Cover of Rousseau's Social Contract
…a social contract…

Title page of the first octavo edition of Rousseau’s Social Contract

[This post is based loosely on my comments on a panel on 2 April 2014 for Terry Fisher's CopyrightX course. Thanks to Terry for inviting me to participate and provoking this piece, and to my Berkman colleagues for their wonderful contributions to the panel session.]

Copyright is part of a social contract: You the author get a monopoly to exploit rights for a while in return for us the public gaining “the progress of Science and the Useful Arts”. The idea is that the direct financial benefit of exploiting those rights provides incentive for the author to create.

But this foundation for copyright ignores the fact that there are certain areas of creative expression in which direct financial benefit is not an incentive to create: in particular, academia. It’s not that academics who create and publish their research don’t need incentives, even financial incentives, to do so. Rather, the financial incentives are indirect. They receive no direct payment for the articles that they publish describing their research. They benefit instead from the personal uplift of contributing to human knowledge and seeing that knowledge advance science and the useful arts. Plus, their careers depend on the impact of their research, which is a result of its being widely read; it’s not all altruism.

In such cases, a different social contract can be in force without reducing creative expression. When the public underwrites the research that academics do – through direct research grants for instance – they can require in return that the research results must be made available to the public, without allowing for the limited period of exclusive exploitation. This is one of the arguments for the idea of open access to the scholarly literature. You see it in the Alliance for Taxpayer Access slogan “barrier-free access to taxpayer-funded research” and the White House statement that “The Obama Administration agrees that citizens deserve easy access to the results of research their tax dollars have paid for.” It is implemented in the NIH public access policy, requiring all articles funded by NIH grants to be made openly available through the PubMed Central website, where millions of visitors access millions of articles each week.

But here’s my point, one that is underappreciated even among open access supporters. The penetration of the notion of “taxpayer-funded research”, of “research their tax dollars have paid for”, is far greater than you might think. Yes, it includes research paid for by the $30 billion invested by the NIH each year, and the $7 billion research funded by the NSF, and the $150 million funded by the NEH. But all university research benefits from the social contract with taxpayers that makes universities tax-exempt.1

The Association of American Universities makes clear this social contract:

The educational purposes of universities and colleges – teaching, research, and public service – have been recognized in federal law as critical to the well-being of our democratic society. Higher education institutions are in turn exempted from income tax so they can make the most of their revenues…. Because of their tax exemption, universities and colleges are able to use more resources than would otherwise be available to fund: academic programs, student financial aid, research, public extension activities, and their overall operations.

It’s difficult to estimate the size of this form of support to universities. The best estimate I’ve seen puts it at something like $50 billion per year for the income tax exemption. That’s more than the NIH, NSF, and (hardly worth mentioning) the NEH put together. It’s on par with the total non-defense federal R&D funding.

And it’s not just exemption from income tax that universities benefit from. They also are exempt from property taxes for their campuses. Their contributors are exempt from tax for their charitable contributions to the university, which results ceteris paribus in larger donations. Their students are exempt from taxes on educational expenses. They receive government funding for scholarships, freeing up funds for research. Constructing an estimate of the total benefit to universities from all these sources is daunting. One study places the total value of all direct tax exemptions, federal, state, and local, for a single university, Northeastern University, at $97 million, accounting for well over half of all government support to the university. (Even this doesn’t count several of the items noted above.)

All university research, not just the grant-funded research, benefits from the taxpayer underwriting implicit in the tax exemption social contract. It would make sense then, in return, for taxpayers to require open access to all university research in return for continued tax-exempt status. Copyright is the citizenry paying authors with a monopoly in return for social benefit. But where the citizenry pays authors through some other mechanism, like $50 billion worth of tax exemption, it’s not a foregone conclusion that we should pay with the monopoly too.

Some people point out that just because the government funds something doesn’t mean that the public gets a free right of access. Indeed, the government funds various things that the public doesn’t get access to, or at least, not free access. The American Publisher’s Association points out, for instance, that although taxpayers pay for the national park system “they still have to pay a fee if they want to go in, and certainly if they want to camp.” On the other hand, you don’t pay when the fire department puts out a fire in your house, or to access the National Weather Service forecasts. It seems that the social contract is up for negotiation.

And that’s just the point. The social contract needs to be designed, and designed keeping in mind the properties of the goods being provided and the sustainability of the arrangement. In particular, funding of the contract can come from taxpayers or users or a combination of both. In the case of national parks, access to real estate is an inherently limited resource, and the benefit of access redounds primarily to the user (the visitor), so getting some of the income from visitors puts in place a reasonable market-based constraint.

Information goods are different. First, the benefits of access to information redound widely. Information begets information: researchers build on it, journalists report on it, products are based on it. The openness of NWS data means that farms can generate greater yields to benefit everyone (one part of the fourth of six goals in the NWS Strategic Plan). The openness of MBTA transit data means that a company can provide me with an iPhone app to tell me when my bus will arrive at my stop. Second, access to information is not an inherently limited resource. As Jefferson said, “He who receives an idea from me, receives instruction himself without lessening mine.” If access is to be restricted, it must be done artificially, through legal strictures or technological measures. The marginal cost of providing access to an academic article is, for all intents and purposes, zero. Thus, it makes more sense for the social contract around distributing research results to be funded exclusively from the taxpayer side rather than the user side, that is, funding agencies requiring completely free and open access for the articles they fund, and paying to underwrite the manifest costs of that access. (I’ve written in the past about the best way for funding agencies to organize that payment.)

It turns out that we, the public, are underwriting directly and indirectly every research article that our universities generate. Let’s think about what the social contract should provide us in return. Blind application of the copyright social contract would not be the likely outcome.


  1. Underappreciated by many, but as usual, not by Peter Suber, who anticipated this argument, for instance, in his seminal book Open Access:

    All scholarly journals (toll access and OA) benefit from public subsidies. Most scientific research is funded by public agencies using public money, conducted and written up by researchers working at public institutions and paid with public money, and then peer-reviewed by faculty at public institutions and paid with public money. Even when researchers and peer reviewers work at private universities, their institutions are subsidized by publicly funded tax exemptions and tax-deductible donations. Most toll-access journal subscriptions are purchased by public institutions and paid with taxpayer money. [Emphasis added.]

 

The Temple of Transition, Burning Man 2011
…provide a transition path…

The Temple of Transition, Burning Man 2011” photo by flickr user Michael Holden, used by permission

David Willetts, the UK Minister for Universities and Research, has written a letter to Janet Finch responding to her committee’s “A Review of Progress in Implementing the Recommendations of the Finch Report”. Notable in Minister Willetts response is this excerpt:

Government wants [higher education institutions] to fully participate in the take up of Gold OA and create a better functioning market. Hence, Government looks to the publishing industry to develop innovative and sustainable solutions to address the ‘double-dipping’ issue perceived by institutions. Publishers have an opportunity to incentivise early adoption of Gold OA by moderating the total cost of publication for individual institutions. This would remove the final obstacle to greater take up of Gold OA, enabling universal acceptance of ‘hybrid’ journals.

It is important for two reasons: in its recognition, first, that the hybrid journal model has inherent obstacles as currently implemented (consistent with a previous post of mine), and second, that the solution is to make sure that individual institutions (as emphasized in the original) be properly incentivized for underwriting hybrid fees.

This development led me to dust off a pending post that has been sitting in my virtual filing cabinet for several years now, being updated every once in a while as developments motivated. It addresses exactly this issue in some detail.

Read the rest of this entry »

Photo
…my solution to the problem…

(Demonstrating the Scan-dle to my colleagues from the OSC over a beer in a local pub. Photo: Reinhard Engels)

They are at the end of the gallery; retired to their tea and scandal, according to their ancient custom.

William Congreve

For a project that I am working on, I needed to scan some documents in one of the Harvard libraries. Smartphones are a boon for this kind of thing, since they are highly portable and now come with quite high-quality cameras. The iPhone 5 camera, for instance, has a resolution of 3,264 x 2,448, which comes to about 300 dpi scanning a letter-size sheet of paper, and a brightness depth of 8 bits per pixel provides an effective resolution much higher.

The downside of a smartphone, and any handheld camera, is the blurring that inevitably arises from camera shake when holding the camera and pressing the shutter release. True document scanners have a big advantage here. You could use a tripod, but dragging a tripod into the library is none too convenient, and staff may even disallow it, not to mention the expense of a tripod and smartphone tripod mount.

My solution to the problem of stabilizing my smartphone for document scanning purposes is a kind of document scanning smartphone handle that I’ve dubbed the Scan-dle. The stabilization that a Scan-dle provides dramatically improves the scanning ability of a smartphone, yet it’s cheap, portable, and unobtrusive.

The Scan-dle is essentially a triangular cross-section monopod made from foam board with a smartphone platform at the top. The angled base tilts the monopod so that the smartphone’s camera sees an empty area for the documents.[1] Judicious use of hook-and-loop fasteners allows the Scan-dle to fold small and flat in a couple of seconds.

The plans at right show how the device is constructed. Cut from a sheet of foam board the shape indicated by the solid lines. (You can start by cutting out a 6″ x 13.5″ rectangle of board, then cutting out the bits at the four corners.) Then, along the dotted lines, carefully cut through the top paper and foam but not the bottom layer of paper. This allows the board to fold along these lines. (I recommend adding a layer of clear packaging tape along these lines on the uncut side for reinforcement.) Place four small binder clips along the bottom where indicated; these provide a flatter, more stable base. Stick on six 3/4″ hook-and-loop squares where indicated, and cut two 2.5″ pieces of 3/4″ hook-and-loop tape.

When the board is folded along the “fold for storage” line (see image at left), you can use the tape pieces to hold it closed and flat for storage. When the board is folded along the two “fold for use” lines (see image at right), the same tape serves to hold the board together into its triangular cross section. Hook-and-loop squares applied to a smartphone case hold the phone to the platform.

To use the Scan-dle, hold the base to a desk with one hand and operate the camera’s shutter release with the other, as shown in the video below. An additional trick for iPhone users is to use the volume buttons on a set of earbuds as a shutter release for the iPhone camera, further reducing camera shake.scan-dle

The Scan-dle has several nice properties:

  1. It is made from readily available and inexpensive materials. I estimate that the cost of the materials used in a single Scan-dle is less than $10, of which about half is the iPhone case. In my case, I had everything I needed at home, so my incremental cost was $0.
  2. It is extremely portable. It folds flat to 6″ x 7″ x .5″, and easily fits in a backpack or handbag.
  3. It sets up and breaks down quickly. It switches between its flat state and ready-to-go in about five seconds.
  4. It is quite sufficient for stabilizing the smartphone.

The scanning area covered by a Scan-dle is about 8″ x 11″, just shy of a letter-size sheet. Of course, you can easily change the device’s height in the plans to increase that area. But I prefer to leave it short, which improves the resolution in scanning smaller pages. When a larger area is needed you can simply set the base of the Scan-dle on a book or two. Adding just 1.5″ to the height of the Scan-dle gives you coverage of about 10″ x 14″. By the way, after you’ve offloaded the photos onto your computer, programs like the freely available Scantailor can do a wonderful job of splitting, deskewing, and cropping the pages if you’d like.

Let me know in the comments section if you build a Scan-dle and how it works for you, especially if you come up with any use tips or design improvements.

Materials:

(Links are for reference only; no need to buy in these quantities.)


  1. The design bears a resemblance to a 2011 Kickstarter-funded document scanner attachment called the Scandy, though there are several differences. The Scandy was a telescoping tube that attached with a vise mount to a desk; the Scan-dle simplifies by using the operator’s hand as the mount. The Scandy’s telescoping tube allowed the scan area to be sized to the document; the Scan-dle must be rested on some books to increase the scan area. Because of its solid construction, the Scandy was undoubtedly slightly heavier and bulkier than the Scan-dle. The Scandy cost some €40 ($55); the Scan-dle comes in at a fraction of that. Finally, the Scandy seems no longer to be available; the open-source Scan-dle never varies in its availability.  ↩
Photo
…decided to write my own…

In a previous post, I proposed that open-access journals use the CC-BY license for their scholar-contributed articles:

As long as you’re founding a new journal, its contents should be as open as possible consistent with appropriate attribution. That exactly characterizes the CC-BY license. It’s also a tremendously simple approach. Once the author grants a CC-BY license, no further rights need be granted to the publisher. There’s no need for talk about granting the publisher a nonexclusive license to publish the article, etc., etc. The CC-BY license already allows the publisher to do so. There’s no need to talk about what rights the author retains, since the author retains all rights subject to the nonexclusive CC-BY license. I’ve made the case for a CC-BY license at length elsewhere.

Recently, a journal asked me how to go about doing just that. What should their publication agreement look like? It was a fair question, and one I didn’t have a ready answer for. The “Online Guide to Open Access Journals Publishing” provides a template agreement that is refreshingly minimalist, but by my lights misses some important aspects. I looked around at various journals to see what they did, but didn’t find any agreements that seemed ideal either. So I decided to write my own. Herewith is my proposal for a model OA publication agreement. Read the rest of this entry »

'reference' by flickr user Sara S.
… altogether too much concern with the contents of the journal’s spine text…
reference” image by flickr user Sara S. used by permission.

Precipitated by a recent request to review some proposals for new open-access journals, I spent some time gathering my own admittedly idiosyncratic thoughts on some of the issues that should be considered when founding new open-access journals. I make them available here. Good sources for more comprehensive information on launching and operating open-access journals are SPARC’s open-access journal publishing resource index and the Open Access Directories guides for OA journal publishers.

Unlike most of my posts, I may augment this post over time, and will do so without explicit marking of the changes. Your thoughts on additions to the topics below—via comments or email—are appreciated. A version number (currently version 1.0) will track the changes for reference.

It is better to flip a journal than to found one

The world has enough journals. Adding new open-access journals as alternatives to existing ones may be useful if there are significant numbers of high quality articles being generated in a field for which there is no reasonable open-access venue for publication. Such cases are quite rare, especially given the rise of open-access “megajournals” covering the sciences (PLoS ONE, Scientific Reports, AIP Advances, SpringerPlus, etc.), and the social sciences and humanities (SAGE Open). Where there are already adequate open-access venues (even if no one journal is “perfect” for the field), scarce resources are probably better spent elsewhere, especially on flipping journals from closed to open access.

Admittedly, the world does not have enough open-access journals (at least high-quality ones). So if it is not possible to flip a journal, founding a new one may be a reasonable fallback position, but it is definitely the inferior alternative.

Licensing should be by CC-BY

As long as you’re founding a new journal, its contents should be as open as possible consistent with appropriate attribution. That exactly characterizes the CC-BY license. It’s also a tremendously simple approach. Once the author grants a CC-BY license, no further rights need be granted to the publisher. There’s no need for talk about granting the publisher a nonexclusive license to publish the article, etc., etc. The CC-BY license already allows the publisher to do so. There’s no need to talk about what rights the author retains, since the author retains all rights subject to the nonexclusive CC-BY license. I’ve made the case for a CC-BY license at length elsewhere.

It’s all about the editorial board

The main product that a journal is selling is its reputation. A new journal with no track record needs high quality submissions to bootstrap that reputation, and at the start, nothing is more convincing to authors to submit high quality work to the journal than its editorial board. Getting high-profile names somewhere on the masthead at the time of the official launch is the most important thing for the journal to do. (“We can add more people later” is a risky proposition. You may not get a second chance to make a first impression.)

Getting high-profile names on your board may occur naturally if you use the expedient of flipping an existing closed-access journal, thereby stealing the board, which also has the benefit of acquiring the journal’s previous reputation and eliminating one more subscription journal.

Another good idea for jumpstarting a journal’s reputation is to prime the article pipeline by inviting leaders in the field to submit their best articles to the journal before its official launch, so that the journal announcement can provide information on forthcoming articles by luminaries.

Follow ethical standards

Adherence to the codes of conduct of the Open Access Scholarly Publishers Association (OASPA) and the Committee on Publication Ethics (COPE) should be fundamental. Membership in the organizations is recommended; the fees are extremely reasonable.

You can outsource the process

There is a lot of interest among certain institutions to found new open-access journals, institutions that may have no particular special expertise in operating journals. A good solution is to outsource the operation of the journal to an organization that does have special expertise, namely, a journal publisher. There are several such publishers who have experience running open-access journals effectively and efficiently. Some are exclusively open-access publishers, for example, Co-Action Publishing, Hindawi Publishing, Ubiquity Press. Others handle both open- and closed-access journals: HighWire Press, Oxford University Press, ScholasticaHQ, Springer/BioMed Central, Wiley. This is not intended as a complete listing (the Open Access Directory has a complementary offering), nor in any sense an endorsement of any of these organizations, just a comment that shopping the journal around to a publishing partner may be a good idea. Especially given the economies of scale that exist in journal publishing, an open-access publishing partner may allow the journal to operate much more economically than having to establish a whole organization in-house.

Certain functionality should be considered a baseline

Geoffrey Pullum, in his immensely satisfying essays “Stalking the Perfect Journal” and “Seven Deadly Sins in Journal Publishing”, lists his personal criteria in journal design. They are a good starting point, but need updating for the era of online distribution. (There is altogether too much concern with the contents of the journal’s spine text for instance.)

  • Reviewing should be anonymous (with regard to the reviewers) and blind (with regard to the authors), except where a commanding argument can be given for experimenting with alternatives.
  • Every article should be preserved in one (or better, more than one) preservation system. CLOCKSS, Portico1, a university or institutional archival digital repository are good options.
  • Every article should have complete bibliographic metadata on the first page, including license information (a simple reference to CC-BY; see above), and (as per Pullum) first and last page numbers.
  • The journal should provide DOIs for its articles. OASPA membership is an inexpensive way to acquire the ability to assign DOIs. An article’s DOI should be included in the bibliographic metadata on the first page.

There’s additional functionality beyond this baseline that would be ideal, though the tradeoff against the additional effort required would have to be evaluated.

  • Provide article-level metrics, especially download statistics, though other “altmetrics” may be helpful.
  • Provide access to the articles in multiple formats in addition to PDF: HTML, XML with the NLM DTD.
  • Provide the option for readers to receive alerts of new content through emails and RSS feeds.
  • Encourage authors to provide the underlying data to be distributed openly as well, and provide the infrastructure for them to do so.

Take advantage of the networked digital era

Many journal publishing conventions of long standing are no longer well motivated in the modern era. Here are a few examples. They are not meant to be exhaustive. You can probably think of others. The point is that certain standard ideas can and should be rethought.

  • There is no longer any need for “issues” of journals. Each article should be published as soon as it is finished, no later and no sooner. If you’d like, an “issue” number can be assigned that is incremented for each article. (Volumes, incremented annually, are still necessary because many aspects of the scholarly publishing and library infrastructure make use of them. They are also useful for the purpose of characterizing a bolus of content for storage and preservation purposes.)
  • Endnotes, a relic of the day when typesetting was a complicated and fraught process that was eased by a human being not having to determine how much space to leave at the bottom of a page for footnotes, should be permanently retired. Footnotes are far easier for readers (which is the whole point really), and computers do the drudgery of calculating the space for them.
  • Page limits are silly. In the old physical journal days, page limits had two purposes. They were necessary because journal issues came in quanta of page signatures, and therefore had fundamental physical limits to the number of pages that could be included. A network-distributed journal no longer has this problem. Page limits also serve the purpose of constraining the author to write relatively succinctly, easing the burden on reviewer and (eventually) reader. But for this purpose the page is not a robust unit of measurement of the constrained resource, the reviewers’ and the readers’ attention. One page can hold anything from a few hundred to a thousand or more words. If limits are to be required, they should be stated in appropriate units such as the number of words. The word count should not include figures, tables, or bibliography, as they impinge on readers’ attention in a qualitatively different way.
  • Author-date citation is far superior to numeric citation in every way except for the amount of space and ink required. Now that digital documents use no physical space or ink, there is no longer an excuse for numeric citations. Similarly, ibid. and op. cit. should be permanently retired. I appreciate that different fields have different conventions on these matters. That doesn’t change the fact that those fields that have settled on numeric citations or ibidded footnotes are on the wrong side of technological history.
  • Extensive worry about and investment in fancy navigation within and among the journal’s articles is likely to be a waste of time, effort, and resources. To first approximation, all accesses to articles in the journal will come from sites higher up in the web food chain—the Google’s and Bing’s, the BASE’s and OAIster’s of the world. Functionality that simplifies navigation among articles across the whole scholarly literature (cross-linked DOIs in bibliographies, for instance, or linked open metadata of various sorts) is a different matter.

Think twice

In the end, think long and hard about whether founding a new open-access journal is the best use of your time and your institution’s resources in furthering the goals of open scholarly communication. Operating a journal is not free, in cash and in time. Perhaps a better use of resources is making sure that the academic institutions and funders are set up to underwrite the existing open-access journals in the optimal way. But if it’s the right thing to do, do it right.


  1. A caveat on Portico’s journal preservation service: The service is designed to release its stored articles when a “trigger event” occurs, for instance, if the publisher ceases operations. Unfortunately, Portico doesn’t release the journal contents openly, but only to its library participants, even for OA journals. However, if the articles were licensed under CC-BY, any participating library could presumably reissue them openly.
Medical loss ratio versus year for Medicare and private insurers
…in the upper 90′s…
apparently from Health Care for America Now! via logarchism.com.

The Patient Protection and Affordable Care Act (ACA) limits the “medical loss ratio” (MLR) that an insurer can have — the percentage of collected medical premiums that must go to medical services for the insured. The minimum MLR mandated by the law is 80-85% depending on the particular market. (For simplicity, let’s call it 80%.)

On its face, this seems like a good idea. If an insurer’s MLR is really low, say 50%, they’re keeping an awful lot of money for administration and profit, and it looks like the premium-payers are getting a raw deal. By limiting MLR to at least 80%, premium-payers are guaranteed that at most 20% of their money will go to those costs that benefit them not at all. But there may be unintended consequences of the MLR limit, and alternatives to achieving its goal.

Because of the MLR limit, an insurance company that spends $1,000,000 on medical services can generate at most $250,000 in profit. They’d reach this limit by charging premiums totalling $1,250,000, yielding an MLR of 1,000,000/1,250,000 = .80. (Of course, they’d generate even less profit than this, since they have other costs than medical services, but $250,000 is an upper bound on their profit.) They can’t increase their profit by charging higher premiums alone, since this would just blow the MLR limit. The only way to increase the profits (governed by the denominator in the MLR calculation) is to increase medical services (the numerator) as well — pay for more doctor visits, longer stays, more tests, just the kinds of things we’re already spending too much on with our moral-hazard–infested medical care system. The MLR limit embeds an incentive for insurance companies to push for more medical services, whether needed or not.

And why 80%? Medicare has had an MLR in the upper 90%’s for a couple of decades, and private insurers used to make a go of it in that range as well in the early 1990′s. (See graph.) Other countries have MLR’s in the mid-90′s as well. An MLR limit of 80% means that once an insurer reaches 80% MLR, the regulation drops any incentive to improve further.

Wasn’t this moral hazard and inefficiency just the sort of thing the ACA was supposed to resolve by using market forces? When people buy insurance premiums on a transparently priced exchange, if one insurer is less efficient or egregious in profit-taking (therefore with a low MLR), it should end up outcompeted by more efficient and leaner insurers. No need to mandate a limit; the market will solve the problem.

If you think that the market forces in the health care exchanges won’t compete down adminstrative overheads and profits (that is, raise MLR) on their own and that regulation is necessary to prevent abuse, then you’re pretty much conceding that the market doesn’t work under the ACA, and that we should move to a single-payer system. MLR limits are not a way of achieving a more efficient insurance system but rather an admission that our insurance system is inherently broken. The MLR limit looks to me like a crisis of faith in the free market. What am I missing?

'Halves' by flickr user Julie Remizova
…how to split a cupcake…
Halves” image by flickr user Julie Remizova.

Why is gerrymandering even possible in a country with a constitutional right to equal protection?:

No State shall make or enforce any law which shall…deny to any person within its jurisdiction the equal protection of the laws.

By reshaping districts to eliminate the voting power of particular individuals, as modern district mapping software allows, some persons are being denied equal protection, I’d have thought. And so have certain Supreme Court justices.

It’s hard to know what to do about the problem. Appeals to fairness aren’t particularly helpful, since who decides what’s fair? It would be nice to think that requirements of “compact districts of contiguous territory” (as Chief Justice Harlan put it) would be sufficient. But this reduces the problem of districting to a mathematical optimization problem; James Case proposes something like minimum isoperimetric quotient tessellation of a polygon. But such purely mathematical approaches may yield results that violate our intuitions about what is fair. They ignore other criteria, such as “natural or historical boundary lines”, determined for instance by geographical features like rivers and mountains or shared community interests. These boundaries may not coincide with the mathematical optima, so any mathematical formulation would need to be defeasible to take into account such features. This leads us right back to how to decide in which cases the mathematical formulation should be adjusted: who should decide what is fair?

A comment at a ProPublica article about gerrymandering from “damien” caught my attention as a nice way out of this quandary. In essence, he proposes that the parties themselves choose what’s fair.

The first solution to gerrymandering is to have a fitness measure for a proposed districting (e.g. the sum of the perimeters), and then to allow any individual or organisation to propose a districting, with the winner having the best fitness value.

What “damien” is proposing, I take it, is the application of an algorithm somewhat like one familiar from computer science (especially cryptography) and grade school cafeterias known as “cut and choose”. How do you decide how to split a cupcake between two kids? One cuts; the other chooses. The elegance of cut-and-choose is that it harmonizes the incentives of the two parties. The cutter is incentivized to split equally, since the chooser can punish inequity.

Cut-and-choose is asymmetrical; the two participants have different roles. A symmetrical variant has each participant propose a cut and an objective third party selecting whichever is better according to the pertinent objective measure. This variant shares the benefit that each participant has an incentive to be more nearly equal than the other. If Alice proposes a cut that gives her 60% of the cupcake and Bob 40%, she risks Bob proposing a better split that gives her only 45% with him taking the remaining 55%. To avoid getting taken advantage of, her best bet is to propose a split as nearly equal as possible.

In the anti-gerrymandering application of the idea, the two parties propose districtings, which they could gerrymander however they wanted. Whichever of the two proposals has the lower objective function (lower isoperimetric quotient, say) is chosen. Thus, if one party gerrymanders too much, their districting will be dropped in favor of the other party’s proposal. Each party has an incentive to hew relatively close to a compact partition, while being allowed to deviate in appropriate cases.

A nice property of this approach is that the optimization problem doesn’t ever need to be solved. All that is required is the evaluation of the objective function for the two proposed districtings, which is computationally far simpler. (In fact, I’d guess the minimum isoperimetric quotient optimization problem might well be NP-hard.)

There are problems of course. The procedure is subject to gaming when the proposal-generating process is not private to the parties. It is unclear how to extend the method to more than two parties. Of course, the obvious generalization works once the eligible parties are determined. The hard part is deciding what parties are eligible to propose a redistricting. Most critically, the method is subject to collusion, especially in cases where both parties benefit from gerrymandering. In particular, both parties benefit from a districting that protects incumbencies for both parties. The parties could agree, for instance, not to disturb each other’s safe districts, and would benefit from observing the agreement.

Nonetheless, once districting is thought of in terms of mechanism design, the full range of previous algorithms can be explored. Somewhere in the previous literature there might be a useful solution. (Indeed, the proposal here is essentially the first step in Brams, Jones, and Klamler’s surplus procedure for cake-cutting.)

Of course, as with many current political problems (campaign financing being the clearest example), the big question is how such new mechanisms would be instituted, given that it is not in the incumbent majority party’s interest to do so. Until that’s sorted out, I’m not holding out much hope.

'scams upon scammers' by flickr user Daniel Mogford
…what 419 scams are to banking…
scams upon scammers” image by flickr user Daniel Mogford used by permission.

Investigative science journalist John Bohannon[1] has a news piece in Science earlier this month about the scourge of faux open-access journals. I call them faux journals (rather than predatory journals), since they are not real journals at all. They display the trappings of a journal, promising peer-review and other services, but do not deliver; they perform no peer review, and provide no services, beyond posting papers and cashing checks for the publication fees. They are to scholarly journal publishing what 419 scams are to banking.

We’ve known about this practice for a long time, and Jeffrey Beall has done yeoman’s work codifying it informally. He has noted a recent dramatic increase in the number of publishers that appear to be engaged in the practice, growing by an order of magnitude in 2012 alone.

In the past, I’ve argued that the faux journal problem, while unfortunate, is oversold. My argument was that the existence of these faux journals costs clued-in researchers, research institutions, and the general public nothing. The journals don’t charge subscription fees, and we don’t submit articles to them so don’t pay their publication fees. Caveat emptor ought to handle the problem, I would have thought.

But I’ve come to understand over the past few years that the faux journal problem is important to address. The number of faux journals has exploded, and despite the fact that the faux journals tend to publish few articles, their existence crowds out attention to the many high-quality open-access journals. Their proliferation provides a convenient excuse to dismiss open-access journals as a viable model for scholarly publishing. It is therefore important to get a deeper and more articulated view of the problem.

My views on Bohannon’s piece, which has seen a lot of interest, may therefore be a bit contrarian among OA aficionados, who are quick to dismiss the effort as a stunt or to attribute hidden agendas. Despite some flaws (which have been widely noted and are discussed in part below), the study well characterizes and provides a far richer understanding of the faux OA journal problem. Bohannon provides tremendous texture to our understanding of the problem, far better than the anecdotal and unsystematic approaches that have been taken in the past.

His study shows that even in these early days of open-access publishing, many OA journals are doing an at least plausible job of peer review. In total, 98 of the 255 journals that came to a decision on the bogus paper (about 38%) rejected it. It makes clear that the problem of faux journal identification may not be as simple as looking at superficial properties of journal web sites. About 18% of the journals from Beall’s list of predatory publishers actually performed sufficient peer review to reject the bogus articles outright.

Just as clearly, the large and growing problem of faux journals — so easy to set up and so inexpensive to run — requires all scholars to pay careful attention to the services that journals provide. This holds especially for open-access journals, which are generally newer, with shorter track records, and for which the faux journal fraud has proliferated in a short time much faster than appropriate countermeasures can be deployed. The experiment provides copious data on where the faux journals tend to operate from, where they bank, where their editors are.

Bohannon should also be commended for providing his underlying data open access, which will allow others to do even more detailed analysis.

As with all studies, there are some aspects that require careful interpretation.

First, the experiment did not test subscription journals. All experimenters, Bohannon included, must decide how to deploy scarce resources; his concentrating on OA journals, where the faux journal problem is well known to be severe, is reasonable for certain purposes. However, as many commentators have noted, it does prevent drawing specific conclusions comparing OA with subscription journals. Common sense might indicate that OA journals, whose revenues rely more directly on the number of articles published, have more incentive to fraudulently accept articles without review, but the study unfortunately can’t directly corroborate this, and as in so many areas, common sense may be wrong. We know, for instance, that many OA journals seem to operate without the rapacity to accept every article that comes over the transom, and that there are countervailing economic incentives for OA journals to maintain high quality. Journals from 98 publishers — including the “big three” OA publishers Public Library of Science, Hindawi, and BioMed Central — all rejected the bogus paper, and more importantly, a slew of high-quality journals throughout many fields of scholarship are conducting exemplary peer review on every paper they receive. (Good examples are the several OA journals in my own research area of artificial intelligence — JMLR, JAIR, CL — which are all at the top of the prestige ladder in their fields.) Conversely, subscription publishers also may have perverse incentives to accept papers: Management typically establish goals for the number of articles to be published per year; they use article count statistics in marketing efforts; their regular founding of new journals engenders a need for a supply of articles so as to establish their contribution to the publisher’s stable of bundled journals; and many subscription journals especially in the life sciences charge author-side fees as well. Nonetheless, it would be unsurprising if the acceptance rate for the bogus articles would have been lower for subscription journal publishers given what we know about the state of faux journals. (Since there are many times more subscription journals than OA journals, it’s unclear how the problem would have compared in terms of absolute numbers of articles.) Hopefully, future work can clear up this problem with controls.

Second, the experiment did not test journals charging no author-side fees, which is currently the norm among OA journals. That eliminates about 70% of the OA journals, none of which have any incentive whatsoever to accept articles for acceptance’s sake. Ditto for journals that gain their revenue through submission fees instead of publication fees, a practice that I have long been fond of.

Third, his result holds only for journal publishing in the life sciences. (Some people in the life sciences need occasional reminding that science research is not coextensive with life sciences research, and that scholarly research is not coextensive with science research.) I suspect the faux journal problem is considerably lower outside of the life sciences. It is really only in the life sciences where there is long precedent for author-side charges and deep pockets to pay those charges in much of the world, so that legitimate OA publishers can rely on being paid for their services. This characteristic of legitimate life sciences OA journals provides the cover for the faux journals to pretend to operate in the same way. In many other areas of scholarship, OA journals do not tend to charge publication fees as the researcher community does not have the same precedent.

Finally, and most importantly, since the study reports percentages by publisher, rather than by journal or by published article, the results may overrepresent the problem from the reader’s point of view. Just because 62% of the tested publishers[2] accepted the bogus paper doesn’t mean the problem covers that percentage of OA publishing or even of life sciences APC-charging OA publishing. The faux publishers may publish a smaller percentage of the journals (though the faux publishers’ tactic of listing large numbers of unstaffed journals may lead to the opposite conclusion). More importantly, those publishers may cover a much smaller fraction of OA-journal-published papers. (Anyone who has spent any time surfing the web sites of faux journal publishers knows their tendency to list many journals with very few articles. Even fewer if you eliminate the plagiarized articles that faux publishers like to use to pad their journals.) So the vast majority of OA-published articles are likely to be from the 38% “good” journals. This should be determinable from Bohannon’s data — again thanks to his openness — and it would be useful to carry out the calculation, to show that the total number of OA-journal articles published by the faux publishers account for a small fraction of the OA articles published in all of the OA journals of all of the publishers in the study. I expect that’s highly likely.[3]

Bohannon has provided a valuable service, and his article is an important reminder, like the previous case of the faux Australasian Journals, that journal publishers do not always operate under selfless motivations. It behooves authors to take this into account, and it behooves the larger scientific community to establish infrastructure for helping researchers by systematically and fairly tracking and publicizing information about journals that can help its members with their due diligence.


  1. In the interest of full disclosure, I mention that I am John Bohannon’s sponsor in his role as an Associate (visiting researcher) of the School of Engineering and Applied Sciences at Harvard. He conceived, controlled, and carried out his study independently, and was in no sense under my direction. Though I did have discussions with him about his project, including on some of the topics discussed below, the study and its presentation were his alone.  ↩
  2. It is also worth noting that by actively searching out lists of faux journals (Beall’s list) to add to a more comprehensive list (DOAJ), Bohannon may have introduced skew into the data collection. The attempt to be even more comprehensive than DOAJ is laudable, but the method chosen means that even more care must be taken in interpreting the results. If we look only at the DOAJ-listed journals that were tested, the acceptance rate drops from 62% to 45%. If we look only at OASPA members subject to the test, who commit to a code of conduct, then by my count the acceptance rate drops to 17%. That’s still too high of course, but it does show that the cohort counts, and adding in Beall’s list but not OASPA membership (for instance) could have an effect.  ↩
  3. In a videotaped live chat, Michael Eisen has claimed that this is exactly the case.  ↩
'myopic' by flickr user haglundc
…myopic…
myopic” image by flickr user haglundc used by permission.

I was invited by the British Academy for the Humanities and Social Sciences to write a piece on last year’s report “Accessibility, sustainability, excellence: How to expand access to research publications” by the Working Group on Expanding Access to Published Research Findings (the “Finch Report”). The paper is part of a collection on “Debating Open Access“.

The Finch Report has been broadly criticized by open access advocates for several reasons, especially its preferring gold to green OA, and doing so to such an extent that its proposals actually incentivize publishers to make their publication agreements less OA-friendly. In fact, there’s evidence that publishers are already acting on those incentives.

I took the opportunity to concentrate my remarks on one of the underemphasized problems with the Finch Report recommendations, their conflation of two quite different notions of gold open access: open-access journals and hybrid journals. The two models work quite differently from a market perspective, and ignoring the distinctions leads to incredibly bad incentives in the resulting recommendations.

The published version of the paper has been made available by the British Academy under a CC-by-nc-nd license. I’ve duplicated it below, under a CC-by license as with all Occasional Pamphlet postings.


The Working Group on Expanding Access to Published Research Findings first convened in 2011 at the behest of David Willetts, the UK Minister for Universities and Science, to “examine how most effectively to expand access to the quality-assured published outputs of research; and to propose a programme of action to that end.” The group consisted of representatives of various of the stakeholder communities related to scholarly publishing, and was chaired by Janet Finch. Their final report (Finch 2012) makes concrete policy recommendations for UK research funders to implement, and has been the basis for the policies being set by the Research Councils UK (RCUK).

There is much to like in the Finch Report on open access. The primary recommendations have to do with directly providing for open access to scholarly articles funded by UK research agencies.1 The report appropriately outlines four desiderata that need to be optimised to this end (Finch 2012, 17):

Access
The report takes as given the importance and desirability of open access to the scholarly literature.
Usability
It highlights the importance of a broad range of use rights, not just the ability for researchers to read the articles, but all other kinds of reuse rights as well.
Quality
The scholarly publishing system must, in the eyes of the Finch committee, continue to provide the vetting and filtering for quality that is the hallmark of the peer review system.
Cost and sustainability
It recognises that there are costs in publishing the literature, that the funders of research should take on those costs for the research they fund, and that the mechanisms for doing so must be sustainable.

Based on these principles, the report adduces certain conclusions. The access principle militates for articles being provided openly, so that the pure subscription revenue model, where revenue is based solely on limiting access to those willing and able to pay, is deprecated. The quality principle is taken to argue for journals that themselves provide open access to their articles, rather than relying on authors or institutions to merely provide supplementary access through article repositories. The cost and sustainability principle leads to the idea that funders might pay directly for the costs involved in journals’ processing of articles, these payments substituting for the deprecated subscription revenues. The usability principle entails that when articles are paid for in this way, they ought by rights to be usable as broadly as possible, for instance, through Creative Commons attribution licences.

Now for the bad. The concrete recommendations that the Finch Report outlines do not present a prescription for optimising these principles in the long term. Rather, they pursue short-term prescriptions that will likely provide merely incremental access gains at a very high cost. The primary problem in the Finch Report that leads to this unfortunate consequence is the conflation of two quite different market models as one: full open access and hybrid.

Three market structures

To understand why this is so, we must look to the underlying economics of article publishing, which governs the incentives of the participants in the market. There are three revenue models for journals that are at play in the Finch Report: subscription journals, open-access journals, and hybrid journals.

The subscription journal market

The current predominant market structure of the scholarly journal industry is based on reader-side payments, limiting access to those willing and able to pay subscription fees for the journals. This market structure is manifestly dysfunctional. The reader-side market has led to a well-attested decades-long spiral of hyperinflation of journal prices,2 causing libraries to have to cancel subscriptions, causing publishers to further raise prices to retain revenues. This vicious cycle has two bad effects: the costs to research libraries (and the funding agencies that provide their underwriting through overhead fees) have grown substantially and unsustainably in real terms, while cancellations mean less access to the articles themselves. It is this access problem that the Finch Report strives to address, subject to the cost and sustainability problem as well.

The reasons for the market dysfunction are, by now, well understood. First, the good being sold — access to articles — is a monopolistic good, based on the monopoly right of copyright, and as such is subject to monopoly rents. Second, subscription journals are not (in the economists’ parlance) substitutive goods; access to one journal does not decrease the value of access to another, and in fact may well increase the value (as journals cite each other), making them complementary goods. Complementary goods do not compete against each other like substitutive goods do. Third, journals are sold under conditions of moral hazard; the consumers (readers) are not the purchasers (libraries), and hence are insulated from the costs. As with all moral hazards, this leads to inelasticity of demand and overconsumption. Finally, consolidation of multiple journals under a few large publishers insulates these publishers from economic pressure from cancellations, since they can adjust prices on the remaining journals to compensate for lost revenue.

The subscription market structure thus violates both the access and cost and sustainability desiderata of the Finch Report. Clearly, any long-term strategy for broadening access to articles must move away from this market structure, rather than providing it further support.

In the shorter term, the access problems with the subscription market (though not the sustainability problems) can be greatly alleviated by providing supplementary access to the articles — so-called green open access — by posting copies of article manuscripts in subject-based or institutional repositories. Funding agencies have managed to generate tremendous access gains to their funded research by mandating such supplementary access, beginning with the “public access policy” of the US National Institutes of Health, which requires posting of author manuscripts in NIH’s PubMed Central repository no later than 12 months after publication. Although there is no evidence that immediate green open access has detrimental effect on publisher sustainability or even revenues (Maxwell 2012), embargoes such as those allowed for in the NIH policy (or the more widely used six-month embargoes found in essentially every other funder policy) further reduce any pressure on subscription revenue at the cost of delaying the access. But even if green open access did have an effect on market demand for subscriptions, this would be no argument against mandating it, so long as there were a viable alternative market structure for those journals to use.3

The open-access journal market

And indeed, there is an alternative market structure, one that is in fact highly preferable in that it does not have the same frailties as the reader-side subscription market structure, namely, an author-side market structure. In this system, the good being sold is not access for readers but publishing services for authors — the management of peer review (generating valuable feedback to the author); production services (such as copy-editing, typesetting, graphic design); and most importantly to academic authors, imprimatur of the journal. This market is seen most directly in open-access journals4 that charge a flat article-processing charge (APC), paid by or on behalf of authors. The APC spreads the costs of operating the journal plus a reasonable profit over the articles it publishes.

This market structure doesn’t have the same market dysfunction exhibited by the subscription market, both in theory and in practice. First, publisher services are not a monopolistic good; any publisher can provide them to authors. Second, from the point of view of an article author, journals are substitutive goods, not complementary goods, since submission to one journal does not increase the value of submitting to another journal. In fact, because an article can only be submitted to one journal, journals are perfect substitutes in the author-side market. Third, if authors pay APCs, there is no moral hazard, and if funders or employers pay on their behalf, moral hazard can be mitigated by introducing limits or copayments. (Shieber 2009) Finally, bundling doesn’t apply to the good sold in the open-access journal market as it does in the subscription market.5

For these reasons, one would expect strong market competition and price control in the open-access journal market in theory, and in practice, that is exactly what we see. Not only is there no evidence of hyperinflation, there are signs of strong price competition, with new models arising that can deliver publishing services at a fraction of the cost of subscription journals.

The hybrid journal market

A third market structure, the hybrid journal, plays a frequent role in discussions of open access and in the Finch Report in particular. Hybrid journals are subscription journals that also allow authors to pay an APC to make individual articles available open access. This model has been around for over a decade, and has been taken up by essentially all of the major subscription journal publishers. It has been touted as a transitional mechanism to allow journals to transition from the reader-side payments to writer-side payments. The theory goes that as more and more authors pay the APCs, the subscription fees will be reduced accordingly, so that eventually, once a sufficient fraction of the articles are covered by APCs, the subscription fees can be dropped altogether and the journal converted to full open access. Confusingly, both open-access journals and hybrid journals are sometimes included under the term gold open access, despite the fact that from an economic point of view they are quite distinct.

In particular, the hybrid model is not an appropriate transitional model to true open access. First, hybrid journals have not seen a major uptake in voluntary payment of hybrid APCs in practice. This is not surprising. There’s very little in it for authors, since they typically have a far less expensive alternative method for achieving open-access to their articles through green open access. (In this way, the hybrid model disincentivises publishers from allowing green open access, another perverse effect of the model.) There’s very little in it for universities too, who are unlikely to underwrite these hybrid fees on behalf of authors. Although paying the hybrid fees is supposed to lead to a concomitant reduction in subscription fees, it is extremely difficult to guarantee that this is occurring, and in any case any such reduction is spread among all of the subscribers, so provides little direct benefit to the payer. Of course, payment of hybrid fees could be mandated by a funder. (Getting ahead of ourselves a bit, this is essentially what the Finch Report promotes.) But even if this practice were widespread and most articles had their hybrid fees paid, journals would still have no incentive to switch to the full open-access APC-only model. Why would they voluntarily give up one of their two types of revenue? Finally, hybrid APCs are not subject to the competitive pressures of open-access APCs and would be predicted therefore to be higher. This is exactly what we see in practice, with open-access APCs shaking out in the $750–2000 range and hybrid fees in the $3000–4000 range.

Comparing Recommendations

Put together, these three facts — that the subscription market is inherently dysfunctional, that the open-access market is preferable and sustainable, and that the hybrid model entrenches the former to the exclusion of the latter — it becomes clear what the ideal recommendations should be for funders to provide open access in the short term while promoting a long-term transition to the preferable open-access market structure:

  1. Require that funded research articles be made openly accessible, either through publication in an open-access or hybrid journal or through green open access supplementary to publication in a subscription journal.6
  2. Support the open-access journal market by providing underwriting of reasonable APCs, so long as they allow for full reuse rights.
  3. Do not support entrenchment of the subscription model by underwriting hybrid APCs.

In terms of the four Finch Report desiderata, this approach provides essentially universal open access to UK-funded research (as the NIH policy has in the US for NIH-funded research); preserves quality by allowing authors to publish in subscription, open-access, and hybrid journals alike; works towards broader usability by guaranteeing that APCs provide for full reuse rights; and provides sustainability by supporting a competitive market mechanism and avoiding the high costs and counterproductive nature of paying to entrench the current dysfunctional mechanism. By avoiding payment of hybrid APCs, it forces journals to choose between (i) charging on the reader side and retaining the ability to limit access and (ii) charging on the writer side and allowing full use and reuse rights. Journals would not be able to retain their subscription revenues and pick up additional APCs as well, at least at the public’s expense.

Crucially, these recommendations recognise the difference between the two quite different market structures that are inappropriately lumped together under the rubric ‘gold open access’. Willingness to pay APCs for open-access journals is consonant with the idea that publishers ought to be compensated for their work and recognises that open-access journals cannot be compensated by virtue of their limiting access to those willing and able to pay, nor would we want to do so. Willingness to pay APCs for hybrid journals provides open access to that single article, but disincentivises publishers from moving journals from the subscription market to the open-access market; it is myopic.

By contrast, the pertinent Finch Report recommendations are different.

  1. Require that funded research articles be made openly accessible through publication in an open-access or hybrid journal.
  2. Pay for the costs of that open access through underwriting of APCs, whether at open-access journals or hybrid journals.

The change seems small. Instead of underwriting only open-access journals, it underwrites hybrid journals as well. And once both are underwritten, it is not necessary to allow for the admittedly less desirable green open access option.7

Again, we evaluate the recommendations in terms of the four desiderata. By its silence on the matter (outside of mention of “providing access to research data and to grey literature”), the report implies that green open access is to be eschewed even in the short term. However, the requirement to publish in journals providing for payment for open access is likely to lead to broader access, at least for those articles for which funds are available to pay the APCs, and its concentration on publication in open-access or hybrid journals recognises their ability to provide quality control that repositories alone do not. With regard to usability, the report is a bit equivocal in requiring broad licensing in return for APCs, but does say that “support for open access publication should be accompanied by policies to minimise restrictions on the rights of use and re-use, especially for non-commercial purposes”.

The policy fails primarily, however, in the area of cost and sustainability. It provides no mechanism for controlling the dramatic cost increase in covering both subscription fees and high hybrid APCs. (By definition, open-access journals don’t receive both kinds of fees, and their APCs are subject to market competition in a way that hybrid APCs are not, as discussed above.)

Similarly, in the short term, APCs will predominantly be paid to hybrid journals rather than open-access journals, as the hybrids constitute far more of the journal market. Journals will have no incentive to switch to the open-access model, and in fact, will be incentivised not to. Research libraries would still have to maintain their subscriptions in order to cover the substantial body of articles in hybrid journals that are not covered by APCs (because, for instance, they are not UK-funded). The total costs would be greatly increased, while still not solving the underlying market dysfunction.

In fact, the RCUK implementation plans for the Finch Report admit as much. It has become clear that there will be insufficient funds to cover all of the hybrid APCs, so that universities will be taken to be in compliance even if only a fraction of their articles are made available open access by the journals themselves, so long as the remaining fraction are available through green open access. In fact, the RCUK implementation of the Finch Report proposal even allows for longer embargo periods in case the green route is used because of insufficient APC funding (UK 2013). The Finch recommendations thus embed their own negation: they envision having to use green open access to implement a system that denies the utility of green open access.

The alternative, requiring open access ecumenically — through open-access journals, hybrid journals, or green supplementary access — while being willing to underwrite fees for a market structure that work sustainably in the long term — true open access journals — is simultaneously effective in providing access as well as in providing an impetus to a future of the kind of accessible and sustainable journal publishing system that the Finch Report aspires to.

Acknowledgements

Thanks to Peter Suber and Sue Kriegsman for comments on an earlier version of this article.

References

Bosch, Stephen, and Kittie Henderson. 2013. “The Winds of Change: Periodicals Price Survey 2013.” Library Journal (25 April). http://lj.libraryjournal.com/2013/04/publishing/the-winds-of-change-periodicals-price-survey-2013/.

Finch, Janet. 2012. “Accessibility, Sustainability, Excellence: How to Expand Access to Research Publications.” http://www.researchinfonet.org/publish/finch/.

Maxwell, Elliot. 2012. “The Future of Taxpayer-Funded Research: Who Will Control Access to the Results?.” http://www.emaxwell.net/linked/DCCReport_Final_Feb2012.pdf.

Shieber, Stuart M. 2009. “Equity for Open-Access Journal Publishing.” PLoS Biology 7. http://dx.doi.org/10.1371/journal.pbio.1000165.

———. 2013. “Why Open Access Is Better for Scholarly Societies.” The Occasional Pamphlet (29 January). http://blogs.law.harvard.edu/pamphlet/2013/01/29/why-open-access-is-better-for-scholarly-societies/.

Suber, Peter. 2012. “Tectonic Movements toward OA in the UK and Europe.” SPARC Open Access Newsletter (2 September). http://nrs.harvard.edu/urn-3:HUL.InstRepos:9723075.

UK, Research Councils. 2013. “RCUK Policy on Open Access and Supporting Guidance.” http://www.rcuk.ac.uk/documents/documents/RCUKOpenAccessPolicy.pdf.

Notes

  1. The report also provides a series of recommendations for increasing access within public libraries, strengthening the operations of institutional article repositories, gathering and analyzing pertinent data, reviewing how learned societies might be better supported, adjusting tax policy for journal publishers, and so forth. Many of these recommendations are reasonable and appropriate, but my main concern is the primary recommendations that relate to the market structure of journal publishing.
  2. For instance, Library Journal’s annual Periodicals Price Survey (Bosch and Henderson 2013) reported a 6% average price increase for 2013 during a period in which inflation increased at 1.7%, continuing their tracking of a multiple-decades-long trend of serials price increases at several times the rate of inflation.
  3. See the discussion by Peter Suber arguing that we should “weigh the demonstrable degree of harm to publishers against the demonstrable degree of benefit to research, researchers, research institutions, and taxpayers…. In short, we needn’t let fear of harm serve as evidence of harm, and we needn’t assume without discussion that even evidence of harm to subscription publishers would justify compromising the public interest in public access to publicly-funded research.” (Suber 2012)
  4. The term ‘open-access journal’ covers any journal that makes its scholarly article content freely and openly available online. However, we use the term here (as in the Finch Report) to refer to journals using a revenue model based on APCs. Although at present only a minority of OA journals charge any APCs, for the purpose of discussion of revenue models, the APC approach is the most plausible one for sustaining open-access journals in the long run. Already, it is used nearly universally by the major open-access journal providers.
  5. I have previously provided a fuller discussion of these issues of the difference between the subscription market and the open-access market, especially in the context of scholarly society publishing programs. (Shieber 2013)
  6. The treatment of hybrid journals we propose is appropriately subtle. Though authors are free to provide for the required open access by publishing in a hybrid journal (1), the funders would not underwrite the associated fee (3) as they would for a fully open-access journal (2).
  7. Although there are subscription journals that are not hybrid journals, the major publishers are uniformly moving in the direction of providing for hybrid fees, and smaller publishers are likely to follow suit over time. The Finch Report is silent on what to do about articles published in non-hybrid subscription journals. In the RCUK implementation documents, they allow green open access just in that case.
'Judge Coco Declares Ang Out of Line!' by flickr user Coco Mault
…going after plagiarists on legal grounds…
Judge Coco Declares Ang Out of Line!” image by flickr user Coco Mault used by permission.

One of the services that journal publishers claim to provide on behalf of authors is legal support in the case that their work has been plagiarized, and they sometimes cite this as one of the reasons that they require a transfer of rights for publication of articles.

Here’s a recent example of the claim, forwarded to me by a Harvard author of a paper accepted for publication in a Wiley journal.[1] The article falls under Harvard’s FAS open-access policy, by virtue of which the university held a nonexclusive license in the article. The author chose to inform the journal of this license by attaching the Harvard addendum to Wiley’s publication agreement. Wiley’s emailed response to her included this explanation:

You recently had a paper accepted for publication in [journal name] and signed an exclusive license form to which you attached an addendum from Harvard University. Unfortunately, we are unable to accept this addendum, as it conflicts with the rights of the copyright holder (in this case, the [society on whose behalf Wiley publishes the journal]). They guarantee the same rights that our copyright forms guarantee, but Harvard University, unlike Wiley, offers no support if your article is plagiarized or otherwise reused illegally.

(It then went on to list various rights that Wiley grants back to authors of articles in this journal, such as posting manuscripts in repositories, all of which are laudable, though they remained silent on their required 12-month distribution embargo.)

I have no problem with publishers requiring waivers of the Harvard open-access policy as a condition of publishing in their journals. They are their journals after all. And in the event, only a small proportion of articles, in the low single digits, end up needing waivers. But I bristle at the transparently disingenuous argumentation for their requirement. They make two separate arguments.

  1. The addendum “conflicts with the rights of the copyright holder”, the society on whose behalf Wiley publishes the journal.

    Wait, what? How is the society the copyright holder? Until the author signs a publication agreement, the author is the copyright holder. And the publication agreement itself doesn’t involve a transfer of copyright, but rather, an exclusive license to Wiley on behalf of the society. And anyway, whether it’s an exclusive license or a wholesale transfer of copyright, that doesn’t conflict with the addendum by virtue of the plain words in the addendum: “Notwithstanding any terms in the Publication Agreement to the contrary, Author and Publisher agree as follows:…”.

  2. If the addendum were allowed, “Harvard University, unlike Wiley, offers no support if your article is plagiarized or otherwise reused illegally.”

    Suppose that were true. (Though how would Wiley know what support Harvard gives its faculty when their work is plagiarized or used illegally?) Why would that be an issue? Nothing stops Wiley from providing that support on behalf of its authors, with or without the addendum. Either way it still receives an exclusive license from the author. Others illegally using the work are still violating that exclusive license.

    Unless of course the violator received a license by virtue of the prior nonexclusive license to the University mentioned in the addendum. Could that happen? Nope. The university uses its license only to authorize a particular set of uses. You can read them at the DASH Terms of Use page (see the “Open Access Policy Articles” section). They do not include plagiarism as a permitted use, or any illegal uses. (Is it even necessary to point that out?) The university also grants the authors themselves the ability to exercise rights in their article. But if someone explicitly received and exercised rights from a rights-holding author, it’s hard to see how that’s an illegal use.

    More fundamentally, however, there’s a basic premise that underlies this talk of publishers requiring exclusive rights in order to weed out and prosecute plagiarism, namely, that publishers would not be able to do so if they didn’t acquire exhaustive exclusive rights. But there’s no legal basis to such a premise that I can imagine.

    Plagiarism per se is not a rights matter at all, but a violation of the professional conduct expected of scholars. Pursuing plagiarists is a matter of calling their behavior out for what it is, with the concomitant professional opprobrium and dishonor that such behavior deserves. Publishers should feel free to help with that social process; they don’t need any rights to do so.

    Being “otherwise used illegally” gets more to the heart of the matter, as rights violations are presumably what the publisher has in mind. But it’s hard to see how publishers would need any rights themselves just to help an author out in prosecuting a rights violation. Suppose a publisher, rather than acquiring exclusive rights in an article, instead had authors license their articles under a CC-BY license. The publisher could still weed out and prosecute illegal uses of the article. There would be fewer opportunities for illegal use, since CC-BY allows lots of salutary kinds of use and reuse, subject only to proper attribution to the author and journal. But illegal uses might still arise from violating the attribution requirement of the CC-BY declaration. Nothing stops the publisher from looking for such gross plagiarisms of the articles they publish that rise to the level of rights violation, and from prosecuting the plagiarists on behalf of the authors. They could even write that into their agreements: “The Author grants the Publisher permission to prosecute violations of this license on the Author’s behalf, etc.”[2]

    (As an aside, the offer to prosecute plagiarists and rights violators isn’t much of a benefit in practice. How many instances of publishers going after plagiarists on legal grounds based on the publisher’s holding of rights have there ever been? As Jake said, “Isn’t it pretty to think so?”)

What’s really going on here is not a mystery. The publisher doesn’t like the idea of the author distributing copies of her work. The primary difference between the rights the publisher wants to grant the author and the rights specified in the open-access policy is that the former stipulates that the author not distribute copies of her article for twelve months after publication. The publisher is objecting so as to force a waiver of the open-access policy license to preserve their ability to limit access to the article. Of course, saying “we won’t accept the addendum because we want to limit people reading your article” doesn’t sound nearly as good as “otherwise we couldn’t go after plagiarists”.

Publishers are welcome to require waivers of Harvard’s open-access policies and the similar policies at other institutions, but hiding behind faux arguments in their explanations to authors isn’t attractive. They should come clean on the reasoning: They think it harms their business model.


  1. There’s a long history of this kind of thing. For instance, Peter Suber addressed the issue as raised by the International Association of Scientific, Technical and Medical Publishers way back in 2007.  ↩

  2. Not to mention the fact that open accessability of articles makes plagiarism easier to detect, and therefore provides a disincentive to plagiarize in the first place. For example, researcher at arXiv have reported on experiments for automatically finding cases of plagiarism in its open-access collection. Services like the Open Access Plagiarism Search project sponsored by the German Research Foundation (DFG) are working to make good on this potential.  ↩