Briefly, Poynder is arguing that the mis-match of resources, expertise and motivation makes it futile to depend on a transaction between an author and a publisher to provide useful open access to scientific articles. As I have argued before, Poynder concludes that the only way out is for Universities to act:
As it happens, the much-lauded Harvard open access policy contains the seeds for such a development. This includes wording along the lines of: “each faculty member grants to the school a nonexclusive copyright for all of his/her scholarly articles.” A rational next step would be for schools to appropriate faculty copyright all together. This would be a way of preventing publishers from doing so, and it would have the added benefit of avoiding the legal uncertainty some see in the Harvard policies. Importantly, it would be a top-down diktat rather than a bottom-up approach. Since currently researchers can request a no-questions-asked opt-out, and publishers have learned that they can bully researchers into requesting that opt-out, the objective of the Harvard OA policies is in any case subverted.Note the word "faculty" above. Poynder does not examine the issue that very few papers are published all of whose authors are faculty. Most authors are students, post-docs or staff. The copyright in a joint work is held by the authors jointly, or if some are employees working for hire, jointly by the faculty authors and the institution. I doubt very much that the copyright transfer agreements in these cases are actually valid, because they have been signed only by the primary author (most frequently not a faculty member), and/or have been signed by a worker-for-hire who does not in fact own the copyright.
I tried that last argument the other way around, with no notable impact: since legally faculty are employees, therefore legally the copyright belongs to the institution, therefore faculty assignments to publishers are invalid. No-one cared, even when Glasgow was updating all its Ts & Cs. There's a JISC report somewhere lamenting that the legal status of faculty writing is extremely murky in most institutions, when it could simply be tidied up with a few policy statements.
Chris, I think in most cases faculty (but not staff and post-docs) have an employment contract that specifies copyright status. Stanford's policy states:
"In accord with academic tradition, except to the extent set forth in this policy, Stanford does not claim ownership to pedagogical, scholarly, or artistic works, regardless of their form of expression."
But this is simply a policy, not a contract term as I understand it, although it might be incorporated by reference in faculty contracts. But I'm pretty sure that non-faculty authors are not covered by contract terms.
Thanks for commenting on, and linking to, my document David. Actually, I was not proposing that universities intervene in this way, but rather warning that they are likely to do so unless researchers become copyright literate and take the initiative themselves. Leading up to the paragraph you quote, for instance, I say:
"If researchers don’t become au fait with copyright, and use that knowledge to contain and control publishers – by, for instance, refusing to assign copyright/exclusive rights to them, and insisting that a proper assessment of the pros and cons, and possible unintended consequences, of wide-scale use of CC BY is undertaken – then universities are likely to impose new restrictions and rules on them, further eroding their independence and freedoms."
It may be that I could have made this clearer as I think Peter Suber also concluded that I was recommending that universities appropriate faculty copyright -- see here.
That said, I suspect that this is where we are currently headed.
The effects of researchers' lack of understanding of copyright are evident in Jon Tennant's Illegal file hosting site, ResearchGate, acquires massive financial investment and Glyn Moody's commentary on it, Bill Gates And Other Major Investors Put $52.6 Million Into Site Sharing Unauthorized Copies Of Academic Papers.
"Based on a random sample of English language articles drawn from ResearchGate, the study showed that:
The key finding was that 201 (51.3%) out of 392 non-OA articles infringed the copyright and were non-compliant with publishers’ policy.
While this sample size was small, there is no reason to think that the same cannot be said if we scale up to consider the entire corpus of articles shared on RG. This means that around half, or approximately 50 million, research papers on RG are most likely illegally hosted."
"SciHub claims that it is “the first pirate website in the world to provide mass and public access to tens of millions of research papers”, providing access to 58 million articles at the present, all provided by a global user base. Well, this isn’t really true, is it. ResearchGate has been around longer (2008), and is in effect a pirate website of almost twice the size, now with the backing of major investors.
The difference is that SciHub is run by one frustrated student, whereas RG emphasises the massive-scale problem with access to knowledge through 12 million researchers as members. SciHub is the same as RG though in that it is the vast number of users who commit the copyright infringement, with both platforms simply acting as the hosts for this activity."
Here is Moody:
"If that analysis is correct, it would seem that ResearchGate holds roughly as many unauthorized copies of academic papers as Sci-Hub. Despite that fact, ResearchGate has just revealed that back in November 2015, it received investments totalling $52.6 million from some rather starry names, including that famous hater of pirates, Bill Gates:
Wellcome Trust, Goldman Sachs Investment Partners, and Four Rivers Group with participation from Ashton Kutcher, Groupe Arnault, Xavier Niel, and existing investors Bill Gates, Tenaya Capital, Benchmark, and Founders Fund."
Actually, the more concerning "starry name" is the Wellcome Trust. Moody concludes:
"Still, the contrast between ResearchGate, which has received major investments from some rather big names, and Sci-Hub, which is currently being pursued in the courts by Elsevier, is stark, given that their respective holdings turn out to be so similar. It's another indication that the academic publishing system is broken, and that copyright is an irrelevance as far as millions of researchers are concerned.
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