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Reconsidering University Ownership of Faculty Research Nebraska Law Review Volume 85 Issue 2 Article 2 2006 Copyright and Open Access: Reconsidering University Ownership of Faculty Research Robert C. Denicola University of Nebraska, [email protected] Robert C. Denicola University of Nebraska College of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Robert C. Denicola and Robert C. Denicola, Copyright and Open Access: Reconsidering University Ownership of Faculty Research, 85 Neb. L. Rev. (2011) Available at: https://digitalcommons.unl.edu/nlr/vol85/iss2/2 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Robert C. Denicola* Copyright and Open Access: Reconsidering University Ownership of Faculty Research TABLE OF CONTENTS I. Introduction .......................................... 351 II. The Challenge of Open Access ......................... 353 A. Open-Access Journals ............................. 356 B. Self-Archiving ..................................... 361 III. University Ownership of Research ..................... 370 A. W ork M ade for Hire ............................... 371 B. Faculty Research as Work for Hire ................ 376 C. Im plem entation ................................... 379 IV . Conclusions ........................................... 382 I. INTRODUCTION In 2001, a group of prominent scientists urged a boycott of schol- arly journals that refused to provide free online access to research ar- ticles within six months after publication. In an open letter to colleagues they pledged to "publish in, edit or review for, and person- ally subscribe to only those scholarly and scientific journals" that com- plied with their demand.1 They defended their stand with the proposition that "[a]s scientists, we are particularly dependent on ready and unimpeded access to our published literature, the only per- manent record of our ideas, discoveries, and research results, upon which future scientific activity and progress are based." 2 Over 30,000 © Copyright held by the NEBRASKA LAW REVIEW. Margaret Larson Professor of Intellectual Property, University of Nebraska Col- lege of Law. 1. Public Library of Science, Open Letter to Scientific Publishers, www.plos.org/ about/letter.html (last visited Sept. 23, 2006). 2. Richard J. Roberts et al., Building a "GenBank" of the Published Literature, 291 SCIENCE 2318, 2318 (2001). NEBRASKA LAW REVIEW [Vol. 85:351 scientists from 177 countries signed the pledge to boycott. It did not work. 3 Librarians are also unhappy with the current state of scholarly publishing. An annual subscription to some academic journals ex- ceeds $20,000, forcing many university libraries to cancel hundreds of titles.4 The irony of the current system is not lost on university ad- ministrators, who complain that commercial publishers obtain re- search papers for free from university faculty, enlist other faculty as unpaid referees and editors, and then charge exorbitant prices to sell the results back to the universities that paid for the research in the first place. 5 The benefits of open access to scholarly research seem largely be- yond debate.6 Whether that access can be achieved without seriously disrupting the production and publication of scholarly research, how- ever, is a different matter. Proposals have generally taken two forms.7 One advocates reliance on a new generation of "open-access" journals committed to offering free online access to users. Funding, and the reluctance of researchers to forgo the prestige of publishing in 3. Apparently only a small number of scientists actually carried through with their pledge. Jeffrey R. Young, Boycott Over Lack of Online Access to Journals is a Bust, CHRON. HIGHER EDUC., May 31, 2002, at 34. 4. Duke University's Medical Center Library cancelled 525 of its 1,753 titles in 2004, citing annual subscription fees for journals such as Brain Research at $21,000. Cornell University cancelled more than 200 journals from publishing giant Elsevier alone. Lila Guterman, The Promise and Peril of "Open Access," CHRON. HIGHER EDUC., Jan. 30, 2004, at 10. The Association of Research Librar- ies reports library expenditures for serials up 273% since 1986 (compared with a 73% rise in the Consumer Price Index). Expenditure Trends in ARL Libraries, 1986-2004, http://www.arl.org/stats/arlstattgraphs/2004/aexp04.pdf (last visited Sep. 23, 2006). The University of California system spends $30 million per year on periodicals. Bernard Wysocki, Jr., Peer Pressure:Scholarly Journals'Premier Status is Diluted by Web-More Research is Free Online Amid Spurt of Start-Ups, WALL ST. J., May 23, 2005, at Al. 5. See Lisa Guernsey, A Provost Challenges His Faculty to Keep Copyright on Jour- nal Articles, CHRON. HIGHER EDUC., Sept. 18, 1998, at 29. "Faculty write the arti- cles for them, faculty review the articles for them and faculty mostly edit the journals for them, and then we get to buy the journals back from a company that makes a very high profit." Pamela Burdman, A Quiet Revolt Puts Costly Journals on Web, N.Y. TIMES, June 26, 2004, at B3 (quoting Lawrence Pitts, Chair, Faculty Senate of the University of California system). 6. "Timely access to a broad range of current scientific publications is a necessity... for both our clinicians, so that they may care for patients with the most up-to- date data, as well as our scientists who are making the breakthroughs in such areas as cancer, infectious, cardiovascular and neurological diseases." Victoria Shelton, Scientific Research: The Publication Dilemma, IssuEs Sci. & TECH. LI- BRARIANSHIP, Spring 2005, para. 6, http://www.istl.org/05-spring/articlel.html (internal quotation marks omitted) (quoting Dorothy Bainton, Vice Chancellor of Academic Affairs, University of California at San Francisco). 7. See, e.g., Budapest Open Access Initiative, www.soros.orglopenaccess/read.shtml (last visited Sept. 26, 2006). 2006] COPYRIGHT AND OPEN ACCESS established journals, pose major challenges for this approach. An- other approach centers on "self-archiving"-the deposit by authors of published articles in an accessible electronic archive, whether a per- sonal website, institutional repository, or discipline-wide archive. Here the law of copyright presents a major obstacle. Researchers typi- cally assign the copyright in their work to the journal that has agreed to publish it.s Any subsequent uploading of the work by a self-archiv- ing author to a publicly accessible website may well infringe the pub- lisher's copyright.9 The usual rejoinder urges faculty to be better stewards of their copyrights. 10 However, even researchers knowledge- able about copyright are a poor bargaining match for the giant com- mercial publishers that dominate the industry."1 This Article makes a more controversial suggestion. Universities should exercise their legal right to claim ownership of copyright in the research publications produced by their faculty. Only universities can wield sufficient leverage to compel fundamental change in scholarly publishing. Although traditionally an anathema to faculty, university ownership of copyright in research can be implemented without un- dermining academic freedom or the economic and reputational inter- ests of university faculty. II. THE CHALLENGE OF OPEN ACCESS There was no official beginning to the open-access movement. 12 Growing appreciation of the capabilities of the Internet and the World 8. In a British survey of journal publishers and academic authors in fifty-seven countries (the RoMEO Project), ninety percent of authors reported assigning their copyrights to publishers, and ninety-six percent of publishers indicated that they requested either an assignment of copyright or an exclusive license from the author. Elizabeth Gadd, Charles Oppenheim & Steve Probets, The Intellectual PropertyRights Issues FacingSelf-archiving, D-LiB MAG., Sept. 2003, para. 6-11, www.dlib.org/dlib/september03/gadd/09gadd.html. 9. See infra text accompanying notes 77-87. 10. See, e.g., Guernsey, supra note 5. All four "scenarios for change" suggested in an Association of American Universities report on intellectual property involve faculty ownership of copyright in research. ASS'N OF RESEARCH LIBRARIES, RE- PORT OF THE AAU TASK FORCE ON INTELLECTUAL PROPERTY RIGHTS IN AN ELEC- TRONIC ENVIRONMENT (1994), www.arl.org/aau]IPTOC.html. See also, e.g., Steven Bachrach et al., Who Should Own Scientific Papers, 281 SCIENCE 1459 (1998) (advocating author ownership of copyright in federally funded research). 11. Elsevier takes in about $1.6 billion every year from its scholarly journals. Wy- socki, supra note 4. 12. A massive bibliography on open access published in 2005 includes over 1,300 ref- erences, with most (but not all) entries dated after 1998. See CHARLES W. BAILEY, JR., OPEN ACCESS BIBLIOGRAPHY: LIBERATING SCHOLARLY LITERATURE WITH E- PRINTS AND OPEN ACCESS JOURNALS (2005), available at http://www.escholar- lypub.com/oab/oab.pdf; see also Peter Suber, Timeline of the Open Access Move- ment, www.earlham.edu/-peters/fos/timeline.htm (last revised July 4, 2006) (listing the births of the first online journals and other early developments). NEBRASKA LAW REVIEW [Vol. 85:351 Wide Web in the early 1990s led inevitably to visions of desktop access to information of all sorts. For scholars, the information of interest
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