Copyright's Broken Promise

A comprehensive proposal for reforming copyright law to ensure sustainable public access to research and scholarship.

Open access is widely supported by researchers, librarians, scholarly societies, and research funders, as well as large and small publishers. Yet despite this support—and the pandemic’s demonstration of the importance of open access for scientific progress—the scholarly publishing market is failing to deliver open access quickly enough. In Copyright’s Broken Promise, John Willinsky presents the case for reforming copyright law so that it supports, rather than impedes, public access to research and scholarship. He draws on the legal strategy of statutory licensing to set out the terms and structures by which the Copyright Act could ensure that publishers are fairly compensated for providing immediate open access.
 
What sets Willinsky’s analysis apart is its focus on the current state of scholarly publishing. Because copyright offers so little legal support for moving publishing to open access, though it is best for science, he says it is time to stop regarding the Copyright Act as a law of nature that can only be circumvented, contravened, or temporarily set aside. Specifically, he proposes that the Copyright Act add a new category of work, called “research publications,” which would be subject to statutory licensing. This would allow publishers to receive royalty payments from the principal institutional users (universities, industry R&D, research institutes, and so on) and sponsors of the work (foundations and government agencies), while providing immediate open access.Acknowledgments ix
Bibliographic Note xi
1 A Realistic Proposal 1
2 Open Access Consensus 29
3 The Constitution's Intellectual Property Clause 59
4 Scholarly Publishing's Market Failure 73
5 Law and Scholarship 105
6 A Copyright Amendment for Science 127
Epilogue: Toward a Global Public Good 151
Index 161“John Willinsky provides an articulate argument for why open access to scholarship is an urgent public concern, rather than a scientific problem alone. Copyright’s Broken Promise deserves immediate attention by lawmakers, librarians, scholars, publishers, and the public alike.”
—Christine L. Borgman, Director, UCLA Center for Knowledge Infrastructures; author of Big Data, Little Data, No Data
 
“John Willinsky offers a realistic solution to scholarly publishing’s urgent need for equitable open access: reshape copyright law. His inventive and practical proposal deserves serious consideration.”
—Richard Gallagher, President and Editor-in-Chief, Annual Reviews; Publisher, Knowable MagazineJohn Willinsky is Khosla Family Professor Emeritus, Stanford University; Limited Term Professor, Simon Fraser University; and founding director of the Public Knowledge Project.