86 Pages Posted: 6 Mar 2012 Last revised: 28 Aug 2013
Date Written: August 22, 2013
The serials crisis in scientific publishing can be traced to the long duration of copyright protection and the assignment of copyright by researchers to publishers. Over-protection of scientific literature has enabled commercial publishers to increase subscription rates to a point at which access to scientific information has been curtailed with negative social welfare consequences. The so-called uniformity costs imposed by such over-protection can be addressed by tailoring intellectual property rights, either through legal change or private ordering.
Current open access channels of distribution offer alternative approaches to scientific publishing, but neither the Green OA self-archiving nor the Gold OA author-pays models has yet achieved widespread acceptance. Moreover, recent proposals to abolish copyright protection for academic works, while theoretically attractive, may be difficult to implement in view of current legislative and judicial inclinations. Likewise, funder open access mandates such as the NIH OA Policy, which are already responsible for the public release of millions of scientific articles, suffer from various risks and political uncertainty.
In this paper, I propose an alternative private ordering solution based on latency equilibrium values observed in open access stakeholder negotiation settings. Under this proposal, research institutions would collectively develop and adopt publication agreements that do not transfer copyright ownership to publishers, but instead grant publishers a one-year exclusive period in which to publish a work. This limited period of exclusivity should enable the publisher to recoup its publishing costs and a reasonable profit through subscription revenues, while restoring control of the article copyright to the author at the end of the exclusivity period. This balanced approach address the needs of both publishers and the scientific community, and would, I believe, avoid many of the challenges faced by existing open access models.
Keywords: open access, copyright, publishing, scientific publishing, NIH
Suggested Citation: Suggested Citation
Contreras, Jorge L., Confronting the Crisis in Scientific Publishing: Latency, Licensing and Access (August 22, 2013). 53 Santa Clara Law Review 491 (2013); American University, WCL Research Paper No. 2012-47. Available at SSRN: https://ssrn.com/abstract=2015885 or http://dx.doi.org/10.2139/ssrn.2015885