By Kevin Smith

When Arizona State’s University Librarian, Jim O’Donnell, posted a link to an article about the status and strategy of four lawsuits brought in the past few years by commercial publishers on the LibLicense list, it started me on a series of rather disparate reflections about the state of scholarly communications.

Jim’s post was quite innocuous, of the “folks might be interested in this” variety, but he did note that some people might encounter a paywall. The article, “On the limitations of recent lawsuits against Sci-Hub, OMICS, ResearchGate, and Georgia State University,” by Stewart Manley, was published this summer in Learned Publishing, which is available, only with a subscription, through Wiley. My institution ended its Wiley “big deal” a year ago because we could no longer afford it, so I did encounter a paywall — $42 for this single, seven-page article (I ultimately obtained the article using inter-library loan, and am not providing a link to the pay-walled version). I commented, in response to Jim’s post, on this high cost of access, which leads to my first observation about the state of academic publishing.

It s not surprising that many replies to my comment came from people who routinely use the LibLicense list to defend the status quo in commercial publishing, but I was bemused by a common theme that emerged, that I should obtain the article by subscribing to Learned Publishing via a membership in the Society for Scholarly Publishing, which, I was told, was a good deal at $180, with a discount for librarians. Since one of the major points made by Manley, in the article this was all about, is that publishers are using litigation as a last-ditch effort to avoid the ramifications of digital technology, this struck me as quite ironic. The journal issue as a package for multiple articles, only some of which might interest any particular reader, is an anachronism related to print technology. One of the great new affordances of the digital environment is to break open the journal issue and provide article-by-article access. But, because of the continuing desire to maintain excessive profit margins, publishers have undermined this potential with big deals and paywalls. The solution suggested was to return to still another way of paying for lots of stuff I don’t need in order to see the article I do want, just as I had to do in the print era.

One way to express the overall theme of Manley’s article is that litigation has not been a successful strategy because technology has outstripped the models the lawsuits have been designed to protect. The second source of reflection for me is the kind of solution Manley proposes for this problem. He looks for technological ways in which authors and others could be directed into complying with copyright and contractual obligations. Manley’s suggestions include blockchain and “smart contracts,” concluding with the optimistic (?) possibility that there will come “a day when the sharing of digital code that we still call a document is controlled by the terms of a copyright agreement embedded in the very code.”

I found myself wondering what effect such technology might have on scholarly authors. I continue to be amazed that authors are willing to sign some of the oppressive contracts presented to them by publishers, but I have come to believe that most authors do not believe those contracts really mean anything. So many authors share their works without regard to the agreements they have signed and without any apparent sense that they are doing anything they shouldn’t. These agreements try to impose a vision of scholarly communications that is one-sided and, frankly, unrealistic. Thus many authors seem to regard them as superfluous. What I wonder, however, is whether authors would rebel if these terms were imposed on them technologically, restricting much more definitively their ability to maintain any sense that their work is still their own. There is a lot of suspicion in the academy toward centralized technologies of control, and I tend to think that, if such technology were imposed by commercial publishing, the exodus to open access, where authors can retain the key elements of control that they seem to believe important, would accelerate.

Finally, as a copyright geek, I was fascinated by one of the arguments that Manley discusses, which is being used by ResearchGate in the lawsuit brought against it by Elsevier and the American Chemical Society, and a bit ashamed that I had not considered it before. To comprehend this argument, we must be clear about two facts regarding journal publication. First, most articles are written by two or more authors. Second, publication contracts are usually signed by only the “corresponding author.” With these two facts in mind, ResearchGate is defending itself against the charge of infringing copyright by knowingly hosting versions of articles for which, allegedly, the publishers hold the rights by asserting that, in fact, publishers only hold non-exclusive licenses in most articles. Because the copyright law requires that assignments of copyright be in writing and “signed by the owner of the rights,” (17 U.S.C. section 204a) and most publication agreements are signed by a joint author who only holds a share of the rights, the claim is that this can create only a non-exclusive license.

A joint copyright holder can exercise all of the rights that pertain to the rights she holds, but she can never transfer more than she owns, which, as a joint author, would be only a share in the rights. So, punitively, the publisher also holds only a share of the rights, and is subject to the right of other joint authors to exercise the rights as they see fit. That is, the publisher would hold only a non-exclusive license. And there is case law to suggest that a non-exclusive licensee cannot even bring a lawsuit to complain about infringement.

Manley notes that most publication agreements include a provision whereby the corresponding author avers that they are authorized by all co-authors to effect the transfer. But ResearchGate is asserting that this does not meet the requirement of section 204a. After all, if a joint author did exercise the copyright after such an agreement was signed, it is not at all clear if the remedy would be a copyright infringement case against that joint author, or a simple breach of contract action against the corresponding author.

I do not know if this will be a successful argument or not; the court has yet to rule on it. But I do believe it exposes a legal weak spot in the current way copyright is handled by the traditional publication system. That system was designed for an older time, when single-authorship was common, and when printing was the dominant technology. It is one of many pointers that lead Manley to a conclusion in which I certainly do concur: “one must ask whether our journal system is adequately serving enough of the researchers who live in the ‘publish or perish’ ethos that we have created and whether copyright in today’s scholarly publishing world is serving its original purpose.”

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

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