Do copyrights and paywalls on academic journals violate the US Constitution?

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This essay is on Wikiversity to encourage a wide discussion of the issues it raises moderated by the Wikimedia rules that invite contributors to “be bold but not reckless,” contributing revisions written from a neutral point of view, citing credible sources -- and raising other questions and concerns on the associated '“Discuss”' page.

What percent of authors of articles in refereed academic journals are motivated to write for the royalties they expect to receive from publication?

More specifically, is there any documentation of any refereed academic journal offering substantive payment for articles published? In rare cases, the author of this article has seen prizes for, e.g., best paper of the year. However, to the extent that this author's experiences are typical of academic publishing, no reasonable human would submit an article to a refereed academic journal expecting substantive income derived from copyright royalties. Instead, researchers write to be read and cited, to contribute to the shared body of knowledge and culture of humanity, and to build their reputations. Many also write in part because hiring and promotions for many positions are based in part on publication records, especially at major research universities in the US.

In contrast, for many refereed academic journals, authors are required to assign the copyright to the journal as "a work made for hire", even though it wasn't. Prior to the Internet, that was justified to cover the costs of printing and distribution. Those days are gone.

Copyright Clause of the US Constitution

The Copyright Clause of the US Constitution says, "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Moreover, the Preamble to the United States Constitution says it was written in part to "promote the general welfare".

People who submit articles to refereed academic journals do so to be read and to build their reputations. To the extent that this is accurate:

• Firewalls on academic journals are obstacles to "the progress of science and the useful arts". They are obstacles to promoting the general welfare, in apparent violation of the US Constitution.

Why is this still part of US and international law?

One reason why this is still part of US and international law is that the major media have an inherent conflict of interest in honestly reporting on anything relating to copyright law. All revisions of US copyright and other law affecting the media in the last 100 years have been mostly written by and for the major media, approved by legislators, many and probably most of whom received "campaign contributions" from such media. Most of those legislators also doubtlessly knew that it would likely be political suicide to oppose the mainstream media.

One important US Supreme Court decision in this regard is Eldred v. Ashcroft. That case challenged the Sonny Bono Copyright Term Extension Act, which added 20 years to the terms of copyrights, including existing copyrights. That act has also been called the "Mickey Mouse protection act", because it extended by 20 years the date at which the first commercially successful Mickey Mouse cartoon would enter the public domain. It is difficult to understand how extending the term of existing copyrights retroactively could "promote the progress of science and the useful arts". However, the Supreme Court insisted that Congress had the authority to make that judgment. Lawrence Lessig, the lead attorney for the plaintiffs in that case, said he lost that case, because he focused too much on the law and too little on the economics. Lessig wrote, "Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. ... But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. Most books go out of print within one year. The same is true of music and film." Might it have been easier for Lessig to have won that case if relevant empirical economics research had been more readily available? For example, what is the implied discount rate for investments in copyrights, and how might that be impacted by different copyright terms?

Similar issues are raised by the current Publishers' lawsuit against the digital lending program of the Internet Archive, where digitized copies of books in their library can be checked out for an hour at a time. Both sides in that lawsuit have petitioned for a summary judgment.

In Free Culture, Lessig argues that a major obstacle to the evolution of culture is the provisions of copyright law requiring payment of royalties for "derivative works". A natural experiment in this regard compares the "Manga" comics industry in Japan with the rest of the world. Lessig wrote that in Japan, "Some 40 percent of publications are comics". He claims that a similar comics industry is not feasible in the US and in many other countries, because most of those comics would be considered "derivative works" of previous works, requiring prohibitive copyright permissions prior to publication. The written law in Japan is virtually identical, but the Japanese largely ignore the provisions for "derivative works".

Comparable concerns about the alleged negative impacts of patent law on public health were summarized by Graves and Samuelson (2022), who claimed that much of the loss of life from COVID-19, even in the developed world, has been due to variants that likely would not have existed if the early vaccines had been made available for free to the entire human population. Instead, the availability of the vaccines seems to have been managed to maximize the profits of major pharmaceutical corporations to the detriment of virtually all of humanity, except for major stockholders.

Returning to the primary question of this article, are there other justifications for paywalls and copyrights held by academic journals?

In particular, are copyrights and firewalls on academic journals accidents? Are they due to failures of the US Congress to fully consider the ramifications of what they've enacted? Or are they monuments to political corruption?

What to do?

To the extent that copyrights and firewalls on academic journals are obstacles to "the progress of science and the useful arts", there are things that individual researchers, academic administrators, and the public can do to help overcome this problem:

• RESEARCHERS can submit their work only to open-access journals and refuse to submit their work to journals that will put their work behind a paywall. (No one who wants to be cited wants their work behind a paywall if there is a reasonable alternative, because the firewall would likely reduce their audience.)

• ADMINISTRATORS managing research that produce articles for academic publications can insist that their researchers submit their work only to open-access journals. (Anyone wanting to build the reputation of their research wants their publications to be read. Paywalls and copyrights are obstacles to that.)

• CITIZENS should demand that their elected officials enact two reforms affecting copyrights:

- All government funded research should be freely available, not behind a paywall, and should either be in the public domain or with a license no more restrictive than the Creative Commons Attribution Share-Alike (CC BY-SA) 4.0 International license.

- Copyright law should be changed to forbid restrictive copyrights on "works for hire" when they are not actually written with a plausible expectation of receiving income derived from copyright royalties. This would leave in place all current practices for publications other than academic journals.

References

• Belal Ehsan Baaquie; Muhammad Mahmudul Karim (28 September 2022). "Pricing risky corporate bonds: An empirical study". Journal of Futures Markets. Wikidata Q115182954. ISSN 1096-9934. 
• Spencer Graves; Douglas A. Samuelson (March 2022). "Externalities, public goods, and infectious diseases". Real-world economics review (99): 25-56. Wikidata Q111367750. ISSN 1755-9472. http://www.paecon.net/PAEReview/issue99/whole99.pdf. 
• Lawrence Lessig (2004a), Free Culture, Penguin Books (published 25 March 2004), OL 6037024W, Wikidata Q830526
• Lawrence Lessig (2004b). "How I Lost the Big One". Legal Affairs. 1 April 2004. Wikidata Q112663181. ISSN 1538-8123. https://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp. 
• Robert W. McChesney (2004). The Problem of the Media: U.S. Communication Politics in the 21st Century (in en). Monthly Review Press. Wikidata Q7758439. ISBN 1-58367-105-6. 
• Guy Rolnik; Julia Cagé; Joshua Gans; Ellen P. Goodman; Brian G. Knight; Andrea Prat; Anya Schiffrin (1 July 2019), Protecting Journalism in the Age of Digital Platforms (PDF), Booth School of Business, Wikidata Q106465358