it remains to specify the utility of readers which we define in a reduced form as (4.5) Such a utility function for readers seems quite natural and displays the following features: first, the two terms in brackets express that the readers’ utility is increasing at a decreasing rate in the quality of the articles. Second, the readers’ utility is higher for open access as r O = 1 ≥ r C . This is straightforward as the audience for articles of a given quality will be higher it they can be downloaded for free.15 Note that, similar to the low type’s submission costs, we do not incorporate the prices of articles as they cancel out (publishing houses get what readers and authors pay). Thus, all that counts for articles of a given quality is readership itself. Third, β > 0 is just a factor expressing the average utility of readers from articles of a given quality. Adding up over the utilities of readers and authors yields the social welfare function (4.6) Recalling that q H = θ e H and q L = e L , and that the winning probabilities add up to one, the social welfare function is (4.7) Note that, as usual in contest models, the winner’s identity does not matter from a social welfare perspective. The socially optimal effort levels are given by maximizing SW with respect to e L and e H . We get (4.8) 16 It follows that the high type should exert higher effort due to her higher (marginal) productivity in research. This could also be interpreted in the sense that universities should assign lower teaching and administration loads to highly qualified researchers which is the case in some universities and countries, but not in all. Second, due to higher readership (r O = 1 ≥ r C ), socially optimal effort levels are higher under open access. The relation between the privately and the socially optimal effort levels under the two regimes is expressed by Lemma 1. Lemma 1. (i) For closed access, the high type’s (the low type’s) effort is too low iff \frac{2\left (1-g\right )^{0.5}} {1+\theta -g} \ \left (\beta > \frac{2\theta ^{0.5}\left (1-g\right )} {1+\theta -g} \right )$$ ” src=”/wp-content/uploads/2015/10/A330421_1_En_4_Chapter_IEq11.gif”> . (iii) If , both efforts are too high under both regimes if . For , both efforts are too high if .

Most generally expressed, Lemma 1 shows that the relationship between the privately and socially optimal incentives for research depends on whether the utility of readers outweighs the rent-seeking impact of career concerns. Under both open and closed access, privately optimal efforts are more likely to be too low if the good type’s productivity increases, that is, if θ is high. The reason is that a higher productivity of the good type is fully reflected in social welfare, but reduces both effort levels due the contest’s increasing asymmetry. Moreover, under open access, private efforts are more likely to be too low when the low type’s submission costs are high as those reduce efforts for two reasons, the cost effect and the strategic effect from the contest’s asymmetry.17 Parts (iii) and (iv) of the Lemma state conditions ensuring that both efforts are too high or too low under either system. The case distinction in part (iv) is required as either the high or the low type’s effort may define the threshold for β.

We can now turn to a comparison of social welfare under closed and open access. Substituting the effort levels into the respective social welfare functions yields

(4.9)

(4.10)

Regardless of whether the qualities provided are above or below the socially optimal ones, there are two advantages of open access: Readership is larger and efforts of the two types are different. Still, for analyzing the welfare ranking of the two systems, we need to distinguish between the situations where efforts are below or above the socially optimal ones. Proposition 3 refers to the first case:

Proposition 3.

Suppose all efforts are too low, i.e. 1 that all efforts are too low if 18 Next, a higher θ is more beneficial under closed access as, with open access, even the high type’s effort is decreasing in the low type’s publication costs. And the higher θ, the higher is the optimal effort that should be provided by the high type. For similar reasons, open access becomes less favorable when submission costs g are high. Note that, given that both efforts are inefficiently low, is a sufficient condition for the superiority of open access.

We now turn to the case where quality efforts are above the socially optimal ones. Proposition 4 shows that the welfare ranking of the two regimes is then clear-cut:

Proposition 4.

Suppose all efforts are efficient or too high, i.e. for and for . Then, open access is superior to closed access.

For an intuition, let us neglect the difference in readership for a moment. Then, open access always yields lower equilibrium efforts due to the asymmetry in the coverage of publication costs. Hence, as efforts are above the socially optimal ones by definition of the case considered, open access is superior even when readership is the same. And as higher readership is always beneficial and is higher with open access, open access is superior. Thus, while the ranking between the two systems is ambiguous if effort levels are too low, it is clear-cut if they are too high.

#### Discussion and Conclusion

In conclusion, our model shows that there may be countervailing effects from shifting towards a pure OA regime. Assuming that scientists are also motivated by career concerns, we find that private research incentives can, from a social perspective, be too high when the rent-seeking motive outweighs the positive externalities of research. If incentives are too high, open access is always superior. The reason is that readership is larger while effort incentives are lower due to the asymmetry in privately borne publication costs. If quality effort incentives are too low, the welfare ranking of the two regimes depends on whether the higher readership under open access outweighs the detrimental impacts of asymmetric costs on effort provision. Our paper adds to the literature by analyzing the contest character of academic publishing. Accordingly, the conclusions we derive differ from the non-strategic model in Shavell (2010) where incentives for writing a paper can never above the socially optimal ones. We do not argue that our contest model is the only perspective in the debate. However, we do think that we add an important puzzle to the debate in academic publishing by emphasizing that there may be rent-seeking incentives for researchers in the predominant “publish or perish” environment in academic career advancement.

Furthermore, we do understand concerns that our results may be driven by the special characteristics of our contest model in place. That is the reason why we test the robustness of our model with respect to different contest model specification in Feess and Scheufen (2013).19 In particular, we present two model specifications. First, we model heterogeneity between the two types of researchers by means of different cost functions, i.e. our two researchers do no longer differ in their productivity but their cost of effort.20 The argument is then as follows: our two researchers face different costs when exerting quality efforts in writing an academic work. For modelling this heterogeneity in the cost functions we assume that the high type benefits from a cost advantage.21 Integrating different cost functions in Feess and Scheufen (2013), we show that the results of our main model do not qualitatively change. Second, we integrate type-specific readership. The argument behind this model specification is easy to grasp: as reading an article is costly, the utility a reader gains from reading an article of a give quality may be type-specific and higher for the high type researcher. This seems reasonable due to differences in the reputation of authors.22 We integrate the argument of type-specific readership by introducing a parameter of reputation in our social welfare function, allowing that reading an article of an author with high reputation comes along with a higher benefit.23 Again, our results reveal that our original contest model is robust with respect to the different variants of the contest model.24

Turning to further research, natural questions seem whether a coexistence of the two systems outperforms each standing alone system, and whether uncoordinated market behavior would induce such a coexistence. Accordingly, if a unique open access is superior, one might ask if markets will enforce such a system anyway or if the lock-in effect of the established closed access system will prevent such an evolutionary process. A the natural follow-up from our contest perspective would be how different researchers self-select to different contracts, and how those who “architecture” the contest would try to attract the best publications.

#### Introduction

Our previous analysis shows that there may be countervailing effects of moving towards an open access regime in publishing academic works. In this respect, especially the consequences of a shift towards the “author pays” model needs to be investigated in more detail. Shavell (2010) circumvents the consequences for authors of having to bear the publication costs by simply assuming that universities and grantors would have a motive to subsidize publication costs in the absence of copyright. This may be true for the best universities and especially for universities located in the US. However, especially for middle- and low-class universities and eventually for universities outside the US, an OA regime would likely increase asymmetries between universities and countries, respectively. This aspect may particularly gain recognition in the light of developing countries.

This chapter seeks to briefly address the consequences of an “author pays” model by focussing on the international perspective—especially accounting for the differences in funding research between least developed countries and the developed world. Extending on our previous model, we will first describe the effects in a very simplified model, stressing to possible distortion effects between authors when shifting towards an OA mode. However, we refrain from doing a complex welfare analysis. Instead, we will investigate the consequences of a distortion between authors by means of a simple simulation, comparing different systems in a global science community. In this regard, especially the (funding) situation of researchers situated in a low or least developed country will be addressed.

The remainder is organized as follows. First, we will shows the basic model. We then derive the privately optimal quality efforts for the two regimes. We continue by comparing the effects of a shift towards the “author pays” model in the two country case. We conclude with some important policy implications that follow from our analysis.

#### Simulation: The Effect of the “Author Pays” Model in a Heterogeneous World

In a truly heterogeneous world, a shift towards an OA publishing mode may likely result in a distortion between authors. Most importantly, this may be an issue between researchers of countries at different stages of economic development. Especially since some countries may not be able or willing to provide funding for each journal publication. A simple simulation model may shed some light on the effect on researcher’s incentives located in different countries and choosing between the OA and CA regime.

Suppose that the utility of an author i of country j in regime k is , where the home country status of author i decisively regulates the portion of submission fees born by herself. Further assume a two country and two author case, say one researcher from a developed or industrialized (IC) country and one from a developing country (DC). While the researcher from the industrialized country receives a full waiver for the publication fees of her paper submission, the researcher in the developing country has to bear part of the submission costs herself. As a result, assume that and g DC O  = g O  > 0. Also recall that denotes the readership advantage of the OA mode. For simplicity and without loss of generality we normalize θ and e to 1. The incentives scheme is summarized in Fig. 4.1.

Fig. 4.1
Distortion effects between countries: Scenario 1

Obviously, with only some states paying for the publications of their university researchers, a situation results where OA is only increasing researchers’ incentives to the extend of the difference between the positive impact of a higher readership under the OA regime, and the negative effects on those authors who will not receive sufficient financial resources. In the two country case this induces an environment that can be best described as follows: The researcher living in an industrialized country (IC) will benefit from OA by the full readership effect. Under the veil of ignorance she would choose an OA mode since \varepsilon$$” src=”/wp-content/uploads/2015/10/A330421_1_En_4_Chapter_IEq56.gif”>. Taking into account that most developing countries will unlikely have the financial means to cover any of these costs, researcher from these countries would prefer to publish their papers in CA journals, since \varepsilon$$ ” src=”/wp-content/uploads/2015/10/A330421_1_En_4_Chapter_IEq58.gif”>.

Now suppose that the two countries do not only differ with respect to g. Recalling the assumption in Feess and Scheufen (2013) that the best researchers will be employed by the best universities and that mediocre universities will most likely not fully pay the publication costs under OA, may even enhance our observation of a distortion effect between authors of different origin. We can easily find evidence for the fact that the best universities are located in the industrialized countries or especially in the US. The top 100 university ranking of 2012 lists 56 universities from the US.29 Not a single university from a developing country is listed in the top 500. Only a few universities from emerging economies like Brazil (with 6 universities) and India (with only the Institute of Science listed in the top 400) are represented. In fact, the ranking is highly dominated by US universities, with 8 (80 %) universities from the US listed in the top 10 or 36 (72 %) in the top 50. As a consequence, assuming that θ now differs between countries and that the best researchers will tend to be located in an industrialized country—that is we assume θ IC  > 1 = θ DC —is reasonable. This leaves us with the outcomes as summarized in Fig. 4.2.

Fig. 4.2
Distortion effects between countries: Scenario 2

Accordingly, the benefit of a researcher in an industrialized country is when choosing OA, whereas OA for the DC researcher still comes along with an outcome of . The fact that eventually only the US may be endowed with the financial means to (1) fully subsidize OA publishing and (2) attract the best researchers from all over the world may even exacerbate the dilemma in the states game. Thus, the danger of reinforcing the digital divide between industrialized and developing countries or even inducing a brain drain—even from countries like Germany or other states endowed with a more rigid budget than the US30—to the US shows that a shift towards a global OA regime is in need for comprehensive investigation also on distributional issues.

#### Policy Implications

Our analysis suggests that the biggest obstacle in shifting towards an universal OA publishing mode may be the funding scheme. Most importantly, having the author to bear the publishing costs by means of an “author fee” would likely reduce the interest for publishing research results in the lack of sufficient funding. Unless discounts are available to authors from low or least developed countries or external funding is provided to cover the publishing cost, article processing charges could exclude authors from some nations or less well-funded research fields from publishing in OA journals.

As a consequence, the two worlds (OA and CA) create a dilemma that is somewhat twofold: While OA lowers the access barriers for researchers of countries who have been hardly able to subscribe to a single journal in the past, it necessarily creates a participation constraint as it sets a price for participation in the publishing game. We have seen that OA journals do not necessarily charge author fees, but are financed by means of other income sources such as grants, print subscriptions or advertisements.31 Moreover, many OA publishers have realized the dilemma of authors from developing countries and offer discounts or waivers to authors suffering from financial hardship. In this regard, PLoS offers a fee waiver policy that allows to waive or reduce the payment for authors from low or middle income countries. Eligible countries are distinguished in two groups32: Group one countries are not charged a publication fee.33 Countries that are listed as group two members are asked a reduced fee at a flat tax of \$500.34

Furthermore, OA still restricts access to scientific knowledge based on sufficient means of IT infrastructure. That is, online access is subject to internet access. We will see later that the poor information and technology infrastructure of countries in the developing world, especially in Sub-Saharan-Africa and rural areas, may be the most influential factor that prevents from bridging the digital divide between the developed and developing world. Accordingly, policy makers will have to account for both the participation constraint (funding of publication costs) and the access constraint (sufficient IT infrastructure) when formulating and codifying OA policies on a global scale.

The implementation of OA publishing in a truly global science community and the organizational implications for academic publishing will be in need for a deep understanding and comprehensive analysis of the legal as well as politico economic transition ahead. This section will analyze the obstacles from a legal, economical and political perspective. First, we will further investigate the options and further needs for implementing OA policies in the international copyright framework. In this context, especially the role of developing countries as “leaders” for the implementation of a more flexible copyright framework and codification of soft law declaration will be highlighted. Second, the relevance and opportunities of OA publishing for developing countries and its implications from the perspective of development economics will be further investigated.

### 4.2.1 On the International Political Economy of Access in Science

#### Introduction

All of our previous analysis shows that OA may eventually provide with a better suited publishing model as compared to the traditional model, especially as it may more directly account for the needs of researchers. Nevertheless, consciousness regarding possible distortion effects within authors and also between countries will be needed in formulating an appropriate policy agenda. The legal framework for a possible reform of the academic publishing market is primarily determined by copyright law. We have seen that researchers typically transfer their copyright—or more specifically their commercial right—to the publisher when being accepted for publication. As a result, it is the copyright that enables publishers to sell journals as a bundle of academic works.

This section analyzes the options for a reform of copyright in the international arena and alternative legal origins for implementing the principles of OA in academic publishing. As we have seen, OA comes along with different costs and benefits for researchers of different countries. As a result, a broader picture on how to design the future of academic publishing is required to account for the distinguished needs and specific circumstances of developed and low or least developed countries. The remainder is organized as follows. Section “The International Copyright Law Framework” will provide a general understanding on the international legal framework. In section “Implementing OA in the International Arena” we further investigate the options for a reform of copyright and contract law. We will conclude in section “Harmonizing Copyright Law on a Global Scale” by presenting an agenda on how to proceed, clearly highlighting the need for further harmonization of international copyright law standards.

#### The International Copyright Law Framework

Analyzing the options for legal reform in the international copyright framework requires a general understanding on the principles of international copyright law. We have seen that copyright is territorially based. Thus, there is nothing like an international copyright law. Indeed, the relevant treaties leave it to the national legislation to install a copyright system according to the specific national needs.35 The TRIPS Agreement and the WIPO Copyright Treaty may be rather seen as guidelines and minimum standards that national legislation shall fulfil. This sovereignty of national legislation has important implications for our later investigation on the option for copyright reform. As a result, this subsection shall recall the two basic traditions in dealing with a limiting of copyright protection. Furthermore, we will elaborate on the general applicability of the (Berne) three-step test for implementing limitations or exceptions of copyright at the international level.

##### Two Approaches: Continental Europe vs. US Copyright Law

As already outlined in Sect. 2.​1 of Chap. 2, there are two distinct approaches for limiting copyright in scope. On the one hand, the approach in continental Europe (henceforth the European model) which has evolved on the notion of authorship, highlighting that the rights of personhood and moral rights shall dominate policy making for copyrightable works. On the other hand, the US approach (henceforth the US model) which has been driven by the utilitarian notion of copyright. Thus, copyright design follows a balancing of the costs and benefits associated with any use. As a consequence, two distinguished systems or traditions of copyright build the framework for limiting copyright in scope and hence for introducing an OA exception in the predominant national copyright laws.36

The European model manages copyright limitations by means of a list of enumerated exceptions or a closed catalogue. With other words: the copyright laws in Europe explicitly list a number of exceptions where the user may circumvent the principle of authorization. But at the same time this approach formulates the understanding that all other activities not covered in this list are usually proscribed (Reichman and Okediji 2012, p. 1376). These codified exceptions are updated on a regular basis as new technologies change the environmental conditions and possible uses of copyright material. Moreover, courts have tended to interpret these closed catalogues narrowly (Geiger 2010b, pp. 519 et seq.).

The US model, in contrast, combines the rigid catalogue model with a broad and flexible “fair use” doctrine (sections 106–122 U.S.C.). Similarly, the English copyright law allows for the principle of “fair dealing”. Following the utilitarian notion, the “fair use” principle allows a flexible balancing of the benefits and costs connected with a particular use of copyright material. Recalling the reasoning of Fig. 2.​1 in Chap. 2, any use is considered to be fair and hence non-infringing as long as its benefits are able to outweigh its costs. The four statutory factors under section 107 U.S.C.—(1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used and (4) the effect of the use upon the potential market for or the value of the copyrighted work—assist in measuring the respective costs and benefits.

As a consequence, when investigating the opportunities for implementing the OA principle in domestic legislation, an understanding of the differences between the systems (civil law versus common law countries) as well as between national copyright laws is important. Despite these still prevalent differences, the (partial) harmonization of international laws by means of treaties (TRIPS, WIPO Copyright Treaty) has induced a melding of the two approaches. Most important in this harmonization process was the introduction of the (Berne) three-step test.

##### International Law: The Three-Step Test and Beyond

The first and most important platform for copyright harmonization throughout the twentieth century has been the Berne Convention. Established in 1886, several revisions and reforms (Paris 1896, Berlin 1908, Berne 1914, Rome 1928, Brussels 1948, Stockholm 1967 and Paris 1971) have since supplied with the primary harmonization platform, also for the implementation of limitations and exceptions in the signatory countries. For instance, the revision of 1948 in Brussels introduced an exception “for excerpts from literary and artistic works in educational or scientific publications” in Article 10(2) of the convention (Reichman and Okediji 2012, p. 1378). However, a more general term for the regulation of the limitations or exceptions in the national copyright laws was not implemented until the revision of Stockholm in 1967.

The Stockholm Revision Conference in 1967 formally incorporated an exclusive reproduction right into Article 9(1) and simultaneously subjected it to a three-step test under Article 9(2) (Reichman and Okediji 2012, p. 1379). The text of Article 9(2) says that “it shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author” (Berne Convention, Article 9(2)).37 Thus, the test puts forward three steps that need to be fulfilled for limitations on exclusive rights. First, the exclusive right of the copyright owner may only be limited in certain special cases. Second, a use may be legitimate if it does not conflict with the normal exploitation of the work. Third, the use shall not unreasonably prejudice the legitimate interests of the author. In the years after the Stockholm conference the three-step test has been transplanted to other international treaties. Nowadays, the test appears also in the Agreement on Trade Related Aspects of Intellectual Property Rights (Article 13), the WIPO Copyright Treaty (Article 10) and the WIPO Performances and Phonograms Treaty (Article) (Schonwetter 2007; Reichman and Okediji 2012, pp. 1389 et seq.; Senftleben 2006, pp. 411 et seq.; Kur 2009, pp. 302 et seq.). The wording of the provisions experienced slight modifications compared to the original Berne three-step test. Accordingly, the text of Article 13 of the TRIPS Agreement states that “members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder” (TRIPS Agreement, Article 13).38 The wording almost reads the same compared to the original, however, referring in its last part to the interests of the right holder, not the author. Despite the incorporation of the test in all relevant international IP treaties, there is still considerable uncertainty as to the actual meaning of the test. In practice, only one court case exists that may guide our interpretation and application of the three steps as laid forward under Article 13 of TRIPS.39

A promising road in interpreting the three-step test more openly and also more in the light of a “more economic approach” is a recent proposal from the Max Planck Institute for Intellectual Property and Competition Law in Munich (published in Geiger et al. 2008). In a nutshell, the proposal emphasizes the need for a more nuanced balancing between interests of authors and the broader public. In doing so, Geiger et al. (2008) follow the lines of the preamble of the WIPO Copyright Treaty, particularly mentioning education, research and access to information. In particular, the proposal highlights six issues for the future applicability of the three-step test: First, the three steps should be considered as a whole in a comprehensive and overall assessment. There should be no prioritization of any one step or the need for an affirmative answer to all steps. Instead the test should forward a “judicial balancing” of the different factors in the tradition of the US fair use approach (Reichman and Okediji 2012, p. 1454).40 Second, limitations and exceptions should not be interpreted narrowly, but their objectives and purposes should explicitly be taken into account. Third, the criterion to restrict limitations and restrictions to certain special cases should allow (a) policy makers to also implement open ended limitations and exceptions as long as its scope is reasonable foreseeable or (b) courts to apply existing statutory limitations and exceptions or add further some where possible in the legal system (Geiger et al. 2008, p. 121). Fourth, the test should seek to foster competition, especially in secondary markets (Reichman and Okediji 2012, p. 1455). Fifth, in applying the test both the interests of the original and subsequent rightholders should enter the assessment. Sixth and most interestingly from our viewpoint, also the interests of third parties should be considered in the application of the test, including (a) interests stemming from human rights and fundamental freedoms, (b) interests in competition and (c) other public interests, with a particular emphasis on scientific progress as well as cultural, social and economic development (Geiger et al. 2008, p. 121; Reichman and Okediji 2012, p. 1454). Especially the last aspect will need particular emphasis when implementing OA in the international arena.

#### Implementing OA in the International Arena

In the following we will discuss two basic approaches for implementing the OA principles in the international arena. In particular, we find options for promoting the OA principles by a reform of (1) copyright and (2) contract law. In the end, both strategies may complement one another and hence forward an argument in favor of a mixed approach for the future of OA in the scholarly publishing market.

##### By Legislation

One option to promote open access publishing and to foster an enduring evolutionary process towards a better balancing between the interests of authors, publishers and the society as a whole is by means of a change in legislation. In this regard, we will concentrate on reforms of two promising legislative branches: First, the ability for implementing the OA principles by means of the introduction of limitations and exceptions in the international copyright system. In doing so, we will elaborate on the previously discussed three-step test, its interpretation and the openness of the balancing test as discussed by several legal scholars (Reichman and Okediji 2012; Hugenholtz and Okediji 2008; Ginsburg 2001; Geiger 2007, 2010b; Senftleben 2006; Geiger et al. 2008). Second, we will also discuss possible reforms for the prevailing licensing models in the international arena. We will see that the current licensing models show significant weaknesses in satisfying the multiple requirements in a purely global science community. In the end, we will discuss the arguments for and against the proposal by Metzger (2012) to apply a “lex mercatoria” approach.

For the future reform process and success in reaching the objectives of the WIPO Development Agenda, several scholars have been pointing to the special role of developing countries for claiming more flexible measurements. Reichman (2009) argues that developing countries should rather lead than follow in the process of reform, triggering a codification of users’ rights at the international level or at least a soft-law instrument to be adopted at WIPO (Reichman and Okediji 2012, p. 1457).49 Hugenholtz and Okediji (2008) argue that “a joint initiative between WIPO and the WTO could be an ideal and appropriate expression of a soft-law modality with real impact for collective action on an international instrument on L&E’s” (Hugenholtz and Okediji 2008, p. 49). For instance, Hugenholtz and Okediji (2008) point to the “Joint Recommendation Concerning Provisions on the Protection of Marks and Other Industrial Property Rights in Signs, on the Internet” and the “Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks”, both adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the WIPO.50 Despite the fact that neither of these provisions are binding, especially the latter has been evolving towards an international standard as it has been incorporated in several bilateral agreements by the US (Hugenholtz and Okediji 2008). In this regard, the draft of the A2K treaty may provide a useful pattern in developing a similar provision concerning copyrights. Last but not least, Hugenholtz and Okediji (2008) point to the special role of the “Standing Committee on Copyright and Related Rights” (SSCR) to contribute to developing coherence in the international copyright framework. Working towards a coordination between SSCR and the TRIPS council would likely foster a harmonization process in the international copyright arena and could eventually forward an instrumental framework for reaching collective action despite the sovereignty of national states.

In conclusion, both a recodification of the international three-step test (in accordance to the US fair-use principles) in combination with a reform process that incorporates the needs of developing countries (by incorporating users’ rights provisions at the international level) is decisive for adjusting the international copyright framework to accommodate particular OA principles for academic publishing. Nevertheless, the promotion of an OA mode in academic publishing will not be effective by copyright reform alone. In fact, a reform of the available licensing models but also contractual deliberations may be required.

###### Reform of Licensing Models

Fig. 4.3
The creative commons licensing scheme

A special feature of the CC model is that it eventually seeks compliance with the international copyright framework. In particular, CC International has been working on an international license porting project since 2003, seeking to port CC licenses to different copyright legislations around the world (Maracke 2010, p. 6). In the porting process the original license is basically modified to reflect local nuances in two respects, the legal terms and the language. That is, the licensing terms are translated into the respective local language(s) and adapted to the legal culture to reach compliance with the national legal requirements. CC International offers guidelines for this process by means of a detailed ten-step program, explaining in detail how to proceed from the forming of a porting team to the final launch of the national version of the licenses.54 By now, more than 70 jurisdictions offer ported national versions of the CC licenses. Among the first countries to adapt the CC licensing terms to national requirements were Brazil, Germany and the Netherlands in 2004. All ported licensing schemes are upgraded on a regular basis, currently available in version 3.0. Version 4.0 is currently in preparation.

Nevertheless, Metzger (2012) clearly highlights the limits of the lex mercatoria approach as a framework for managing OA licensing on a global scale. Most importantly, the application of a lex mercatoria approach will be limited to cases where the parties are actually free in choosing the applicable law. Copyright issues of the licensing contracts—especially features such as scope and hence limitations and exceptions to copyright protection—will not be subject to lex mercatoria. Especially in this context, reforms for a deliberalisation of the international copyright framework—as previously discussed—will be necessary to complement a workable licensing scheme beyond the perspectives outlined here.

##### By Contract

A complementary approach to a reform of copyright is to contractually regulate the access, use and reuse of academic journal content. In particular, governments and nonprofit agencies who largely fund scientific research, especially in the OECD countries, could impose an OA mandate on researchers who received funding for their research results. With other words, researchers would be mandated to arrange for free and unrestricted access to their funded research outcomes as a condition to their funding contract(s). Here, both governments and funding agencies can force such contractual conditions. Governments can dedicate government funded works to the public domain (Reichman and Okediji 2012, p. 1469; Reichman and Uhlir 2003, p. 318). Such a mandate is for example enforced by US copyright, where 17 U.S.C. §105 denies copyright protection for works that are produced by government employees within the scope of their employment. But also funding agencies have the ability to condition receipt of funding sources on OA requirements.65 Such a mandate could require funded researchers to either deposit pre- or post print versions of their works in OA repositories or to submit their works to purely66 OA journals.67

In general, three types of “pure”68 OA mandates can be distinguished (Suber 2012, pp. 77 et seq.). First, loophole mandates. This form of OA mandate requires self-archiving of papers that do not conflict with the journal publishers’ copyright agreement. With other words, if a journal publisher explicitly bans authors from depositing their work in an OA repository, authors can use these loopholes to escape the mandate. Second, deposit mandates. Here, self-archiving is required as soon as the paper is accepted for publication. However, deposit mandates separate the timing of deposit from the timing of OA (Suber 2012, p. 79). In particular, the timing of OA depends on publisher’s permission and hence whether the publisher allows for a self-archiving after a certain period of time. As a result, also with this form of mandate a deposited work may remain non-OA. Third, rights-retention mandates. Just like deposit mandates the rights-retention mandates require self-archiving as soon as the paper is accepted for publication. However, the funding agency may require to retain the nonexclusive right to authorize OA throughout self-archiving platforms (Suber 2012, p. 80).69 Figure 4.4 summarizes the different categories of mandates, leaving us with a reference for further discussion in Chap. 5

Fig. 4.4
OA policies at funding agencies (extending on Suber 2012, pp. 77 et seq.)