“When you work in the open access space, language matters. It is very easy to distract the academic community from the actual discussion at hand and we are seeing an example of this right now. The emerging narrative seems to be that open access policies, and specifically the UK Scholarly Communication Licence (UKSCL), are going to threaten academics’ ability to choose where they publish. The UK-SCL Policy Summary is explicitly “an open access policy mechanism which ensures researchers can retain re-use rights in their own work, they retain copyright and they retain the freedom to publish in the journal of their choice (assigning copyright to the publisher if necessary)”. Let’s keep that in mind when considering the following examples of the ‘restricting choice of publication’ argument that have crossed my path recently….”
“The RWA didn’t explicitly say that it would amend copyright law, but it could could have done so implicitly, or by superseding any parts of current law inconsistent with the new law. Under the NIH policy, authors give permission for OA when they are still the copyright holders. Even when they later transfer some rights to publishers, they retain the right to authorize OA. Hence, OA through NIH is authorized by the relevant rightsholder, in this case by the author. But RWA Section 2.1 would have required publisher consent for that OA. It would have required publisher consent even when the holder of the relevant rights under current law had already consented. A consent which suffices under current copyright law would not suffice under RWA. Either that would violate US copyright law or amend it pro tanto (that is, amend it to the extent necessary to avoid irreconcilable conflict between the old and new statutes).
This may seem like a technical point of law. But it’s the most radical aspect of RWA. Under current law, in the US and around the world, authors are the copyright holders in their work until or unless they decide to transfer rights to someone else, such as a publisher. Copyright consists of a bundle of rights, and authors may lawfully transfer all, some, or none of those rights, as they see fit. If they retain the right to authorize OA, then no other permission is needed. Under RWA, however, publishers would have held a new right, beyond copyright, to overrule the rights exercised by authors under copyright law.
It was an unprecedented power grab by publishers. Unlike past, lopsided legal reforms to benefit publishers, this one was not limited to enhancing the rights of copyright holders against users and consumers. This one would have harmed all copyright holders except publishers, and benefited publishers even when they were not copyright holders….”
“In their rhetoric, publishers speak as if they are the copyright holders for these articles, and as if the NIH is blocking their full exercise of these rights or even expropriating them. But that is uninformed or deceptive. Because the NIH requires grantees to retain a key right, NIH-funded authors now transfer less than the full bundle of rights to publishers. Publishers don’t like that, and it may be a problem for them, but it’s not a legal problem. Despite their pose, publishers are not the copyright holders in these articles, without qualification, even after authors sign copyright transfer agreements. The NIH method of avoiding infringement means that there are plural rightsholders and divided rights in these articles: the authors have retained at least one and publishers have the rest. Publishers don’t acquire the key right which would allow them to deny permission for OA or claim infringement or expropriation. As for the rights publishers do acquire, the NIH policy does nothing to diminish publisher freedom to hold and exercise them.
Have publishers forgotten this central feature of the NIH policy? Have its legal consequences still not sunk in? I find that theory hard to believe. It would entail that they haven’t read, haven’t remembered, or haven’t understood the policy on which they have focused so much animus and lawyer time. And it doesn’t square with their justified reluctance to claim actual infringement. But if they do understand this aspect of the policy, then we’re only left with another cynical theory: that publishers deliberately stretch the truth by speaking without qualification as if they were the copyright holders for these articles. But strong or weak, the theory would explain a lot. If publishers did receive full copyright from authors, or if they believed they did, or if they had some reason to say they did, then their public rhetoric would make start to make sense. In that world, it would make sense to say that OA through PMC, against their wishes, would violate, diminish, or nullify one of their rights.
The snag, of course, is that the rhetoric is false, no matter what explains it. NIH-funded authors retain the key right and don’t transfer full copyright to publishers. This is what I meant when I said (in SOAN for February 2008) that “publishers cannot complain that [the NIH policy] infringes a right they possess, only that it would infringe a right they wished they possessed.” …”
“Every study since the first in 2005 has shown that a significant majority of peer-reviewed journals charge no APCs. Most have put that majority at about 70%.
I just looked up today’s numbers at the Directory of Open Access Journals, and the number is still 70%.
Total number of journals listed in DOAJ = 10,279
No-fee = 7,193 = 69.97%
Fee-based = 2,980 = 28.99%
No info = 106 = 1.03% …”
“The rapid escalation of Open Access journals is another reflection of the times—quantity outstrips quality. These journals are many and varied in substance and accuracy. The original idea came from a desire to provide immediate availability of new knowledge, particularly that from medical science research findings. Now, however, the proliferation of Open Access is just for rapid publication of manuscripts based on the economic interest of publishers and the desires of authors for a quick avenue for publishing their works. These for-profit journals are popular venues for scholars even though the authors must pay to have their manuscripts published. The lure of the Open Access publication arises, for example, when faculty members are required to produce numerous publications to be granted tenure. The Open Access services provide rapid turnaround and offer authors an opportunity to demonstrate publication productivity. Many Open Access journal editors solicit manuscripts from authors regularly and capitalize on the perceived advantages for seasoned and budding scholars….”
“A spate of recent articles in the Guardian have drawn attention to lots of reasons why open access to research publications is reasonable, beneficial and even inevitable. But two recent letters columns in the Guardian, headlined “Information that we want to be free” and “Better models for open access”, have perpetuated some long-running misconceptions about open access that need to be addressed. It’s not surprising that for-profit, barrier-based publishers are fighting to stem the tide, by misinformation if necessary, but researchers and the general public need not be taken in….”