Is our scholarship based on illegal foundations?

Publishing used to be largely about dissemination – printing books and journals and shipping the copies to readers. This changed radically in the 21st century, where dissemination is virtually cost-free: Publishing is now primarily selection of content, plus the erecting of barriers to public access – at least if you are a commercial publisher. And this means that ways around these barriers will be sought by people who would like access to the content.

The fate of the music industry since the 1990s is well-known, and this may have affected not only the bosses, but sadly also the artists. Nobody would argue that professional artists and writers should give their content away for free, but in this post I only talk about scientific content. My question is: To what extent are the current scholarly dissemination practices legal?

In the official picture, libraries acquire access rights from commercial publishers, or individual scholars deposit their green open access papers in their institutional repositories. Both of these happen a lot of the time – especially the libraries of rich institutions pay huge sums to the commercial publishers. But at least in my field, institutional repositories are still fairly marginal, and what people do instead is put their papers on their personal websites, or use Academia.edu as a repository for their papers. And since Academia.edu is not vetted systematically, I suspect that it contains a large number of papers that the publishers do not officially allow to be uploaded. Some publishers have asked Academia.edu to take down papers whose rights they own, but this results in negative publicity, so it is my strong impression that most publishers just say nothing and hope that their revenues will not be affected too much too soon by the practices of the scholars. I know of no research about the extent to which Academia.edu contains content that infringes the copyright owners’ rights, and maybe I am exaggerating. But the prevalent attitude among scholars seems to be: Let’s make use of whatever ways of disseminating our results we have, and let others worry about the rights management and the costs. Critical voices about Academia.edu are rare (an example is a recent post by historian G. Geltner, which focuses on future plans for monetizing Academia.edu).

In my experience, while scholars have little qualms about uploading their papers, they rarely upload PDFs of books. But for books, there are a number of “text-sharing platforms” which seem to be widely used, especially by younger scholars (see, e.g., this recent paper). I have no idea where these platforms get their content from. I do not have any legal expertise, but to all appearances these websites share books in a way that infringes the rights of the commercial publishers, because usually the publishers insist on copyright transfer from the authors.

I learned about these text-sharing platforms only in the spring of 2015 (though I had heard rumours about them earlier) – as a member of a rich science institution, my colleagues and I have no particular need for them, and there is almost no public discourse about them. Scholarly associations do not discuss them, and the social media are silent about them. So does this mean that they are marginal and few people use them? This seems very unlikely, given that they contain a large number of recent scientific books (and articles) which are otherwise difficult to get, especially if you don’t have the fortune to work at a rich institution.

Do the publishers mind? As in the case of Academia.edu, it seems that they just hope that libraries will continue to buy their content, even if it is freely available elsewhere. I had a conversation with a representative of a major international publisher a few months ago, who asked whether I would publish with them. When I said that I had a problem with paywall publication, because it makes my work inaccessible to many potential readers, he replied: “If you really want to get access to our books, you can.” Apparently he was hinting that everyone knows that one doesn’t have to buy their books if one wants to read them, and he didn’t seem to mind. (After all, fewer readers means less impact, and less impact may mean fewer sales, because sales are very indirectly related to readers.)

Thus, it is my impression that to a growing extent, our scholarship may be based on illegal downloads of copyrighted material.

Is this a big problem? Since scientists are not being prosecuted in large numbers (and the case of Aaron Swartz is fortunately an isolated case), one might answer that it isn’t a big problem, and that we as scholars should just go on doing what we are supposed to do, letting others take care of the legal and financial framework of publication.

Personally, I find it difficult to go along with this. I think that the well-being of a society to a large extent depends on the trust that is established by widely respected legal frameworks. If scientists disregard the law in ever larger numbers, this cannot be good for science or for the society.

So what can be done? In my view, the answer is simple:
– Get rid of paywalls, but not by continuing to pay (via author-side fees) for privately-owned brand names; thus:
– Recognize that scientific publication is part of scientific research and needs to be funded in the same way.
– Create incentives to abandon privately-owned brand names, e.g. by proper funding of scholar-owned brand names.