PAPER TIGERS: RETHINKING THE RELATIONSHIP BETWEEN COPYRIGHT AND SCHOLARLY PUBLISHING

Discontent is growing in academia over the practices of the proprietary scholarly publishing industry. Scholars and universities criticize the expensive subscription fees, restrictive access policies, and copyright assignment requirements of many journals. These practices seem fundamentally unfair given that the industries’ two main inputs - articles and peer-review - are provided to it free of charge. Furthermore, while many publishers continue to enjoy substantial profit margins, many elite university libraries have been forced to triage their collections, choosing between purchasing monographs or subscribing to journals, or in some cases, doing away with “non-essential” materials altogether. The situation is even more dire for non-elite schools, individual scholars, and members of the general public. There is a growing sense within the scholarly community that change is needed, but change, thus far, has come slowly.In this Article, I attempt to neutralize the part of the problem that deals with copyright issues by showing that, at least with respect to copyright, scholarly publishers are “paper tigers”: the legal basis of their copyright claims is less secure than is commonly assumed. In so doing, I hope to offer universities an alternative approach to promoting change within scholarly publishing.In Part I, I explain how, despite customary practice and common (mis)understanding, universities in fact own the copyrights in faculty-created works under the work-for-hire doctrine.13 While a common law “teacher exception” existed at one time to exempt teachers from the operation of the work-for-hire doctrine, Congress’ failure to codify the exception in the 1976 revisions to the Copyright Act extinguished the old common law rule. In Part II, I describe how, in response, universities developed various policy “solutions” in an attempt to circumvent the application of the work-for-hire doctrine. However, these solutions fail to satisfy the requirements set forth in the Copyright Act. I argue that while these policy failures have damaging implications for the proprietary scholarly publishing industry, the potential effect on the public’s interest in open access to scholarly works is quite promising. In Part III, I explore some of the implications of this revised understanding of the law and address concerns expressed by some scholars and commentators that faculty-creators will be harmed by university ownership of copyright. Finally, I conclude with a series of recommendations that universities could undertake to reduce reliance on the proprietary scholarly publishing industry and empower faculty while promoting open access