Who is the owner of open access’ publications?

LORENA PILLONI MARTÍNEZ

We could answer this question by asserting that, without the slightest doubt, and according to the founding document of the open access movement (Budapest Declaration), publications in open access belong to the author. But we could also say that open access publications, which come from public financing, in a sense belong to everyone as long as their access is free. We can distribute them, and in many cases, transform them, create from them other works or even commercialize them thanks to Creative Commons licenses. Do these statements contradict each other? Are authors free to manage their works in open access? Or are their institutions the ones who take charge of this? Or the publishing industries? Or the readers? It’s not about who officially holds the copyright, patrimonial and moral rights but about the relationship between the producer and their production conditions and their product, and about who, in practice, can access, use, transform, commercialize, benefit and manage scientific publications in open access and who has or doesn’t have restrictions on this.

The open access —and open science— movement believes that putting knowledge in open access using tools such as Creative Commons helps democratizing knowledge and benefits society, even authors, who can fully see the possibility of having their works disseminated, read, cited and used in and out of the academy. It only seems that circulation —of publications, data, information— is being prioritized at all costs and the relationships in which they are produced and employed are darkened, this optimistic view with good intentions notwithstanding. We want to focus our attention on that because unless those relationships are addressed, monitoring mechanisms, mechanisms for private appropriation of academic production and mechanisms of economic and social inequality maintenance will remain hidden, and they may still reproduce themselves regardless even the most radical adoption of open access and open science principles.

It only seems that circulation —of publications, data, information— is being prioritized at all costs and the relationships in which they are produced and employed are darkened.

Therefore, it’s not enough to consult copyright laws for, even them, are the result of the weak balance of wider social relationships. A socio-historic (and even economic) approach is required. We barely propose an incomplete one herein. This is our caveat: this text does not narrowly and finally answers the title but tries to provide elements to maintain the debate, contributing thus to the critical discussion on the implications of open access beyond the enthusiasm with which Latin America has embraced it.

With this in mind, the text is divided in six parts, including this introduction, which will be released in two installments. In the first part we talk about the reception of open access in Latin America which recently has gone from euphoria for its adoption to discomfort for witnessing that despite the existence of the benevolent open access there are new ways to appropriate public resources privately, and also, we think, because the academic work hasn’t been presented as a problem in this context. In the second part we’ll briefly look back to the socio-historic background of copyright and we’ll show that from its inception the regulatory framework is the result of the ongoing tension between protecting creators and producers, on the one hand, and seeking to widen social access to the works of human creativity on the other. In the third section we begin to examine, briefly, the conditions of academic journals. In the fourth one, included in the second installment, we touch on some characteristics of open access concerning intellectual property as considered in the most important documents of such movement, and we mention some of its social and economic implications including those related to the conditions of academic work. Lastly, we reflect upon the contradictions that intellectual property and open access experience in practice in Latin America. Before such contradictions we, institutions, editors and researchers, bear responsibility.

Euphoria and discomfort

In Latin America we have embraced open access with great euphoria and now open science too. Due to our context and historic conditions we are sure and proud of our tradition, of being pioneers, we too are riding the Northern wave of open access. Generally, we accept its arguments without being defiant: technological determinism; the presupposition that science has been mostly closed and must be open; that open access and open science are built collaboratively; that it’s necessary to democratize science and release knowledge(Mirowski, 2018: 173-178). Of course, this implies adopting Creative Commons licenses, which help restrict more or less the users’ permissions to access contents. Although we can decide between the most open and the most restrictive license, which doesn’t allow neither commercial use nor derivative works, various sectors of the open access movement explicitly promote from their beginnings the most open license (CC BY)¹ It seems we have assumed that such license will be generalized as the academic community is more persuaded about the benefits science and society find in demolishing completely every barrier that impedes accessing knowledge.

However, two phenomena are striking: (a) there are some contradictions in how we use Creative Commons licenses since open access in our countries coexists with practices and rules that come from distant logics and that precede copyright, and while we discuss the convenience of adopting the most open licenses, we keep restricting publications, justifying ourselves in our copyright laws and institutions, which haven’t considered, not fully, the very open nature of licenses; (b) we hardly bring the economic, political and work implications of the North open access principles into question. We embrace such principles, we wrongly accept that they are ideologically and politically neutral or even from a leftist tradition (Golumbia, 2016: 74-75), and that science is a world separated from the social sphere. We must bear in mind that we cannot produce science in the void. We produce scientific knowledge in a social context and as part of certain social and economic relationships current in a specific historic moment. Some economic, political and social relationships cross and condition scientific production and communication, which maintain the imbalance of power and resources, the inequalities that are manifested and reproduced in the scientific field among countries, regions, institutions, researchers, publications, editors.

After all, when we place contents in open access to release knowledge, are we sure we are “democratizing” it, promoting its social appropriation by simply putting it online unrestrictedly instead of maintaining the recognition of its authorship? Are we certain that such knowledge release presupposes beforehand the freedom of the creator of those contents? What is the relationship between those who with their work contribute to produce scientific publications in open access and their products? Can they command the destiny of their products? Are we rewarding them properly because of their social function of providing the whole world with their scientific knowledge financed publicly? What if more openness conditions favor a subsequent private and profitable appropriation by the great publishing firms? How much does this appropriation benefit authors and society? The increasing awareness of this last point is producing discomfort among several sectors who are in favor of open access in our region. Such discomfort has been expressed, for example, in the Declaration of Mexico, of which we’ll talk about later on.

In retrospect: a brief history of copyright

Copyright and use of Creative Commons licenses cannot be understood apart from economic and social relationships in which they sprout since they result from them. As Fernando Miró (2007) argues intellectual property, in general, responds to the great social and economic changes, it evolves with them. Very often the problem around intellectual property rights manifests itself as the tension between various interests that apparently seem to contradict one another: (a) the interest of right holders —authors, editors or producers— to get profit from exploitation; (b) the collective and social interest of encouraging the creation of inventive works; (c) the collective and social interest of offering society easy access to as many as possible of those works. Internet has aggravated the conflict between maximum access and the interest of promoting motivation and creation (Miró, 2007: 108). How these tensions are solved at a certain time through legislation tells much about the social relationships of force between different stakeholders and of the interests that prevail in different periods.

Intellectual property rights as we know them emerged in the 18th century, though there are ancient records of them. Miró states that in ancient times there was no recognition nor legal protection to these rights as there are today, they appeared only when there were economic and scientific and cultural conditions that so demanded it. Such conditions were formed early in our modern age as market economy evolved and along with great advancements in technology such as the printing press.

The huge changes the printing press brought are evinced in that “the books produced in the first 50 years following its creation were, most certainly, much more than those of the previous one thousand years” (Derry and Williams, 2006: 339). By 1450 book production was in its early childhood but around 1500 almost 40,000 editions were already registered (Derry and Williams, 2006: 347).

The transforming power of the printing press was caused by (1) the technical possibility of making, for the first time, thousands of copies at low cost, which meant a new economic reality: intellectual creation as an entity separated from its possible copies, and (2) by widening access to works on account of that possibility to make innumerable copies. In the first, the logical result was the emergence of competition, even excessive and unfair. Thus, printing privileges were created, that is, privileges of industrial introduction into a territory for a limited time. They were not destined directly to protect copyright but to favor the industry, yet it was an initial step.

There were also some authors grounded in their work but the printer’s work was more common. Even so, privileges to authors let us see more awareness of their rights as creators of their works. The widening of printing privileges led to the relationship between authors and editors to negotiate the sale of works.

On the other hand, public authorities saw the wide access to such works as dangerous and as an opportunity. Hence, privileges together with royal privileges (permissions to editors for printing) were used as a way to control. Such control norms hampered the development of the publishing industry in countries such as Spain. This would change in the 18th century.

At the end of the 17th century we see the transition from privileges to copyright: privileges granted to authors proliferated and norms concerning the concession of privileges to editors to whom authors granted permission emerged. Neither liberalism nor the economic development were suitable for the concept of privileges since it restricted competition.

It was no coincidence that in the 18th century a qualitative advancement was produced regarding the laws on intellectual property and the separation between copyright and patrimonial and moral rights was established. In England, the Statute of Anne in 1710 was the turning point. It prescribed a copyright term of 14 years, which started in the first publication, for the author or for them to whom they chose to license their works. This term could be renewed if the author was still alive. The author was recognized, by law not by privilege, with the exclusive copyright. The idea was “to give preeminence to copyright in order to render profitable the author’s works, and consequently, promote their artistic creation but in a specific term after which freedom to increase the business and the possibility that others have access to the works reigns ( Miró, 2007: 125). With this, protection of collective interests such as scientific and cultural promotion was sought more than the author’s individual interests originated in the natural rights as well as creating economic incentives for the development of industry. Accordingly, regulations focused more on the copy than in the author and there was a special stress on the fact that restrictions in favor of authors were temporal.

On the other hand, the moral rights system (continental system) was developed in the transition from old privileges to a more modern system few years later as the industrial economy progressed in the continent following the English avant-garde. The French norms of 1777 granted a privilege —exclusive and for life— to the author simply for their creation. Spanish regulations were similar at the time. Both coincide with the idea that “the author was the owner of their works” but it was until 1789 with the abolition of all privileges that absolute right was granted to the author for their works. A property relationship between the author and their works was being brewed. Roger Chartier claims that this author-owner concept was not the initiative of authors but of bookseller-editors as a way to defend their privileges, and this was both in the French and English systems, with the idea that “if the author becomes the owner, the bookseller by receiving the license of the manuscript becomes in due course the owner as well” (Chartier, 2018: 44).

Some initiatives have emerged with the expansion of the digital world at the end of the 20th century that seek to introduce additional standards to copyright norms, more open ones concerning the use of works circulating online, not restricting standards but ones that widen the possibilities of reuse.

Either way, protecting the author implied recognizing their right to admit works as the result of a job, and consequently, recompense for that job was legitimate (Chartier, 2018: 45). Accordingly, at first, preeminence was given to the particular interests of the author more than to the general interest in industry development or access to works. Nonetheless, Chartier points out that the legislation coming from the French Revolution while it recognized the author-owner’s right over their work, it restricted such right’s term because when expired works fell into the public domain (Chartier, 2018: 46).

With both models of intellectual property established, in the 19th century copyright began to be internationalized in order to protect authors beyond borders through bilateral treaties that would guarantee reciprocity in such protection. Such treaties, however, proved inadequate, and so a process to coordinate copyright in the international field was developed with specific institutions for that purpose, between the late 19th century —the Berne Convention (1886)— and the mid-20th century —the Universal Copyright Convention (1952) and the World Intellectual Property Organization (WIPO in 1967)—. Such convergence between both systems is now seen in the current tendency, for example, to recognize the authors’ moral rights in the copyright system (Miró, 2007: 138).

Some initiatives have emerged with the expansion of the digital world at the end of the 20th century that seek to introduce additional standards to copyright norms, more open ones concerning the use of works circulating online, not restricting standards but ones that widen the possibilities of reuse. For example, the creation of Creative Commons licenses in 2001, inspired by the GNU license of the free software and open source world. In a global economic context, predominantly neoliberal, in such licenses the stress is on the collective access to works rather than in the protection of producers’ rights —whether authors or editors.

Scientific journals and copyright history

In the mid-17th century academic journals appeared supported by scientific societies and, progressively, also together with specialized publishing companies such as Elsevier. Science development and the increase of scientific knowledge production required more efficient means of dissemination than correspondence interchange, which was predominant at the early 17th century. Over time journals evolved, from solely offering abstracts of scientific books to directly record new discoveries. But in general, in the 17th and 18th centuries such publications virtually served to record the presentations of scientific societies’ meetings or to reprint valuable articles previously published elsewhere. Books and monographs were still the preferred means to disseminate scientific knowledge (Baldwin, 2015: 11).

Over the 19th century the scientific journal as we know it today was shaped and began to be one of the main institutions for representation, certification and record of scientific knowledge (Baldwin, 2015: 12). In the mid-19th century began to be common the habit to cite in articles those “works which had being used as references for the research being published. The need scientists had to establish and maintain their contributions’ intellectual property was the main reason that motivated such modality since multiple discovery (discovery made by two or more people working independently), and consequently, the fight for priority was frequent.” (Mendoza and Paravic, 2006).

The development of such publications, at least from the 18th century in the copyright system, took place in a business model based on the transference or guarantee of exclusive rights by authors to publishers according to the Copyright Act 1710. Later on protecting editors’ and authors’ rights of the scientific field was established in the international law on copyright, specifically in the second section of Berne Convention. For a long time in the legal framework technological possibilities and a business model that generated benefits and incentives to the scientific publication market were considered (Peukert and Sonnenberg; 2017: 199 and 218).

Currently, with our own technological revolution, similar in the scale of its scope to that of the printing press, we find that possibilities through internet sharpen the conflict between collective interest and that of the right holders of intellectual property: economic incentives are put at risk, authors and editors may be harmed, but on the other hand, access and dissemination are strengthened.

In addition, the publishing dynamics in the scientific world has changed. Between the 19th century and the early 20th century most journals were published by non-commercial publishers, virtually the scientific societies themselves and universities. But the years following the Second World War, commercial publishers rapidly won more terrain, they published journals faster, waiting periods were shorter for authors, and with better quality and wider dissemination (D’Antonio, 2018: 158-161).

Such has been the change that in the last 40 years the amount of scientific production published in journals of only six greater editorial conglomerates, five of them private, has increased dramatically and this has increased in the digital age. In 1973 those great publishers controlled only 20% of publications. In 1996, 30%; and in 2013 they had more than 50% of the indexed in WoS (Cátedra libre, 2018: 2; Luchilo, 2019: 45-46).

Although “historically publishers played a crucial role in the dissemination of scientific knowledge, in the digital age options offered by the multiple resources we have help us call the traditional role they keep playing into question” (Cátedra libre, 2018: 3; in a similar sense see Peukert and Sonnenberg; 2017: 218). They have performed such function with a scheme of copyright that has stressed their patrimonial rights. They have enough economic power to impose their rules in subscriptions but also to influence academic evaluation. With this they guarantee even triple payments and the capture of copyright. Additionally, “quality control of what is published it’s not a value essentially added by publishers but by the scientific community itself that does it free of charge” (Cátedra libre, 2018: 3).

Thus, as Luchilo (2019: 43-44) states, part of the key to success and the big frame of benefits of the great oligopolistic publishing conglomerates is in the use they make of the free work of authors and examiners, they tie up academics’ intellectual property through exclusive granting of rights and then sell to educational and research institutions the editorial products at high cost.

This is so in a context of neoliberal policies which have paved the way for a tendency toward a precarious academic work (Pérez and Nairdof: 2015; Olaskoaga-Larrauriet al.: 2015; Darder and Griffiths: 2016; Buendía and others, 2017; Allmer: 2018), as programs of academic evaluation with incentives toward productivity increasingly more focused in the number of published works appear, especially scientific articles in journals indexed in Web of Science or Scopus (Barsky: 2014).