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Scholarly Journals and Open AccessThe Patry Copyright Blog

An article on page E1 of the New York Times Arts section today discusses a vote today by the Harvard Arts and Sciences faculty on whether to implement a new opt-out policy that would provide open, free Internet access to professors' finished articles. Robert Darnton, director of the university library, is quoted as saying, "In place of a closed, privileged and costly system , it will help open up a world of learning to everyone who wants to learn. It will be a first step toward freeing scholarship from the stranglehold of commercial publishers by making it freely available on our own repository."

Under the proposal, all articles are made available, unless the author specifically requested in not be. The article notes that commercial publishers have opposed open access proposals in the past, although not the particular Harvard proposal because of the opt-out. A publishers' representative is quoted as saying "As long as they leave the element of choice for authors and publishers, there isn't a problem." What I wonder about is whether there is a choice provided to authors by publishers in this circumstance: say an author wants to put his or her article in Harvard's repository and have it published in a commercially published scholarly journal? Will the publisher mandate that the author not put the article in the repository as the price of publication in the journal? If authors can choose to make their works available in both places, that's choice; but if they are mandated not to make their work available in Harvard's repository as a condition of publication in a journal, then that doesn't sound like there is an element of choice to me, especially in the publish or perish world of academia.

The open access issue had been confronted a few months ago in the legislative battles over the National Institute of Health's Public Access Policy. That Policy, signed into law by the resident of 1600 Pennsylvania Avenue N.W. in the Consolidated Appropriations Act of 2007 (H.R. 2764), changed a voluntary program into a mandatory one, requiring that peer-reviewed articles funded with NIH monies be deposited for free in the National Library of Medicine's online archive, no later than 12 months after publication in a journal. This 12 month delay gives publishers an exclusivity window, and one would think therefore the ability to sell subscriptions. Nor does the policy prevent a grant of exclusive rights in journal form.

Publishers, though, vehemently objected to the mandatory nature of the NIH requirement, alleging that it "effectively allows the agency to take the important publisher property interests without compensation, including the value added to the article by publishers' investment in the peer review process and other quality-assurance aspects of journal publication." Others disagreed, noting the investment of public monies and the heavy investment by universities in funding faculty salaries and equipment. As with the term "jurisdiction," "choice" seems to be a word of many meanings.

Full post as published by IP Law Daily on February 12, 2008 (boomark / email).