John Willinsky, Copyright’s Constitutional Violation: When the Law Fails to “Promote the Progress of Science” (While Promoting Practically Everything Else)

Draft of a book by John Willinsky, shared in a Google doc.

"A summary of this book’s case for an open access reform of the United States Copyright Act:

1. A consensus has recently formed among scholarly publishing’s principal stakeholders (including the big publishers) that open access to published research does more than closed subscriptions for the progress of science.  

2. This consensus means that the current use of copyright to restrict access to research places the law in violation of the Constitution, which holds that such laws are “to promote the progress of science,” rather than impede it.  

3. In lieu of copyright reform, the National Institutes of Health and other parties have created legal and extra-legal workarounds that compromise open access (with embargoes, final drafts, illegal copies), slow its spread, and allow costs to soar, with copyright contributing to open access’ market failure to date.  

4. Yet, copyright offers a promising strategy in “compulsory licensing,” which could require, in the case of scholarly publishing, immediate open access to published research and fair compensation to its publishers from its principal institutional users and funders.  

5. Such reform would be daunting, if Congress had not amended copyright nearly 60 times in the digital era (but not for science), with many of its reforms now operating internationally, which is the goal for open access copyright reform. ..."