Scholarly publication and copyright in networked electronic publishing - Networked Scholarly Publishing

Library Trends, Spring, 1995 by Laura N. Gasaway

Introduction

By circumventing traditional printed format, the publication of scholarly works only in electronic form presents unique opportunities for scholars and their institutions, but it also raises a number of important copyright law questions. The word "published" generally has meant to produce printed copies of works and to distribute them publicly through bookstores and libraries. The act of publication encompasses the rights of reproduction and distribution (Copyright Act, 1988), and authors have the right of first publication under U.S. copyright law (Harper & Row v. Nation Enterprises, 1985, p. 555). For years the only outlet for scholarly works was traditional book publishing, now increasingly centralized in the hands of a small number of publishers or, for shorter works, publication in a scholarly journal distributed through subscription sales to individuals and libraries. Such articles are produced primarily by university faculty members and by corporate researchers. The discussion and suggestions in this article relate to faculty authors and their universities.

Until approximately twenty years ago, scholarly journal publication was handled primarily by scholarly societies whose interests were coextensive with those of faculty authors. These societies provided peer reviewing for articles submitted, editorial services and the like, in addition to the publication and distribution of journals to society members. Members paid annual dues to the society, and a subscription to the journal was provided as a benefit of membership. Subscriptions were also marketed to academic research libraries, corporate and other special libraries, as well as to research facilities. Even so, for most journals many more copies were distributed to members than were sold to outside subscribers. The income from the sale of subscriptions often was used to underwrite other activities of the society.

Scholarly societies had little interest in taking the entire copy, right from the author since their primary emphasis in publishing journals was the distribution of research data for and to their members. Thus, faculty authors were free to reuse their works later as book chapters, to update articles for republication, to reproduce them for distribution to the faculty member's own classes, and to make copies available to their colleagues upon request. In fact, faculty authors often gave permission to their academic peers to make multiple copies for classroom and other educational purposes. Neither the faculty members nor the scholarly society expected royalty or licensing income from the distribution of copies of articles, although some societies did anticipate income from the journal through subscription sales.

As the costs of producing, printing, and distributing journals increased, many scholarly societies recognized that sale or transfer of their journal publications to commercial publishers would be in the best interest of the society and its members. Thus, many such publications became commercial journals. Commercial publishers now manage the peer review, editorial, and other processes necessary to produce journals. The interests of the generator of the articles(authors) and the publisher are no longer the same. The commercial publisher focuses on maximizing profits and returns on investment and not on faculty authors' interests in broad free - or very low cost - distribution of research results to members and the scholarly community. The change to commercial publishing has meant a tremendous increase in journal subscription rates, often bearing little relation to the cost of producing a journal (Association of American Universities, 1994). Further, commercial publishers have vigorously pursued licensing arrangements to secure additional income from photocopying and other reproductions of journal articles. Sadly, even many professional societies that continue to publish scholarly journals have begun to follow the commercial model (see American Geophysical Union v. Texaco, 1994) and may no longer support the best interests of the faculty author and the academic scholarly community they represent.

University faculty create copyrighted works and members of the university community use copyrighted materials to prepare for teaching and for research purposes; faculty assign copyrighted works to be read by students; and faculty-produced copyrighted works are reproduced for library reserves and in coursepacks. Additionally, universities also are engaged in the dissemination of research results and many publish copyrighted books and articles through their university presses. Clearly, life in an academic institution is intertwined with copyright (Association of American Universities, 1994, pp. 116-17).

Against this backdrop, it is natural to consider alternative publication and distribution methods, especially since academic authors currently receive little or no compensation for assigning their rights in an article to a publisher. In fact, in some disciplines, authors even must pay page charges in order to get a work published. University libraries are faced with repurchasing the scholarly articles of their own faculty authors, often at greatly inflated prices. The increase in the number of scholarly journals published, escalating prices, the declining value of the dollar on international markets, and static budgets in research libraries mean that few new journal titles are added to library collections, and many subscriptions have been cancelled in research libraries throughout the country. Thus, academic institutions are reexamining the current situation and considering whether universities themselves might become publishers by offering the scholarly contributions of their faculty authors electronically in a networked environment. In the alternative, there may be ways of enhancing the current publication situation better to facilitate the interests of the academic community and faculty authors even when articles are commercially published.