Steven Shavell (Harvard Law School; National Bureau of Economic Research) has posted Should Copyright of Academic Works be Abolished? (The Journal of Legal Analysis, Forthcoming) on SSRN. Here is the abstract:
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The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would no longer be able to profit from reader charges. If these author publication fees would actually be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) – suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should probably be achieved by a change in law, for the “open access” movement that effectively seeks this objective without modification of the law faces fundamental difficulties.
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The problems and only partial success of the open access movement are not difficult to explain. Obviously, traditional publishers would be unwilling to cede copyright privileges for nothing, for that would end their ability to charge for access. Traditional publishers would have to be paid to give up copyright, but as I discussed in Section 2.1, authors would not be expected to find it personally advantageous to do this; they will prefer for publishers to hold copyright in order to avoid having to pay fees for open access publication. This is presumably why open access initiatives have been generally limited in nature and have not sought immediate open access to published articles themselves.
The relative lack of success of open access journals is also not hard to understand. A primary difficulty for an open access journal is, again, that authors will usually not want to pay publication fees to an open access publication; authors will tend to prefer to save these fees and not to benefit from the expanded readership that open access to their own works would bring. An additional problem for an open access publication is that authors will be reluctant to publish with them due to their lack of prestige, as I mentioned above. Indeed, I suspect that many academic authors would consider their lack of prestige a more serious disadvantageous of open access publications than possibly having to pay publication fees.79
If open access publications are of lower quality than many traditional publications, the question arises why this would be so. The answer is presumably that open access publications were relatively recently begun and that high-quality publishing venues are difficult to establish. There is, though, no apparent intrinsic basis for believing that open access journals would be of low quality. Open access journals can charge sufficiently high submission and publication fees to finance a rigorous refereeing and editorial process; they can, and would generally be motivated to, exercise selectivity in the works that they accept for publication.80 Hence, the quality disadvantage of open access journals would be expected to wane over time.
Another issue of relevance is the possibility that traditional journals would convert into open access journals.81 Conversion would, however, seem usually to go against the joint interests of authors and journals because authors, as I have emphasized, would usually prefer to avoid publication fees and to transfer copyright to journals so that they can impose charges on readers. Equivalently, if a traditional journal converted to an open access plan and charged publication fees, its submissions from authors would be likely to fall.82 A subset of authors, however, might prefer to pay publication fees in order to obtain open access for their articles, suggesting that a traditional journal might offer the option to an author of paying a publication fee and having that article freely available for downloading on the Internet.83
