In it for the Money? Academic Publishing, Open Access and the Authors’ Claim to Self-Determination in Private International Law

Abstract

Open access research platforms are increasingly becoming the target of academic publishers claiming copyright infringement. Applicable law considerations are pivotal in such circumstances. The law governing the initial publishing agreement decides, ultimately, the extent to which rights have been transferred and the degree to which courts can exercise judicial control. Academic publishing differ significantly from standard copyright contracts. Academic authors remain customarily unremunerated and concurrently are expected to transfer all rights on an exclusive basis. Exclusivity thus eradicates the proliferation of open access platforms altogether. The article discusses the most relevant concerns that arise in private international contract law under the Rome I-Regulation as a matter of material justice. German substantive copyright contract law and the general principles affording protection to authors underpinning it, most importantly as regards the fundamental principle of equitable remuneration and its limits. The article dismisses the conventional approach as regards both contractual choices of law and the closest connection analysis and proposes, based on more subtle considerations of material justice as a relevant factor in modern EU private international, the application of special conflict rules so as to alleviate the problematic effects of uninhibited contractual freedom of contract, as a mechanism to avoid the designation of, particularly, a common law copyright jurisdiction imposed by way of predetermined terms governs the agreement. The article demonstrates, ultimately, that author’s claims to self-determination must outweigh the commercial interests of publishers, inadvertently providing open access platforms with legal certainty and freedom to republish.

Keywords: Academic publishing, Open access, Platform liability, Publishing agreements, Exclusivity, Copyright contract law, Private international law, Choice of law, Unfair terms, Material Justice

JEL Classification: Copyright Law, Private international law