Athena Unbound and Untangling the Law of Open Access

Posted May 26, 2023

A few months ago, Authors Alliance and the Internet Archive co-hosted an engaging book talk featuring historian Peter Baldwin and librarian Chris Bourg. They discussed Baldwin’s new book, Athena Unbound: Why and How Scholarly Knowledge Should be Free For All. You can watch the recording of the talk here and access the book for free in open access format here.

Today, I’m beginning a series of posts aimed at clarifying legal issues in open access scholarship. Reflecting on some key takeaways from Athena Unbound seemed like a great place to start.

For those already well-versed in the open access community, you know that there is an abundance of literature covering the theory, economics, and sociological dimensions of OA. But, it’s easy to lose the forest for the trees.  Athena Unbound stands out by providing a comprehensive, high-level explanation of how we have reached the current state of open access affairs. The book offers much more than just commentary on the underlying legal structures that impact access to scholarly works. But, as we delve deeper into the legal aspects of open access in this series, I want to highlight three key takeaways on this issue:

  1. Copyright law does not cater to most academic authors.

“Open access does not seek to dispossess authors of their property nor to stint them of their rightful earnings. But authors are not all alike. Those whose creativity supplies their livelihood are entitled to the fruits of their labor. But most authors either do not make a living from their work or are already supported in other ways.” – Athena Unbound, Chapter 2, “The Variety of Authors and Their Content”

In theory, copyright law in the United States is designed to incentivize the creation of new works by granting strong and long-lasting economic rights. This framework assumes authors primarily function as independent operators (Baldwin likens them to “bohemian artistes”) who can negotiate these rights with publishers or directly with members of the public in exchange for financial support.

However, this framework does not align with the reality faced by most academic authors, who number in the millions. While scholarly authors deserve compensation for their work, their remuneration also often comes from sources like university employment. Their motivation to create stems from incentives to share ideas and discoveries with the world, as well as personal gains such as recognition and career advancement. For these authors, the publishing system and the laws that govern it have clash with their interests to such an extent that we now witness academic authors willingly paying thousands of dollars to persuade publishers to distribute their articles for free.

If anything, copyright law, with its excessively long duration, extensive economic control, and limited freedom for researchers to engage with creative works, hampers those authors’ goals in practice. As Baldwin explains, “the fundamental problem open access faces is worth restating. Copyright has become bloated, prey to the rent-seeking academic publishing industry… Legislators, dazzled into submission by the publishing industry’s success in portraying itself as the defender of creativity and cultural patrimony, bear much responsibility.”

As we explore the legal mechanisms that influence open access, it is crucial to remember that the default rules of the system are more often than not at odds with the goals of open access authors. 

  1. Open access must encompass more than contemporary scientific articles.

While much of the current open access discourse revolves around providing access to the latest scholarly research, particularly scientific articles, there is a vast amount of past scholarship that remains inaccessible. An inclusive approach to open access should address how to provide access to these works as well. The majority of research library holdings are not available online in any form. Baldwin uses the term “grey literature” to describe the extensive collections in research libraries that are no longer commercially available. As he points out, most books lose commercial viability rather quickly. “Of the 10,000 US books published in 1930, only 174 were still in print in 2001. Of the 63 books that won Australia’s Miles Franklin prize over the past half-century, ten are unavailable in any format.”

Many of these works have become so-called orphan works: they are so detached from the commercial marketplace that their publishers have gone out of business, authors have passed away, and any remaining rights holders who would benefit from potential sales are obscure, if they exist at all. Even Maria Pallante, former Register of Copyrights and current AAP president, agrees that in the case of true orphan works, “it does not further the objectives of the copyright system to deny use of the work, sometimes for decades. In other words, it is not good policy to protect a copyright when there is no evidence of a copyright owner.”

In addition to this issue around orphan works, a subset of what is known as the “20th Century black hole,” Athena Unbound also sheds light on the various concerns and challenges that act as barriers to open access in scholarly fields outside of the sciences. While the goals of open access may be the same across these different areas, the implementation can vary significantly. In the case of certain scholarly works, such as older books entangled in complex rights issues, we may need to settle for an imperfect form of “open,” such as read-only viewing via controlled digital lending—a far cry from what many consider true open access.

  1. The intricacies of ownership are significant.

Although this is not the primary focus of Athena Unbound, it is an important aspect that deserves attention. In simple terms, the legal pathway to open access appears straightforward: authors, often depicted as individual, independent actors, must retain sufficient rights to allow them to legally share and allow reuse of their writing.

However, reality is far more complex. Multiple-authored works, including in extreme cases thousands of joint authors on one scientific article, can complicate our understanding of who actually holds a copyright interest in a work and can therefore authorize an open license on it. 

Moreover, many if not most academic authors are employed by colleges or universities, each with its own perspective on copyright ownership of scholarly publications. In most cases, as Baldwin explains, universities have been hesitant to assert ownership of scholarly publications under the work-for-hire doctrine (a topic I will cover in a subsequent post), possibly based on the increasingly tenuous “teacher exception” to the work-for-hire doctrine. However, this approach is not universally adopted. For instance, some universities assert ownership of specific categories of scholarly work, such as articles produced under grant-funded projects. Others reserve broad licenses to use scholarly work for university purposes, albeit with ill-defined parameters.

Open access, or at least the type we commonly think of—copyrighted articles typically licensed under Creative Commons or similar licenses—depends heavily on obtaining affirmative permission from the rightsholder. But the identity of the rightsholder, whether it be the university, author, or even the funder, can vary significantly due to a wide range of factors, including state laws, university IP policies, and funder grant contracts. 

Stay tuned for more in this series, and if you have questions in the meantime, check out our open access guide and resource page.